The main legal point established in the judgment is that the procedure under Section 295 of the Indian Succession Act, 1925, does not override the provisions of the Court Fees’ Act, and the court fee payable for petitions for Letter of Administration or Probate is as per Schedule II of the Act.

Prafulla C. Pant, J.

Heard learned counsel for the parties.

2. This writ petition is directed against the order dated 14.05.1998, passed by 2nd Additional District Judge, Dehradun, in Suit No. 13 of 1997, whereby application 74C praying for recall of order dated 03.04.1998 is rejected, and petitioners are directed to pay additional court fee.

3. Brief facts of the case are that one S.K. Puri died on 14th May 1993, leaving his property behind him and also a Will dated 10th April 1993. He created a charitable trust known as Dr. Pushpa Puri Memorial Charitable Trust, Mussoorie, in the name of his wife. On behalf of the Trust, a petition was filed by Trust through its trustee before the District Judge, under Section 276 of Indian Succession Act, 1925, for issuance of Letter of Administration on the basis of aforesaid Will. Said case was registered as Misc. Case No. 141 of 1995. It appears that certain objections were filed to the petition for Letter of Administration. Consequently, vide order dated 05.02.1997, the then District Judge, Dehradun, directed to register the misc. case as original suit. On this the Munsarim of the court submitted a report that there is deficiency of court fee to the tune of Rs.2,99,145/-. Vide order dated 14.05.1998, learned Additional District Judge-II, Dehradun before whom said case was pending, directed the petitioner to pay the court fee amounting Rs.2,99,145/-. Hence, this petition.

4. Learned counsel for the petitioners drew attention of this Court to Item No. 1 of Schedule II of Court Fees’ Act, 1870, and contended that court fee payable on the petition for Letter of Administration or Probate is only Rs.25/. He also drew attention of this Court to the case of –In the goods of, Ernest Raymond Yakchee, late of Gorakhpur (Testamentary Case No. 17 of 1954), decided by Division Bench of Allahabad High Court on 4th November 1955, AIR 1956 Allahabad 152, in which it is held by the Division Bench that a petitioner who has moved application under Section 276 of Indian Succession Act, 1925, is only required to pay the court fee as mentioned in II Schedule of the Court Fees’ Act, 1870. It is further held that the petitioner in such case is not liable to pay any estate duty from his own pocket. It has been further observed by the Division Bench of the Allahabad High Court that such expenses in such cases are to be paid from estate of the deceased. In Km. Rakhi and another Vs. Ist Additional District Judge, Firozabad and others (C.M. Revision No. 157 of 1996), decided on 05.08.1999, 2000 (1) AWC 323, it has been held by the Allahabad High Court that in the cases of petitions moved under Section 379 of Indian Succession Act, 1925 (which are filed for issuance of the succession certificate), it is not necessary for the applicant to pay the entire court fee (except the court fee of Rs.25/-) while filing the application for succession certificate. It is further held that complete court fee has to be paid after the application for succession certificate is allowed. In other words the court fee is paid at the time of issuance of the succession certificate. The analogy of payment of court fee under Section 276 is similar to the analogy, which is applicable to the petitions moved under Section 379 of Indian Succession Act, 1925.

5. It appears that the trial court got misled in directing to pay the entire court fee due by the order dated 05.02.1997 whereby it was directed that the misc. case be registered as original suit. I have gone through said order, which is annexed as part of the copy of the order sheet (Annexure-1 to the writ petition). From the perusal of the order sheet, it is clear that since objections were filed in misc. case filed for Letter of Administration, the then District Judge, thought it proper to proceed with the misc. case further as a regular suit. Said power is provided under Section 295 of Indian Succession Act, 1925, which reads as under:-

“295. Procedure in contentious case.- In