The main legal point established is that court fee is required to be paid before a probate petition can proceed, as per the provisions of the Bombay Court fee Act, 1959.

1. The petitioner has applied for letters of administration with the Will of the deceased annexed thereto. The deceased died on 1st January, 2010. The petitioner had filed an earlier petition of letters of administration with the same will annexed thereto being Petition No.466 of 2010. That petition has been dismissed for non-removal of office objections. The petitioner claims to adjust the fee paid in the former petition in this petition.

2. A petition is much like a suit. The CPC applies much to a suit to a petition or an application. Once the petition is dismissed the Court fee is liable to be forfeited. Court fee payable in a suit would be forfeited when the suit is dismissed. The rule of forfeiture in respect of a petition for probate, therefore, cannot be any different.

3. The petitioner relies upon the specific provision under section 23 of the Bombay Court fee act, 1959 for considering the same fee chargeable in this petition as in the earlier petition. Section 23 run thus:

“23. Relief in case of several grants –

Whenever a grant of probate or letters of administration has been or is made in respect of the whole of the property belonging to an estate, and the full fee chargeable under this Act has been or is paid thereon, no fee shall be chargeable under the same Act when a like grant is mad e in respect of the whole or any part of the same property belonging to the same estate.

Whenever such a grant has been or is made in respect of any property forming part of an estate, the amount of fee then actually paid under this Act shall be deducted when a like grant is made in respect of property belonging to the same estate, identical with or including the property to which the former grant relates.”

4. Section 23, therefore, applies when a grant has been made and another grant is required in respect of another part of the property of the same estate. A grant is not made when a petition is dismissed. Consequently, Section 23 would not apply to such a case.

5. The petitioner claims that this petition be proceeded with without payment of Court fee and the petitioner shall pay Court fee when the letters of administration is issued.

6. Payment of Court fee is required to be made under section 29 of the Bombay Court fee Act, 1959, which runs thus:

“29. Payment of court-fee in respect of probate 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.10 of the first Schedule has been paid on such valuation.”

7. Under the said Section no grant can be issued and no order for grant of probate or letters of administration of could be passed until the valuation of the property is done and shown in the schedule and the Court fee mentioned in item No.10 of Schedule-I to the Bombay Court fee Act, 1959 has been paid upon the valuation. The payment is, therefore, required to be made upon the valuation being done. No petition could proceed even to registration until full court fee is paid. This right is also is much the same as the rules for registration of the suits.

8. Various items of Schedule I show the specific rate of the court fee payable in various cases. Item No.10 deals with the property of a sale or letters of administration with or without the Will annexed. It requires separate specific payment of fee in specified cases.

9. The Counsel on behalf of the petitioner seeks to contend that the reading of item 10 would show that the Court fee would be payable when the probate is ultimately granted and not when it is applied for. He has relied upon the judgment of Aurangabad Bench of this Court in the case of Shashikant Gangadhar Thorat & Anr. Vs. Punja Gangadhar Thorat & Ors. 2011(4) AIR Bom. R. 132 in which it is held that the appropriate time