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Special Miscellaneous Applications Nos. 96 of 1982 and 39 of 1983, decided on 29th March, 1987.

‑‑S. 19‑I‑‑Letters of Administration‑‑Court‑fees‑‑Court‑fees on Letters of Administration is to be paid by petitioner according to the law prevailing on the date of order granting Letters of Administration in favour of petitioner.

Jagat Kishore v. Girjin Kishore Devi A I R 1945 Pat. 361 and A.H. Beechery's case A I R 1944 All. 119 ref.

‑‑‑S. 19‑I‑‑Court cannot pass final order entitling petitioner to the grant of Letters of Administration, until and unless it is satisfied that deposit of court‑fee as required under S.19‑1 has been made by the petitioner‑‑Where Court had passed such an order, without first satisfying itself with regard to deposit of court‑fee, order was not necessarily rendered without jurisdiction‑‑Petitioner, even after passing of such an order could deposit court‑fee in accordance with S.19‑1 and on such deposit Letters of Administration or the probate as the case may be, could be issued in favour of petitioner validly.

Ghandara Singh v. Chameli Devi A I R 1948 All. 269 ref.

‑‑S. 19‑I‑‑Order granting Letters of Administration passed on condition of furnishing of sureties on 9‑10‑1983 and 4‑12‑1983 respectively‑‑Such orders were varied on the respective applications of petitioners on 15‑4‑1984 and 1‑4‑1984‑‑Held, variations of original orders were of substantial nature and could not fall in the category of correction of any error‑‑Said variations clearly amounted to review of original orders and as a result thereof orders passed by Court in cases on 15‑4‑1984 and 1‑4‑1984 respectively were the final orders in the cases determining entitlement of petitioners for grant of Letters of Administration‑ Court‑fee, therefore, should be recovered from petitioner according to the law applicable on dates namely 15‑4‑1984 and 1‑4‑1984 in circumstances.

Abbas Ali for Petitioner.

Wajihuddin Ahmad on Court's Notice and.

Iqbal Kazi : Amicus Curiae.

Date of hearing: 12th February, 1987.

The petitioners in the above cases have applied that the Letters of Administration granted in their favour may be issued to them on payment of court‑fee of Rs.15 only, now payable under Article 13‑A of the Schedule of the Court Fee Act, 1870.

