The Bombay High Court dismissed a writ petition under Article 227 seeking the dismissal of a petition filed by respondents under Section 372 of the Indian Succession Act, 1925, for non-payment of the requisite fee under Section 379(1) of the said Act.
The Court observed that the deposit of the sum to be expended on the fee referred to in Sub-section (1) of Section 379 is not mandatory, and non-deposit of the same does not affect the maintainability of the application or of the jurisdiction of the Court to proceed to deciding the application.
Brief Facts:
Respondent No.1 filed an application before the Civil Judge Senior Division at Amravati, seeking a Succession Certificate in terms of Section 372 of the Indian Succession Act, 1925, for the allotment of the estate of his deceased mother. In the application for issuance of the Succession Certificate, the applicant has specifically undertaken to pay the requisite stamp duty in accordance with the provisions of the Bombay Stamp Act.
The non-applicants/petitioners herein opposed the maintainability of the application by filing an application for dismissing the petition purportedly for the non-payment of the court fees, on the contention that the court fees as payable under the Bombay Court Fees Act, 1959, had not been paid along with the application for the certificate, in terms of Sub-Section (1) of Section 379 of the Indian Succession Act, 1925.
The trial Court has dismissed this objection holding that payment of court fees under Section 379(1) was not a sine quo non for the maintainability of an application under Section 372; nor does it affect the Court's jurisdiction to proceed with deciding the succession application. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued that Section 379(1) of the Act requires that every application for a certificate of Succession shall be accompanied by a court-fee to be calculated in accordance with the provisions of the Bombay Court Fees Act, 1959. He has emphasized that the word used in Section 379(1) is “accompanied by” and as such, the intention set out in these provisions was that an application for a certificate should not be entertained without the requisite court fees being collected before proceeding with the matter.
Further, he contended that such sum deposited is required to be spent in the purchase of a stamp to be used at the time the Succession Certificate is issued, and for that reason, the fees are required to be accompanied along with the application in order to vest the Court with jurisdiction to proceed in the matter.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued that the provisions of Section 379(1) of the Act are not mandatory and only require the deposit of a sum equal to the fee payable to be utilized for the purchase of stamp duty payable on the share of each of the parties on passing of the final Succession Certificate. Further, she contended that such a deposit can be made even at the time of determination of the share of each of the parties, on the Court setting down a value for each of such shares when it finally issues a certificate of Succession.
Observations of the Court
The Court observed that the scheme of Section 379 denotes that the sum to be deposited is not the actual court fee under the Court Fees Act but an amount which may be expended or refunded, at the time of final orders to be passed on the application. It would stand to reason therefore, that the provision of Section 379 could not be mandatory and require such a sum or fee to be deposited as a sine qua non for the maintainability of an application under Section 372 of the Act.
The Court observed that the deposit of the sum to be expended on the fee referred to in Sub-section (1) of Section 379 is not mandatory, and non-deposit of the same along with the filing of the application that issuance of Succession Certificate under Section 372 of the Act, does not affect the maintainability of the application or of the jurisdiction of the Court to proceed to decide the application.
The decision of the Court:
The Bombay High Court, dismissing the petition, held that there is no infirmity in the impugned order dated 04.08.2018 rendered by the Civil Judge
Case Title: Prakashchandra Deokaranji Bhoot & Ors. vs Manoharlal Deokaranji Bhoot & Anr.
Coram: Hon’ble Justice Valmiki SA Menezes
Case no.: WRIT PETITION NO. 8387 OF 2018
Advocate for the Petitioner: Mr. J.J. Chandurkar
Advocate for the Respondents: Ms. Palak Agrawal
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