IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. Writ Petition No. 2100 of 2001 (Old No. 24434 of 1998) 1. Dr. Pushpa Puri Memorial Charitable Trust, Mussoorie having its Registered Office at Mussoorie Public School, Mussoorie, District Dehradun through its Trustee Sri Karan Singh Chauhan 2. Sri Karan Singh Chauhan, S/o Sri Bhan Singh Chauhan, Trustee Dr. Pushpa Puri Memorial Charitable Trust, Mussoorie having Its registered office at Mussoorie Public School, Mussoorie, District Dehradun (Who is authorized to sign and verify the petition under resolution dated 21.07.98) ……………Petitioners Versus 1. 2nd Additional District Judge, Dehradun. 2. State of U.P. through Collector, Dehradun …..……… Respondents. Mr. V.K. Kohli, Senior Advocate, assisted by Mr. T.C. Pande, Advocate, present for the petitioners. Mr. M.C. Tiwari, Advocate, present for the respondents. Hon'ble Prafulla C. Pant, J. Heard learned counsel for the parties. 2. This writ petition is directed against the order dated 14.05.1998, passed by 2nd Additional District Judge, Dehradun, in Suit No. 13 of 1997, whereby application 74C praying for recall of order dated 03.04.1998 is rejected, and petitioners are directed to pay additional court fee. 2 3. Brief facts of the case are that one S.K. Puri died on 14th May 1993, leaving his property behind him and also a Will dated 10th April 1993. He created a charitable trust known as Dr. Pushpa Puri Memorial Charitable Trust, Mussoorie, in the name of his wife. On behalf of the Trust, a petition was filed by Trust through its trustee before the District Judge, under Section 276 of Indian Succession Act, 1925, for issuance of Letter of Administration on the basis of aforesaid Will. Said case was registered as Misc. Case No. 141 of 1995. It appears that certain objections were filed to the petition for Letter of Administration. Consequently, vide order dated 05.02.1997, the then District Judge, Dehradun, directed to register the misc. case as original suit. On this the Munsarim of the court submitted a report that there is deficiency of court fee to the tune of Rs.2,99,145/-. Vide order dated 14.05.1998, learned Additional District Judge- II, Dehradun before whom said case was pending, directed the petitioner to pay the court fee amounting Rs.2,99,145/-. Hence, this petition. 4. Learned counsel for the petitioners drew attention of this Court to Item No. 1 of Schedule II of Court Fees’ Act, 1870, and contended that court fee payable on the petition for Letter of Administration or Probate is only Rs.25/. He also drew attention of this Court to the case of –In the goods of, Ernest Raymond Yakchee, late of Gorakhpur (Testamentary Case No. 17 of 1954), decided by Division Bench of Allahabad High Court on 4th November 1955, AIR 1956 Allahabad 152, in which 3 it is held by the Division Bench that a petitioner who has moved application under Section 276 of Indian Succession Act, 1925, is only required to pay the court fee as mentioned in II Schedule of the Court Fees’ Act, 1870. It is further held that the petitioner in such case is not liable to pay any estate duty from his own pocket. It has been further observed by the Division Bench of the Allahabad High Court that such expenses in such cases are to be paid from estate of the deceased. In Km. Rakhi and another Vs. Ist Additional District Judge, Firozabad and others (C.M. Revision No. 157 of 1996), decided on 05.08.1999, 2000 (1) AWC 323, it has been held by the Allahabad High Court that in the cases of petitions moved under Section 379 of Indian Succession Act, 1925 (which are filed for issuance of the succession certificate), it is not necessary for the applicant to pay the entire court fee (except the court fee of Rs.25/-) while filing the application for succession certificate. It is further held that complete court fee has to be paid after the application for succession certificate is allowed. In other words the court fee is paid at the time of issuance of the succession certificate. The analogy of payment of court fee under Section 276 is similar to the analogy, which is applicable to the petitions moved under Section 379 of Indian Succession Act, 1925. 5. It appears that the trial court got misled in directing to pay the entire court fee due by the order dated 05.02.1997 whereby it was directed that the misc. case be registered as original suit. I have gone through 4 said order, which is annexed as part of the copy of the order sheet (Annexure-1 to the writ petition). From the perusal of the order sheet, it is clear that since objections were filed in misc. case filed for Letter of Administration, the then District Judge, thought it proper to proceed with the misc. case further as a regular suit. Said power is provided under Section 295 of Indian Succession Act, 1925, which reads as under:- “295. Procedure in contentious case.- In any case before the District Judge 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 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.” 6. The aforesaid provision merely prescribes the procedure to proceed in a contested case filed under Section 276 of the aforesaid Act. The procedure to be adopted in such cases is similar to the suit. It does not require that the misc. case should be registered as suit nor does it override any provisions of the Court Fees’ Act nor the application under Section 276 becomes a plaint. That being so, the report of the Munsarim that there is deficiency of court fee of Rs.2,99,145/- after the order dated 05.02.1997, is erroneous in law. And the learned Additional District Judge-II, who passed the impugned order has incorrectly directed the petitioners to pay 5 Rs.2,99,145/- as court fee. Munsarim’s order as to the deficiency of court fee was earlier rejected by the District Judge himself on 30th August 1995. Said order in the Misc. Case No. 141 of 1995 (which is now registered as Original Suit No. 13 of 1997) reads as under:- “Present: Sri V.K. Kohli, Advocate for the petitioner. Perused the report of the Munsarim and heard the counsel on the Munsarim’s report. The learned counsel for the petitioner has argued that an application for Probate or Letters of Administration requires a court fee of Rs.25/- only as is mentioned in Schedule II of the Court Fee Act, 1870 and it is only when the Probate or Letters of Administration is issued, it requires a Court fee as is suggested in the Munsarim’s report. It is indicated in Entry No.11 in Ist Schedule of the Court Fee Act. I have perused the provisions. The objection of the Munsarim is over- ruled. Let the petition be registered. Sd- District Judge” 7. It is pertinent to mention here that at times Probate or Letters of Administration are filed by the persons having no personal interest in the property of the deceased as they only act as per the Will executed by the deceased to distribute his property among the beneficiaries. That is why the legislature had expressed 6 intention in such matters that a complete court fee did not require to be paid by said petitioner before the actual issuance of the succession certificate or Probate or Letter of Administration. 8. For the reasons as discussed above, this writ petition deserves to be allowed. The same is allowed. Impugned order dated 14th May 1998, passed by 2nd Additional District Judge, Dehradun, rejecting application 74C, in Suit No. 13 of 1997, is hereby quashed. The trial court is directed to proceed with the case without insisting on payment of the additional court fee before passing final orders on the petition under Section 276 of Indian Succession Act, 1925. (Prafulla C. Pant, J.) 18.09.2009 NS