S. Unnamalai Ammal vs E. Ramaswami

Veeraswami, J.—This petition raises a question relating to the power of the Courts to grant leave under O. 33, C. P. C., in relation to

probate duty payable under S. 57 of the Madras Court Fees and Suits Valuation Act, 1955. The respondent claiming to be an executor under the

Wills executed by T. S. Sankara Moopanar and T. S. Subbiah Moopanar, filed O. P. No. 90 of 1962 for probate, which as it is stated at the Bar,

after caveat has been registered as a probate suit on the file of the Court of the Subordinate Judge of Tirunelveli. Before the matter was registered

as a suit, the petitioner applied for being recognised as a pauper with reference to probate duty payable in due course. This petition was allowed

on the ground that the petitioner was possessed of no means to pay the probate duty. This petition by the respondent is to revise the order. Mr.

Ramaswami Iyengar for the petitioner contends that the Court has no power to allow the petition. This question is covered by two judgments of

this Court In the matter of the estate of C. Govindaswami (1937) 2 M. L. J. 399=47 L.W. 736 and Palani Gramani v. Manickammal AIR 1938

Mad. 486 =47 L.W. 731. In the earlier case, Venkatasubba Rao, J. sitting on the Original Side held that O. 8, R. 14 of the Madras High Court

Original Side Rules relating to paupers refers not only to suits, but also to proceedings, and on the analogy of O. 33, R. 10, C. P. C., S. 19I of the

Court Fees Act 1870, should be reasonably interpreted, and on that view it was open to the Court not only to entertain am application in forma

pauperis but also to make a further order granting probate to the applicant without payment by him of the requisite Court-fee under Art. 11 of Sch.

I of the Court Fees Act. This view was followed by Gentle, J. in the second case. The learned Judge elaborately considered the question with

reference both to the Original Side Rules as well as O. 33, C. P. C., and came to the conclusion that S. 19-I of the Court Fees Act was subject to

the provisions of O. 33, R. 8, C.P.C. which unequivocally dealt with exemption from payment of all Court-fees in any proceedings connected with

a pauper suit. Though O. 33, by its terms applies to suits, by reason of S. 141, C. P. C., its provisions are extended to proceedings other than

suits. This point of view has also been accepted in the two decisions cited. With respect I follow the principle of these two decisions and hold that

therefore, the Court has power to declare pauperism in respect of payment of probate duty.

Mr. Ramaswami Aiyangar contends that although this was the position under the old Court Fees Act, the proviso to S. 57 of the Madras Court

Fees Act and Suits Valuation Act, 1955 would make a difference. Learned Counsel argues that exemption from payment of probate duty is

confined by the proviso to the Administrator General and that impliedly it follows that such exemption will not be available to others. I am unable to

accept this contention. The proviso is not related to pauperism. Because the main part of S. 97 directs that the probate duty should be collected

before probate is granted by Court, the proviso makes an exception in the case of Administrator General and enables him to pay the probate duty

at a time subsequent to that stage fixed by the Court. In my view,; the proviso makes no difference to the principles settled by the judgments of this

Court in In the matter of the Estate of C. Govindaswami (1937) 2 M. L. J. 399=47 L.W. 736 and Palani Gramani v. Manickammal AIR 1938

Mad. 486 =47 L.W. 731. Mr. Ramaswami Aiyangar apprehended that the order of the Court below should not be construed as deciding the

status of the petitioner as an executor which was questioned by his clients. Obviously, the order of the Court below had no occasion to deal with

that aspect and is only confined to the petition for declaration of pauperism of the petitioner.

The petition is dismissed. No costs.