(1) T. O. S. No. 3 of 1959 was disposed of by me after the withdrawal of contest by the defendant. The plaintiff in the suit has applied for refund of court-fee paid on the plaint when the application was converted into a suit.
(2) A fixed fee of Rs. 25 was paid when the proceeding was instituted as a original petition as required by Art. 11(K) of Sch. II of the Madras Court-fees and Suits Valuation Act, 1955. When a caveat was entered the proceeding was converted into a suit under Or. XXV of the Original Side Rules, and thereupon court-fee was demanded in accordance with the proviso to Art. 11(K) of Sch. II of the Madras Court-fees Act and ad valorem court-fee to the extent of one-half of the scale of fee prescribed in Art 1 of Sch I of the Court-fees Act on the market value of the estate, less the fee already paid on the application, was collected. It is this fee that was levied and collected which is sought to be refunded by the present application.
(3) Counsel for the plaintiff based his argument upon two grounds. First, he contended that despite the absence of any provision in the Court-fees Act, 1955 for refund of fee collected at the time when this proceeding was converted into a suit, the court has an inherent power in suitable circumstances to order such refund. In support of his argument he contended that the purpose for which the fee was paid when the proceeding was converted into a suit was not achieved, having regard to the subsequent event that the defence was withdrawn and the probate was ordered to be issued. He also maintained that the question whether the fee actually levied at the time when the proceeding was converted into a suit was in excess of the requirements should be decided not only with reference to the state of affairs existing at the time when the fee was collected, but also with reference to subsequent events. The second argument of learned counsel was that the proviso to Art. 11(K) would only govern clause (2) and not clause (1) of that Article Clause (i) of the Article 11 (k) reads thus:
'Application for probate or letters of administration to have effect throughout India. Proper fee, twenty five rupees.'
Clause (ii) reads thus:
'Application for probate or letters of administration not falling under clause (i)--
(1) if the value of the estate does not exceed Rs. 1000:12 annas
(2) if the value exceeds Rs. 1000: five rupees.'
Then follows the proviso in question which reads thus:
'Provided that if a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Art. I of Sch. I on the market value of the estate less the fee already paid on the application shall be levied.'
It is apparent that there is a classification of applications for probate or letters of administration in this provision based on the question whether the probate sought to be issued will have effect throughout India or only within the State over which the High Court or the District Court has jurisdiction. In respect of the former class a heavier fixed fee is levied while in respect of the latter class a lower fee of either twelve annas or Rs. 5 depending upon the value of the estate, is levied. The condition upon which the higher fee indicated in the proviso can be levied does not depend upon either the value of the estate involved or upon the nature of the probate asked for. The point of distinction between the two classes turns solely upon whether the probate is to have effect through out India or it should be restricted to the State in which the probate is issued, irrespective of its being I am, therefore, unable to find any basis for the argument of the counsel that the proviso should be attached only to clause (2) of Art. 11(K) and not to the entire provision covered by the Clause (k).
(4) I have come to this conclusion for two reasons. Unless there are special indication to show that a proviso to a section is limited to one part of it, normally the proviso governs the entire section. Secondly, it is not necessary for the purpose of making a proviso applicable to the entire section to repeat it after each clause of that section. The proviso is really in the nature of an exception which takes a class of cases out of the operation of the main section. Having this in view, the proviso in question takes one category of applications for probate or letters of administration namely contested applications out of the ambit of the operation of clause (k) by providing ad valorem fee in the place of fixed fee. Normally such a proviso should govern the entire section unless there are contrary indications. I find no such indications in the present instance. I therefore reject this argument of learned counsel.
(5) On the question of the inherent power of this court to order refund of court-fee levied. I must first of all notice the provisions of the Court-fees Act, 1955. Ss. 66 to 71 deal with this point. Sec. 66 deals with refund consequent upon a plaint or memorandum or appeal being rejected on the ground of delay in its representation, or where there is deficiency in court-fee on such document and it is not made good within the time allowed by law or granted by the court. Sec. 67 deals with the refund of court-fee in cases or remand. Sec.68 provides for the refund of court-fee where a court reserves or modifies a former decision on the ground of mistake. It is sec. 69 which it is alleged deals with the problem I have to face in this case. It reads thus:
'Whenever any suit is dismissed as settled out of court before any evidence has been recorded on the merits of the claim, half the amount of all fees paid in respect of the claim or claims in the suit shall be ordered by the court to be refunded to the parties by whom the same have been respectively paid.'
The explanation to this section is omitted as being not relevant for my present purpose.
(6) Counsel for the plaintiff concedes that this section in terms will not apply to the present case because the suit was not dismissed as settled out of court. On the other hand, the suit was decreed on the withdrawal of the contest. According to him, there is therefore, no provision in the Court-fees Act for refund of fee in a case like this. His argument is that where there is no specific provision for refund of fee in a particular case, the inherent power of the court is attracted and the court is free to order such refund. For another reason also S. 69 would not apply to this case because the claim made is not for refund of half the fee collected at the time when the application was converted into a suit, but for the entirety of that fee.
(7) This question of the inherent power of the court to order refund of court-fee has been considered by more than one Bench of this court. In Chidambaram Chettiar, In re : AIR1934Mad566 a Bench of this court had to consider the question of refund when an appeal was withdrawn and the court-fee paid on the appeal memorandum was sought to be refunded. In dealing with this question the Bench observed.
'In our opinion, the court can order a refund (i) where the Court-fees Act applies. (Ii) where there is an excess payment by a mistake or (iii) where, on account of the mistake of a court, a party has been compelled to pay court-fees either wholly or in part. Outside these cases we are not satisfied that we authority to direct a refund.'
