The deposit of the sum under Section 379(1) of the Indian Succession Act, 1925, for the issuance of a Succession Certificate under Section 372 is not mandatory and does not affect the maintainability of the application or the jurisdiction of the Court to proceed with the matter.

JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally by consent of both the learned counsel for the parties.

2. This petition filed under Article 227 of the Constitution of India impugnes order dated 04.08.2018 passed by the Civil Judge Senior Division, Amravati, in RMJC No.597/2015 on application at Exh.37 of the record of the trial Court: Exh.37 is an application filed at the behest of the petitioner seeking the dismissal of a petition filed by respondents under Section 372 of the Indian Succession Act, 1925, (for short ‘the Act’), for non-payment of the requisite fee under Section 379(1) of the said Act.

3. The question that is called for decision in this petition is :

(a) “Whether an application for issuance of a certificate of Succession filed under Section 372 is maintainable when the fee prescribed under Section 379(1) of the Act, has not been paid along with the presentation of the application; and further,

(b) Whether the Civil Court dealing with the application filed under Section 372 of the Act, for issuance of a certificate of Succession would lack jurisdiction to proceed to here the application, for want of deposit of the fee referred to under Sub-section (1) of Section 379 of the Act.”

(4) The facts relating to the filing of this petition are as under:

Respondent No.1 – Manoharlal Deokaranji Bhoot, filed RMJC No.597/2015 before the Civil Judge Senior Division at Amravati, seeking a Succession Certificate in terms of Section 372 of the Indian Succession Act, 1925, for the allotment of the estate of his deceased mother late Smt. Geetabai Deokaranji Bhoot. The petitioner Nos.1, 6, 7 and 8 are real brothers of the original applicant/respondent herein while the original non-applicant No.5 was the real sister of the applicant.

In the application for issuance of the Succession Certificate, at paragraph 10 thereof the applicant has specifically undertaken to pay the requisite stamp duty in accordance with the provisions of the Bombay Stamp Act on the date of the decision of the application.

5. The non-applicants/petitioners herein opposed the maintainability of the application by filing an application at Exh.37 of the record of the trial Court for dismissing the petition purportedly for the non-payment of the court-fees, on the contention that the court-fees as payable under the Bombay Court Fees Act, 1959, had not been paid along with the application for the certificate, in terms of Sub- Section (1) of Section 379 of the Indian Succession Act, 1925. It was their contention that for non-payment of this fee, the application was not maintainable and the trial Court lacks jurisdiction to proceed with the hearing of the succession proceedings.

The trial Court has dismissed this objection holding that payment of court-fees under Section 379(1) was not a sine quo non for the maintainability of an application under Section 372 nor does it affect the Courts jurisdiction to proceed with deciding the succession application.

6. Heard the learned counsel for the parties, perused the record.

7. It is the submission of the learned counsel for the petitioners that Section 379(1) of the Act, requires that every application for a certificate of Succession shall be accompanied by court-fee to be calculated in accordance with the provisions of the Bombay Court Fees Act, 1959. He has emphasized that the word used in Section 379(1) is “accompanied by” and as such, the intention set out in these provisions was that an application for a certificate should not be entertained without the requisite court-fees being collected before proceeding with the matter.

It is further the contention of the learned counsel for the petitioners that the reading of the provision of Sub-Section (2) of Section 379 of the Act, specifies that such sum deposited is required to be spent in the purchase of stamp to be used at the time the Succession Certificate is issued, and for that reason, the fees are required to be accompanied along with the application in order to