PALANI GRAMANI Vs. MANICKAMMAL

JUDGEMENT

(1.) This is an application in which the applicants pray for an order: (1) that letters of administration ordered to be issued in this suit to them as plaintiffs may be granted to them in forma pauperis; and (2) that the court-fees payable in respect of the above grant of the letters of administration may be made a first charge upon the properties bequeathed to the plaintiffs under the will of the deceased dated 21 September 1920. It is conceded by the learned Counsel on behalf of the Government Solicitor that, so far as the applicants pecuniary position is concerned, they are paupers. The objection to the application is based upon two grounds: (1) that Order 33, Civil P.C. and the rules thereof are not applicable to proceedings for grants of probate or letters of administration; and (2) that, even though the contrary may be the correct view, the applicants cannot now avail themselves of the provisions of the pauper rules. There is no difference in principle between proceedings for the grant of letters of administration and proceedings for grant of probate.

(2.) The facts of this case are as follows: The testator by his will dated 21 September 1920 bequeathed to the plaintiffs and to other beneficiaries legacies and bequests. He appointed no executor. On 27 April 1921, the testator died. Since that date various members of his family have been in possession of the deceased's estate and have excluded the applicants from the benefits given to them under the will. On 38 August 1931, the applicants petitioned for a grant of letters of administration cum testamento annexo. The petitioners alleged In the petition that, on account of their poverty, they were unable to institute proceedings until the date of that petition and that no other beneficiaries Under the will had taken any steps in regard to obtaining the grant. The widow and one son of the deceased filed a caveat. Subsequently the petition and the caveat were numbered as a suit, the applicants being the plaintiffs and the caveators the defendants. This was in pursuance of Order 34, Rule 52 of the Original Side Rules. Under Rule 55 of the same Order, it is provided inter alia that the provision of Order 4, Rule 4 of the Original Side Rules shall apply in the same manner as if the petition were a plaint filed on the date of registration of the petition as a suit. It follows therefore that the petition praying for the grant of letters of administration is deemed to be a plaint on the date mentioned in the Rule. Since the provisions of Order 4, Rule 4 of the Original Side Rules apply, if follows from the wording of that Rule that the petition is dealt with as if it were a plaint presented and filed in accordance with the relevant rules.

(3.) In the written statement in the suit, the defendants raised many contentions against the validity of the will including an allegation that the testator's will was a forgery. Lakshmana Rao J. tried the suit and on 14 February 1935 he found in favour of the will and ordered letters of administration to issue. Against this decision the defendants appealed to the Appellate Court which appeal was dismissed on 1 April 1936. When the petition was first issued by the applicants, they paid the appropriate court-fees by affixing Rs. 20 stamp upon the petition pursuant to Order 2, Rule 1, of the High Court Fees Rules of 1925, Appendix 2, Item 7. These rules have since been supplanted by the High Court Fees Rules of 1933 but no amendment or alteration has been made which is material so far as the matter before me is concerned. When a case is registered as a suit and the petition becomes a plaint, no fee is prescribed in the Rules as payable by the applicants. Letters of administration have been ordered to be issued. All that remains to be done is for the applicants to pay the appropriate court-fees computed upon the value of the estate and, upon this being done, letters of administration will issue. It is at this stage, that the present application is made pursuant to the provisions of Order 33, Civil P.C. and Order 8, Rule 14 of the Original Side Rules. It is necessary to refer to provisions of Order 33 in this application. Order 33, Rule 1, Civil P.C. says: Subject to the following provisions, any suit may be instituted by a pauper. Explanation.- A person is a pauper when he 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 not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit.