Whether it is mandatory to pay court fees at time of filing of application for grant of probate?

 Civil - Court Fees - Section 29 of Court Fees Act 1959 - Whether order of Trial Court that it had jurisdiction to try proceedings, but came to conclusion that as applicants had not paid sufficient Court Fee stamp, application for probate was dismissed was liable to be set aside - Held, court fees Act shall have to be strictly construed - Legislation in its wisdom had made payable court fees only on probate or letter of administration and not on application by 11 fa 850.09 virtue of Section 29 and Clause 10 of Schedule I - Interpreting it in any other manner would be negating said provision itself - Language of Section 29 and Clause 10 of Scheduled I of Act of were unambiguous and did not admit of any Ors. Interpretation - Court Fees act will had to be strictly construed - Unless and until Court comes to conclusion that order entitling Petitioner to grant of probate was to be made till such time Petitioner was not required to pay Court fees - Division Bench of Madhya Pradesh High Court in case of Pishorilal Sethi v. Arvind K. Jauhar cited had rightly considered provisions of Court Fees Act as applicable to State - Judgment of Single Judge of this Court in case of Jyoti Nikul Jariwala v. State of Maharashtra was on different premises, wherein constitutional validity of Clause 10 which did not prescribe for upper limit of court fees payable was challenged - It did not involve controversy involved in present matter - Hence, petition disposed off order of trial court set aside matter remanded back to be hear fresh

Citation : 2011 (5)MhLj 245

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 850 of 2009

Decided On: 07.04.2011

 Shashikant S/o Gangadhar Thorat and Anil S/o Gangadhar Thorat
Vs.
Punja S/o Gangadhar Thorat and Ors.

Hon'ble Judges/Coram:
S.V. Gangapurwala, J.

1. The appeal involves the interpretation of Section 29 r/w Clause 10 of Schedule I, of the Bombay Court Fees Act, 1959 (hereinafter referred to as the Act of 1959 for the sake of brevity)

2. The Appellants have filed Misc. Application No. 15/2002 for issuance of Probate Certificate in respect of Will dated 14.12.1992 said to be executed by deceased Gangadhar. Pursuant to said application, the Trial Court issued public notice. Initially the opponent Nos. 1 to 3 and 7 to 10 filed pursis admitting the contents of the application. But subsequently opponent Nos. 1, 2, 5 and 6 resisted the application by filing their say. Opponent No. 4 also filed pursis adopting say filed by Ors. opponents i. e. 1, 2, 5 and 6, whereas opponent Nos. 3 and 7 to 10 filed pursis admitting the claim of the applicants. During the pendency of the said application for grant of probate, the opponent No. 1 filed an application requesting the Court to frame the issue regarding maintainability of the application for want of payment of court 4 fa 850.09 fees as well as jurisdiction of the Court to try the petition.

3. The Trial Court framed the following issues:

i) Do applicants prove that, deceased Gangadhar has executed last Will Deed in their favour ?
ii) Do Opponent Nos. 1 and 2 prove that, this Court has no jurisdiction to try this proceeding ?
iii) Whether applicants have paid the sufficient Court Fees Stamp ? If no, What is effect ?
iv) What order ?

The Trial Court held that it has jurisdiction to try the proceedings, but came to the conclusion that as the applicants have not paid sufficient Court Fee stamp, the application for probate is dismissed. The said order is assailed by the original applicants in the present appeal.

4. Shri A. B. Kale, the learned Counsel for Appellants canvassed the following propositions:

(1) It was erroneous on the part of the Court to reject the 5 fa 850.09 application for non payment of Court Fees. Section 29 of the Act of 1959 read with Clause 10 of Schedule I does not require payment of Court fees at an initial stage, but the same is required to be paid only on the probate i. e. not on the application, but when the order for grant of probate is made. The Court below has not properly interpreted the said provision. For the said purpose, the learned Counsel relies on the judgment of the Division Bench of the Madhya Pradesh High Court in a case of Pishorilal Sethi v. Arvind K. Jauhar reported in MANU/MP/0476/2008 : AIR 2009 (MP) 128.
(2) No proceedings can be dismissed for non payment of Court fees. Even under Order VII Rule 11(c) of the C. P. C., the Court can reject the plaint only if the Court directs the payment of Court Fees within a stipulated time and the party does not comply with the said directions of paying the Court fees. In the present case, no directions were given by the Court directing the Appellants to pay the Court fees.

