SHARMILA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner, a lady, has filed an application for grant of Succession Certificate under Section 372 of the Indian Succession Act, 1925. In view of Notification No. SRO 575/94 dated June 7, 1994 issued by the Law Department and published in Extra Ordinary Orissa Gazette on June 10, 1994, she, being a woman, was exempted from depositing the sum as it is required to be deposited under Section 379 of the Indian Succession Act (hereinafter referred to as the "Act"). Subsequently Trial Court reconsidered the order granting exemption and by order dated February 17, 1977 directed the petitioner to deposit the necessary sum holding that the aforesaid Government Notification dated June 7, 1994 does not exempt deposit of a sum as required under Section 379 of the Act. Petitioner has challenged the said judgment and order dated February 17,1997 in this revision.

(2.) By Notification dated June 7, 1994 the State Government has remitted in the whole of the State of Orissa all fees mentioned in Schedules I and II of the Court Fees Act, 1870 payable for filing or instituting cases or proceedings in any Court in Orissa by the categories of persons mentioned in the Notification. All women belong to one such categories which have been given benefit of such exemption. Article 12 to Schedule I of the Court Fees Act, 1870 prescribes the court-fees to be paid on certificate under the Act. No court-fee has been prescribed under the Court Fees Act for filing an application under Section 372 of the Act. However, Section 379 of the Act has provided :- "379. Mode of collecting court-fees on Certificates-

(3.) It appears, Section 379 of the Act requires deposit of a sum equal to the fee payable under the Court-fees Act on the total claim amount/aggregate value of the claims for which succession certificate is applied. Sub-section (2) and sub-section (3) of Section 379 make it clear that in case the certificate is not granted, the entire deposited amount will be refunded or where certificate is granted the required court-fee payable on the certificate will be purchased out of the deposited sum and balance, if any, will be refunded. It is thus clear from the provisions of Section 379 of the Act that sum required to be deposited is not court-fee payable on the application for succession certificate. If it were court-fee payable for filing an application for succession certificate it would not have been refunded in the case of rejection of the certificate or grant of certificate for a part of the claim. Section 379 of the Act prescribes a mode for collecting fee on succession certificate in advance and the deposit is required only to secure payment of court-fee if the succession certificate is issued.