GURCHARAN PRASAD Vs. SECYOF STATE

JUDGEMENT

(1.) This is an application in which Babu Gurcharan Prasad and another seek a relief in the following terms, namely: That this Hon ble Court may be pleased to set aside the order of the Court below and to grant the succession certificate to the applicants without any farther payment of any additional Court-fee or grant such other and further relief as it may deem fit.

(2.) The order of the lower Court to whisk reference is made is an order passed by the District Judge of Benares on 14th. April 1934. It appears than the applicants on 15 December 1931 made an application for the issue of a succession certificate to them. They made a deposit of Rs. 5,541-8-0 estimating that that was the amount of court-fee which would have to be paid on the certificate if it was issued to them. It is not denied that this was the correct amount according to the application and to the law which was in force at that time. The proceedings were stayed for some time and then on 25 February 1933, the Court made an order that the certificate be granted. By that date the Court-fees Act prevailing in this province had been amended and the office reported on 6 March 1933, that the sum paid in as the court fee due on the certificate would be in sufficient by a sum of Rs. 4,191. On the same date an objection made by the applicants to this report was considered and the Court passed an order saying that the objection was valid and that the court-fees were sufficient. It appears that the stamps were then purchased and the certificate was issued to the applicants. About a year later on 16 March 1934, the Chief Inspector of Stamps inspected the office of the District Judge and made a report to him that the view previously taken was incorrect and that the certificate was insufficiently stamped. The learned Judge considered the matter and eventually, on 14 April 1934, passed an order that the deficiency should be made good. The money, that is a sum of Rs. 4,191, was paid in, but the applicants asked that the sum should not be expended on the purchase of a stamp as they were depositing the amount under protest and proposed to obtain an order from this Court. Proceedings were stayed for some time, but eventually the certificate, which by that time was filed in some proceedings in this Court, was summoned by the Court below from this Court and a stamp was purchased and that stamp was affixed to the certificate.

(3.) The result is that the certificate now bears the stamp which should have been affixed to it under the provisions of the amended Court-fees Act, provided that the amount to be paid was to be calculated legally under that Act and not under the Act that was in force when the application for the grant of the certificate was filed in the Court of the District Judge. It seems to me that the present application really amounts to this: that the applicants desire us to direct the Government to restore to them a sum of Rs. 4,191 which has been wrongly expended on the purchase of a stamp, now affixed to the succession certificate. It has been argued that the order of 14 April 1934, to which objection has been taken was an order that was made without jurisdiction. In the view that I take of this matter it seems to me that this question of jurisdiction is of no importance at all and is quite irrelevant. The only questions are whether the succession certificate is properly stamped or not and whether if the stamp upon it represents in amount greater than that which was due, we can direct the Government to return the money to the applicants. The first important question is whether the document is or is not properly stamped. The reply to this question depends upon the further question whether the court-fees which should be paid upon this certificate are those which would be due according to the Act which was in force when the certificate was issued or according to the Act which was in force when the order was passed that a certificate should issue or according to the Act which was in force at the date when the application for the issue of certificate was made. Personally it seems to me that there is no real difficulty in deciding these questions. Under Section 6, Court-fees Act it is laid down that: No document of any of the kinds specified as chargeable in Schedule 1 or Schedule 2 to this Act annexed shall be filed, exhibited, or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document, there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.