- (1.) AN objection has been taken by Kishan Gopal, respondent No. 1, that the court-fee paid on the memorandum of appeal is insufficient.
(2.) ONE Badri Prasad died on 11th May 1964. Kishan Gopal. , respondent No. 1, applied for grant of probate of the will alleged to have been executed by Badri Prasad in his favour. He was the main legatee under this will. Badri Prasad had 7 daughters. Kishan Gopal is the son of one of them. Smt. Shanti Bai, appellant, and Smt Nangi Bai, respondent No. 2, who are also the daughters of the deceased filed an objection against the grant of probate on various grounds. After the evidence of the parties had been recorded and the case was under arguments on 19. 3. 66 an oral objection was raised on behalf of Smt. Shanti Bai that the application for grant of probate was not properly stamped as required by the Rajasthan Court Fess & Suits Valuation Act, 1961. After hearing the objections the court fixed 22-3-66 for delivery of judgment. On 21. 3. 66 the appellant filed. . . a written objection on the question of court fee to which Kishan Gopal filed a reply on the same day. The appellant filed a rejoinder on 22. 3. 66. The court gave a decision on 22-3-66 that the court-fee paid is insufficient and that court-fee was payable under the proviso to article 11 (j) of Schedule II of the Rajasthan Court-Fees Act. In the order granting probate it was stated by the learned District Judge that the probate shall not be issued till the deficiency in court-fee was made up. The market value of the estate of the deceased was given by Kishan Gopal as Rs. 1,35,000/- Ad valorem court-fee was paid in accordance with the proviso to article 11 (j) of Schedule II on half of this amount. This amounted to Rs. 3340/- This court-fee was paid on 4-4-66. The present appeal has been filed by Smt. Shanti Bai on a court-fee stamp of Rs. 10/- only. It is stated in the memo of appeal that it has been valued at Rs. 260/- for payment of court-fee as the subject-matter is incapable of valuation and the court-fee under Schedule I article 4 is paid at one half the fee prescribed in Schedule I article 1 or in the alternative the fixed court-fee of Rs. 10/- is paid under Schedule II article 3, sub-article (iii) of the Rajasthan Court Fees Act. Notice was issued to the learned Government Advocate and I have heard the learned counsel for the parties. Sec. 295 of the Indian Succession Act lay down that in any case before District Judge for the grant of probate or letters of administration, in which there is contention the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908. Sec. 50 (1) of the Rajasthan Court Fees Act runs as follows: "every application for the grant of probate or letters of administration shall be accompanied by a valuation of the estate in duplicate in the form set forth in Part I of Schedule III. The court-fee chargeable on an application for probate or letters of administration is prescribed under article 11 (j) of Schedule II, which runs as follows: "11 (j) (i) Application for probate or letters of administration to have effect throughout India. Twenty-five 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/-: (2) if the value exceeds Five rupees Rs. 1000/-; Seventy-five Naye Paise Provided that if a caveat is entered and the application is registered as a suit one-half the scale of fee prescribed in article 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied. " The court-fee payable on a memorandum of appeal against an order in proceedings under the Indian Succession Act, 1925, is prescribed under article 4 of Schedule I of the Rajasthan Court Fees Act, which runs as follows: "memorandum of appeal against order in proceedings under the Indian Succession Act. 1925 (Central Act 39 of 1925) An amount equal to one-half the fee at the scale, prescribed in Art. 1 on the amount or value of the subject-matter. The first contention on behalf of the appellant is that this case was never registered as a suit and so the proviso to article 11 (j) of Schedule II is not applicable. At this stage the question is not whether the court-fee paid by Kishan Gopal on his application for grant of probate was excessive or proper. The appellant is estopped from contending that the court-fee paid by him is excessive since it was on his objection that he had to pay court-fee in accordance with the proviso to article 11 (j) at one-half the scale of fee prescribed in article 1 of Schedule I on the market value of the estate. Even though this point does not arise for decision in the present proceedings I am of the opinion that the court-fee paid by Kishan Gopal is proper. Even though the application was not registered as a suit under sec. 295 of the Indian Succession Act the court was bound to try the case as nearly as if it were a regular suit. Court-fee in a contentious case for the grant of probate or letters of administration is therefore payable under the proviso to article 11 (j ) of Schedule II. In this case to the memorandum of appeal Art. 4 of schd. I is applicable in which there is no mention of the application being registered, as a suit. It is laid down that court-fee is payable amounting to one-half the fee at the scale prescribed in article 1 Schedule 1 on the amount or value of the subject-matter. It was contended that the subject matter in proceedings for grant of probate or letters of administration is not the estate of the deceased, but the only question which arose in the present case was whether the will which Kishan Gopal has propounded was duly executed by the testator. That is true. But article 4 of Schedule I is to be read along with sec. 50 of the Rajasthan Court Fees Act contained in Chapter VI headed "probates, Letters of Administration and Certificates of Administration". That section lays down that every application for the grant of probate or letters of administration shall be accompanied by a valuation of the estate. Reading article 4 in the light of sec. 50 it is clear that the subject-matter in an appeal against an order granting probate or letters of administration is the estate of the testator. Another argument which was put forward on behalf of the appellant is that the order granting probate is not the final order because the grant of probate is subject to the payment of court-fees. Court-fees had already been paid before the present appeal was filed and therefore the order granting probate is final order against which the present appeal has been filed under sec. 299. It is clear that it is not an interlocutory order to which the decision of this Court in Mst. Jaikaur vs. Nand Singh (1) may be applicable. The learned counsel for the appellant also referred to the decision in Puinbasi Majhiani vs. Shiba Bhue (2 ). That decision is based on the Court Fees Act applicable to the State of Orissa and is of no help in interpreting the provisions of the Rajasthan Court Fees Act, which are different.
(3.) I accordingly hold that the court-fee paid is insufficient. The proper court-fee payable on the memorandum of appeal is Rs. 3,440/ -. The appellant has paid only the court-fee of Rs. 10/ -. One month's time is given to her to make up the deficiency failing which the appeal would be dismissed. .;