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1983 DIGILAW 199 (KER)

SELEENA v. MARY

1983-08-18

K.K.NARENDRAN

body1983
Judgment :- 1. Two questions arise for consideration in these cases. They are: (1) From an order dismissing an application for letters of administration for non-payment of court-fee, will a revision lie under S.115 of the Civil Procedure Code or is it an appeal that is the remedy; and (2) Can the application be dismissed by the court for non-payment of court-fee without an enquiry and finding as to the true value of estate on receipt of the Collector's report under S.59(5) of the Kerala Court Fees and Suits Valuation Act, 1959, for short the Court Fees Act. 2. The petitioner in the Civil Revision filed an application for letters of administration in respect of registered will executed by her husband before the District Courts Trichur. The petitioner made her own valuation of the estate in the application. The District Collector, Trichur in the inquiry under S.59 of the Court Fees Act valued the estate at a higher amount and submitted the same to the court. The petitioner filed her objections to the Collector's valuation. The court without holding an enquiry as to the true value of the estate and giving a finding as to the 'true value at which the estate should have been estimated' dismissed the application for letters of administration for not paying the court fee. The petitioner moved the court for review of the order. The petition for review also was dismissed. CRP. No. 4264 of 1981 is against the order dismissing the petition for review while CRP. 15 of 1982 is against the order dismissing the application for letters of administration for non-payment of court-fee. 3. The learned counsel for the contesting respondent raised a preliminary objection that no Civil Revision will lie from the orders impugned as an appeal lies as per S.299 of the Indian Succession Act, 1925. S.299 reads: "299. Appeal from orders of District Judge. Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in. accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals." The order impugned in CRP. No. 15 of 1982 is one dismissing an application for letters of administration for non-payment of court-fee. Though the reason for dismissal is non-payment of court-fee, nevertheless it is an order dismissing an application for letters of administration. accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals." The order impugned in CRP. No. 15 of 1982 is one dismissing an application for letters of administration for non-payment of court-fee. Though the reason for dismissal is non-payment of court-fee, nevertheless it is an order dismissing an application for letters of administration. By the order, in effect, letters of administration applied for was refused. Grant or refusal of letters of administration, it goes without saying, the court does only by virtue of the powers it has under the Succession Act. So, an order dismissing an application for non-payment of court-fees is only an order made by the court by virtue of the powers conferred on it by the Succession Act and hence it is an appeal that lies from the order. In that case, no revision will lie to this Court from the order under S.115, CPC. 4. In Rajeswari v. M.M. Trust (AIR. 1965 All. 211) it has been held: "The word 'every' in S.299 governs not the word 'order' but the phrase 'order made by a District judge by virtue of the powers hereby conferred upon him'; it is not that every order made by a District Judge is subject to appeal; it is every order made by him by virtue of the powers conferred by the provisions of the Act that is subject to appeal. Appealability is a matter of statute and in the absence of a statutory provision there is no right of appeal." (para.7) In Sirinbai v. E. D.Anklesaria (AIR. 1975 Guj.102) it has been held: "S. 299 contemplates very specifically only those orders which are passed by virtue of the powers conferred upon the concerned judge by the Act and by no other provision of law. Under the circumstances, at the time of deciding whether a particular order passed by a probate judge is appealable under S.299 of the Act, the appellate court has to see whether the learned judge could have passed such an order under the provisions of the Succession Act or not." (para. 16) In Ladulal v. Mahendra Kumar (AIR. 1973 Raj. 238) it has been held: "Further, under S.299 of the Succession Act every order passed by the District Judge is appealable. The present revision applications are, therefore, not maintainable." (para. 8) In Chheda Lal v. Mt. Ram Dulari (AIR. 16) In Ladulal v. Mahendra Kumar (AIR. 1973 Raj. 238) it has been held: "Further, under S.299 of the Succession Act every order passed by the District Judge is appealable. The present revision applications are, therefore, not maintainable." (para. 8) In Chheda Lal v. Mt. Ram Dulari (AIR. 1930 Oudh 424) it has been held: "The provisions of this section are very wide. They seem to me to allow an appeal against every order made by a District