5. Per contra, Shri Lokhande, the learned Counsel for Respondent Nos. 1, 2, 4 to 6 submits that, the Court below has properly interpreted the provisions. Section 29 mandates a party seeking probate to pay the court fees without which no order 6 fa 850.09 granting probate shall be made. No fault can be found in the interpretation made by the Court below. For the said purpose, the learned Counsel relies on the judgment of the learned Single Judge of this Court in a case of Jyoti Nikul Jariwala v. State of Maharashtra reported in MANU/MH/0325/1988 : AIR 1988 (Bom) 123.

6. I have heard the counsel for the parties at length. Even on 27th July, 2009 this Court had issued the notice to Respondents indicating that the matter would be disposed of finally at the stage of admission. As such, the matter is being taken up for final disposal with the consent of parties.

7. Before adverting to the arguments advanced by the learned Counsel for the respective parties, it would be appropriate to refer to the relevant provisions relied by the learned Counsel.

The Bombay Court Fees Act, 1959
1. ....
2. ....
29. Payment of court fee in respect of probate and letters of administration
(1) No order entitling the Petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the Petitioner has filed in the Court a valuation of the property in the form set forth in the third Schedule, 7 fa 850.09 and the Court is satisfied that the fee mentioned in No. 10 of the first Schedule has been paid on such valuation.
(2) The grant of probate or letters of administration shall not be delayed by reason of any report made by the Collector under Section 28, Sub-section (3).
Clause 10 Schedule I of the Bombay Court Fees Act, 1959.

8. The Act of 1959 deals with the levy of Court Fees in respect of the matters which are filed and presented in the Court. The same will be strictly governed with the provisions encompassed in the said statute. Section 29 and Clause 10 of Schedule I, will have to be read harmoniously so that they both coexists. Sub-Section 1 of Section 29 of the said Act is couched in a negative phraseology whenever a provision is couched with a negative connotation, the same is mandatory. It lays down that no order entitling the Petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the Petitioner has filed in the Court a valuation of the property in the form set forth in the third Schedule and the Court is satisfied that the fee mentioned in Clause 10 of the first Schedule has been paid on such valuation. So also Clause 10 of Schedule I lays down the quantum of court fees. It lays down court fees payable on probate of a will or letters of administration with or without will annexed. Clause 10 of Schedule I does not 10 fa 850.09 require payment of court fees on "application" for probate. But requires the payment of court fees on "probate". Section 29 of the said Act also requires the payment of court fees only when the Court is to pass an order entitling the Petitioner to grant of probate. It also nowhere says that the court fees is required to be paid on an "application" for grant of probate. If the Court in a contentious matter comes to the conclusion that order for grant of probate is not to be made, then in such circumstances, no court fee is required to be paid nor is payable.

9. The golden Rule of construction is to read the statutory language, grammatically, terminologically, in ordinary and primary sense which it appears in its context, without omission or addition. We have to take the words as the legislator have given them and to take the meaning which the words naturally imply, unless that would lead to absurdity or some repugnance or some inconsistency with Ors. part of the statute. It is a cardinal rule to adhere as closely as possible to the literal meaning of the words used.

10. The court fees Act shall have to be strictly construed. The legislation in its wisdom has made payable the court fees only on probate or letter of administration and not on application by 11 fa 850.09 virtue of Section 29 and Clause 10 of Schedule I. Interpreting it in any Ors. manner would be negating the said provision itself. The language of Section 29 and Clause 10 of Scheduled I of the Act of 1959 are unambiguous and do not admit of any Ors. interpretation. The Court Fees act will have to be strictly construed. Unless and until the Court comes to the conclusion that an order entitling the Petitioner to the grant of probate is to be made till such time the Petitioner is not required to pay the Court fees. The Division Bench of the Madhya Pradesh High Court in a case of Pishorilal Sethi v. Arvind K. Jauhar cited supra has rightly considered the provisions of the Court Fees Act as applicable to the State.

11. The judgment of the learned Single Judge of this Court in a case of Jyoti Nikul Jariwala v. State of Maharashtra cited supra, was on different premises, wherein constitutional validity of Clause 10 which does not prescribe for upper limit of the court fees payable was challenged. It do not involve the controversy involved in the present matter.

12. In the light of the above, the impugned order is quashed and set aside. The matter is remitted back to the Trial Court. The parties shall appear before the Trial Court on 29.04.2011. The present Respondent Nos. 3, 4, 7 to 9 and 10 are served but are absent. The Trial Court shall issue fresh notice to those Respondents. The Trial Court shall decide the said application after giving an opportunity to the parties.

13. Taking into account the fact that the application is filed in the year 2002, the Trial Court shall decide the said application within a period of six (6) months from the date of appearance. The Court fees would be required to be paid in case the Court passes an order for grant of probate.

14. The First Appeal is accordingly disposed of.

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