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Bombay High Court
Rajrajeshwarashram vs Svarupanandtirtha on 18 January, 1927
Equivalent citations: (1927) 29 BOMLR 1031, 103 Ind Cas 637
Author: A Marten
Bench: A Marten, Kt., Baker


Amberson Marten, C.J.

1. This is a preliminary question as to what security for costs should be paid by the appellant who resides out of British India in respect of an appeal from the refusal of the lower Court to revoke an order for delivery of property under Chapter II of Regulation VIII of 1827. The sums involved are substantial. Under the ruling in the office the appellant has been found liable to pay in this Court a sum of Rs. 32. His opponent claims that he ought to find security for Rs. 1,264.

2. The question depends on the true construction of the Bombay Pleaders Act 1920, which is a Bombay Act, taken in connection with the Indian Succession Act 1925, which is an Imperial Act, and the General Clauses Act 1897, Section 8, which is another Imperial Act. Under the Bombay Pleaders Act 1920 it is clear that any application under Regulation VIII of 1827 or under the Succession Certificate Act of 1889 would be governed by Rule V of Schedule III, and not by Rule I. In other words, the appropriate pleader’s fee would be a fixed one of Rs, 30 plus Rs. 2 and not Rs. 1,264. The odd two rupees are for an extra stamp on the Vakalatnama or something of that sort. It is, however, said that in Rule I (c)(ii) of Schedule III we must now read the words “Indian Succession Act, 1925″, in the place of the words “Indian Succession Act, 1865,” with the result that an ad valorem fee will be payable amounting to Rs. 1,264. That is because Section 390 of the Indian Succession Act 1925 provides that Section 383 (dealing with the revocation of a certificate) and Section 384 (dealing with appeals) are to apply to certificates granted under Regulation VIII of 1827.

3. Now a preliminary point mentioned by my brother Baker is whether in any event the certificates referred to in Section 390 of the 1925 Act apply at all to orders made under Chapter II of Regulation VIII of 1827 as opposed to certificates granted under Chapter I of that Regulation. But assuming for the sake of argument, without deciding the point, that the question should be answered in the affirmative, we are still left with the true construction of the Bombay Pleaders Act. This is because we cannot, under the General Clauses Act, apply the Indian Succession Act, 1925, to section I, and not apply it also to Section V, e.g., to the Succession Certificate Act, 1889, there referred to.

4. Section 8(1) of the General Clauses Act runs:-

Where this Act, or any Act of the Governor General in Council or Regulation made after the commencement of this Act, repeals and re-enacts, with of without modification any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

5. For present purposes, the important words in that section are the words “unless a different intention appears”. Now taking the Succession Certificate Act as a test, it is clear that that Act has been repealed and re-enacted by the Act of 1925 with or without modification. Consequently we must read the Act of 1925 into section V as well as into section I of the 3rd Schedule to the Bombay Pleaders Act, in the absence of a contrary intention. But, having regard to the frame of the 3rd Schedule, there is, in my judgment, a different intention shown by the Bombay Pleaders Act itself, namely, that as regards applications under the Succession Certificate Act a fixed fee shall be levied under Section V as opposed to an ad valorem fee for applications under the Indian Succession Act 1865. Consequently, the corresponding applications under the consolidating Act must be treated in the same way, for otherwise section I would conflict with Section V.

6. In other words proceedings under the repealed and re-enacted Succession Certificate Act must be taxed in exactly the same way after as before the Act of 1925, for there is no substantial difference involved in the principle of the provisions. That principle to my mind is clear, namely, that proceedings under the Succession Certificate Act are quite different to proceedings under the Probate and Administration Act 1881 or the Indian Succession Act 1865 which are mentioned in Section I. The one involves merely the power to collect certain debts, while the other involves far larger questions, namely, the direct representation to the whole of an estate. That accounts, I think, for the large amount of fees allowed to pleaders under the one clause as compared with the other.” If, on the other hand, the contention of the respondent was to prevail, we would have a startling increase of pleaders’ fees in Bombay merely because a consolidating Act was passed by the Imperial Legislature.

7. Nor, on the other hand, can it, I think, be said that you must tax the costs in the Court below under the Regulation, and the costs of any application for revocation or of any appeal to us under the Indian Succession Act, 1925, and consequently on the higher scale. In my opinion, the words in Sub-rule (e)(vi) of Rule V of Schedule III to the Bombay Pleaders Act, viz., “any other special or local Act” clearly cover Regulation VIII of 1827. Consequently Rule V applies to all applications or appeals under any other special or local Act. That being so, the Taxing Officer here arrived at the right conclusion in holding that the costs ought to be taxed under Rule V and not under Rule I of the 3rd Schedule.

8. It follows, therefore, that, in my opinion, the, proper amount of costs has been ascertained in accordance with Order XLI, Rule 10, which applies to security for costs where the appellant is residing out of British India.

9. One further point was taken by the appellant, namely, that no appeal lay from the decision of the Taxing Officer in his favour. It had to be conceded that there was no express rule providing for the Taxing Officer to determine the right amount of security for costs. It had also to be conceded that if on a final hearing of an appeal the Court o had made an order for costs, the Court would have power to revise the taxation of the Taxing Officer. Similarly, in the High Court in England there is in general a power to revise the orders of the Taxing Master. Under these circumstances, I am clearly of opinion that this Court has jurisdiction to revise, if necessary, the opinion of the Taxing Officer on an application like this, just as it can after an appeal has been heard. Accordingly, so far as that point is concerned, we think the appellant is wrong.

10. In the result the respondent’s application of January 12, 1927, will be dismissed with costs.

Baker, J.

11. I agree. I wish to say that the Bombay Pleaders Act of 1920, in the Schedule III giving rules concerning pleaders’ fee, makes a clear distinction between applications under the Indian Succession Act and the Probate and Administration Act and applications under the Succession Certificate Act and the Succession (Property Protection) Act and other special and local Acts, presumably on the ground that applications under the Indian Succession Act settle questions of title, whereas applications under the Succession Certificate Act are of a summary character and do not debar the parties from having their rights decided in a regular suit. For that reason the fees in applications under the Indian Succession Act of 1865 are to be fixed ad valorem on the value of the property, whereas under the Succession Certificate Act a fixed fee is leviable. The proceedings out of which this application arises are undoubtedly proceedings which at the time of the enactment of the Bombay Pleaders Act, 1920, would have fallen under Rule V of Schedule III. The Succession Certificate Act has now been repealed and re-enacted as part X of the Indian Succession Act of 1925, but the nature of the proceedings under that Chapter do not differ from the proceedings under the old Succession Certificate Act 1889. The present proceedings are not of a final nature and do not prevent the parties from having their rights decided in a regular suit, and, as a matter of fact, I think I am right in saying that a regular suit between them is pending in the District Court at Nadiad. In these circumstances it is quite clear that the provision in the General Clauses Act which refers to the contrary intention would apply and this is a case in which Schedule III of the Bombay Pleaders Act XVII of 1920 indicates a contrary intention.

12. I, therefore, agree that, the costs in these proceedings should not be calculated on the basis of Rule I of Schedule III but on the basis of Rule V, that is to say, a fixed fee and not an ad valorem fee.

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