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Mrs. Salila Chandra Vs. Rev. Hiran Kumar Das Gupta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 1133 of 1971
Judge
Reported inAIR1972Cal189,76CWN234
ActsWest Bengal Court Fees Ordinance, 1969 - Section 50(2); ;Succession Act, 1925 - Section 295; ;Court Fees Act, 1870
AppellantMrs. Salila Chandra
RespondentRev. Hiran Kumar Das Gupta
Advocates:Hrishikesh Ganguly, Adv.;S.C. Das Gupta and ;Nanigopal Das, Advs. (on notice)
Cases Referred(Mrs. Salila Chandra v. Rev. Hiran Kumar Gupta). It
Excerpt:
- .....delegate on the 27th september. 1969. after this application was made the west bengal court-fees ordinance, 1969 (west bengal ordinance no. xvii of 1969) was promulgated on the 15th december, 1969. section 50(2) of this ordinance was as follows:'all suits and proceedings instituted before the commencement of this ordinance and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the court-fees act. 1870. be governed by the provisions of the said act and the rules made thereunder.'2. in january, 1970. the west bengal court-fees (amendment) act, 1970, came into force incorporating the provisions of said ordinance. on the 24th march, 1970, the opposite party appeared in the.....
Judgment:

Sankar Prasad Mitra, J.

1. This is an application under Section 115of the Code. By Rule obtained on the 3rd May, 1971, the petitioner assails an order of the District Judge. 24 Parganas being order No. 4 dated 12-1-1971, in O.S. No. 47 of 1970 (Mrs. Salila Chandra v. Rev. Hiran Kumar Gupta). It appears that the petitioner made an application for probate in respect of the estate of one Miss Salila Ghosh alias Miss S. Ghosh in the Court of the District Delegate on the 27th September. 1969. After this application was made the West Bengal Court-fees Ordinance, 1969 (West Bengal Ordinance No. XVII of 1969) was promulgated on the 15th December, 1969. Section 50(2) of this Ordinance was as follows:

'All suits and proceedings instituted before the commencement of this Ordinance and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the Court-fees Act. 1870. be governed by the provisions of the said Act and the rules made thereunder.'

2. In January, 1970. the West Bengal Court-fees (Amendment) Act, 1970, came into force incorporating the provisions of said Ordinance. On the 24th March, 1970, the opposite party appeared in the probate proceeding. On August 20, 1970. the opposite party filed objections and on the 11th November, 1970. the probate proceeding was registered as a suit.

3. The question that arises for our consideration is whether the quantum of Court-fees payable in respect of this proceeding shall be governed by the Court-fees Act, 1870 or by the Ordinance of 1969 and the subsequent Act validating the Ordinance. Under the 1870 Act for a petition of this nature an initial court-fee of Rs. -/12/- ans. or 75 paise was payable which the applicant in the instant case had paid. But under the proviso to Schedule II, Article 1. Clause (g) of the Ordinance of 1969, certain changes were made. The proviso runs thus:--

'Provided that if a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Article 1 of Schedule 1 on the market value of the estate less the fee already paid on the application shall be levied.'

4. The District Judge has asked the applicant to pay the balance of the court-fees in accordance with this proviso. The applicant claims exemption under Sub-section (2) of Section 50 of the Ordinance.

5. The proceeding for probate in the instant case was instituted before the commencement of the Ordinance. But the application for probate was registeredas a suit after the Ordinance had come into operation. The District Judge seems to think that since the suit was registered after the Ordinance came into force, court-fees in accordance with the above proviso should be levied. In our opinion, to determine the questions raised in this matter one has to rely on the provisions of Section 295 of the Indian Succession Act. This section runs thus;--

'In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.'

6. This section, therefore, lays down that a proceeding for probate takes the form of a suit when there is a contention. In other words, the proceeding for probate is continued as a suit in accordance with the provisions of the Civil Procedure Code when objection is raised to the grant of a probate. The registration of a contentious cause as a suit is an administrative act by the court concerned. It gives effect to the provisions of Section 295 of the Indian Succession Act. In the instant case, the proceeding for probate was commenced before the Ordinance. And in our view, the petitioner is entitled to the benefit of Section 50 (2) of the Ordinance.

7. Our interpretation, incidentally, of Section 295 of the Indian Succession Act finds support in the decisions in and (1909) ILR 33 Bom 256. In these premises, the said order of the District Judge of 24 Parganas cannot be sustained.

8. It was argued before us that the proviso referred to above is attracted when (a) caveat has been entered,(b) there is a contention after the probate proceeding has been launched and(c) the proceeding takes the form of a regular suit and is registered as such. It has been argued further that a fiscal enactment must be strictly construed, and in the event of any doubt, construed, in favour of the subject. As we have already given our decision on the basis of the provisions of Section 295 of the Indian Succession Act, we do not propose to deal with this argument in this judgment although they deserve due. consideration.

9. In deciding this matter we gave notice to the learned Senior Government Pleader and he has made sub-missions contrary to those of the petitioner but we are unable to accept them.

10. In the result the Rule is made absolute. Order No. 4 dated 12-1-1971 in O.S. No. 47/70 passed by the District Judge, 24 Parganas, Alipore is set aside. The records would now be sent to the trial Court which would proceed according to law. There will be no order for costs.

S.K. Datta, J.

11. I agree. Rule made absolute.


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