In S.M.A. No. 96 of 1982 the order granting Letters of Administration on furnishing two sureties was passed in favour of the petitioner by the then Honourable Chief Justice on 9‑10‑1983. The above order was varied on 15‑4‑1984 on the application of petitioner and sureties were dispensed with. In S.M.A. No. 39 of 1983 the order granting Letters of Administration in favour of petitioner was also passed by the then Chief Justice on 4th December, 1983 on condition of furnishing two sureties but on the application of petitioner, the above order was varied and sureties were dispensed with on 1‑4‑1984. However, as the petitioners did not deposit the amount of court‑fee in accordance with Article 11 of the First Schedule of Court Fees Act, the cases were consigned to record on 11‑11‑1984 and 13‑5‑1985 respectively. It may be mentioned here that the court‑fee on Letters of Administration was payable advalorem on the value of the property under Article 11 of the First Schedule to the Act, before 5‑3‑1984. However, by Ordinance I of 1984 (Court Fee (Sind Amendment) Ordinance, 1984) which was promulgated on 5‑3‑1984, a new Article 13‑A has been added after Article 13 in the First Schedule which provides that as and from the date of the Ordinance the court‑fee payable in respect of a probate of a will or Letters of Administration with or without will annexed, Certificate under Part X of the Succession Act, 1925 and Certificate under the Sind Regulation VIII of 1877 will be Rs.15 only. The learned counsel for the petitioners contended that as under Article 13‑A of First Schedule of Court Fees Act the court‑fee payable on Letters of Administration now is Rs.15 only, the petitioners may be issued the same after recovery of a sum of Rs.15 towards the court‑fee. As the learned counsel for the petitioners were unable to render any useful assistance in the cases and the matter related to the recovery of court‑fee and was also of general importance I issued notice to learned Advocate‑General, Sind and also requested Mr. Iqbal Kazi, a Senior Advocate of this Court to appear as an amicus in these cases. After hearing the learned Advocate‑General, Sind and the learned Amicus Curiae at length, the settled legal position which emerges in the cases is that the court‑fee on the Letters of Administration is to be paid by the petitioners according to the law prevailing on the date of the order granting the Letters of Administration in favour of petitioners (see Jagat Kishore v. Girjin Kishore Devi A I R 1945 Pat. 361, and In re A.H. Beechery A I R 1944 All. 119. There is, however, disagreement between the learned Advocate‑General, Sind and the learned Amicus Curiae with regard to the date which should be considered as the date of the order granting Letters of Administration to the petitioners. Mr. Iqbal Kazi, the learned Amicus contended that in view of the clear provision of ‑section 19(1) of the Court Fees Act, the Court has no power to grant Letters of Administration to a petitioner, unless he has firstly, filed in the Court a valuation of the property in the form set forth in the III Schedule and secondly, the Court has satisfied itself that the fee mentioned in Article 11 of the 1st Schedule of Court‑Fees Act has been paid on such valuation. It is accordingly contended by the learned Amicus that the admitted position in both these cases is that on the date the orders granting the Letters of Administration were passed in favour of petitioners, the court‑fee payable in the case according to Article 11 of the let Schedule of Court‑Fees Act was not paid by them and as such the Court had no power to pass the orders granting Letters of Administration in their favour. According to learned Amicus the Court, therefore, should ignore the above orders, and pass a fresh orders in the cases after satisfying itself that the court‑fees payable in the cases are deposited by the petitioners. The learned Advocate‑General, Sind on the other hand contended that the order granting Letters of Administration having been passed in favour of petitioners on a particular date, the court‑fee should be recovered according to the law prevailing on that date. Before considering the above contentions of learned Amicus and the Advocate‑General, Sind it will be useful to examine in some details the case of Ghandhara Singh v. Chameli Devi A I R 1948 All. 269, referred by the learned Amicus Curiae in course of his submissions. In the above noted case the scope of section 19‑(I) of the Court Fees. Act was considered at length by three learned Judges of that Court. The District Judge, Agra in that case on an application for grant of probate of a will directed the petitioners to make good the deficiency in the court‑fee deposited by them before the date fixed for final hearing of the case. The petitioners in that case filed an appeal before the Allahabad High Court against the above order of District Judge, Agra. The case came up for hearing before a Division Bench of that Court consisting of Walliullah and Mathur, JJ. The learned Judges with reference to the language of section 19‑(I) of Court Fees Act considered the point of time on which before making the order for grant probate in favour of petitioner, the Court should ask the petitioner to deposit the court‑fee in Court. One of the learned Judges of Division Bench (Walliullah, J.) expressed his opinion as follows: ‑---------

"It will be noticed that section 19‑(I) does not indicate when exactly, prior to the making of the order, the payment of the is court‑fee is to be made. There is thus a lacuna in the statute and this can be filled up, as has been done in some other High Courts, by providing for it specifically in the Rules of the Court (or in the case of subordinate civil Courts, by adding a rule in the General Rules, Civil, similar to Rule 56 of Chapter XI which applies to an application for a succession certificate). Again, it may be noticed that Article 11 of Schedule 1, Court‑Fees Act provides for payment of court‑fee on the probate and not on the application for probate. Obviously the matter of the payment of probate duty is very different from a civil suit where the court‑fee is payable on the plaint and not on the decree. Section 19‑(I), Court Fees Act undoubtedly makes it clear that the court‑fee is to be calculated and paid at a point of time anterior to the order entitling the petitioner to the grant of probate. In this state of the matter, there has grown up a long‑standing practice in this Court of passing an order in this form: ---------

'Let probate issue as prayed on court‑fee being first paid. In the absence of any specific provision indicating the point of time when the court‑fee is to be paid and the procedure which has to be followed in making the payment, it seems to me that the Court concerned may adopt one of two alternative courses:

