Pishorilal Sethi vs Arvind K. Jauhar

Arun Mishra, J.

The order passed by the Eleventh Additional District Judge, Jabalpur in Probate Case No. 9/1999 passed on 18-12-2002 has been assailed in this writ petition.

Probate case is pending, it is being contested. At the stage of evidence, the Court has asked the payment of the Court fees after making the valuation of the property. Dissatisfied with the order, the writ petition has been preferred.

Shri Pranay Verma has relied on Section 19-I of Court Fees Act and a decision of this Court in Smt. Usha and Others Vs. State, .

After hearing learned Counsel for the petitioner, the main question for consideration is whether under Article 11 of Schedule 1 of Court Fees Act, the Court fees is required to be paid on the application which is filed for obtaining the probate of a Will. The Article 11 of Schedule I of the Court Fees Act is quoted below:

Probate of a Will or letters of administration with or without will annexed.

When the amount or value of the property in respect of which the grant of probate or letters is made exceeds one thousand rupees, but does not exceed ten thousand rupees.

Two per centum on such amount or value.

When such amount or value exceeds ten thousand rupees, but does not exceed fifty thousand rupees.

Two and one half per centum on such amount or value.

When such amount or value exceeds fifty thousand rupees :

Provided that when, after the grant of a certificate under the Succession Certificate Act, 1889 (7 of 1889) or under the Regulation of the Bombay Code No. VIII of 1827, in respect of any property included in an estate, a grant of probate or letters of administration is made in respect of the same estate, the fee payable in respect of the latter grant shall be reduced by the amount of the fee paid in respect of the former grant.

Three per centum on such amount or value.

The words used are that the Court fees is required to be paid on probate of a Will, not on the application. The Court fees prescribed on the amount or value as prescribed in second and third column, is based on valuation but this is to be affixed on the probate of a Will, not on the application. Application cannot be said to be probate of Will. In similar circumstances, considering Article 12 of Schedule I which is pari materia provision relating to succession certificate in Smt. Usha v. State (supra), this Court has opined that payment of Court fees alongwith the application is not a pre-condition. The Court fees has to be paid at the time of issue of certificate.

Consequently, the Trial Court was not justified in asking the Court fees on probate application. The Trial Court to ask the Court fees in the light of aforesaid decision at the time of deciding the entitlement.

Writ petition is allowed. Impugned order is quashed.

Parties shall bear their costs.