Konda Siddhia Chetti vs M. Venkataroya Chetty and Another

Mr. Chandrasekhara Aiyar has raised an interesting question as to the fee payable to practitioners in appeals from orders, granting or refusing

Probate or Letters of Administration, The Taxing Officer has informed us that there is no settled practice in this Court on the subject. Sometimes

he fixes a reasonable fee. Sometimes advalorem fee as in a regular appeal is fixed. In Bombay according to a long standing practice, only a fee of

Rs. 30 is decreed; See Sundra Bai v. Collector of Belgaum ILR (1908) Bom. 256. In Calcutta sometimes the Judges fix the fee at the hearing. If

that is not done, the Taxing Officer fixes Rs, 80 as the fee, See Baijnath Prasad Singh v. Sham Sundur Kuar ILR (1913) Cal. 687. It is not denied

that in the mofussil the pleaders''s fee is on the advalorem scale as in a suit. In the Original Side of our High Court also, the same practice is alleged

to exist. In this state of the authorities we have been asked to settle the rule of practice. Mr. Chandrasekhara Aiyar contended that Rule 36 of the

Appellate Side Rules read with Rule 35 should govern these matters. Although in Section 19 A and B in the Table to the Court Fees Act, the duty

payable on grant of Probate or Letters is referred as Court; fee, that expression has reference to the machinery which collects the fee, and to

nothing else. In essence, it is a duty which the Crown levies on the party who benefits by the testator''s property. Therefore, in our opinion, the

graduated scale of fee paid on the amount for which Probate is granted cannot come under the expression advalorem fee used in Rules 35 and 36.

It was pointed out in J.M. Rodrigues Vs. A.M. Mathias and Another, that the right in dispute in Probate proceedings is not so much a right to

property as it is a right to manage and administer the estate by the person applying. It is that right that the Court adjudicates on before granting

Probate. That right may refer to any extent of property large or small. But that is not what the Court has to consider. It is only the personal right.

Consequently it seems to us that the subject matter of a Probate Appeal is not capable of valuation and the proper rule applicable is Rule 38. In

this view, the order of the Taxing Officer is right.