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2003 DIGILAW 401 (ORI)

HASINA BIBI v. AMURAT BIBI

2003-06-20

P.K.MISRA, R.K.PATRA

body2003
R. K. PATRA, J. ( 1 ) THE short but ticklish question that arises for consideration in this civil revision is whether a woman who has applied for grant of succession certificate is entitled to exemption of court-fees by virtue of Law Department Notification No. SRO 575/94, dated 7-6-1994 published in the Orissa Gazette (Extraordinary) No. 670, dated 10-6-1994. Two of the learned Judges of this Court have taken different view in the matter. One learned Judge in Sharmila Das v. State of Orissa, (1998) 85 Cut LT 520, has held that the fee payable under Article 12 of Schedule-I of the Court-fees Act, 1870 not being a fee for the purpose of filing or instituting a case for grant of certificate, it is not covered by the said notification. The judgment in that case was delivered by the learned Judge on 29-9-1997. Another learned single Judge in his order dated 29-1-1998 in Civil Revision No. 370 of 1996 (Smt. Saudamini Das v. State of Orissa (1998) 85 Cut LT 524) has held to the contrary and opined that the Government notification exempting particular class of persons from paying court-fee is applicable to proceedings for grant of probate, letters of administration and succession certificate. We may note that tthe earlier decision of Sharmila Das was not noticed in the latter case. Because of such cleavage of opinion, this matter has been referred to a Division Bench. That is how it has come before us for hearing. ( 2 ) WE have heard the learned counsel for the parties. ( 3 ) THE petitioner is a woman. She has made an application under S. 372 of the Indian Succession Act, 1925 for grant of succession certificate to the learned Civil Judge (Senior Division), First Court, Cuttack. It appears from the records that her prayer for exemption from paying the duty money payable for grant of succession certificate basing on the above Government Notification was once considered and rejected by the learned Civil Judge by order dated 23-7-1997 on the ground that the Government Notification does not cover duty money payable in cases of grant of succession certificate or probate or letters of administration. Thereafter, the petitioner made another petition (out of which this revision arises) praying for exception from payment of court-fee contending that she is entitled to such benefit by virtue of the Government notification. Thereafter, the petitioner made another petition (out of which this revision arises) praying for exception from payment of court-fee contending that she is entitled to such benefit by virtue of the Government notification. The learned Civil Judge while considering the prayer took note of both the judgments of this Court mentioned above but followed the ratio in the case of Sharmila Das (1998 (85) Cut LT 520) because it was decided earlier to the case of Smt. Saudamini Das (AIR 1998 Orissa 146) and rejected the prayer of the petitioner by the impugned order dated 22-7-1998. ( 4 ) LET us first look at the Law Department Notification dated 7-6-1994 by which certain categories of persons mentioned therein are exempt from payment of Court-fee. 'woman' is one such category of persons. It would be profitable to quote the relevant portion of the Notification which reads as follows :"sro No. 575/94 In exercise of the powers conferred by S. 35 of the Court-fees Act, 1870 (VII of 1870) the State Government do hereby remit in the whole of the State of Orissa all fees mentioned in Schedules-I and II to the said Act payable for filing or instituting cases or proceedings in any Court in Orissa by the following categories of persons, namely :- (i) and (ii ). . . . . . . . . . . . . . . . . . (iii) women (iv) to (vii ). . . . . . . . . . . . . . . . . . . . . . "article 11 of Schedule-I of the Court-fees Act, 1870 deals with quantum of fees payable on an application for probate of a Will or letters of administration. The quantity of court-fee depends on the amount or value of property in respect of which grant of probate or letters of administration is made. Similarly, Article 12 of Schedule-I prescribes the quantum of fees payable on an application for grant of succession certificate under the Indian Succession Act, 1925. ( 5 ) PETITIONER's application made under S. 372 of the Indian Succession Act, 1925 for grant of such succession certificate is pending in the Court. Section 373 deals with the procedure to be adopted by the Trial Judge on an application made under S. 372. ( 5 ) PETITIONER's application made under S. 372 of the Indian Succession Act, 1925 for grant of such succession certificate is pending in the Court. Section 373 deals with the procedure to be adopted by the Trial