OD-4 IN THE HIGH COURT AT CALCUTTA Testamentary and Intestate Jurisdiction ORIGINAL SIDE IA NO. GA/1/2026 In PLA/377/2025 IN THE GOODS OF: NIRMALA TIWARI, DECEASED BEFORE: The Hon'ble JUSTICE OM NARAYAN RAI Date : 8th September, 2026 Appearance: Ms. Monika Kalra, Adv. Mr. Farhan Ghaffar, Adv. Mr. Shantam Gulati, Adv. Mr. Saswata Tripathi, Adv. …for the petitioner. The Court:- 1. This is an application seeking leave to withdraw the present application for grant of probate with liberty to file a fresh proceeding in connection with the said Will, together with a prayer for return of the original Will and Testament dated July 4, 2024 left behind by the above named deceased and also for an order directing refund of Court fee of Rs.50,000/- filed in connection with the said application. 2. It is submitted that there are several defects in the application for grant and that the petitioner has approached this Court with the application as the executor alone while three persons have been appointed as joint executors in the Will. The petitioner therefore seeks leave to withdraw the proceeding and take appropriate steps. 2 3. Attention of this Court has been drawn to a judgment of a Co-ordinate Bench of this Court in the case of Dr. Apala Chakraborty v. The District Judge, North 24 Parganas, Barasat reported at (1999) 1 Cal LT 490 to assert that refund of Court fees in matters like the one at hand should be allowed. 4. Heard learned Advocate appearing for the petitioner and consider the material on record. 5. In Dr. Apala Chakraborty (supra), this Court had observed as follows:- “6. As rightly pointed out by Mr. Roy, the learned advocate appearing on behalf of the petitioner that the court has in certain circumstance Jurisdiction to order refund of court fees on the principle that every court has inherent power to act ex debito justitiae, i.e. to do real and substantial justice for the administration of which alone it exists. Such powers are generally exercised in any of the following cases:- (a) Where court fees have been paid by over sight, mistake or inadvertence. (b) Where a litigant has made excess payment under an erroneous view of interpretation of court fees Act. (c) Where the court has realised excess court fees on erroneous interpretation of law. [See Eagle Plywood Industries v. Amulya Copal Mazumdar reported in 69 CWN page 1025 (S.B)] 7. In the instant case, the petitioner was under no obligation to deposit the court fees of Rs. 10,000/- before the court had arrived at a decision that the petitioner was entitled to the grant of probate. An application for grant of probate or Letters of Administration with a copy of the Will annexed cannot be equated to a plaint or a Memorandum of appeal. In probate proceeding court fees are paid on the grant but not on the application. For that reason an unsuccessful propounder of a Will is not liable to pay court fees. 8. Therefore, the petitioner paid the highest amount of court fees either due to mistake, inadvertence, oversight of under erroneous view of interpretation of the West Bengal Court Fees Act. 9. Thus, it is a fit case where the petitioner is entitled to refund of the court fees.” (Emphasis Supplied) 3 6. The aforequoted observations of the Hon’ble Judge in the case of Dr. Apala Chakraborty (supra) clarify that Court fees are paid on the grant and not on the application. Since, grant is yet to be made, therefore, an unsuccessful propounder of the Will would not be liable to pay Court fees. 7. In such view of the matter, the petitioner will be entitled to refund of the Court fees since no grant has been made as yet. 8. The present application is therefore allowed by granting liberty to the petitioner to withdraw the PLA and file a fresh proceeding. 9. The original Will left behind by the deceased shall be returned to the petitioner subject to a photostat copy duly countersigned by the learned Advocate-on- Record for the petitioner being furnished. 10. The Court fees paid by the petitioner shall be refunded in accordance with law upon compliance with usual formalities. The Registrar, Original Side shall issue the necessary certificate under Rule 8 of Chapter VI A of the Original Side Rules upon production of the original stamps or stamp paper evincing payment of Court fees by the petitioner in respect of the present proceeding. 11. GA/1/2026 stands disposed of by passing orders in terms of the prayers (a), (b) and (c) of the Master Summons. Accordingly, PLA/377/2025 stands dismissed as withdrawn with liberty to file afresh as prayed for. (OM NARAYAN RAI, J.) S.Seal