In thus laying down the rule applicable to refund of court-fee the Bench refused to follow the decision of the Calcutta High Court in J. C. Galstaun Cal 615). If the rule laid down by this Bench is applied there can be no question in this case of any excess payment by mistake or by reason of any mistake of a court.
(8) This Bench decision was followed by an other Bench of this court in In re Kappini Gowder AIR 1938 Mad 67. That was also a case of refund of court-fee claimed on the withdrawal of an appeal as having been settled out of court. The Bench held that such a claim did not fall within the purview of S. 13 of the old Court-fees Act. The reason given by the Bench was that if a court-fee was properly paid in the appeal memorandum it cannot be refunded because no court has inherent power to do that which is expressly prohibited by statute. This rule, followed by two Bench decision of this court, has also been adopted by the Calcutta High Court and by the Lahore High Court. In Tarachand v. State of West Bengal, : AIR1955Cal258 , the rule is thus stated,
'Before any question of the exercise of inherent power can arise, it must be found that there has been a payment, not required by law or a payment in excess of what is enjoined by the charging statute and that there is no specific provision for a refund of the unwarranted payment which makes the exercise of the inherent power necessary because the court resorts to that power in aid of and by way of implementing its judicial decision that a party has made a payment not required by or in excess of what is required by law.'
(9) To decide whether the payment made was in excess of what is required by law, learned counsel contends that not only the situation existing at the time when the fee was collected but also subsequent events must be taken into account. He cites a decision of Ramachandra Iyer J. In support of his contention, Ranganna v. State of madras 1959 1 MLJ 160. There the learned Judge had to consider a claim for refund arising in a suit originally filed in the Original Side of the High Court but transferred to the City Civil Court as a result of the enlargement of the court's jurisdiction, when the suit was settled out of court. The learned Judge held that in such a case the plaintiff would be entitled to refund of the court-fee paid according to the scales provided in Rule 13-A of O. 2 of the High Court fees Rules, 1933. After dealing with the relevant statutory provisions applicable to that case in support of his conclusion, the learned Judge also relied upon the principle that what is excess payment of court-fee could be determined by reason of subsequent events like the settlement of a suit. He stated his conclusion thus:
'If originally the court-fee collected is excessive, there is an undoubted power in court to direct a refund of the excess. I can find no difference in principle between that case and a case where the original collection becomes excessive by reason of a subsequent event (like the settlement of the suit) which was contemplated and provided for by the rules themselves.'
This reasoning apart from the interpretation of Order 2 Rule 13-A of the High Court Fees Rules, 1933, was given as another ground for the conclusion of the learned Judge. In that sense the second line of reasoning relating to the collection of court-fee originally justified by the statute, becoming excessive by reason of subsequent events indicated in the judgment of the learned Judge is really obiter. Even otherwise, the two Bench decisions noticed by me do not seem to have been cited before the learned Judge. In my opinion, these two Bench decisions clearly lay down that subsequent events could not affect the question of the legality or otherwise of the levy of court-fee at the first instance giving rise to a claim or refund except as provided in specific sections of the Court-fees Act. The rule is stated in precise terms in Chidambaram Chettiar's case : AIR1934Mad566 . The learned Judges specifically ruled that outside the cases mentioned by them the court had no authority to direct a refund. I am bound to follow that rule both as it is binding on me and as it also accords with my own view of the matter.
(10) This was not a case covered by a specific provision of any statute for refund of court fee. We are here dealing with a case of inherent power of the court to order refund in cases not covered by the statute. In Chindambaram Chettiar's case : AIR1934Mad566 also the claim for refund was not covered by any specific provision of the Court-fees Act. In my opinion, this rule which is binding upon me must be followed in preference to the view expressed by Ramachandra Iyer J.
(11) Learned counsel for the plaintiff referred me to a decision of the Bombay High Court in Sundarabai v. Collector of Belgaum, ILR 33 Bom 256, and to the provisions of O. 25 of the Original Side Rules to contend that a testamentary suit would not fall into the category or suits contemplated in S. 69 of the Court-fees Act, 1955. He also referred me to Rules 1, 62, 63 and 66 of Order XXV of the Original Side Rules to show that really after the withdrawal of a contest in a testamentary suit it is treated as a non-contentions suit and the proviso to Art. 11(K) of Sch. II could not apply to such a suit. I agree readily that a testamentary suit stands of a different footing from regular suits on the file of the Original Side of this Court, but I am not able to agree that a testamentary suit is taken out of the ambit of S. 69 of the Madras Court-fees Act, 1955. The language used in that provision is, 'whenever any suit is dismissed as settled out of court before any evidence has been recorded on the merits of the claim.'
In coming to this conclusion I am not unaware of the provisions of S. 12 of the Court-fees Act. The explanation to S. 69 specifically provides that the phrase 'merits of the claim' shall have the same meaning assigned to it in S. 12 of the Court-fees Act. It is true that the claim in this case originally arose out of an application and not a suit. But that, in my opinion, makes no difference because the enhanced court-fee became payable only when the application was converted into a suit. At that state the merits of the claim of the plaintiff arose out of a plaint in a suit. In my opinion, Sec. 69 applies to testamentary suits as well as to other suits filed in the Original Side of this court. Since there is a specific provision for refund of the court-fee on settlement of suits before hearing in Sec. 69 of the Court-fees Act, I hold that the inherent power of this court could not be invoked in this case to order refund of either the entire fee or half the fee paid on the plaint at the time when the Original petition was converted into a suit. The claim for refund is therefore rejected. Taxed costs of the probate will come out of the estate. Advocate's fee, Rs. 250.
(12) Claim for refund of court-fee rejected.