L RAYMOND Vs. FLORENCE BESSIE YAKCHEE

JUDGEMENT

(1.) This is a court-fee matter arising out of a reference under Section 5 of the Court Fees Act. There is no dispute about the facts relating to the present case. The sole question that arises is one of law, and relates to the amount of court-fee that would be payable on the application for the grant of a probate of the Will of one Ernest Raymond Yakchee who died on the night of the 9th/10th September 1954. The deceased had executed a Will in respect of his property on the 16th July, 1946. On 15-1-1955, en application for the grant of a Probate of the said Will was made by the Rt. Rev. Dr. L. Raymond, the Bishop of the Roman Catholic Diocese of Allahabad. The property which was the subject-matter of the Will was valued at Rs. 5,09,179/-. The office assessed the court-fee at an amount of Rs. 31,553-3-0. This assessment having been contested by the applicant, the matter was placed before the Taxing Officer. The Taxing Officer, being of the opinion that the question involved in the case was one of general importance, referred the case to the taxing Judge for final decision. The case was heard by a learned single Judge of this Court. In the opinion of the learned single Judge, the proper court-fee payable on the petition was only Rs. 803-3-0. In view, however, of the importance of the question involved, he directed that the file of the case be placed before the Hon'ble the Chief Justice with a suggestion that a Bench may be constituted to decide the matter. In accordance with the said suggestion, the Hon'ble the Chief Justice constituted this Bench to dispose of the matter. The case has, accordingly, come up before us today.

(2.) Before the hearing of the case, the learned counsel for the petitioner raised a preliminary objection to the effect that this Bench has no jurisdiction to near this case. He relied on Section 5 of the Court Fees Act, and argued that the Taxing Officer having referred the matter to the Taxing Judge, this case can only be heard by the Taxing Judge and no other Judge. I, however, find myself unable to uphold his contention. The words "Taxing Judge" are not used in Section 5 of the Court Pees Act. All that Section 5 lays down is that when any difference arises between the Taxing Officer and the petitioner, and the Taxing Officer is of the opinion that the question is one of general importance, "he shall refer it to the final decision of the Chief Justice of such High Court, or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in this behalf." Under the aforesaid provision, therefore, the matter could have been decided either by the Hon'ble the Chief Justice himself or by any other Judge of the High Court whom he might appoint. This matter was originally sent to my learned brother Desai J., for decision. After hearing the matter, my learned brother directed that, as the question involved was of great importance, the file of the case be placed before the Hon'ble the Chief Justice with a suggestion that he might constitute a Bench to decide the matter. The file of the case was, accordingly, placed before the Hon'ble the Chief Justice, and thereafter the case was fixed before the Bench.

(3.) Section 5 of the Court Fees Act does not prescribe any form in which the order of the Chief Justice appointing a Judge or constituting a Bench to hear a matter should be passed, The order, as the section itself shows, might be a general or special one. It might be a written or even an oral one. This Bench was constituted after the file of the case was placed before the Chief Justice with the suggestion that he should constitute a Bench for hearing this matter. The Cause List of the Court is prepared with the approval of the Chief Justice, and it must, therefore, be taken that he has constituted this Bench to decide the question. I am, accordingly of opinion that there is no force in the preliminary objection raised by the learned counsel.