SALILA CHANDRA Vs. REV HIRAN KUMAR DAS GUPTA

JUDGEMENT

(1.) This is an application under Section 115 of the Code. By Rule obtained on the 3rd May, 1971, the petitioner assails an order of the District Judge. 24 Parganas being order No. 4 dated 12-1-1971, in O.S. No. 47 of 1970 (Mrs. Salila Chandra v. Rev. Hiran Kumar Gupta). It appears that the petitioner made an application for probate in respect of the estate of one Miss Salila Ghosh alias Miss S. Ghosh in the Court of the District Delegate on the 27th September. 1969. After this application was made the West Bengal Court-fees Ordinance, 1969 (West Bengal Ordinance No. XVII of 1969) was promulgated on the 15th December, 1969. Section 50 (2) of this Ordinance was as follows:

(2.) In January, 1970. the West Bengal Court-fees (Amendment) Act, 1970, came into force incorporating the provisions of said Ordinance. On the 24th March, 1970, the opposite party appeared in the probate proceeding. On August 20, 1970. the opposite party filed objections and on the 11th November, 1970. the probate proceeding was registered as a suit.

(3.) The question that arises for our consideration is whether the quantum of Court-fees payable in respect of this proceeding shall be governed by the Court-fees Act, 1870 or by the Ordinance of 1969 and the subsequent Act validating the Ordinance. Under the 1870 Act for a petition of this nature an initial court-fee of Rs. -/12/- ans. or 75 paise was payable which the applicant in the instant case had paid. But under the proviso to Schedule II, Article 1. Clause (g) of the Ordinance of 1969, certain changes were made. The proviso runs thus:--