Judge in the exercise of the powers conferred upon him by the Act. In my opinion an appeal lies under the terms of this S.299 irrespective of whether an order has been passed in the course of interlocutory proceedings or whether it is a final order." (para .425) I have my own doubts whether the extreme view taken by the High Court of Rajasthan and the Chief Court of Oudh that all orders including interlocutory orders passed are appealable under S.299 of the Indian Succession Act, 1925 is justifiable. As the order impugned here is an order rejecting an application for letters of administration, the question whether an appeal lies from interlocutory orders does not arise for consideration here. 5. The petitioner has filed C.M.P. No. 5264 of 1983 to convert the revision into an appeal if it is held that only an appeal lies and hence no revision lies. I have allowed that application. Accordingly, C.R.P. No. 15 of 1982 is treated as an appeal. The case will be renumbered as a Miscellaneous First Appeal. 6. The next question is whether on the merits the order dismissing the application for non-payment of court fee can be sustained. S.60 of the Court Fees Act reads: "60. Application to Court and powers of Court. (1) The Court shall, when moved by the Collector under S.59, sub-section (5), hold or cause to be held by any Court or officer subordinate to it an inquiry as to the true value at which the estate of the deceased should have been estimated. The Collector shall be deemed to be a party to the inquiry. (1) The Court shall, when moved by the Collector under S.59, sub-section (5), hold or cause to be held by any Court or officer subordinate to it an inquiry as to the true value at which the estate of the deceased should have been estimated. The Collector shall be deemed to be a party to the inquiry. (2) For the purposes of any such inquiry, the Court, or the Subordinate Court or the officer authorised by the Court to hold the inquiry, may examine the applicant on oath either in person or by commission, and may take such further evidence as may be produced to prove the true value of the estate, and where the inquiry has been entrusted to a Subordinate Court or officer, such Court or officer shall return to the Court the evidence taken and report the result of the inquiry and such report and the evidence so taken shall be evidence in the proceedings. (3) The Court on the completion of the inquiry or on receipt of the report referred to in sub-section (2), as the case may be, shall record a finding as to the true value at which the estate should have been estimated and such finding shall be final. (4) ... 7. In this case, the court sent the valuation statement to the District Collector as insisted by S.56 of the Court Fees Act. The Collector moved the court under S.59(5) as, according to him, the petitioner has undervalued the estate and she did not amend the valuation to his satisfaction. In that case, under S.60 an enquiry should be conducted by the court or by an officer of the court, of course with notice to the applicant. After that, the court has to give a finding as to the true value at which the estate should have been valued. It is only thereafter that the applicant can be asked to pay the court fee. In this case, it was without an enquiry and finding as required under S.60 of the Court Fees Act that the court dismissed the application for nonpayment of court-fee. Going by the scheme of the provisions in Chapter VI of the Court Fees Act, the liability to pay court-fee will arise only after the court gives a finding regarding the court-fee payable on the application, as per S.60(3). Going by the scheme of the provisions in Chapter VI of the Court Fees Act, the liability to pay court-fee will arise only after the court gives a finding regarding the court-fee payable on the application, as per S.60(3). So, the dismissal of the application for letters of administration for non-payment of court-fee is patently wrong and illegal. The order impugned is set aside. There will be a direction to the District Judge to take the application for letters of administration on the file and dispose it of in accordance with law. 8. As the order dismissing the application for probate is already set aside, C. R. P. No. 4264 of 1981 challenging the order rejecting the petitioner's application for review of that order has become unnecessary. So, the same need only be dismissed. 9. In the result, the Miscellaneous First Appeal is allowed. C. R. P. No. 4264 of 1981 is dismissed. No costs. 10. If the learned District Judge had at least referred to the relevant provisions in the Court Fees Act. before passing the impugned order, this patently wrong and illegal order dismissing the application for letters of administration could have been avoided. At least when the application for review came up, the District Judge should have done this. It is really unfortunate that orders were passed in a casual manner. A copy of this judgment is to be communicated to the District Judge wherever he is now.