GOURIBALA SADHUKHAN Vs. JIBANKRISHNA SADHUKHAN

JUDGEMENT

(1.) This Rule is directed against order No.5 dated the 12th August, 1971 of the District Judge, 24-Parganas in Original Suit No.21 of 1971. A testator executed a Will on the 4th April, 1970. On April 11, 1970 the testator died. An application for probate was made before the District Delegate at Alipore on September 16, 1970. This was marked as Act XXXIX, Case No.156 of 1970. Citations were issued n the 4th November, 1970, the opposite parties Nos.1, 3, 4 and 5 filed on April 20, 1971 a petition of objection. Thereupon, the District Delegate returned the application for probate on the 23rd April, 1971, as the case became contentious and the application for probate was refilled before the District Judge Alipore on the 28th April, 1971 and registered as Original Suit No.21 of 1971. The District Judge directed on the 28th April, 1971, that one half of the ad-valorem court fees on the market value of the estate les the fees already paid on the application is to be deposited in view of the proviso to Schedule II, Art. 1(g) (ii) of the West Bengal Court Fees Act, 1970. The propounder then filed an application on May 13, 1971, under section 151 of the Code of Civil Procedure for proceeding with the case without payment of ad-valorem court fees. On the 12th August, 1971 the District Judge passed the impugned order rejecting the application under section 151.

(2.) Let us, at the outset, set out Schedule II, Art. 1(g) of the Court Fees Act, 1970. It runs thus: <FRM>JUDGEMENT_65_CALLT1_1973Html1.htm</FRM>

(3.) We are called upon to construe the proviso aforesaid, to Art. 1(g) (ii). The plain meaning seems to be that this proviso is applicable when (1) a caveat is entered and (2) an application is registered as a suit.