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1955 DIGILAW 326 (RAJ)

Mst. Bhonri v. Suwalal

1955-11-02

BHANDARI

body1955
Bhandari, J.—In this appeal against the order of the District Judge, Jaipur City granting probate application filed on behalf of one Suwalal, a preliminary objection has been raised by the learned counsel for the respondent that ad valorem court fee should have been paid on the memorandum of appeal by the appellant as provided in Art. 1, Schedule 1 of the Court Fees Act. 2. One Prahlad died on the 20th of October, 1946 and before his death he had made a will on the 22nd October, 1946 in favour of Suwalal respondent bequeathing him one house in Jaipur City. Mst. Bhonri the appellant lodged the caveat against the grant of probate and thereafter the proceedings became contentions. 3. After framing issues and recording evidence the learned District Judge granted a probate to the respondent Mst. Bhonri has preferred this appeal challenging the order of the learned District Judge. 4. A preliminary objection has been raised by the counsel for the respondent that the memorandum of appeal being against a decree, the court fee payable thereon should be under Art. 1, Schedule 1 of the Court Fees Act and ad valorem court fees should be paid. 5. On behalf of the appellant it is urged that the court fees that are payable in such a case should be as provided under Art. 11 of Schedule II of the Court Fees Act as the judgment of the learned District Judge is not a decree or order having the force of decree. He has further argued that even if the judgment of the learned District Judge be construed as a decree, fixed court fees of Rs 100/- under Art. 17(vi) of Schedule II of the Court Fees Act is leviable. 6. In order to determine what is the proper court fees payable in this case, it is necessary to examine the nature of the proceedings before the learned District Judge. After the appellant has lodged the caveat the proceedings have become contentions. Under sec. 6. In order to determine what is the proper court fees payable in this case, it is necessary to examine the nature of the proceedings before the learned District Judge. After the appellant has lodged the caveat the proceedings have become contentions. Under sec. 295 of the Indian Succession Act, it is provided that in any case in which there is a contention, the proceedings 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. From the very language of the (section it is apparent that even after the proceedings have become contentions they are merely to assume the form of a regular suit though in reality the proceedings are not in the nature of a regular suit under the provisions of Code of Civil Procedure 1908. The proceedings do not originate as a suit under the provisions of the Code of Civil Procedure. Under sec. 295, it is not provided that such proceedings become regular suit under the Civil Procedure Code. Under sec. 26 of the Code of Civil Procedure 1908, every suit shall be instituted by the presentation of a plaint or in any such other manner as may be prescribed. Order IV, rule 1 of the Code prescribes to whom the plaint is to be presen-ted and what should it contain. 7. At this stage it is worthwhile to consider sec. 268 of the Indian Succession Act. Sec. 268 of the Indian Succession Act runs as follows— "The proceedings of the Court of District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908." This provision is analogous to sec. 141 of the Civil Procedure Code which provides that the procedure contained in the Code in regard to suits is to be followed in all proceedings in any court of civil jurisdiction. In respect of sec. 126, it cannot be said that the proceedings in the probate proceedings even after they had become contentions, become proceedings in a suit. Similar provisions in secs. In respect of sec. 126, it cannot be said that the proceedings in the probate proceedings even after they had become contentions, become proceedings in a suit. Similar provisions in secs. 18,19(2) and 5 of the Provincial Insolvency Act were considered by the Calcutta High Court in the case of Madanlal Jhunjhunuwala vs. H.H. The Nawab Sayed Haze Ali Khan Bahadur Mustaid Jung, Ruler of Rampur State in U.P.(l), wherein it has been observed as follows— "The expression suit has not been defined in the Code. By sec. 26, Civil P.C., every suit is to be instituted by the presentation of a plaint, or in such other manner as may be prescribed. Excepting the presentation of a plaint, of other mode of instituting suits has yet been prescribed. A proceeding that does not commence with a plaint is therefore not a suit." What has been said about sec. 263 is equally true of sec. 295. The language of sec.295 is not precise enough to convert the proceedings before the learned District Judge into the proceedings in a regular suit. The legislature has used the words shall take the form of a regular suit. That suggests that the proceedings are regular suit in form only and not in substance. They retain their own character. Sec. 299 of the Indian Succession Act further supports this view. Under that section every order including the order passed at the final stage granting the probate made by the District Judge shall be subject to appeal to the High Court in accordance with the