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In Re: in the Matter of the Estate of C. Govindaswamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1937)2MLJ899
AppellantIn Re: in the Matter of the Estate of C. Govindaswamy
Excerpt:
- - no order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the court a valuation of the property in the form set forth in the third schedule, and the court is satisfied that the fee mentioned in no. 2. this, in short, enacts that no order granting probate shall be made until the court is satisfied that the proper fee has been paid. an application for probate is clearly a proceeding within the meaning of this rule. and in certain cases, it was found that persons were satisfied with merely obtaining an order on their petitions, without actually taking out probate or letters of administration......the order granting probate. this section was inserted by act xi of 1890, which amended the court-fees act. duty was being collected, not on the applications for, but on the grants of probate or letters of administration; and in certain cases, it was found that persons were satisfied with merely obtaining an order on their petitions, without actually taking out probate or letters of administration. it was with a view to guard against this evasion, that section 19-1 was inserted. this section thus prescribes as to when the court-fee is to be paid, and not by whom.4. moreover it must not be needlessly assumed that the law was intended to be altered.general words are not to be so construed as to alter the common law, or the previous policy of the law, if a sense or meaning can be applied.....
Judgment:

Venkatasubba Rao, J.

1. A novel question has been raised for which no precedent exists in this Court. This is a petition for probate. The petitioner says, he is a pauper and that is not disputed. The question raised, is, whether an order can be made granting him probate before payment by him of the succession duty. Section 19-1 of the Court-Fees Act reads thus:

No order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the third schedule, and the Court is satisfied that the fee mentioned in No. 11 of the first schedule has been paid on such valuation.

2. This, in short, enacts that no order granting probate shall be made until the Court is satisfied that the proper fee has been paid. It is in terms mandatory. But does this mean that the rules relating to paupers are inapplicable to petitions for probate or letters of administration? Order 8, Rule 14 of the Original Side Rules dealing with 'paupers', refers not only to suits but also to proceedings. It provides for applications for leave to sue or institute proceedings in forma pauperis. An application for probate is clearly a proceeding within the meaning of this rule.

3. Let me take another provision of the Court-Fees Act, which is equally imperative. Section 6 says that no document chargeable with a court-fee shall be received by any Court unless such fee has been paid. This provision does not stand in the way of a person being given leave to sue in forma pauperis. In fact Section 6 of the Court-Fees Act is subject to, and controlled by, Order 33 of the first schedule, Civil Procedure Code and Section 141, Civil Procedure Code. Order 33 relates to suits by paupers and Rule 8 exempts a plaint filed by a pauper, from payment of court-fee. Under Section 141, the procedure relating to suits by paupers, extends to proceedings also. In spite, then, of Section 6 of the Court-Fees Act, a Court can in the case of paupers, receive plaints bearing no stamps. I see no reason for holding that a different result follows from the wording of Section 19-1. It cannot be said that it is more mandatory (if such an expression is permissible) than Section 6. Section 19-1 must be reasonably interpreted. What it enacts is, that the succession duty should be paid before, and not after, the order granting probate. This section was inserted by Act XI of 1890, which amended the Court-Fees Act. Duty was being collected, not on the applications for, but on the grants of probate or letters of administration; and in certain cases, it was found that persons were satisfied with merely obtaining an order on their petitions, without actually taking out probate or letters of administration. It was with a view to guard against this evasion, that Section 19-1 was inserted. This section thus prescribes as to when the court-fee is to be paid, and not by whom.

4. Moreover it must not be needlessly assumed that the law was intended to be altered.

General words are not to be so construed as to alter the common law, or the previous policy of the law, if a sense or meaning can be applied to them consistent with the intention of preserving the existing policy untouched.' (Halsbury's Laws of England, Vol. 27, page 152.)

5. I find that my view receives support from In re Will of Dawubai I.L.R. (1893) Bom. 237. The headnote in that case reads thus:

Where an executor is not in possession of the property of his testator and cannot get possession of it, and where he has not himself the means of paying the necessary fees, he may be allowed to petition for, and, if entitled thereto, to obtain probate in forma pauperis.

6. The reasoning in that case is not impaired, as I have shown, by the subsequent amendment which inserts Section 19-1 in the Court-Fees Act.

7. The question then arises, does the exemption extend to the succession duty payable? If a plaintiff is allowed to sue as a pauper, the only court-fee he is bound to pay is, what is payable, for service of process, he being relieved from paying all other court-fee (Order 33, Rule 8, Civil Procedure Code). All fees chargeable under the Court-Fees Act, are, by virtue of Section 25, to be collected by stamps. Thus, the Act makes no distinction between succession duty and other species of court-fee. It follows from this, that in the case of a pauper applicant for probate, the exemption extends also to succession duty.

8. Lastly remains the question, how are the Government's interests to be safeguarded? On the analogy of Order 33, Rule 10 of the Code of Civil Procedure, I hold that it has a first charge on the subject-matter of the petition, that is, the estate of the deceased.


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