JAGAT NARAYAN, C. J. - (1.) -
(2.) THIS is an application for permission to sue in forma pauperis under O. 33, R. 1, C. P. C. by the respondents. THIS application has been opposed on behalf of the appellants. The facts which have given rise to this application are these. One Dayachand alias Kanhaiyalal is alleged to have executed a will on 6-7-64 bequeathing his property consisting of a house and some movables in favour of a deity. He appointed 11 persons as executors under the will. These 11 persons were also appointed as trustees of the trust created under the will. After the death of Dayachand they filed an application for the grant of probate of the will in the court of the District Judge, Jodhpur, on a court-fee stamp of Rs. 25/ -. This is the court-fee prescribed under Schedule II, Art11 (j) (l) of the Rajasthan Court-Fees and Suits Valuation Act, 1961. The value of the house left by the testator is Rs. 30,000/- and the value of the other movable property left by him is Rs. 500/ -. This has been disposed of under the will. One Nathmal entered a caveat. Ad valorem court-fee then became payable under Schedule II, Art. 11 (j) (2 ). Art. 11 (j) runs as follows: " (j) (l) Application for probate or letters of administration to have effect throughout India. Twentyfive rupees. (ii) Application for probate or letters of administration not falling under clause (1): - (1) if the value of the estate does not exceed Rs. 1000/- Seventyfive Naye Paise. (2) If the value exceeds Rs. 1000/- Five rupees. Provided that if a caveat is entered & the application is registered as a suit, one-half the scale of fee prescribed in Art. 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied. " The applicants were however not called upon to pay ad valorem court-fee on Rs. 15,250/- by the trial court under the erroneous impression that this was exempt under the proviso to sec. 51 (l) (b) of the above Act. That proviso only exempts the fee payable under Art. 6 of Schedule I which runs as follows: "probate of a will or letters of administration with or without will annexed - When the amount or value of the estate in respect of which the grant of probate or letters is made exceeds one thousand rupees, but does not exceed five thousand rupees. Two per centum on such amount or value. When such amount or value exceeds five thousand rupees. Three per centum on such amount or value. " The learned District Judge passed an order for the grant of probate in favour of the applicants Nathmal filed an appeal against the order on a court-fee stamp of Rs. 25/- only. An objection was taken by the office that court-fee was payable under Art. 11 (j) of Schedule II on the memorandum of appeal. This objection was upheld by this Court under its order dated 14-1-70, and notice was issued to the respondents, who had filed the application for the grant of probate before the learned District Judge to show cause as to why the deficit court-fee should not be recovered from them under sec. 11 (4) (c ). The respondents have now filed the present application for permission to treat the proceedings before the learned District Judge as being in forma pauperis under 33 rule1 C. P. C. The learned counsel for the respondents has relied on the decision of Mysore High Court in Chikkanan-jundappa vs. Pilianna (1 ). It was held in that case following the Full Bench decision of the Madras High Court in Swaminathan vs. Official Receiver Ramnad (2) that the capacity of the person suing in a representative character must be kept distinct from his personal capacity and therefore even though the trustees are possessed of sufficient means of their own to enable them to pay court-fee they can be permitted to sue in forma pauperis if they are not in possession of any of the properties belon-ging to the trust. There is some conflict of judicial authority on the point, which has been noticed in Note 11 to O. 33 R. 1 in Chitley's Commentary on the Code of Civil Procedure. The opposite view point is represented by the decision of the Nagpur High Court in Mt. Jankibai vs. M. Bhikai (3 ). We have duly considered both the points and we are respectfully in agreement with the view taken in the Full Bench decision of the Madras High Court. We accordingly allow the application of the respondents. They will be treated as having sued in forma pauperis in the court of the learned District Judge, Jodhpur. . ;