HASINA BIBI Vs. AMURAT BIBI

JUDGEMENT

(1.) The short but ticklish question that arises for consideration in this civil revision is whether a woman who has applied for grant of succession certificate is entitled to exemption of court-fees by virtue of Law Department Notification No. SRO 575/94, dated 7-6-1994 published in the Orissa Gazette (Extraordinary) No. 670, dated 10-6-1994. Two of the learned Judges of this Court have taken different view in the matter. One learned Judge in Sharmila Das v. State of Orissa, (1998) 85 Cut LT 520, has held that the fee payable under Article 12 of Schedule-I of the Court-fees Act, 1870 not being a fee for the purpose of filing or instituting a case for grant of certificate, it is not covered by the said notification. The judgment in that case was delivered by the learned Judge on 29-9-1997. Another learned single Judge in his order dated 29-1-1998 in Civil Revision No. 370 of 1996 (Smt. Saudamini Das v. State of Orissa (1998) 85 Cut LT 524) has held to the contrary and opined that the Government notification exempting particular class of persons from paying court-fee is applicable to proceedings for grant of probate, letters of administration and succession certificate. We may note that tthe earlier decision of Sharmila Das was not noticed in the latter case. Because of such cleavage of opinion, this matter has been referred to a Division Bench. That is how it has come before us for hearing.

(2.) We have heard the learned counsel for the parties.

(3.) The petitioner is a woman. She has made an application under S. 372 of the Indian Succession Act, 1925 for grant of succession certificate to the learned Civil Judge (Senior Division), First Court, Cuttack. It appears from the records that her prayer for exemption from paying the duty money payable for grant of succession certificate basing on the above Government Notification was once considered and rejected by the learned Civil Judge by order dated 23-7-1997 on the ground that the Government Notification does not cover duty money payable in cases of grant of succession certificate or probate or letters of administration. Thereafter, the petitioner made another petition (out of which this revision arises) praying for exception from payment of court-fee contending that she is entitled to such benefit by virtue of the Government notification. The learned Civil Judge while considering the prayer took note of both the judgments of this Court mentioned above but followed the ratio in the case of Sharmila Das (1998 (85) Cut LT 520) because it was decided earlier to the case of Smt. Saudamini Das (AIR 1998 Orissa 146) and rejected the prayer of the petitioner by the impugned order dated 22-7-1998.