( 1 ) THE question raised in this petition is directly covered by the judgment of the Supreme Court in the case of P. M. Ashwathanarayana Setty and Ors. v. State of Karnataka, AIR 1989 SC 100 confirming the judgment of the Bombay High Court in the case of Mrs. Jyoti Nikul Jariwala and Ors. v. State of Maharashtra, AIR 1988 Bombay 123.

( 2 ) THE petitioner applied for succession certificate and letters of administration on the death of his father. The application was registered as Succession Miscellaneous Application No. 166 of 1990 in the Court of the Civil Judge (S. D.), Baroda. The succession certificate has been ordered to be issued in favour of the petitioner. However, the actual issuance of succession certificate is held up on account of non-payment of Courtfees. According to the respondent authorities, having regard to the valuation of the property of Rs. 7,52,760. 00 the Court-fees payable would be rs. 54,000/ -.

( 3 ) SECTION 29 of the Bombay Court Fees Act provides for the payment of Court fees in respect of probate and letters of administration which reads as follows :"29. (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 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. (2) The grant of probate or letters of administration shall not be delayed by reason of any report made by the Collector under Sec, 28, sub-sec. (3 ). "

( 4 ) ITEM Nos. 10 and 11 in the Schedule are as follows :10. Probate of a will or letters of administration with or without will Annexed. Under column Nos. 2 and 3 ad valorem fee is prescribed. 11. Certificate under Part X of the Indian Succession Act, 1925. The fees leviable in the case of a probate (Art. 10) on the amount or value of any debt or security specified in the Certificate. . . . "

( 5 ) THUS, the succession certificate which the petitioner is ordered to be issued is required to be issued subject to the Court-fees under Item 11 of the Schedule and that fees is the same as per Art. 10 and the proper Court-fees payable is ad valorem fees depending on the value of the subject-matter of the probate or succession certificate.

( 6 ) IT is contended that under Art. 1 regarding proper fees on plaint or memo of appeal, there is a similar provision of ad valorem fees and the proviso to Art. 1 reads as under :"provided that maximum fees leviable on a plaint or memo of appeal or crossobjections shall be Rs. 15,000. 00. "

( 7 ) IN similar circumstances, an identical provision of the same Act applicable in Maharashtra, has been struck down by the Bombay High Court in the aforesaid judgment. The judgment was challenged before the Supreme Court and the supreme Court has in the case of P. M. Ashwathanarayana Selly and Ors. v. State of Karnafaka (supra) in para 36 on page 120 and 121 approved the final order of the Bombay High Court. That para 36 of the Supreme Court judgment concludes the matter. That para reads as follows :"36. Re : Contention (d ). In the appeal of the State of Maharashtra arising out of the Bombay Court-fees act, 1959, the High Court has struck down the impugned provisions on the ground that the levy of Court-fee on proceedings for grant of probate and letters of administration ad valorem without the upper limit prescribed for all other litigantsthe court-fee in the present case amounts to Rs. 6,14,814. 00 is discriminatory. The High court has also held that, there is no intelligible or rational differentia between the two class of litigations and that having regard to the fact that what is recovered is a fee, the purported classification has no rational nexus to the object. The argument was noticed by the learned single Judge thus : "petitioners next contend that the impugned clause discriminates as between d