Suraj Narain Gupta vs Sarosi Bala Devi and Others

Meredith, J.—This matter has been referred to me as Taxing Judge u/s 5, Court-fees Act. On 28th February 1943, an application for probate of a will was filed in this Court. Under Rule 4, chap, 11, p. 65 of the High Court Rules the application has to be accompanied by a certificate of the Registrar as to duty having been paid. The duty in accordance with the Court-fees Act as it then stood, Article 11, Schedule 1, was paid, and the Registrar gave the necessary certificate. On 1st December 1943, before probate had been granted, the Bihar Court-fees (War Surcharge Amendment) Act, 1943, (Act 9 of 1943) came into force, and Section 2 of that Act provided:

Notwithstanding anything contained in the Court-fees Act, 1870, as amended from time to time in its application to Bihar (hereinafter called the principal Act), all lees leviable under the principal Act shall be increased by a tarcharge at the rates specified in the schedule annexed hereto.

On 22nd March 1944, when this Act was in force, an order was made for the grant of probate, but probate was not actually issued because the office raised the question whether an additional fee was due by reason of the amending Act.

The question for decision is whether the court-fee payable is to be determined under the old Act, or under the amending Act. That involves the question-when was the fee leviable? What was the crucial date for the payment of the fee ? That in turn depends upon the interpretation of Section 19-I, Court-fees Act, read, of course, with Section 4, which provides, inter alia, that no document of any of the kinds specified in Schedule 1 or Schedule 2 to this Act annexed, as chargeable with fees, shall be furnished by the High Court, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.

Section 19-I provides in effect that no order granting probate shall be made upon an application for such grant until the Court is satisfied that the fee mentioned in No. 11 of Schedule 1 has been paid.

The effecto f these, provisions seems to me to make the fee payable not upon the application but as a condition precedent to the grant of probate, and consequently the crucial time would be the time probate is granted. In this view the fee payable must be determined upon the law as it stands at the time of the order granting probate, and therefore the enhanced fee in the present case is payable. The High Court rule to which I have referred is only an administrative rule made for convenience, and does not, in my judgment, affect the position.

Mr. S. C. Mazumdar for the applicant relies upon Nahapiet v. Secretary of State AIR 1924 cal. 9871 where a contrary view was taken, but with respect I find the reasoning of the learned Judges in. that case unconvincing, and in any event they were dealing with the Bengal Court-fees Act, 1922, which contains a provision in Section 17 directly governing the matter, namely:

Nothing in this Act shall apply to any probate, letters of administration, or certificate in respect of which the fee payable under the law for the time being in force has been paid prior to the commencement of thisvAct but which have not issued.

There is no corresponding provision in the Bihar Court-fees (War Surcharge Amendment) Act, and, therefore, this case cannot be accepted as an authority.

Not only that, but it has been expressly dissented from by the learned Taxing Judge of the Bombay High Court in Gangaram Tillockchand v. Chief Controlling Revenue Authority AIR 1927 Bom.643. The reasoning of the learned Judge in that case appears to me sound and cogorit, and I would adopt it. I may mention that recently in Allahabad in a case relating to the corresponding enactment in the United Provinces for enhancement of court-fees owing to war conditions the Bombay view was followed in preference to that taken in Calcutta. I refer to In the �goods of In Re: A.M. Beechey, .

My decision is that the additional court-fees leviable under the War Surcharge Amendment Act must bo paid, and the probate must not be issued to the applicant until those fees have been paid.