GHANDHRAP SINGH Vs. CHAMELI DEVI

JUDGEMENT

(1.) This appeal is directed against an order passed by the learned District Judge of Agra in proceedings started by means of an application for probate of a will alleged to have been executed by Ghowdhry Nirotam Singh on 6-5-1944. The applicants were three out of the four executors named in the will. The fourth executor named in the will is Thakur Das respondent 2, who is the son-in-law of Chowdhry Nirotam Singh. The application for probate with the will annexed, was filed on 5-9 1944. It was alleged in the application that Chowdhry Nirotam Singh who executed the will on 6-5-1944, died at his village, in the district of Agra, on the same day, viz., 6 5-1944, leaving certain properties which were described in schedule A, attached to the application. The petitioners went on to say inter alia that they them selves were the three real brothers of the testator and were also three out of the four executors named in the will. It was further stated that of the other relations of the deceased who were likely to be interested in the hearing of the probate application, two to whom notices might be sent, were Mt. Chameli Devi widow, and Thakur das, son-in-law of Chowdhry Nirotam Singh. The application was accompanied by an unregistered document purporting to be the will of Chowdhry Nirotam Singh dated 6-5-1944. On notices being issued to Mt. Chameli Devi and Thakur Das, both of them filed objections vehemently challenging the validity of the will.

(2.) The valuation of the assets given in the application was Rs. 19,228-11 6 and the probate fee of Rs. 605-2-0 was deposited. It appears that later it was found that the correct valuation of the property of the testator was Rs. 65,821 6-6. The deficit amount of probate fee, i.e. Rs. 1493-2-0 was thereafter demanded from the applicants There were other proceedings taken meanwhile which it is not necessary to detail here. Finally on 15 9-1945 an application (paper No. 79C) was filed by the three applicants praying that they may be allowed to deposit the balance of the probate fee at the time of the grant of the probate to them. The grounds stated in this application were that there were not sufficient funds in the estate nor were the applicants possessed of funds to pay the deficit amount of the probate fee. It was lastly stated that under the law, the payment of the deficit court-fee, or probate fee at, that stage was not necessary. The learned Judge passed an order on the same day holding that the court-fee had to be paid before the judgment. He, therefore, ordered the applicants to make good the deficiency in the court-fee before the date fixed for final hearing. He further directed that the amount would not be paid out of the estate. Against that order of the learned Judge the applicants have filed an appeal to this Court under Section 6A Court- fees Act and Section 299, Succession Act.

(3.) Learned Counsel for the appellants has strongly contended inter alia, that the view of the learned Judge of the Court below that the court-fee was to be paid before the date fixed for final hearing and before the order was entirely erroneous His contention is that under the law, the court-fee has to be paid before the probate is actually issued, but that the applicants - the appellants - could not be called upon to deposit the court-fee before the application was heard and decided in their favour.