Coxe and D. Chatterjee, JJ.
1. This application arises out of a probate case. Probate was granted and the petitioners were directed to pay the costs of the opposite part v.. Subsequently a decree was prepared and the pleader's fee of the opposite party was assessed at Rs. 777 according to the value of the property in respect of which, probate was given. This is said to be in accordance with the practice of the Muzaffarpore District Judge's Court; The petitioners then applied to have the decree amended, alleging that a fee of Rs. 80 only could be allowed under Rule 42(a), Chapter VI of the Rules and Orders. This application was refused by the District Judge and it has now come up to this Court in revision.
2. It is contended by the learned pleader for the petitioners that, a proceeding under the Probate and Administration Act, 1881, is a miscellaneous proceeding and that Rule 2(a) which we have cited will apply. It is argued, however, on the other side that this proceeding is a regular suit and reference is made to Rule 26, Chapter X of the Rules and Orders will lays down that for the purposes of the returns these applications should be treated as Miscellaneous cases until they are contested, and as suits thereafter. This rule was, however, framed for administrative convenience and is intended to assist subordinate Courts in drawing up their statements and returns, but it does not throw any light on the present difficulty.
3. It is also contended that under Section 83 of the Probate and Administration A.ct, 1881, which lays down that in contested probate cases the proceedings shall take as nearly as may be, the form of a suit, according to the provisions of the Code of Civil Procedure, this proceeding must be regarded as a regular suit. But these provisions appear to us to tell rather against the opposite party than in his favour. If these proceedings are suits it would be unnecessary to enact that they should take the form of a suit. Even if the proceeding is a suit, the only rule under which an ad valorem pleader's fee can be assessed is Rule 36(a) of Chapter VI of the Rules and Orders. That rule provides that 'generally in all suits not included in Rule 35, if the plaintiff succeed, the Court may order the fee of the pleader for the' plaintiff to be calculated with reference either to the 'amount decreed or according to the valuation of the' suit or according to such a sum, not exceeding the 'valuation, as the Court shall think reasonable.' Here no amount has been decreed and it appears to us that the valuation of the property covered by the probate cannot reasonably be regarded as the valuation of the suit. The extent or value of the property, and the rights of the testator therein, are irrelevant in probate proceedings, which are confined entirely to the question whether the petitioner is or is not entitled to probate of the document executed by the testator, irrespective entirely of the property which that document covers. Rule 36(a) seems to us, therefore, to have no application and no other rule authorizes assessment of ad valorem fees.
4. In our opinion, therefore, the fee can only be assessed under Rule 42(a).
5. That there is a distinction between this proceeding and a regular suit will appear from the practice of this Court. In regular appeals valued at over Rs. 5,000, pleaders' fees are assessed ad valorem automatically, whereas in probate cases above that value, hearing fees are assessed by the Judges themselves in each lease.
6. In our opinion, therefore, the pleader's fee in the Court below should be reduced to the sum of Rs. 801 the Rule is made absolute to that extent. We pass no order as to costs.