Case Note & Summary
The petitioners, who are the legal heirs of the deceased Deokaranji Bhoot, filed a writ petition under Article 227 of the Constitution of India challenging an order dated 04.08.2018 passed by the Civil Judge Senior Division, Amravati in RMJC No.597/2015. The impugned order rejected an application (Exh.37) filed by the petitioners seeking dismissal of a succession petition filed by the respondents under Section 372 of the Indian Succession Act, 1925 for non-payment of the requisite court fee under Section 379(1) of the Act. The trial court had held that the court fee under Section 379(1) is not required to be paid at the time of filing the petition but only before the grant is issued. The petitioners argued that the court fee must be paid at the time of filing, relying on the wording of Section 379(1) which states that no grant shall be made until the proper fee is paid. The respondents contended that the fee is payable only at the stage of grant. The High Court analyzed Section 379(1) and held that the section does not prescribe a time for payment of the fee; it only prohibits the grant until the fee is paid. The Court noted that the succession petition is a proceeding in rem and the court fee is not a condition precedent for filing. The Court also observed that the trial court had the discretion to allow the petitioner to pay the fee at a later stage. The High Court dismissed the writ petition, upholding the trial court's order and directing the trial court to proceed with the succession petition in accordance with law.
Headnote
A) Succession Act - Court Fees - Section 379(1) Indian Succession Act, 1925 - Payment of Court Fees - The issue was whether a succession petition under Section 372 of the Act must be accompanied by payment of court fees under Section 379(1) at the time of filing. The Court held that Section 379(1) does not require payment of court fees at the time of filing the petition; it only requires payment of the proper fee before the grant is issued. The trial court's rejection of the application to dismiss the petition for non-payment of court fees was upheld. (Paras 3-10)
Issue of Consideration
Whether the trial court was justified in rejecting the application (Exh.37) filed by the petitioners seeking dismissal of the succession petition under Section 372 of the Indian Succession Act, 1925 for non-payment of the requisite court fee under Section 379(1) of the Act.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 04.08.2018. The Court directed the trial court to proceed with the succession petition in accordance with law.
Law Points
- Section 379(1) of the Indian Succession Act
- 1925 does not mandate payment of court fees at the time of filing a succession petition under Section 372
- court fees are payable only when the petitioner seeks to have the grant issued
- the trial court's rejection of an application to dismiss the petition for non-payment of court fees was correct.
Case Details
2023 LawText (BOM) (06) 180
Writ Petition No. 8387 of 2018
Mr. J.J. Chandurkar for petitioners; Ms. Palakh Agrawal h/f Mr. Atul Pande for respondent No.2
Prakashchandra Deokaranji Bhoot and others
Manoharlal Deokaranji Bhoot and another
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an order of the Civil Judge Senior Division, Amravati rejecting an application to dismiss a succession petition for non-payment of court fees.
Remedy Sought
The petitioners sought to quash the order dated 04.08.2018 and to dismiss the succession petition filed by the respondents under Section 372 of the Indian Succession Act, 1925 for non-payment of the requisite court fee under Section 379(1) of the Act.
Filing Reason
The petitioners contended that the succession petition should be dismissed because the respondents failed to pay the court fee under Section 379(1) at the time of filing the petition.
Previous Decisions
The trial court rejected the application (Exh.37) filed by the petitioners seeking dismissal of the succession petition, holding that the court fee under Section 379(1) is not required to be paid at the time of filing but only before the grant is issued.
Issues
Whether the trial court was justified in rejecting the application (Exh.37) seeking dismissal of the succession petition for non-payment of court fees under Section 379(1) of the Indian Succession Act, 1925.
Submissions/Arguments
Petitioners argued that Section 379(1) requires payment of court fees at the time of filing the succession petition, and non-payment renders the petition liable to be dismissed.
Respondents argued that Section 379(1) only requires payment of court fees before the grant is issued, not at the time of filing the petition.
Ratio Decidendi
Section 379(1) of the Indian Succession Act, 1925 does not mandate payment of court fees at the time of filing a succession petition under Section 372; the fee is payable only before the grant is issued. The trial court's rejection of the application to dismiss the petition for non-payment of court fees was correct.
Judgment Excerpts
The question that is called for consideration in this petition is whether the trial Court was justified in rejecting the application at Exh.37 filed by the petitioners seeking dismissal of the succession petition for non-payment of the requisite court fee under Section 379(1) of the Indian Succession Act, 1925.
Section 379(1) of the Act does not prescribe any time for payment of the fee; it only prohibits the grant until the proper fee is paid.
Procedural History
The respondents filed a succession petition under Section 372 of the Indian Succession Act, 1925 before the Civil Judge Senior Division, Amravati (RMJC No.597/2015). The petitioners filed an application (Exh.37) seeking dismissal of the petition for non-payment of court fees under Section 379(1). The trial court rejected the application on 04.08.2018. The petitioners challenged this order by filing a writ petition under Article 227 of the Constitution of India before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Indian Succession Act, 1925: 372, 379(1)
- Constitution of India: Article 227
