Court Fee u/s 379(1) Indian Succession Act was not sine quo non for maintainability of an application for issuing Succession Certificate u/s 372 nor does it affect the Court's jurisdiction to proceed with deciding the Succession Application- Bombay High C

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 8387 OF 2018

1. Prakashchandra Deokaranji Bhoot,
Aged about 70 years, Occ.: Business,
R/o. Anupam Building, Mangilal Plot,
Amravati.
2. Smt. Ushadevi Sureshchandra Bhoot,
Aged about 59 years, Occ.: Household,
R/o. Rachana Building, Tope Nagar,
Amravati.
3. Pravinkumar Sureshchandra Bhoot,
Aged about 45 years, Occ.: Business,
R/o. Rachana Building, Tope Nagar,
Amravati.
4. Pratik Surechchandra Bhoot,
Aged about 38 years, Occ.: Business,
R/o. Sagar Apartment, Mangilal Plot,
Amravati.
… Petitioners
5. Navalkumar Deokaranji Bhoot,
Aged about 64 years, Occ.: Business,
R/o. Deegee Estate, Near Samarth High 
School,
Badnera Road, Amravati.
6. Santoshkumar Deokaranji Bhoot,
Aged about 60 years, Occ.: Deegee Estage,
Near Samarth High School, Badnera Road,
Amravati. 
7. Narendrakumar Deokaranji Bhoot,
Aged about 58 years, Occ.: Business,
R/o. Deegee Estate, Near Samarth High 
School,Badnera Road, Amravati. 
Versus
1. Manoharlal Deokaranji Bhoot,
Aged about 62 years, Occ.: Business,
R/o. Deegee Estate, Near Samarth High
School, Badnera Road, Amravati. 

2. Sau. Pushpadevi Harishkumar Kedia 
w/o Dr. Harishkumar Kedia, 
Aged about 66 years, 
R/o. of ‘Pooja Bangalow’, 318/A Model
Town, Wardhaman Nagar, Nagpur -440008.

Mr. J.J. Chandurkar, Advocate for petitioners.
None for respondent No.1.
Ms. Palakh Agrawal, Advocate h/f Mr.Atul Pande, Advocate for
respondent No.2. 
 CORAM : VALMIKI SA MENEZES, J.
RESERVED ON : 07.06.2023
 PRONOUNCED ON : 12.06.2023
JUDGMENT:
Rule. Rule made returnable forthwith. Heard finally
by consent of both the learned counsel for the parties.

1. This petition filed under Article 227 of the Constitution of India impugnes order dated 04.08.2018 passed by the Civil Judge Senior Division, Amravati, in RMJC No.597/2015 on application at Exh.37 of the record of the trial Court: Exh.37 is an application filed at the behest of the petitioner seeking the dismissal of a petition filed by respondents under Section 372 of the Indian Succession Act, 1925, (for short ‘the Act’), for non-payment of the requisite fee under Section 379(1) of the said Act.

2. The question that is called for decision in this petition is: (a) “Whether an application for issuance of a certificate of Succession filed under Section 372 is maintainable when the fee prescribed under Section 379(1) of the Act, has not been paid along with the presentation of the application; and further, (b) Whether the Civil Court dealing with the application filed under Section 372 of the Act, for issuance of a certificate of Succession would lack jurisdiction to proceed to here the application, for want of deposit of the fee referred to under Sub-section (1) of Section 379 of the Act.”

(3) The facts relating to the filing of this petition are as under: Respondent No.1 – Manoharlal Deokaranji Bhoot, filed RMJC No.597/2015 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 late Smt. Geetabai Deokaranji Bhoot. The petitioner Nos.1, 6, 7 and 8 are real brothers of the original applicant/respondent herein while the original non-applicant No.5 was the real sister of the applicant. In the application for issuance of the Succession Certificate, at paragraph 10 thereof the applicant has specifically undertaken to pay the requisite stamp duty in accordance with the provisions of the Bombay Stamp Act on the date of the decision of the application.

(4) The non-applicants/petitioners herein opposed the maintainability of the application by filing an application at Exh.37 of the record of the trial Court for dismissing the petition purportedly for the non-payment of the court-fees, on the contention that the courtfees as payable under the Bombay Court Fees Act, 1959, had not been paid along with the application for the certificate, in terms of SubSection (1) of Section 379 of the Indian Succession Act, 1925. It was their contention that for non-payment of this fee, the application was not maintainable and the trial Court lacks jurisdiction to proceed with the hearing of the succession proceedings.

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 Courts jurisdiction to proceed with deciding the succession application.

(5) Heard the learned counsel for the parties, perused the record.

(6) It is the submission of the learned counsel for the petitioners that Section 379(1) of the Act, requires that every application for a certificate of Succession shall be accompanied by 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. It is further the contention of the learned counsel for the petitioners that the reading of the provision of Sub-Section (2) of

Section 379 of the Act, specifies that such sum deposited is required to be spent in the purchase of 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. He relies upon the judgment of this Court in Snehala Pramod Desai Vs. Unknown, reported in 2012(5) Mh.LJ. 340, contending that this Court has held that an applicant is liable to pay ad valorem Court fee upon the security shown in the petition in order to secure a Succession Certificate.

(7) Respondent No.1, though served has not put in appearance. However, the respondent No.2 who is his real sister has put in appearance and advanced arguments in this matter. Learned counsel for the respondent No.2, on the other hand, contends that the provisions of Section 379(1) of the Act, are not mandatory and the only requires the deposit of a sum equal to the fee payable under the Court Fees Act, 1870, or as in the present case, under the Bombay Court Fees Act, to be utilized for purchase of stamp duty payable on the share of each of the parties, on passing of the final Succession Certificate. She further contains that such 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. Further contention of the learned counsel for respondents is to the effect that a certificate would not be issued to such successor who fails to deposit the court-fee due on the share being allotted at the time of disposal of the matter. Learned counsel for the respondents has further relied upon a judgment of the Single Judge of the Allahabad High Court in Kum. Rakhi and anr. Vs. 1 st Additional District Judge, Firozabad and Ors., reported in AIR 2000 Allahabad 166 and on the judgment of the Madhya Pradesh High Court in Smt. Usha and Ors Vs. State, reported in AIR 1993 MP 41 to buttress her submission that the provision of Section 379 of the Act, are only procedural and do not affect the applicants substantive right to maintain an application under the provision of Section 372 of the Act. He further submits that the ratio laid down in these judgments was to the effect that the noncompliance with deposit of the fee prescribed under Section 379(1) of the Act, would neither take away the jurisdiction of the Court to proceed with the Succession proceedings, nor does it affect in any manner the maintainability of the application: as such, 

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