Judge on an application made under S. 372. It lays down, inter alia, that if the Judge decides the right of the applicant, he shall make an order for grant of certificate to him. Section 379 to which both the learned Judges have referred to come to their respective conclusion states that every application for a certificate shall be accompanied by a deposit of a 'sum' equal to the fee payable under the Court-fees Act, 1870 in respect of the certificate applied for. If the application is allowed, the 'sum' deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable. Any sum received under sub-section (1) and not expended shall be refunded to the person who deposited it. A bare reading of S. 379 would show that along with the application for grant of certificate, what the applicant is required to do is to deposit the requisite 'sum' equal to the fee payable under the Court-fees Act, 1870. He is not to pay the required 'court-fee'. In the event the application succeeds, under the direction of the Judge concerned, the said 'sum' would be spent in the purchase of stamp to be used for denoting the fees payable and in the event if the sum is not expended, the same shall be refunded to the applicant who deposited it. To put it pithily, the applicant at the time of making the application under S. 372 of the Indian Succession Act, 1925 is not required to pay court-fee but he has to deposit the requisite sum equal to the fee payable under the Court-fees Act, 1870. In this connection, we may refer to S. 19-H of the Court-fees Act, 1870 which deals with the procedure in regard to application for probate or letters of administration. In this connection, we may refer to S. 19-H of the Court-fees Act, 1870 which deals with the procedure in regard to application for probate or letters of administration. As per the said section, when an application for probate or letters of administration is made to any Court (other than the High Court), it shall cause notice of the application to be given to the Collector who is required to examine if the applicant has underestimated the value of the property in question. On examination, if the Collector finds that the value of the property has been underestimated, he may require the applicant to amend the valuation. If no amendment of the valuation to the satisfaction of the Collector is made, he may move the Court to hold an enquiry into the true value of the property. The Court when so moved shall hold an enquiry and shall record a finding as to the true value at which the property in question should have been estimated. There is, however, no such provision to make an enquiry by the Collector with regard to grant of succession certificate. At this stage, we may turn to the Government Notification dated 7-6-1994 under which the Government in exercise of its power conferred under S. 35 of the Court-fees Act, 1870 has remitted all fees mentioned in Schedules-I and II of the said Act payable by the categories of persons mentioned therein. The said notification does not cover a case where the 'sum' equal to the fee payable under the Court-fees Act, 1870 is required to be deposited along with the application for grant of certificate. So far as the case relating to the grant of succession certificate is concerned the question of payment of Court-fee arises only after termination of the proceeding in favour of the applicant. In such event, on the direction of the Judge concerned, the 'sum' deposited by the applicant at the time of making application shall be appropriated for the purpose of denoting the Court-fee payable. In case the application fails, the 'sum' so deposited is required to be refunded to the applicant concerned. ( 6 ) FOR the reasons aforesaid, we have no hesitation to hold that the 'sum' payable on the application for grant of certificate being not court-fee, the Government Notification dated 7-6-1994, has no application. In case the application fails, the 'sum' so deposited is required to be refunded to the applicant concerned. ( 6 ) FOR the reasons aforesaid, we have no hesitation to hold that the 'sum' payable on the application for grant of certificate being not court-fee, the Government Notification dated 7-6-1994, has no application. It can however, be pressed into service after termination of the proceeding for grant of succession certificate in favour of the applicant. In view of what has been stated above, the view taken by the learned single Judge in Sharmila Das (supra) is correct and the case of Smt. Saudamini Das (supra) has not been correctly decided which is hereby overruled. ( 7 ) IN the result, the impugned order of the learned Civil Judge dated 22-7-1998 is hereby upheld and this revision accordingly stands rejected. ( 8 ) CH. P. K. MISRA, J. :- I agree. Ordered accordingly.