The court clarifies that the proceedings for probate do not become a regular suit under the Code of Civil Procedure, and the court fees payable should be as provided under Article 11 of Schedule II.

BHANDARI, J.

( 1 ) IN this appeal against the order of the District Judge, Jaipur City granting probate application filed on behalf of one Suwa Lal, a preliminary objection has been raised by the learned counsel for the respondent that ad valorem court-fees should have been paid in the memorandum of appeal by the appellant as provided in Article 1, Schedule 1, Court-fees Act.

( 2 ) ONE Prahlad died on 28-10-1946 and before his death he had made a will on 22-10-1946 in favour of Suwalal respondent bequeathing him one house in Jaipur city. Mt. Bhonri the appellant lodged the caveat against the grant of probate and thereafter the proceedings became contentious.

( 3 ) AFTER framing issues and recording evidence the learned District Judge granted a probate to the respondent. Mst. Bhonri has preferred this appeal challenging the order of the learned District Judge.

( 4 ) A preliminary objection has been raised by the counsel for the respondent that the memorandum of appeal being against a decree, the court-fees payable thereon should be under Article 1, Schedule 1, Court-fees Act and ad valorem court-fees should be paid.

( 5 ) ON behalf of the appellant it is urged that the court-fees that are payable in such a case should be as provided under Article 11 of Schedule II, Court-fees Act as the judgment of the learned District Judge is not a decree or order having the force of decree. He has further argued that even if the judgment of the learned district Judge be construed as a decree, fixed court-fee of Rs. 10/- under Article 17 (vi) of Schedule II, Court-fees Act is leviable.

( 6 ) IN order to determine what is the proper court-fee payable in this case, it is necessary to examine the nature of the proceedings before the learned District, judge. After the appellant has lodged the caveat the proceedings have become contentious. Under Section 295, Indian Succession Act, it is provided that in any case in which there is a contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil procedure, 1908 in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. From the very language of the section it is apparent that even after the proceedings have become contentious they are merely to assume the form of a regular suit though in reality the proceedings are not in the nature of a regular suit under the provisions of Code of Civil Procedure, 1908. The proceedings do not originate as a suit under the provisions of the Code of Civil Procedure. Under Section 295, it is not provided that such proceedings become regular suit under the Civil Procedure Code. Under Section 26, Civil P. C. , 1908, every suit shall be instituted by the presentation of a plaint or in any such other manner as may be prescribed. Order IV Rule 1 of the Code prescribes to whom the plaint is to be presented and what should it contain.

( 7 ) AT this stage it is worthwhile to consider Section 268, Indian Succession Act. Section 268, Indian Succession Act runs as follows:

"the proceedings of the Court of District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. "

This provision is analogous to Section 141, Civil P. C. , which provides that the procedure contained in the Code in regard to suits is to be followed in all proceedings in any court of civil jurisdiction. In respect of Section 268, it cannot be said that the proceedings in the probate proceedings even after they had become contentious, become proceedings in a suit. Similar provisions in Sections 18, 19 (2) and 5, Provincial Insolvency Act were considered by the Calcutta High Court in the case of -- madan Lal Jhunjhunwala v. Reza Ali Kh