S. Unnamalai Ammal vs E. Ramaswami

Veeraswami, J.—This petition raises a question relating to the power of the Court to grant leave under Order XXXIII of the CPC in relation

to probate duty payable u/s 57 of the Madras Court-Fees and Suits Valuation Aot (XIV of 1955). The Respondent claiming to be an executor

under the Wills executed by T.S. Sankara Mooppanar and T.S. Subbiah Mooppanar, filed Original Petition No. 90 of 1962 for probate, which,

as it is stated at the Bar, after oaveat 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 Respondents

is to revise the order.

Mr. Ramaswami Ayyangar 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 In the matter of the In Re: In The Matter of The Estate of C. Govindaswamy, and G. Meenakshisundaram Aiyar Vs.

Swaminatha Aiyar, . In the earlier case, VENKATASUBBA RAO J., sitting on the Original Side held that Order VIII, Rule 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 Order XXXIII, Rule 10

of the Code of Civil Procedure, Section 19-I of the Court Fees Act, 1870, should be reasonably interpreted, and on that view it was open to the

Court not only to entertain an 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 Article 11 of schedule I of the Court-Fees Act. This view was followed by GENTLE J., in the seoond case.

The learned Judge elaborately considered the question with reference both to the Original Side Rules as well as Order XXXIII of the CPC and

came to the oonolusion that Section 19-I of the Court-Fees Act was subject to the provisions of Order XXXIII, Rule 8 of the CPC which

unequivocally dealt with exemption from payment of all Court-fees in any proceedings connected with a pauper suit. Though Order XXXIII by its

terms applies to suits, by reason of seotion 141 ofthe Code of Civil Prooedure, 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 the Court

has power to declare pauperism in respect of payment of probate duty.

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

Court-Fees 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 aooept this contention. The proviso is not related to pauperism. Because the main part of Section 57 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 G. Govindaswamy (1037) 2 M.L.J. 899 and G. Meenakshisundaram Aiyar Vs.

Swaminatha Aiyar, .

Mr. Ramaswami Ayyangar apprehended that the order of the Court below should not be construed as deciding the status of the Petitioner as an

exeoutor which was questioned by his olients 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.