Ananta Keshari alias Rama Sarkar Vs Collector and Another

B.K. Ray, J.@mdashThe Petitioner''s father Adhar Chandra Sarkar by a registered will dated 5-4-1962 bequeathed the properties described in the schedule of the will to the Petitioner and his mother Sakuntala Dasi jointly in equal shares. After the death of Adhar Chandra Sarkar on 5-6-1962, Sakuntala filed Misc. Case No. 9 of 1962 in the Court of the District Judge. Cuttack, on 30-7-1962 for probate of the said will and deposited Rs. 180/- in chalan No. 418 dated 17-9-1962 towards the duty money. The case, however, was dismissed on 21-9-1964 for default of Sakuntala to pay the balance of the duty money. Thereafter, Sakuntala again filed Misc. case No. 18 of 1964 on 4-11-1964 in the Court of the District Judge, Cuttack, for probate or letters of administration of the very same will. This time the duty money payable by Sakuntala was determined by the Court at Rs. 1500/-. Sakuntala, therefore, deposited Rs. 1320/- by chalan No. 443 dated 17-11-1964 and along with the deposit she filed a petition to adjust her previous deposit of Rs. 180/- in Misc. Case No. 9 of 1961 The said petition was allowed, and therefore, the duty money determined by the Court at Rs. 1500/- was fully paid. On 10-9-1968, however, Sakuntala filed an application to withdraw her case, namely, Misc. Case No. 18 of 1964. The matter was carried to this Court in Civil Revision Nos. 140 and 141 of 1969. Ultimately the District Judge, Cuttack allowed Sakuntala''s application fur withdrawal of the Misc. Case by order No. 182 dated 3-3-1970. The Petitioner was a minor till August, 1972, and it was on account of his minority he could not take any action in the matter of making a fresh application for probate of the will. After the Petitioner attained majority, he obtained a certified copy of the will, which is in this Court in connection with First Appeal No. 33 of 1974 and filed Misc. Case No. 2 of 1976 on 9.2.1976 10 the Court of the District Judge, Cuttack for grant of letters of administration on the said will Prior to filing the application for letters of administration, the Petitioner had filed Title Suit No. 111 of 1974 to the Court of the Subordinate Judge, Cuttack to establish his title over his half share in the property covered under the will and to set aside some fraudulent transfers made by his mother. The said suit having been dismissed, the Petitioner filed M.J.C. No. 111 of 1977 together with the First Appeal against the decision of the Subordinate Judge. The M.J.C. was filed for permission to prefer the First Appeal in forma pauperis. In Misc. Case No. 2 of 1976 which the Petitioner had filed for letters of administration on the will, the Petitioner filed an application praying that he may be exempted from depositing the duty money chargeable which has already been paid by his mother In the previous Misc. Case referred to above. That application having been dismissed by the District Judge, Cuttack by order dated 30-8-1977, the Petitioner has come to this Court with the present Civil Revision.

2. Mr. S.C. Mohapatra, learned Counsel for the Petitioner, contends that u/s 19(c) of the Court Fees Act, the Petitioner should not have been asked to pay duty as the duty payable for the will had already been paid by his mother and was lying in deposit. This contention of Mr. Mohapatra is not borne out from the language used u/s 19-C of the Court-Fees Act which reads thus:

19-C. Whenever a grant of probate or letters of administration has been or is made in respect of the whole of the property belonging to an estate, and the full fee chargeable under this Act has been or is paid thereon, no tee shall be chargeable under the same Act when a like grant is made in respect of the whole or any part of the same property belonging to the same estate.

The above provision, in our mind, can be of no avail to the Petitioner. The said provision dearly lays down that when either probate or letters of administration has been granted in respect of the whole of the property belonging to the estate in favour of some person and the full fee chargeable under the Indian Succession Act has been paid thereon, no fee shall become chargeable under the same Act when a subsequent like grant is made in respect of the whole or any part of the same property belonging to the same estate. Admittedly in the present case no grant has been made in favour of the Petitioner''s mother. Had such a grant been made as contemplated u/s 19-C of the Court Fees Act, Petitioner''s contention might have prevailed. But since no grant either of probate or of letters of administration has actually been made III favour of the Petitioner''s mother, the application of the Petitioner for probate or letters of administration in Misc. Case No. 2 of 1976 must be held to be application for fresh grant for the first time and before a grant is made the Petitioner is bound to pay the duty chargeable. The contention of Mr. Mohapatra, therefore, has to be overruled.

3. The next contention raised by Mr. Mohapatra is this. According to him, in view of the provisions contained in Section 19-I of the Court Fees Act, the Petitioner should not have been failed upon by the learned District Judge, Cut tack to pay the duty money and in the event of his failure to pay the same by the time granted by the Court, it was not open to the learned District Judge to dismiss the Petitioner''s application. It is contended, relying on the aforesaid provision that the duty money has to be paid before actual granting of probate or letters of administration. In other words, what Mr. Mohapatra wants to urge is that the learned District Judge should have proceeded with the case and should have only caned upon the Petitioner to pay the duty money before actual granting of probate or letters of administration. According to Mr. Mohapatra, the learned District Judge was wrong in asking the Petitioner to pay the duty money at the initial stage and in refusing to proceed with the case on account of non-payment of duty money. Mr. Mohapatra supports this contention by relying upon a decision reported in Pritish Kumar Mitra Vs. Prosanto Kumar Mitra and Another, . According to that decision, Section 19-I of the Court Fees Act does not prevent the Court from hearing an application for probate but only prevents it from making an order granting probate until Court-fees is paid. It is, therefore, urged on behalf of the Petitioner that there was no bar for the District Judge to proceed with the case and to bear the Petitioner''s application for probate or for letters of administration, and that the District Judge should have only Called upon the Petitioner to pay the duty money only immediately before the granting of probate or letters of administration, as the case may be. It is difficult to accept this contention of Mr. Mohapatra. In the decision reported in Mundrika Prasad Singh Vs. Mst. Kachnar Kuer and Others, Section 19-I of the Court-fees Act has been interpreted to mean that the Court fee payable under Schedule I, Article 11 on the valuation fixed by the Court is to be paid before the hearing of the proceedings and not just before the Issue of probate to the Appellant. The stage at which the probate or letters of administration is actually issued by the office is one which is not contemplated in Section 19-I and is a ministerial act which has nothing to do with the judicial function of the Court. In this view, therefore, their Lordships of the Patna High Court held that hearing of the petition either for probate or letters of administration cannot be undertaken before payment of duty money. The reasonings given for such a conclusion appears to be more sound than the reasonings given in the decision reported in Pritish Kumar Mitra Vs. Prosanto Kumar Mitra and Another, . Accordingly, we bold that the Petitioner has to pay the duty money on the valuation fixed by the Court before commencement of the hearing of the petition for probate or letters of administration, as the case may be.

4. Both the contentions raised by Mr. Mohapatra having failed, the application is liable to be dismissed. But in course of hearing of the application Mr. Mohapatra prays that in case the present Civil Revision is dismissed on merit, the Petitioner should be given a chance to pay the duty money chargeable on the will. We do not see any sufficient reasons to disallow this prayer of the Petitioner. Accordingly, the Civil Revision is dismissed with a direction to the Court below that it should give one month''s time to the Petitioner from the date it receives back the records from this Court to pay the duty money chargeable under the will in Misc. Case No. 2 of 1976 it is open to the Court below to extend time on sufficient grounds being shown. In case the duty money is paid as directed, Petitioner''s application for probate or letters of administration on the will in question shall be disposed of on merit according to law.

There would be no order for costs.

J.K. Mohanty, J.

5. I agree.