The deposit of court fees is not a condition precedent for the entertainment of an application for a Succession Certificate.

( 1 ) THE order impugned is in a sense a peculiar order. Legislature's language has apparently misled the learned Judge and confounded his wits, but what I have failed to appreciate is his approach in dealing with a reported decision of a Division Bench of Allahabad High Court.

( 2 ) AT the threshold the revisionists, applying for a Succession Certificate to recover the debts of deceased Ganeshan (whose legal representatives they are) are told that their application is not entertainable/triable as requisite court-fees did not "accompany" the application. That order, passed on 4-1-1991 by learned 7th Additional District Judge, Gwalior, is challenged in this revision.

( 3 ) THE question is of interpretation of Section 379 of Part X of the Indian Succession Act, which I extract :- "379. Mode of collecting Court-fees on certificates. (1) Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870, in respect of the certificate or extension applied for. (2) If the application is allowed, the sum deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid. (3) Any sum received under Sub-Section (1) and not expended under Sub-Section (2) shall be refunded to the person who deposited it. " Part X of the said Act deals exclusively with grant of a "succession Certificate" and its Section 372 contemplates "application for such a Certificate" to be made; relevant portion of Sub-Section (1) thereof also has a material bearing on the question mooted and that too is extracted :-"372. Application for certificate.- (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely "

( 4 ) IT is true, on a plain reading of S. 379 (1) one is apt to be misled by the language used but the purport of the provision provides a valuable clue to its real object. The marginal note or Section-heading is significant "mode of collecting Court-fees on certificates. " It is trite law that when there is any ambiguity, it is legitimate to refer to Section heading/marginal note to seek intrinsic evidence of Legislative intent. It appears clear to me that the provision is not contemplated as a bar for any application for Succession-Certificate to be entertained unless the deposit contemplated therein is made beforehand for the purpose of court-fees subsequently to be used when the certificate applied for is issued. What is also manifestly clear is that requirement of filing along with the application any court-fees, for the certificate which may or may not be eventually issued, is not at all contemplated. The language of Section 379 does not admit any ambiguity about that. In that regard the Court below is obviously wrong in stretching the language used in the provision. That is certainly impermissible because that tantamounts to judicial legislature.

( 5 ) THE provision of deposit accompanying the application, evidently, is not mandatory and it does not constitute any condition precedent to be satisfied for the application to be entertained and tried. Its purport is procedural and it does not affect the applicant's substantive right to make the application contemplated under Section 372 aforequoted, which is not saddled by any other requirement except the that of setting forth in the application the enumerated particulars. It really serves the purpose for which it is enacted, to provide the "mode of collecting court-fees on certificates" to be issued if and when the application is allowed. Whether any statutory provision is directory or mandatory is the question to be determ