RAJRAJESHWARASHRAM Vs. SVARUPANANDTIRTHA

JUDGEMENT

(1.) This is a preliminary question as to what security for costs should be paid by the appellant who resides out of British India in respect of an appeal from the refusal of the lower Court to revoke an order for delivery of property under Chapter II of Regulation VIII of 1827. The sums involved are substantial. Under the ruling in the office the appellant has been found liable to pay in this Court a sum of Rs. 32. His opponent claims that he ought to find security for Rs. 1,264.

(2.) The question depends on the true construction of the Bombay Pleaders Act 1920, which is a Bombay Act, taken in connection with the Indian Succession Act 1925, which is an Imperial Act, and the General Clauses Act 1897, Section 8, which is another Imperial Act. Under the Bombay Pleaders Act 1920 it is clear that any application under Regulation VIII of 1827 or under the Succession Certificate Act of 1889 would be governed by Rule V of Schedule III, and not by Rule I. In other words, the appropriate pleader's fee would be a fixed one of Rs, 30 plus Rs. 2 and not Rs. 1,264. The odd two rupees are for an extra stamp on the Vakalatnama or something of that sort. It is, however, said that in Rule I (c)(ii) of Schedule III we must now read the words "Indian Succession Act, 1925", in the place of the words "Indian Succession Act, 1865," with the result that an ad valorem fee will be payable amounting to Rs. 1,264. That is because Section 390 of the Indian Succession Act 1925 provides that Section 383 (dealing with the revocation of a certificate) and Section 384 (dealing with appeals) are to apply to certificates granted under Regulation VIII of 1827.

(3.) Now a preliminary point mentioned by my brother Baker is whether in any event the certificates referred to in Section 390 of the 1925 Act apply at all to orders made under Chapter II of Regulation VIII of 1827 as opposed to certificates granted under Chapter I of that Regulation. But assuming for the sake of argument, without deciding the point, that the question should be answered in the affirmative, we are still left with the true construction of the Bombay Pleaders Act. This is because we cannot, under the General Clauses Act, apply the Indian Succession Act, 1925, to section I, and not apply it also to Section V, e.g., to the Succession Certificate Act, 1889, there referred to.