(1) After it has decided that the applicant should succeed it may stay its hands at that stage and call upon the applicant to pay the necessary court‑fee on the probate and then, after the applicant has complied with the direction of the Court, it may pass the order granting the probate, or (2) The Court may pass a conditional order as is the practice of this Court referred to above. This will result in substantial compliance with the provisions of section 19‑(1), though perhaps it may not be so in a strictly literal sense. The provisions of the section must, however, be interpreted in a reasonable manner and, in my opinion, the prevailing practice of this Court is not inconsistent with or against the provisions of section 19‑(1), Court Fees Act. Reference might be made to the Testamentary Case No. 4 of 1906 decided by two learned Judges, Knox and Aikman on 7‑2‑1906, where an order was passed in accordance with the practice mentioned above. It should be noticed that s9me seven years had elapsed since the passing of the Court‑Fees Amendment Act, 1899 (11 of 1899) which inserted section l9‑(I) into the Court‑Fees Act of 1870 when this case was decided.

I have not been able to trace any earlier case on this point decided by this Court prior to the above- mentioned case decided in 1906. And since 1906 the present practice appears to have been consistently follow in this Court. It appears however that in 1934 the propriety of this practice was called in question. In view of the provisions of section 19-(1) of the Act the office invited the attention of the then Taxing Judge Sir Edward Bennet and it was decided to maintain the practice. It has been observed ever since, Again in First Appeal No. 443 of 1942 decided by two learned judges of this Court on 14-12-1944 there are observations in favour of the practice.

The other learned judge of the Divisions Bench (Mathur J) disagreed with Waliullah J and expressed his views on the scope of section 19-(1) Court Fees Act as under:-

No order entitling the petition to the grant of probate or letters of administration shall be made upon an application for such grant until the Court is satisfied that the fee mentioned in No.11 of the First Schedule has been paid on such valuation.

In my judgment the learned District judge has very correctly interpreted this section when he said that the Court-fee has to be paid before the date of hearing as ordered by the learned District Judge in this case, or after an order granting probate has been passed. It has been brought to our notice that the practice of this Court has been that the applicants are asked to pay the court-fee after the order granting probat has been passed it is not exactly known as to how this practice originated but it does appear that on different occasions exception was taken to it but it was decided that it was not necessary to change the established practice and it was allowed to continue. I am, however, aware that in most of the subordinate Courts the practice has been to deposit the money for the payment of court‑fee at the time of the application or soon after it. I presume that such a practice was prevailing in Agra and it was in pursuance of that practice that the applicants paid a sum of Rs.603‑2.0 in Court to cover the court‑fee alongwith their application. I think, therefore, that it would be inadvisable to change the practice prevailing in subordinate Courts for exactly the same consideration for which the practice prevailing in this Court was allowed to continue. Section 379, Succession Act, is explicit that every application for a certificate or for the extension of a certificate (succession) shall be accompanied by a deposit of a sum equal to the fee payable under the Court‑Fees Act, 1870, in respect of the certificate or extension applied for. It further provides that if the application is allowed the sum deposited shall be expended for the purchase of the stamp to be used for denoting the fee payable on the certificate and any sum not expended shall be refunded to the person' who deposited it. Learned counsel for the appellants argues that if the Legislature contemplated that a similar procedure should be followed in case of probates and letters of administration a provision should have been made for it. To my mind the omission is due to the fact that while in case of a succession certificate application the amount of court‑fee can be determined by the applicant himself, in case of an application for probate and letters of administration the valuation has to be verified by the revenue authorities and it is then that the proper amount of court‑fee is determined. I cannot think of any reason why the applicants for probate or letters of administration should be given a greater latitude. It is no doubt true that in many cases which came before different High Courts it was held that the mere fact that the court‑fee was not paid alongwith the application would be no bar to the grant of a probate and that it Mould be paid even after the order was passed."

