1 S.B. CIVIL WRIT PETITION NO.724/2009 Smt. Saroj WalterVs.District & Sessions Judge IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 31.7.2009. S.B. CIVIL WRIT PETITION NO.724/2009 Smt. Saroj Walter Vs. District & Sessions Judge HON'BLE MR. JUSTICE DALIP SINGH Shri P.S. Sirohi, for the petitioner. Shri Parag Rastogi , for the respondent. The impugned order Annexure-7 dated 9.10.2007 has been passed by the learned District Judge in probate proceedings. By the aforesaid order the learned District Judge held that the application for probate is being contested by the non petitioners No. 3 to 5 and therefore the proceedings of probate stands converted to a suit. It has further been held that there is a dispute with regard to the valuation of the property inasmuch as the applicant has put the valuation as Rs.10 lacs whereas the non applicant has given the valuation of Rs.1 Crore. The learned District Judge in view of the above directed the applicant petitioner to deposit the court fee as per law treating the valuation as Rs.10 lacs as given by the applicant petitioner. He further directed for referring the matter to the Collector for determining of the valuation of the 2 S.B. CIVIL WRIT PETITION NO.724/2009 Smt. Saroj WalterVs.District & Sessions Judge property as disputed by the non petitioners. One month's time was allowed to the plaintiff to deposit the court fee on valuation of Rs.10 lacs. The applicant petitioner did not deposit the aforesaid amount and instead moved an application for review of the order dated 9.10.2007. The review application was also dismissed by the learned District Judge vide order dated 10.12.2008 and hence this writ petition has filed challenging both the orders. During the course of hearing the learned counsel for the respondent pointed out that this court had in the case of S.N. Gupta Vs. Mrs. (Dr.) Pawan Sharma and Ors. Reported in 1991 Vol.2 WLC (Raj.) page 71 in similar circumstances held as follows: '' दोनɉ प¢ɉ को बहस सुनने के पँ चात मɇ ् इस नतीजे पर पहंचा हं Ǒक अधीनः थ Û यायालय ने ु ू ूोबेट से सà बǔÛ धत काय[वाहȣ मɅ ǒववाद उ× पÛ न होने के बाबत जो आदेश Ǒदया है वह सहȣ है तथा ूोबेट कȧ दरÉ वाः त के बारे मɅ जो आदेश Ǒदया है Ǒक उसकȧ सुनवाई दावे कȧ तरह होगी उसमɅ भी Ǒकसी ूकार कȧ ऽुǑट नहȣं है। जहां तक कोट[ फȧस पेश करने के बारे मɅ एतराज है उसके बारे मɅ मɇ ूाथȸ के अिधवÈ ता कȧ आपǔ× त ः वीकार करते हएु यह आदेश देता हं Ǒक ǒववाǑदत जायदाद को माकȶ ट ू वेã यू पर िशÔयूल-1 आǑट[कल-1 कȧ जो कोट[ फȧस बनती है उसकȧ आधी कोट[ फȧस ूाथȸ अदा करेगा। सभी प¢कारɉ को आदेश Ǒदया जाता है Ǒक अधीनः थ Û यायालय मɅ Ǒदनांक 14.10.1991 को ूः तुत हो। ूाथȸ को आदेश Ǒदया जाता है Ǒक वह 3 S.B. CIVIL WRIT PETITION NO.724/2009 Smt. Saroj WalterVs.District & Sessions Judge उÈ त आदेश के अनुसार आज से एक माह के अÛ दर अधीनः थ Û यायालय मɅ कोट[ फȧस पेश करɅ।'' Learned counsel for the petitioner applicant submitted that the learned District Judge, in view of the provisions and language of Section 295 of the Indian Succession Act could not have directed the present proceedings to be converted to a suit. It is submitted the Section 295 provides specifically that in such like situation that the proceedings must be decided as far as may be in the form of a 'regular suit'. Learned counsel for the respondent does not dispute the aforesaid proposition as has been held by this court in the case of S.N. Gupta (supra). The words “as far as may be” are significant and are not the same as must be tried as a suit as held by the learned District Judge. In view of the above, the impugned order dated 9.10.2007 by which the learned District Judge has converted the proceedings as a suit and ordered for its trial as such is modified and it is directed that the application of the applicant petitioner shall be tried as nearly as may be in the form of regular suit in accordance with the provisions of Section 295 of the Indian Succession Act and the Code of Civil 4 S.B. CIVIL WRIT PETITION NO.724/2009 Smt. Saroj WalterVs.District & Sessions Judge Procedure. So far as the dispute regarding valuation which has been referred for evaluation of the property the payment of court fee would be as held by this court in S.N. Gupta's case. The applicant petitioner shall deposit the court fee in accordance with the provisions contained in Schedule I Rule 1 of the Court Fee Valuation Act as held by this court in the above quoted passage. The aforesaid order with regard to the court fee would be subject to the valuation report received from the Collector in the matter which has been referred by the learned District Judge. In case the valuation exceeds Rs.10 lacs (rupees ten lacs) the petitioner would be required to deposit the court fees on such excess amount as per law. Two months time is allowed to the applicant petitioner for depositing the amount of court fees on valuation of Rs.10 lacs no further time shall be allowed. The application shall be taken up only after payment of court fee taking which the petition shall be dealt with in accordance with law. This writ petition stands disposed of. (DALIP SINGH),J. Ram Chandr Khatri PS