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Allahabad High Court
Miss Eva Mountstephens vs Mr. Hunter Garnett Orme on 24 May, 1913
Equivalent citations: (1913) ILR 35 All 448
Bench: Tudball, M Rafiq


Tudball and Muhammad Rafiq, JJ.

1. This appeal has been filed as a first appeal from order. It is objected that it is really a first appeal from decree, and that the petition of appeal does not bear the full court fee stamp necessary under the law. The appeal is one from an order of the District Judge refusing to grant letters of administration with a copy of the will annexed to the estate of the late Miss Francis Mary Garnett Orme. The estate is roughly valued at Rs. 17,000. On behalf of the appellant it is urged that under Section 203 of the Indian Succession Act the decision of the court below is termed an order and that it has been the regular practice of this Court to treat such appeals as first appeals from orders. The point is really covered by decisions. Section 261 of the Succession Act says as follows: “In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who may have appeared as aforesaid to oppose the grant shall be the defendant”. So that it is quite clear that the proceeding in the court below was actually in the form of a civil suit in which under the above section the person applying for the letters of administration was the plaintiff and the person who opposed the grant was the defendant. In the case of Umrao Chand v. Bindraban Chand (1895) I. L R., 17 All., 475 the point was decided, though for another purpose, and it was clearly laid down that the order contemplated under Section 86 of the Probate and Administration Act was a decree. Section 86 of the Probate Act corresponds in every way with Section 263 of the Succession Act, just as Section 83 of the Probate Act corresponds with Section 261 of the Succession Act. The point was also considered and decided by the Calcutta High Court in Esoof Hasshim Dooply v. Fatima Bibi (1396) I.L.R., 24 Calc., 80 and in Sheikh Azim v. Chandra Nath Namdas (1904) 8 C.W.N. 748. In so far as the practice of this Court is concerned, appeals from decisions of a single Judge of this Court under the Probate and Administration Act have been treated as appeals from decrees, whatever may have been the practice in respect to appeals in similar cases from the decisions of the District Judges. We have, therefore, no hesitation in holding that the present appeal is a first appeal from decree.

2. As regards court fees, we have little hesitation in holding that the court fee payable is rupees ten under Article 17, clause vi, Schedule II, of the Court Fees Act. The subject matter in dispute is in our opinion impossible to estimate at a money value. Therefore the above article will apply. A court fee of rupees two has already been paid. Therefore there is a deficiency of court fee in respect of rupees eight only. As the appellant has been allowed time up to the 4th August, 1913, within which to deposit security for costs of the respondent, we allow her time up to that date to make good the deficiency in court fees.

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