In the matter of the Debts of B.V. Gam, Intestate, deceased

Ramaswami, J.—This is a novel application for refund of court-fee of Rs. 600.

The facts are: The petitioner applied for a succession certificate to collect certain debts due to her deceased husband including a sum of Rs. 20,000 due on a draft by Messrs Prudential Co-operative Central and Urban Bank Ltd., Madras, and paid succession duty for all items including this item. On the necessary formalities prescribed having been complied with, this petition was posted for hearing and on no objection forthcoming, succession certificate was granted as prayed for. This was on 19-10-1948. It is stated that five years thereafter, a succession certificate in regard to this item was applied for in the Court of the District and Sessions Judge of Secunderabad Division, on an objection raised by the Prudential Co-operative Central and Urban Bank Ltd., Secunderabad, that the succession certificate issued by the Madras High Court will not be operative in Secunderabad being outside the jurisdiction of the Indian Union Court and therefore the succession certificate should be applied for in the Hyderabad" State.

On this, an application was made to the District and Sessions Court, Secunderabad division, and a succession certificate was granted by that Court on 13-3-1951. The petitioner has thereupon filed the present application in the High Court stating'' that the sum of Rs. 600 paid on this item in the Madras High Court for obtaining the succession certificate was paid due to a bona fide mistake and error and prays for a refund of the same.

There is no decision of this Court bearing on this point apart from the decision cited before me in regard to the indisputable proposition that this Court, in fit cases can order refund u/s 151, Civil P. C. See for instance--''Thammayya Naidu v. Venkataramanamma'', AIR 1932 Mad 438 (A), wherein it was held that even in cases not covered by Ss. 13, 14 and 15 of the Court-fees Act, this Court . can u/s 151, Civil P. C., order refund of court fee paid in excess. The catena of decisions of this Court collected by Messrs. Krishnamurthi and R. Mathurbhutham in their very useful publication "Guide to the law of Court-fees in Madras" 3rd Edn. at page 144 (para. 3) have no application to the facts of this case and the only decision in point which has been cited before me is-- Ahmed Ebrahim Vorajee Vs. The Government of The Province of Bombay, . I am unable with respect, to follow this decision, because the facts of that case were different from the facts of this case and u/s 151, Civil P. C., where it is a question of discretion to order refund, interference by way of exercising extraordinary powers u/s 151, Civil P. C., must be dependent upon the circumstances of each case; and secondly, beyond pointing out that the Court can order refund u/s 151, Civil P. C. in a case of this nature, there is neither discussion nor citation of previous authorities. I therefore prefer to dispose of this matter on first impressions.

On a careful review of the circumstances of the case, I have come to the conclusion that the refund asked for cannot be granted. Here are my reasons.

If the excess paid is treated as a kind of tax, though included in the Court-fees Act for the sake of convenience, the power to refund must rest with revenue authorities. But such levy has been held to be court-fee for the services rendered by the Court in the matter of adjudication about the title of the applicant as heir. See In the matter of the In Re: In The Matter of The Estate of C. Govindaswamy, . In this very case if there had been objections to the grant the Court would have had to decide the controversy before the grant of the certificate. Court-fee is paid in ordinary cases even where the claim is not disputed and no portion is refunded when the defendant admits the claim and suffers a decree. The fact that the applicant had included an item unnecessarily cannot warrant the exercise of the inherent powers because it was clearly his duty to have made proper enquiry before putting in the application. Supposing the item in question had been the only item in the certificate and supposing the merits of the claim had also been decided, it cannot be seriously argued that simply because it had not been acted upon by the debtor, the party is entitled to the refund. If such were the position, the time spent by the Court and Office in the matter of the grant of certificate would not he covered by any fee. The practice in the matter of grant of letters of administration with regard to the share of an undivided coparcener may also be referred to for analogy. Court fee is levied in such cases though the grant is unnecessary. See In re Manavala Chetty 19 Mad. L.J. 591 (D); (Mulukutla) Annapuramma Vs. (Mulukutla) Atchutharamayya Garu, . So also where Letters of administration are applied for in respect of moneys standing in the name of the applicant''s son but alleged to belong really to the applicants, duty is payable though the Letters are not strictly necessary. See In the goods of In Re: Tarun Kumar Ghose, Thus, levy is made irrespective of the fact whether the grant is necessary or not. It cannot be said that the case falls within the rule laid down in In Re: Chidambaram Chettiar, because the mistake here is not in payment of court-fee in excess of legal requirements, but in the inclusion of an item of debt in the application by mistake. Where a relief in a suit becomes unnecessary on account of change of circumstances, refund of court-fee paid on the said relief is not granted. See Ramakrishnayya v. Seshamma A. I. R. 1935 Mad. 346 (H). It has been held that even where the Legislature takes away by amendment of the law the right to the relief claimed in the suit, the court-fee cannot be refunded. See Secretary of State Vs. A. Veerayya Vandayar, . The decision of this Court in C. R. P. No. 657 of 1943 (Mad) (J) that refund cannot be granted on the ground that a relief was unnecessarily asked for, is also useful by analogy. For these reasons, it would be a bad precedent if refund is granted in such cases.

But a certificate can be issued, if one is necessary, as to the exact circumstances under which the relief asked for originally has turned out to be unnecessary so that the petitioner may apply to the Government for a refund ex gratia as was done in In Re: Rachakonda Nagarathnam, . Such a certificate is unnecessary here as the facts of this case can be brought to the notice of the revenue authorities without such a certificate.

Therefore, looked at from any point of view, this application deserves to be and is hereby dismissed.