As a result of above difference of opinion between the learned Judges the matter was laid before Harish Chandra, J. who expressed his opinion on the point of difference as under:‑--

"In A I R 1944 All. 119, a Bench of this Court held that the court‑fee to be paid on letters of administration (the provisions regarding payment of court‑fee on probate and letters of administration are the same) was the court‑fee due at the time when letters of administration are issued so that if there has been an amendment of the Court‑Fees Act after the order entitling the petitioner to the grant of letters of administration has been passed, the court‑fee to be paid would be in accordance with the amendment Act.. A perusal of the judgment shows that their Lordships were conscious of the fact that according to the provisions of section 19‑(I), Court‑Fees Act, an order entitling the petitioner to the grant of letters of administration could not be passed without the payment of court‑fee due on such letters of administration and there is nothing in the judgment to support the contention that the payment of court‑fee is not required until after an order entitling the petitioner to the grant of probate or letters of administration has in fact been made. In I L R (1942) 2 Cal. 194 a point was raised that the application for probate was not competent inasmuch as the fee mentioned in Article 11 of Schedule 2, Court Fees Act, had not been paid. Their Lordships point out that section 19(I), Court‑Fees Act, merely requires that the Court shall not grant probate until the fee had been paid and that it does:‑

'not say that the Court shall not try an application for probate or Letters of Administration until the fees are paid or that the payment of the fees is a condition precedent to the making of the application.'

The view taken in this ruling follows from a plain reading of section 19‑I, Court‑Fees Act, but it gives no support to the appellants' contention and in my view the passing of a conditional order such as is suggested by my learned brother is not in accordance with law.

The alternative suggestion that has been made by my learned brother is also not free from difficulty. The suggestion is that after the Court has decided that the applicant should succeed, it may stay its hands at that stage and call upon the applicant to pay the necessary court‑fee on the probate and then, after the applicant has complied with the direction of the Court, it may pass an order granting a probate. In my view the decision that the applicant should succeed is equivalent to an order entitling the petitioner to the grant of probate and cannot be passed until the requisite court‑fee has been paid in view of the clear provisions of section 19(1), Court‑Fees Act.

The question, however, that arises is:------

"At what stage before the order entitling the petitioner to the grant of probate is made will the Court be justified in requiring the petitioner to pay the requisite court‑fee There are, as I have said before, no provisions with respect to applications for probate similar to the provisions of section 379, Succession Act, relating to succession certificate. As a matter of fact, this is one of the grounds urged on behalf of the appellants in support of the contention that the petitioner in a probate case cannot be required to pay the requisite court‑fee until after an order entitling him to the grant of probate has in fact been made. But my view is that a Court has ample inherent powers in a matter of this kind and that it is open to it to require the payment of the requisite court‑fee to be made by the petitioner at any stage before it makes an order entitling him to the grant of probate that may appear to it to be just and proper."

From the above discussion it is quite clear that in view of the clear language of section 19(I) of Court Fees Act, the Court should not pass a final order entitling the petitioner to the grant of Letters of Administration, until and unless it is satisfied that the deposit of court‑fee as required under that section has been made by the petitioner. However, where the Court has passed such an order, without first satisfying itself with regard to the deposit of court‑fee by the petitioner as aforesaid that order is not necessarily rendered without jurisdiction. The petitioner even after passing of such an order can deposit the court‑fee in accordance with section 19(I) of the Court‑Fees Act and on deposit of court‑fee the Letters of Administration or the probate as the case may be, can be issued in favour of the petitioner validly. The position in the present cases is however, somewhat different. The orders granting Letters of Administration in favour of petitioner in the above cases were passed on condition of furnishing of two sureties on 9‑10‑1983 and 4‑12‑1983 respectively. These orders were varied on the respective applications of petitioners on 15‑4‑1984 and 1‑4‑1984. The variation of the original orders in the above cases were of substantial nature and could not fall in the category of correction of any error. These variations clearly amounted to review of the original orders and as a result thereof the orders passed by the Court in the cases on 15‑4‑1984 and 1‑4‑1984 respectively were the final orders in the cases determining the entitlement of the petitioners for the grant of Letters of Administration. In these circumstances, the court‑fee should be recovered from the petitioners according to the law applicable on these dates namely 15‑4‑1984 and 1‑4‑1984. The amending Ordinance 1 of 1984 was promulgated in the province of Sind on 25‑3‑1984 which came into effect at once and provided for payment of fixed amount of court‑fee of Rs.15 on Letters of Administration. The Letters of Administration may accordingly be issued to the petitioners on deposit of the above amount of court fee only.

M. B. A /A.-29/K Order accordingly.

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