Court fee on applications for probate and letters of administration must comply strictly with statutory provisions, and deficiencies must be rectified prior to proceeding with appeals.

ORDER :

REKHA BORANA, J.

1. The present appeal has been filed against the impugned judgment dated 21.09.2024 passed by District Judge, Jodhpur Metropolitan in Civil Misc. Case No.13-A/2013 (NCV No.340/2014) whereby the application as filed by the appellant-applicant under Sections 270 , 276 & 278 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act of 1925’) for grant of probate qua Will dated 20.12.1994, stood rejected.

2. A preliminary objection regarding the court fee paid by the appellant on the present appeal, has been raised by counsel for the respondents.

3. Counsel for the respondents submitted that the present appeal has been filed on a court fee of Rs.10/- only which clearly is deficient. Counsel submitted that even the court fee as deposited by the applicant before the learned Trial Court was deficient and although an objection qua the same was raised by the respondents but the said objection stood rejected and the learned Trial Court erroneously observed that the applicant shall be required to pay the complete court fee only if ultimately his application is allowed and a probate is issued in his favour.

4. Counsel submitted that Section 51 of the Rajasthan Court- Fees and Suits Valuation Act, 1961 (hereinafter referred to as ‘the Act of 1961’) specifically provides that the fee chargeable for grant of probate shall be calculated at the rate prescribed in Article 6 of Schedule I and as per Article 6 of Schedule I, when the amount or value of the estate exceeds five thousand rupees, the court fee payable is three per centum on such amount or value. So far as the present appeal is concerned, as per Article 4 of Schedule I of the Act of 1961, an amount equal to one-half the fee at the scale prescribed in Article 1 on the market value of the subject-matter, shall be payable.

5. The argument of counsel for the respondents is therefore two-fold: firstly, the court fee on the application before the learned Trial Court itself ought to have been paid in terms of Section 51 of the Act of 1961 and secondly, court fee in terms of Article 4 of Schedule I ought to have been paid on the present appeal.

6. In the alternate, counsel submitted that if not in terms of Section 51 , the court fee in terms of Proviso to Article 11(j) of Schedule II of the Act of 1961 was definitely payable on the application before the learned Trial Court.

7. Responding to the above preliminary objection, learned Senior Counsel appearing for the appellant submitted that it is the settled proposition of law that in cases of Probate/Letters of Administration, the court fee as per Section 51 of the Act of 1961 is payable only after an order of Probate/Letters of Administration been passed in favour of the applicant. So far as the application is concerned, the court fee is payable in terms of Article 11(j)(ii)(2) of Schedule II of the Act of 1961. As per Article 11(j)(ii)(2), the court fee payable for the value exceeding Rs.1,000/- is Rs.5/- which has been paid by the applicant. Hence, in terms of Section 15 of the Act of 1961, it is the said court fee only which was required to be paid on the present appeal and the same remains paid.

8. So far as the Proviso to Article 11(j) is concerned, counsel submits that the application as filed by the applicant was not registered as a suit and hence, the said proviso shall not apply to the present matter.

9. Learned Senior Counsel further submitted that even otherwise the respondents are estopped from raising the above objection as it was raised by them before the learned Trial Court too which stood rejected and the said order having become final, cannot be permitted to be raised again at this stage.

10. Learned Senior Counsel lastly submitted that the learned Trial Court, keeping into consideration Article 11(j) of Schedule II, entertained the application as filed by the applicant with a specific observation that the complete court fee shall be required to be paid only if the court grants a probate i