PANZY FERNANDAS Vs. M F QUEOROS

JUDGEMENT

(1.) The sole question that arises before this Full Bench relates to the amount of court-fee payable on a memorandum of appeal filed under Section 299 of the Indian Succession Act (Act XXXIX of 1925). The appeal arises out of a petition for letters of administration made under Section 278 of the said Act in respect of the estate of one I Mr. H. Johnson, who died on the 19th November, 1958. The petitioners were the sister and the brothers of the deceased. The petition was contested by Mrs. Panzy Fernandas, widow of the deceased. The District Judge, Lucknow, by his order dated the 7th November, 1959, allowed the petition, and ordered that letters of administration be granted to the petitioners on filing an administration bond with one surety as provided in Section 291 of the Indian Succession Act. Dissatisfied with the said order, the widow of the deceased, namely Mrs. Panzy Fernandas, filed the present appeal under Section 299 of the Indian Succession Act on the 2ist December, 1959. The law applicable to the present case would, therefore, be the Court-Fees Act (Act No. VII of 1870) as it stood amended on that date in its application to Uttar Pradesh by various local Acts, and the same shall hereinafter be referred to as the Act. On this memorandum of appeal the appellant paid a court-fee of Rs. 5/- only, which in the amount payable on a memorandum of appeal filed in the High Court under Schedule II Article 11 of the Act. On the same date, i. e., the 21st December, 1959 the Stamp Reporter made a report to the effect that the court-fee on the said memorandum of appeal was payable not under Schedule II Article 11, but under Schedule II Article 17, Clause (vii) of the Act. The amount of court-fee payable under Schedule II Article 17 (vii) of the Act, according to the Stamp Reporter, was Rs. 50/-, hence there was a deficiency of Rs. 45/- in the court-fee. On the 15th May, 1961, the appellant filed objections to this office report, and took up the position that the court-fee on the memorandum of appeal filed by her was payable under Schedule II Article 11, and not under Schedule II Article 17, Clause (vii) of the Act. On this objection having been filed, a learned Judge of this Court passed an order on the 25th January, 1960, that the matter be put up before the Taxing Officer. On the 25th July, 1961, the Taxing Officer reported that in view of the decision of the Allahabad High Court in Miss Eva Mountstephens v. Mr. Hunter Carnett Orme, ILR 35 All 448 a Court-fee of Rs. 50/- was payable on the present memorandum of appeal under Clause (vii) of Article 17 of Schedule II of the Act. Thereafter, the Taxing Officer directed that the matter be laid before the Taxing Judge for orders. The matter was, accordingly, put up on the 4th September, 1961, before Nigam, J., who ordered that the question might be referred to a Division Bench. On the 7th December, 1961, the matter was heard by a Division Bench consisting of Nigam and Misra, JJ., and in view of the apparent conflict between the case of ILR 35 All 448 and the case of Kanhaiya Lal v. Gendo, ILR 50 All 238 : (AIR 1928 All .51), the Division Bench directed that a larger Bench might be constituted for a consideration of the matter. The case, accordingly, came up for hearing before us.

(2.) On behalf of the appellant, the learned counsel argued that the court-fee payable on a memorandum of appeal under Section 299 of the Indian Succession Act is governed by Schedule II Article 11, and not by Schedule II Article 17, Clause (vii) of the Act. According to Schedule II Article 11 of the Act a court-fee of Rs. 5/- is payable in Uttar Pradesh on a "memorandum of appeal when the appeal is not from a decree, or an order having the force of a decree" and is presented to the High Court. This provision of law would, therefore, be applicable only to a case where the appeal is not from a decree, or an order having the force of a decree! The question that arises for determination in the present case, therefore, is whether the order appealed against can be described as a decree or an order having the force of a decree.

(3.) The learned Counsel for the appellant argued that the order which is the subject-matter of the appeal in the present case is not a decree, as the order in question was not passed in a suit. We are of opinion that there is force in the contention of the learned counsel for the appellant in this regard. In support of his argument the learned Counsel for the appellant attempted to rely on the definition of the term "decree" in Section 2 (2) of the Code of Civil Procedure (Act V of 1908), in the main portion of which the term "decree" is defined as