Kunjikrishnan Mundan v. Chief Secretary — 1954 DIGILAW 20 (KER)

Judgment :- 1. The order sought to be revised, was passed by the learned District Judge of Trichur in Letters of Administration M.P. 7 of 1124 calling upon the petitioner to pay additional court fees for the issue of a probate of a will. The petition was filed on 27.5.1124, when the Cochin Court Fees Act II of 1080 was in force. Under schedule (I) item 9, the petitioner was to pay one per cent on the amount or value of the property in respect of which the grant of probate exceeded Rs. 1000/-. The valuation statement was filed and the court fees, according to that, had been paid by the petitioner on 15.6.1124. Notice relating to valuation was given to the Peishkar on 3.11.1124 and the Peishkar's report showing a value higher than that given by the petitioner was received on 31.2.1125. In the interval, the Travancore Cochin Court Fees Act II of 1125 was passed on 24th Chingom 1125 and the same was brought into force from the 20th Kanni 1125. The question then arose whether the petitioner was to pay court fees on the basis of the Court Fees Act in force at the time of the filling of the petition or on the basis of the Court Fees Act in force when the probate was ordered to be granted. 2. The court below held that Court Fees were to be paid as provided for in Act II of 1125, that is according to the Act in force at the time when the probate was to be issued. 3. This petition has been filed to revise that order so as to enable the petitioner to get the probate on payment of the Court Fees leviable as on the date of the petition. When this petition came up for decision before a Single Judge, the conflicting views expressed by the different High Courts in India on the question were brought to the notice of that court. So, in order to have an authoritative decision on the question in controversy, the matter was ordered to be placed before a Full Bench for its consideration. 4. So, in order to have an authoritative decision on the question in controversy, the matter was ordered to be placed before a Full Bench for its consideration. 4. S. 18(1)(1) of the Cochin Court Fees Act corresponding to S. 19(1)(1) of the Indian Act reads as follows: "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. 9 of the first schedule has been paid on such valuation." 5. No. 9 of the First Schedule of the Cochin Act is the same as Art. 11 of Schedule (I) of the Indian Act. The corresponding section in the new Act is S.22(1) and the Article is Art. 11 of the First Schedule. This latter article provides for the payment of a higher rate of court fees. The Article in the schedule of the Cochin Act (repealed) is as quoted below: 6. Under the new Act (Act II of 1125) the court fee is two per cent when the amount or value of the property exceeds one thousand rupees but does not exceed ten thousand rupees. When the value exceeds ten thousand, but does not exceed fifty thousand rupees. 21/2 per centum is provided for on such amount or value and when the amount exceeds fifty thousand rupees, three per centrum on such amount or value has to be paid. 7. S. (18)(k) of the Cochin Act further provided that nothing in S. 3 or S. 26 shall apply to probates or letters of administration. S.3 refers to the filing of documents specified in the first or second Schedule to the act and it provided that unless in respect of such documents there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for a document, no such document shall be filed, exhibited or recorded in any court of justice or shall be received or furnished by any public servant. This was because of the further provision in S. 180) that if it is found that any excess fee has to be levied on the certificate of the Diwan Peishkar, in that respect, the same could be recovered from the executor or administrator as if it were an arrear of land revenue. So, an insufficiently stamped probate was not excluded from being acted upon when it was filed in any court. That is why the probate is taken out of the prohibition mentioned in S. 3 or S. 26, which laid down that no document, which ought to bear a stamp under this Act, shall be of any validity unless and until it is properly stamped. 8. Thus, the question for us to determine is as to the proper court fee required. S.18(1) and No. 9 of Schedule (I) stand by themselves. S. 18(1) provides for the necessary fee for the document shown in the first column. Items 1 to 8 in the first column deal with plaint or memorandum of appeal or written statements in particular cases, application for review of judgment, copy of translation of judgment or decree and copy of any document liable to stamp-duty under the Cochin Stamp Act or of any revenue or judicial proceeding and of application to the Chief Court for the exercise of its revisional jurisdiction. In all these cases the fee is provided for the plaint or the application when the same is filed in court. When we come to No. 9 of the first schedule, it states that it is for a probate of a will or letters of administration with or without will annexed, the court fee has to be paid. Thus, the schedule provides for fee on probate or letters of administration and not for an application for a grant of probate or letters of administration. It is unnecessary to pay court fee, required for the probate, along with the application. The section itself says that the fee can be paid on a later date but, the only obligatory condition of the court was that no order was to be passed before the fee was paid. It is unnecessary to pay court fee, required for the probate, along with the application. The section itself says that the fee can be paid on a later date but, the only obligatory condition of the court was that no order was to be passed before the fee was paid. Thus, the fee does not include the fee on the application for the probate and so, it necessarily follows that the fee is to be paid on the probate and that the same is to be governed by the provision of law in force at the time the order for the issue of the probate is passed. 