Jagat Kishore Prasad Narain Singh vs Smt. Girja Kishori Devi

Meredith, J.—This is a reference to me as taxing Judge u/s 5, Court-fees Act. It raises a question with regard to the interpretation of my decision in Suraj Narain Gupta Vs. Sarosi Bala Devi and Others, . In that case, I held that court-fees upon an application for probate were payable not upon the applica-tion, but as a condition precedent to the grant of probate, and, therefore, the amount of fees payable must be determined not by the law existing at the time of the application but upon the state of the law at the time of the grant.

In the present case, an application for probate was made on 6th November 1942. On 6th April 1943, the applicant was called on to pay Rupees 18,400 the court-fee payable under the law as it then stood, and on 10th November 1943, that sum was paid. Subsequently, on 1st December 1943, the Bihar Court-fees (War Surcharge Amendment) Act, 1943 (Act 9 of 1943) came into force, providing that all fees leviable under the principal Act should be increased by a surcharge. In accordance with that Act the applicant was called on to pay a further sum of Rs. 4556-12-0. He objected that, under the decision to which I have just referred, the amount actually payable must be determined upon the law as it should stand at the time of grant of probate. As the amending Act was merely a temporary war measure it might be that when the probate eventually came to be granted, it would no longer be in force and the surcharge would not be payable. Therefore, he should not be called upon to pay it.

The difficulty in accepting this contention is provided by the High Court rule on the subject. Rule 4 (a), chap. 11, p. 65 of the Patna High Court Rules lays down that

Every application for probate, or for letters of administration with or without the will annexed, shall be accompanied by (a) A certificate of the Registrar as to duty having been paid, or a certificate of the Taxing Officer that no duty is payable.

Under this rule, the application cannot come up for hearing without the Registrar''s certificate that the duty has been paid, and the Registrar cannot give that certificate, unless the extra duty necessary under the amending Act has also been paid. The Registrar cannot anticipate what the state of the law may be at the uncertain date when probate comes to be granted. He must proceed upon the basis of the law as it stands. Therefore, under the rule, the Registrar must insist upon the payment of the surcharge.

In my judgment, as long as this rule stands it must be enforced, and the surcharge must, therefore, be paid. It is quite true that in the decision referred to I held that this was only a rule of procedure, and could not affect the question of the amount of duty actually payable. All this means, however, is that despite having to pay under this rule the applicant may possibly eventually be entitled to a refund. It does not mean that the rule can be ignored, or that it does not have to be complied with.

In this view of the matter, the surcharge must be paid, so that the Registrar can give the certificate necessary under the rule. Should the amending Act have been repealed at the time the question arises of the grant of probate, then it will be open to the applicant to apply for a refund.