MT EHATISHAMMUNNISA Vs. MIR HADI ALI

JUDGEMENT

(1.) This revision raises a question of a somewhat unusual character. The applicants applied in the Court of the District Judge, Budaun, for a succession certificate in respect Of debts due to their deceased mother, Mehdi Begum. It was stated in the application that the petitioners were paupers and had no funds to pay the fee prescribed for the grant of a certificate for collection of the debts of the deceased. In effect, the applicants prayed that they be exempted from the rule contained in Section 379, Succession Act, which requires the deposit of a sum equal to the fee payable under the Court-fees Act, in respect of the certificate on an application being made therefor. The learned District Judge dismissed the application holding that the provisions of the Civil Procedure Code, relating to suits and appeals in forma pauperis do not apply to proceedings for grant of a succession certificate under the Indian succession Act. The order of the learned District Judge is challenged in revision.

(2.) It is argued, on the authority of Section 141, Civil P.C., that the procedure- prescribed by the Civil P. C. for suits is applicable to all proceedings in any Court of civil jurisdiction and that therefore Order 33, which; provides for pauper suits, is applicable to applications for grant of succession certificates. Assuming that : Section 141, Civil P.C., makes every pant of the Code applicable to proceedings-in a Court of civil jurisdiction, seems to me that there is an insurmountable difficulty in acceding to the prayer of the applicants. Order 33, Rule 1, provides that, subject to certain provisions, any suit may be instituted by a pauper. The explanation appended to that rule defines a pauper as a person who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, when he is hot entitled to property worth Us. 100 other than his necessary apparel and the subject-matter of the suit.

(3.) Assuming that proceedings for grant of a succession certificate can be taken, to be a suit under Order 33, read with. Section 141, the application for a succession certificate is the plaint. The applicants-can be considered to be paupers only if they are not possessed of sufficient means to enable them to pay the fee- prescribed by law for the application, for succession certificate. In other words, unless they can show that they were not possessed of even 8 annas, they cannot be considered to be "paupers" as defined in the Explanation. This is not a case in which no court-fee is payable on the plaint fin this, case the application for the certificate so that they may be treated as paupers-because they are not possessed of property worth Rs. 100. It was pointed out that under Section 379, Succession Act: every application for a certificate...shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870, in respect of the certificate.... and an attempt was made to argue that if the applicants for a succession, certificate are not possessed of sufficient means to enable them to deposit the sum equal to the prescribed Court-fee, they should be treated as "pauper" in terms of the explanation above referred to. Reference was also made to Order 33, Rule 8, which provides that, if the application for permission to sue as a pauper is granted, the plaintiff is not liable to pay any court-fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceedings connected with the suit. According to Schedule 1, Court- fees Act, ad valorem fes are payable on a number of documents, including succession certificates. It is said that once the applicants are declared paupers, they will be exempt from payment of court-fee on the succession certificate. This contention may be correct; but the initial difficulty is that the applicants cannot be declared paupers, unless the requirements of the Explanation to Rule 1, Order 33, are strictly fulfilled. The deposit under Section 379, Succession Act, of a sum equal to the fee payable Jon a succession certificate cannot be considered to be court-fee payable on the application for a succession certificate (which corresponds to a plaint in a suit). This deposit is made necessary to ensure payment of court-fee when the succession certificate is to be issued. As a matter of fact, the court-fee on such certificate is payable under the Court-fees Act, Schedule 1, Art. 12, and is paid when the certificate is issued, i.e., after the termination of proceedings under the Indian Succession Act. The test of pauperism, laid down by the Explanation Ito Rule 1, Order 33, Civil P.C., is therefore not that the applicants have no means of paying the sum required to be deposited under Section 379, Succession. Act; but that they have no means of paying the court-fee on the application for a succession certificate, that is, a trifling amount of eight annas.