1993 PLP 1934 (CLC)

(b) ...... ...... (c) a deposit of the amount payable upon grant of probate under the Court Fees Act, 1870; and (d) ...... ...... Rule 378 again reads as follows:‑‑ "

378. Application for letters of administration with the will annexed shall be made by petition in Form No. 24 in Appendix A and shall be accompanied by the Annexures (a), (b) and (d) and, the deposit mentioned in rule 376." On a conjoint reading of the two rules, the position is clear that, before invoking the testamentary jurisdiction of this Court, a party, seeking a probate, or Letters of Administration has to deposit the court‑fee. I have purposely underlined the word "deposit", as I propose to deal with the word in a later part of this order. Subsection (1) of section 19‑I of the Court Fees Act again reads as follows:‑‑ "19‑

1. Payment of court‑fees in respect of probates and Letters of Administration.‑‑(1) No order entitling the petitioner to the grant of probate or Letters of Administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property `in the form set forth in the Third Schedule, and the Court is satisfied that the fee mentioned in No 11 of the First Schedule has been paid on such valuation'. A plain reading of this section would seem to indicate that no Court can pass an order entitling a petitioner to Letters of Administration, which seeks rant of the same Letters of Administration. I have purposely underlined the word "grant", for this word will also come up for consideration in the immediate succeeding paragraph. Now on a conjoint reading of the Sindh Chief Court Rules, the relevant provisions whereof have been reproduced above, and subsection (1) of section 19‑1 of the Court Fees Act, the results, that emerge, are that an application for grant of Letters of Administration, or, Succession Certificate or, Probate must carry with itself a deposit of an amount equal to the court‑fee that is payable. Undoubtedly, deposit has to remain in Court for the purpose of being used for purchase of court‑fee for affixation, but the putting in of such deposit in the Court is mandatory, because, under subsection (1) of section 19‑I of the Court Fees Act, without a deposit being made, no order, entitling the petitioner to Letters of Administration can be passed, so that the grant of Letters of Administration is contingent upon the deposit of court‑fee. Mr. Syed Iqbal Ahmed states that the relevant date for the purpose of determining the amount of court‑fee is the date when the actual Letters of Administration are drawn up, signed and delivered to the petitioner. He relies on the case of Gurcharan Prasad and another v. Secretary of State, a D.B. judgment from the Allahabad High Court, reported in AIR 1936 Allahabad

309. He has particularly referred to column 2 at page 310 of the said report, where the paragraph begins with the words "The important point to notice is". The learned Judges of the Allahabad High Court took the view that the point to notice was that fee was payable on the document itself, and there is no question of paying court‑fees on a proceeding or on a suit or anything of that kind. First of all, we have no means of knowing whether the rules of the Allahabad High Court provide for directions to deposit the court‑fee at the time of filing the application. I also find that the learned Judges of the Allahabad High Court have not adverted to section 19‑I of the Court Fees Act, which states that, unless the court‑fee is paid, an order cannot be passed, and further the same paragraph also speaks of Succession Certificate being granted only after payment of court‑fee. The learned Judges of the Allahabad High Court have taken the view that the payment of court‑fee has no other significance, except that it is to be utilised for the purpose of affixation on the Letters of Administration, but, in my view, section 19‑I by imposition of a clog on the exercise of jurisdiction makes it a condition precedent that court‑fee has to be deposited. What is more that the deposit is to proceed the grant. Mr. Syed Iqbal Ahmad states that even the word "grant" would mean and imply the grant of a regular Letters of Administration, entitling the petitioner to administer the estate. To that extent, I have not been able to agree with him. Subsection (1) of section 19‑1 of the Court Fees Act came up for consideration before a Division Bench of the Bombay High Court in the case of Gangaram Tillockchand v. The Chief Controlling Revenue Authority, a case reported in AIR 1927 Bombay

643. At page 643 in column 2, it is stated as follows:‑‑ But, holding as I do that the fee is payable upon the grant of probate and not upon the application for probate, it seems to me clear that the law in force at the date of the grant is the law which must be applied in deciding the matter. The learned Judges also considered another case from Calcutta High Court. In the case from Calcutta High Court, it had been held that the petitioner had actually made the payment before the legislation had come into force, whereby the rate of fee had been raised. However, during the pendency of the case, legislation came into force, whereby court‑fee was raised. The Calcutta High Court took the view that the petitioner was entitled to grant of probate without further payment. Here too, the situation was that the Court had not passed an order, granting the Probate, so that, if, in the meantime, the court‑fee had been enhanced, or, increased, it was not payable. Although the learned Judges of the Bombay High Court expressed tacit dissent with the Calcutta decision, still in the instant case, the view, that I am inclined to take, is that it is the date of grant, which is the relevant date, and even the Calcutta High Court was of the view that the date of grant was the date when the order was passed. In Black's Law Distionary, the word "grant" has been interpreted to mean‑‑ "To bestow; to confer upon some one other than the person or entity which makes the grant." While interpreting the word "grant", it is also stated as follows:‑‑‑ "In England, an act evidenced by letters patent under the great seal, granting something from the king to a subject." I am left in no doubt that the word "grant", as used‑ in subsection (1) of section 19‑I of the Court Fees Act means and implies the passing of an order D by the Court as distinct from the drawing up of a Letters of Administration, scaling the same and delivering to the person entitled to it. Applying the above principle to the instant case, I am of the view that the relevant date is the date on which the Court passes the order, and not the date on which the Letters of Administration are delivered to the petitioner. There is a further reason, which also persuades me to take that view in the instant case at least. In spite of office objection, the court‑fee was not deposited. So that, by allowing any benefit to the petitioner, it would appear that he will be benefited on account of his default in depositing the court‑fee. This would be allowing the petitioner to take adv vantage of his own wrong, and that also in non‑compliance with the Rules. I must. however, refer to an order of my learned brother, Ajmal Mian, J., who has taken a contrary view, but upon reading of the order, I find that my learned brother has only taken into consideration the judgment of the Allahabad High Court. This judgment has not been followed. by me for the reasons, which I have already stated. A.A.S‑997/K Order accordingly.