JUDGMENT :

(Vijay Bishnoi, J.) :

These two writ petitions are preferred by the petitioners under Article 226 of the Constitution of India challenging the constitutional validity of Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment) brought into effect by the Assam Court Fees (Amendment) Act, 1950 in respect of levy of Court fee for grant of probate or letter of administration at the rate of 7% ad valorem where the value of properties exceeds Rs.5,00,000/-without there being any upper limit fixed.

2. Since both the writ petitions question validity of above referred provisions of law, the facts of the writ petition, WP(C) No.2919/2018 are taken into consideration for the sake of convenience.

3. On 17.05.2010, late Tulsi Govinda Barua, brother of the petitioner in WP(C) No.2919/2018, who expired on 17.11.2012, executed his last Will and Testament, and the petitioner, being named as the Executor in the Will, applied for grant of probate before the learned District Judge, Kamrup, Guwahati. Vide order dated 18.11.2013, the learned District Judge, Kamrup, Guwahati granted probate of the last Will subject to the payment of due Court fees on the present value of the property likely to come in the hands of the beneficiaries. As per the valuation of the properties involve, the same came around Rs.3 Crores and the Court fees on the said value is required to be paid which is more than Rs.28 Lakhs.

4. Learned counsel for the petitioner in WP(C) No.2919/2018 has submitted that the petitioner is above 90 years of age and he is simply an Executor and not the beneficiary and as a huge amount of Court fees was required for getting the probate, the petitioner could not pay the Court fee. The petitioner was suggested various options from different sources but none seemed to be feasible option for him and recently, he has been advised that the provisions regarding the levy of Court fee can be challenged and, therefore, he has filed this writ petition under Article 226 of the Constitution of India challenging the constitutional validity of levy of Court for grant of probate under Article 11 of Schedule 1 of the Court Fees Act, 1870 (Assam Amendment) brought into effect by the Assam Court Fees (Amendment) Act, 1950 at the rate of 7% of properties exceeding Rs.5,00,000/-without there being any upper limit fixed.

5. Similarly, as the amount of Court fee required to be paid for getting probate being the executor of one of the properties mentioned in the last will of her father is huge, the petitioner in WP(C) No.283/2024 has approached this Court by filing the writ petition challenging the impugned Article 11 of Schedule I of the Court Fee (Amendment) Act, 1950 in respect of levy of Court fee for grant of probate or letter of administration at the rate of 7% Advocates Appeared : voleram where value of properties exceeds Rs.5,00,000/-being ultra vires of the Constitution of India.

6. Learned counsel for the petitioners have argued that the Court Fees Act is a measure to regulate the fees taken in course of public offices and fees taken in respect of certain matters in the State. It is a charge taken in return of services rendered and such charge should be commensurate to the services given in exchange. It is argued that persons who go to the Civil Courts claiming decrees are not required to pay Court fees in excess of Rs.11,000/-in the State of Assam though the suits and the other proceedings are more complex in nature in comparison to the Testamentary proceedings. The Testamentary proceedings are simple in nature involving less time and less strain upon the Courts vis-à-vis the other types of litigations which the Courts have to handle. It is contended that despite all these, the impugned Article 11 prescribes an ascending scale of fees for persons desirous of obtaining probate or letter of administration. The fees ranges from 2% to 7 % -even charge leviable goes on increasing from slab to slab, without there being any upper limit fi