This is an application in which the applicants pray for an order (1) that letters of administration ordered to be issued in this suit to them as plaintiffs may be granted to them in forma pauperis; and (2) that the Court-fees payable in respect of the above grant of the letters of administration may be made a first charge upon the properties bequeathed to the plaintiffs under the will of the deceased dated 21st September 1920. It is conceded by the learned counsel on behalf of the Government Solicitor that, so far as the applicants' pecuniary position is concerned, they are paupers. The objection to the application is based upon two grounds: (1) that O. 33, Civil Procedure Code, and the rules thereof are not applicable to proceedings for grants of probate or letters of administration; and (2) that, even though the contrary may be the correct view, the applicants cannot now avail themselves of the provisions of the pauper rules. There is no difference in principle between proceedings for the grant of letters of administration and proceedings for grant of probate.
The facts of this case are as follows:—The testator by his will dated 21st September 1920 bequeathed to the plaintiffs and to other beneficiaries legacies and bequests. He appointed no executor. On the 27th April 1921, the testator died. Since that date various members of his family have been in possession of the deceased's estate and have excluded the applicants from the benefits given to them under the will. On 28th August 1931, the applicants petitioned for a grant of letters of administration cum testamento annexe. The petitioners alleged in the petition that, on account of their poverty, they were unable to institute proceedings until the date of that petition and that no other beneficiaries under the will had taken any step in regard to obtaining the grant. The widow and one son of the deceased filed a caveat. Subsequently the petition and the caveat were numbered as a suit, the applicants being the plaintiffs and the caveators the defendants. This was in pursuance of O. 34, R. 52 of the Original Side Rules. Under R. 55 of the same Order, it is provided inter alia that the provisions of O. 4, R. 4, of the Original Side Rules shall apply in the same manner as if the petition were a plaint filed on the date of registration of the petition as a suit. It follows therefore that the petition praying for the grant of letters of administration is deemed to be a plaint on the date mentioned in the Rule. Since the provisions of O. 4, R. 4 of the Original Side Rules, apply, it follows from the wording of that rule that the petition is dealt with as if it were a plaint presented and filed in accordance with the relevant rules.
In the written statement in the suit, the defendants raised many contentions against the validity of the will including an allegation that the testator's will was a forgery. Lakshmana Rao, J. tried the suit and on 14th February 1935 he found in favour of the will and ordered letters of administration to issue. Against this decision the defendants appealed to the Appellate Court which appeal was dismissed on 1st April 1936. When the petition was first issued by the applicants, they paid the appropriate Court-fees by affixing Rs. 20 stamp upon the petition pursuant to O. 2, R. 1, of the High Court-fees Rules of 1925, Appendix II, Item No. 7. These rules have since been supplanted by the High Court Fees Rules of 1933 but no amendment or alteration has been made which is material so far as the matter before me is concerned. When a case is registered as a suit and the petition becomes a plaint, no fee is prescribed in the Rules as payable by the applicants.
Letters of administration have been ordered to be issued. All that remains to be done is for the applicants to pay the appropriate Court-fees computed upon the value of the estate, and, upon this being done, letters of administration will issue. It is at this stage, that the present application is made pursuant to the provisions of O. 33, Civil Procedure Code and O. 8, R. 14 of the Original Side Rules. It is necessary to refer to provisions of O. 33, in this application. O. 33, R. 1 of Civil Procedure Code says:
“Subject to the following provisions, any suit may be instituted by a pauper.
Explanation—A person is a ‘pauper’ when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit.”
R. 8 of the same Order is in the following terms:
“Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any Court-fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.”
O. 8, R. 14 of the Original Side Rules deals with the machinery to be followed by the applicants. S. 141 Civil Procedure Code provides as follows:
“The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction.”
I see no reason why an application by a petitioner for grant of probate or letters of administration, which is clearly a proceeding in a Court of Civil Jurisdiction, cannot be subject to the provisions of O. 33 of Civil Procedure Code nor that any of the rules of that order are inapplicable to such a petition. The provisions of the High Court Fees Rules, 1933 which supplant the former rules, in my view, contemplate proceedings for the grant of probate and letters of administration being subject to the pauper-rules. O. 2, R. 2 of the High Court Fees Rules deals with these applications in so far as it provides for the fees payable and in the same rule it is provided that,
“If an application for leave to prosecute or defend proceedings in forma pauperis is granted, no fee shall be charged by the Registrar or the Sheriff, in respect of any proceeding by, or on behalf of, the pauper, except the fees chargeable upon the said application.”