9. There are no decided cases either in Travancore or Cochin on this question. There are two cases of the Bombay High Court which take different views. The High Court of Patna and Allahabad take the view that the fees to be paid before the grant of probate are to be calculated according to the Act in force on the date of the grant of probate and not the date of application for probate. There was an earlier decision of the Calcutta High Court in T.S. Nahapiet v. Secretary of State, A.I.R. 1924 Cal. 987. There, while an application for a probate was pending, the Bengal Court Fees Act was amended fixing a higher rate of court fees. The trial court held that court fee should be paid on the higher rate, as no order for probate had been passed. Though there was an observation that the court fee was to be calculated according to the Act in force on the date of the application, it was unnecessary to consider that question in that case, for S.17 of the amended Act had provided that enhancement of fees did not apply to applications for probate or letters of administration or certificates in respect of which fees prescribed by the law in force at the time had been paid before the commencement of that Act, but which had not been issued. So that case was decided on the basis of the specific provision exempting payment of additional court fees. 10. The next case is Gangaram v. The Chief Revenue Controlling Authority, A.I.R. 1927 Bom. 643. So that case was decided on the basis of the specific provision exempting payment of additional court fees. 10. The next case is Gangaram v. The Chief Revenue Controlling Authority, A.I.R. 1927 Bom. 643. There the view of the learned judge was that the fee was to be calculated according to the Act in force on the date of grant of probate and not the date of application for probate. The learned judge said thus: "I do not see how the petitioner can be said to be competent to comply with the requirements of the section until the time when the obligation imposed by that section comes into effect, that is, when the grant of probate comes to be made". This decision of Crump, J., was appealed against and the appellate Court, without going into the merits, dismissed the appeal as incompetent and the judgment of the Division Bench is in continuation of the judgment of Crump, J. This Bombay case had been followed in Re A.M. Beechey, A.I.R. 1944 All. 119. There, Their Lordships said that if they were to consider only the provisions of S.19-1, Court Fees Act, they might perhaps hold that it is open to the court to make an order that letters of administration should issue on the fees required by the original Act. Their Lordships do not give any reason for the view they may have taken but for the provision in S. 4 which laid down that no document of any of the kinds specified in the first or second schedule to the Act annexed as chargeable with fees shall be filed, exhibited or recorded in or shall be received or furnished by, any of the said High Courts in any case coming before such court in the exercise of the jurisdiction referred to there. It was stated there that the High Court could not furnish the applicant with letters of administration unless he had paid the fees which were due in accordance with the Act which was in force when the document was drawn up or was to be furnished by him. Even if S. 4 was not there regarding issue of a document on insufficiently stamped paper, no court would issue a document unless the fees prescribed had been paid. Even if S. 4 was not there regarding issue of a document on insufficiently stamped paper, no court would issue a document unless the fees prescribed had been paid. The document, when it is issued, must bear the court fees prescribed by the law in force at the time of its issue. Their Lordships also say that the view taken in A.I.R. 1927 Bom. 643 is the correct one. 11. In two decisions of the Patna High Court, though by the same learned judge, the position taken in 1927 Bombay 643 is approved as the correct one. Those cases are Suraja Narain v. Saresi Bala Devi, A.I.R. 1945 Pat. 86 and Jagat Kishore v. Girija Kishori Devi, A.I.R. 1945 Pat. 361. A contrary view is taken by a Division Bench of the Bombay High Court in Re Jerbai, A.I.R. 1945 Bom. 1. The earlier decision of 1927 Bombay 643 was disapproved by this Bench. His Lordship the Chief Justice said at page 5 that the order for the grant of probate ought not to be made, unless and until the fee is paid on the valuation and that, as it is provided that the fee shall be calculated by stamps, it necessarily followed that payment of the fee by stamps must take place when the stamps were handed in to the registry and that since there is no other act between handing over the stamps and the making of the order for the grant of probate to issue which could amount to payment, the date of handing over of stamps, is a relevant one. It was, therefore, argued that the date of the application was the relevant date for the purpose of determining the court fee due. Their Lordships had not however considered the difference in the wording of the description of the several documents mentioned in column 1 of the schedule. The fact that it was not obligatory on the applicant to pay the court fees along with the application was also not considered. 12. If, for any reason, the petitioner does not press his petition for probate or letters of administration after the payment of the court fees, then he is entitled to a refund of the same. Thus, till the order is made and the certificate is paid for, the court fee paid is not utilised by the court. 12. If, for any reason, the petitioner does not press his petition for probate or letters of administration after the payment of the court fees, then he is entitled to a refund of the same. Thus, till the order is made and the certificate is paid for, the court fee paid is not utilised by the court. It stands to the credit of the applicant, unlike in other cases. When court fee is paid it goes to the public revenue. In these circumstances, we take the view that court fees on probate are to be paid with reference to the law in force at the time the order for the issue of the certificate is passed and not with reference to the date of the application. It, therefore, appears to us that the view taken by the court below is correct. This revision petition is, therefore, groundless and it is dismissed but, in the circumstances, without costs. Dismissed.