provision of the Code of Civil Procedure of 1908 applicable to appeals. Even for the final judgment granting the probate the word that has been used is order. In this view of the matter, the proceedings even if they had be come contentions, did not become proceedings in the suit, and unless there is a suit as provided under the Civil Procedure Code, there can be no decree, except in cases of certain orders which are expressly included in the definition of decree. In this view of the matter, the proceedings even if they had be come contentions, did not become proceedings in the suit, and unless there is a suit as provided under the Civil Procedure Code, there can be no decree, except in cases of certain orders which are expressly included in the definition of decree. Sec. 2(2) defines the decree as follows— "decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit......" Their Lordships of the Privy Council in the case of Minakshi Naidu and Subramaniya Sastri(2) after quoting the definition of the decree as contained in the Act X of 1877 and as modified by Act XII of 1879,have observed as follows in regard to the proceedings taken under sec. 12 of the Pagoda Act. "decree means a formal expression of an adjudication upon any right, claim, or defence, set up in a Civil Court where such adjudication decides the suit or the appeal. In the opinion of their Lordships there was no civil suit respecting the appointment, and it would be impossible to bring an order made by the District Judge pursuant to sec. 10 of the Pagoda Act within the definition of a decree as contained in the Code, and no other general law has been suggested." It is apparent from the above observations that unless there is a civil suit, there is no decree under the Civil Procedure Code. 8. Several authorities have been cited at the Bar and the following three cases may be taken notice of : Miss Eva Mountstephens vs. Mr. Munter Garnett(3), J.M. Rodrigues vs. A.M Mathias(4) and Subhan Khan vs. Mohamed Yusub(5). 9. The first case was more or less decided following the practice in the Allahabad High Court. 8. Several authorities have been cited at the Bar and the following three cases may be taken notice of : Miss Eva Mountstephens vs. Mr. Munter Garnett(3), J.M. Rodrigues vs. A.M Mathias(4) and Subhan Khan vs. Mohamed Yusub(5). 9. The first case was more or less decided following the practice in the Allahabad High Court. It was observed in that case— "In so far as the practice of this court is concerned appeals from decisions of a single Judge of this Court under the Probate and Administration Act have been treated as appeals from decrees, whatever may have been the practice in respect to appeals in similar cases from the decisions of the District Judge." That case followed the decision of the Allahabad High Court in Umrao Chand vs. Bindraban Chand(6), and the point involved in that case was not that of court fees but of sec. 10 of the Letters of the High Court of Judicature for the North Western Frontier Province. This case has been dissented from in the case of Subhan Khan vs. Mohamed Yusuf (6), by a single Judge of the Rangoon High Court and I am in respectful agreement with the Rangoon case for the reasons that I have already discussed. There is yet another reason assigned in that judgment as contained in the following observations which lead to the same conclusion. "If this construction is wrong but that of the Allahabad High Court is correct what it will mean is this : A person can apply for letters of administration or probate of a will on payment of a court fee of Rs 2/- but if he wants to appeal from an order refusing or granting letters or probate he must pay a court fee of Rs, 10/-. This means denying justice to poor litigants. I do not think that this could have been the intention of the Legislature when they enacted the Art. 17(vi) of Schedule II. This article, in my opinion, applies only to properly constituted suits i.e., proceedings commenced by plaints, such as a suit instituted under sec. 92, C. P. C " The case in J.M. Rodrigues vs. A.M. Mathias(4), is that of Madras High Court. This article, in my opinion, applies only to properly constituted suits i.e., proceedings commenced by plaints, such as a suit instituted under sec. 92, C. P. C " The case in J.M. Rodrigues vs. A.M. Mathias(4), is that of Madras High Court. The contention that Art. 11 of Schedule II of the Court Fees Act should apply to such a case, was rejected by their Lordships by simply observing that the order appealed against undoubtedly had the force of a decree. This is stating the law as too wide in view of the definition of decree and is contrary to the pronouncement of their Lordships of the Privy Council in the case of Meenakshi Naidu and Subramaniya Sastri(2), referred to above. I do not agree with that statement of law. I need not in that view of the matter discuss the other point that on the supposition that the judgment of the learned District Judge is a decree whether Art. I, Schedule II or Art. 17. Schedule II should apply. But I am inclined to think that Art. (iv), Schedule II should apply. The appellant has paid the full court fees as required under Art. II, Schedule II and I decide the preliminary point raised by the respondent against him. The case may be fixed for hearing on merits.