It is contended on behalf of the Government Solicitor that the words in O. 2, R. 2, ‘no fee shall be charged by the Registrar or the Sheriff’ excuse only the fees payable under the High Court Fees Rules and do not extend such relief to any other Court-fees, those fees being only ones which are dealt with in that rule, and that it does not deal with the Court-fees under the Court-fees Act to which I shall refer later on. I do not accept the contention that this rule prevents a person from availing himself of the pauper provisions of O. 33 of the Civil Procedure Code. The provisions of the High Court Fees Rules are in addition to and not in substitution for O. 33, Civil Procedure Code. R. 8 of that Order, set out above, expressly exempts a person admitted to sue in forma pauperis from payment of Court fees in respect of any proceedings connected with the suit. The issue of probate or letters of administration is a proceeding connected with the petition, and in this case a suit, for such a grant. S. 19-I of the Court-fees Act provides that the fees specified in item No. II of the first schedule of the Act must be paid before an order entitling the petitioners to a grant of probate or letters of administration can be made. Whilst this section mentions “fees” and not “Court-fees”, Ss. 19-A and 19-G of the same Act deal with the relief available when too high a fee has been paid and provides for payment to be made when too low a fee has been paid. Both describe such fees as “Court-fees” and these Court-fees are fees payable persuant to S. 19-I, The mandatory language of S. 19-I regarding payment of fees for the grant of probate and letters of administration is, in my view, subject to the provisions of O. 33, R. 8 of Civil Procedure Code, which unequivocally deals with exemptions from payment of all Court-fees in any proceedings connected with a pauper suit. It was further contended on behalf of the Government Solicitor that the Court-fees Act is a special Act and that S. 4(1) of the Civil Procedure Code, provides that, in the absence of any specific provision to the contrary, nothing in the Code shall be deemed to limit or otherwise affect any special or local law. It was argued that the Court-fees Act is a special law and that S. 4(1) above referred to expressly provides that such Act shall not be limited or affected by the Code. This section, however, expressly says that this shall be so in the absence of any specific provision to the contrary. The wording of O. 33, R. 8 is such a specific provision, namely, that Court-fees connected with any proceeding, which includes Court-fees payable under the Court-fees Act, are excused in the case of a person admitted as a pauper litigant. Incidentally the Court-fees Act provides for the fees payable for plaints and, if this argument were to prevail, it would destroy the effect and the relief given to paupers by the provisions of O. 33, R. 8 of the Civil Procedure Code. I am satisfied that the pauper rules mentioned above are applicable to petitions or suits when petitions become suits, for the grant of probate or letters of administration. This view was taken by the Bombay High Court, “In the matter of the Will of Dawabai Haji Hubib Khan Petitioner,” [In re Will of Dawubai(1)]. Whilst this case was decided before the Court-fees Act was amended by the inclusion of Ss. 19-A to 19-K, I see no difference in principle between that case and the one now before me. In Application No. 2925 of 1930, Venkatasubba Rao, J., decided that the petitioner for grant of probate could be given relief in forma pauperis*. I agree with the learned Judge in that decision. No proceedings had been taken by the petitioner in the application before Venkatasubba Rao, J. before the application was made to him.
It is further contended that it is now too late for the applicants to be granted the relief to proceed as paupers. In Subba Rao v. Venkataratnam(2) and in Bava Sahib Miyan v. Abdul Ghani Sahib(3) it was held that the Court could allow the plaintiff to continue the suit as a pauper although the application was made after the suit had been instituted and some Court-fees had been paid upon the plaint. These decisions followed Thompson v. The Calcutta Tramway Co. Ltd.,(4) and Revji v. Sakharam(5). In the two Madras authorities mentioned above, Court-fees which had been paid were not the proper Court-fee inasmuch as a larger sum should have been paid. In Thompson v. The Calcutta Tramway Co. Ltd., the plaintiff had paid all the proper fees up to the date of the application to be admitted as a pauper and at that stage he had no funds to continue the suit nor could he find the further fees required. Nevertheless the plaintiff in that suit was admitted as a pauper. The definition of “pauper” is contained in the explanation to O. 33, R. 1, which I have set out above. That rule provides that a person is a ‘pauper’ when he is not possessed of sufficient means to enable him to pay the fees prescribed by law for the plaint in the suit, or where no fee is prescribed, when he is not entitled to property worth Rs. 100. When the caveat was entered by the widow and the son of the deceased testator, and under the rules above mentioned, the petition and caveat were registered as a suit, and no fee was prescribed when the petition became a plaint. At that time, it was not suggesed by the learned counsel for the Government Solicitor that the applicants before me were possessed of Rs. 100. Interpreting strictly the definition set out in the explanation, it follows that since no fee is prescribed upon the plaint when the petition becomes a plaint and the applicants are not possessed of Rs. 100, they are paupers within the meaning of the explanation. Whilst upon the date of the issue of the petition, the requisite fee of Rs. 20 was paid in respect of that document, at the time when the petition was converted into a suit and the petition became a plaint, no fee is prescribed. The applicants are paupers within the meaning of the explanation in O. 33, R. 1, since they were not entitled to Rs. 100.
There will be an order in terms of the prayer, viz., (i) letters of administration will isssue to the applicants in forma pauperis. There will also be an order that the fees payable to the Government under S. 19-I of the Court-fees Act and any other Court-fees which are payable will be a first charge upon the subject matter of the grant pursuant to O. 33, R. 10 Civil Procedure Code. There also will be an order that the applicants will pay the Court-fees which they are now excused from paying. This last order will only be enforced subject to an application to Court for leave so to do. The learned counsel on behalf of the Government Solicitor stated that this application was contested upon a matter of principle in order that there might be a direction in regard to future litigation by paupers in respect of probate and letters of administration. I therefore direct that there will be an order for costs in favour of the applicant.
Order accordingly.
N.R.R