Jharkhand High Court
Vivek Gaurav vs The State Of Jharkhand on 19 March, 2026
Author: Rajesh Shankar
Bench: Rajesh Shankar
2026:JHHC:7709-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 456 of 2026
Vivek Gaurav, S/o Late Rajendra Kumar, R/o Behind Allahabad
Bank, adjacent East of Manorma Market, Guru Gobind Singh Road,
P.O. & P.S.-Sadar, District-Hazaribagh, Jharkhand ..... Petitioner
Versus
1. The State of Jharkhand, through the Chief Secretary, Ranchi
2. Principal Secretary-cum-Legal Advisor, Department of Law
(Legislative), Government of Jharkhand, Ranchi
3. Rekha Prasad, W/o Late Surendra Prasad, R/o Flat No. 1B-306,
Emmanuel Heights Apartment, Sy. No. 69, Hosa Road, Amrita
Nagar, P.O. & P.S.-Chhodasandra, Bengaluru (Karnataka)
4. Jamuna Singh, H/o Late Anila Singh
5. Ayushman Singh, S/o Late Anila Singh
6. Kirtiman Singh, S/o Late Anila Singh
Res. Nos. 4 to 6 are R/o ED-76, Second Floor, near Water Tank,
P.O. & P.S.-Tagore Garden, New Delhi
7. Bimla Verma, W/o Late Raghwendra Verma
8. Viraj Verma, S/o Late Raghwendra Verma
9. Yuvraj Verma, S/o Late Raghwendra Verma
Res. Nos. 7 to 9 are R/o Budhwa Mahadev Road, P.O. & P.S.-Sadar,
District-Hazaribagh
10. Bindu Singh @ Bindu Verma, W/o Jamuna Singh, R/o B-804, Iscon
Habitat, New Alkapuri, P.O. & P.S.-New Alkapuri, Sevasi Road,
Vadodara (Gujarat)
11. Rajni Verma, W/o Shriram Kushwaha, R/o Beside Gyan Jyoti
Complex, Guru Govind Singh Road, P.O. & P.S.-Sadar, District-
Hazaribagh ..... Respondents
-----
CORAM
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJESH SHANKAR
—–
For the Petitioner: Mr. Pratyush Kumar, Advocate
For the State: Mr. Jai Prakash, A.A.G.-IA
Mr. Yogesh Modi, A.C. to A.A.G.-IA
-----
04/19.03.2026
1. Heard learned counsel for the parties.
2. Admit.
3. It was pointed out that the respondent Nos. 3 to 11 are proforma
parties and they would not be affected, if the impugned provision
relating to court fees is struck down.
4. With the consent of and at the request of learned counsel for the
parties, we proceed to dispose of this writ petition finally.
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5. The challenge in this writ petition is to the Constitutional validity of
a portion of a Court Fees (Jharkhand Amendment) Act, 2022 to the
extent that it provides for no upper ceiling or a maximum limit on
the court fees payable on a suit seeking “probate of a will or letters
of administration with or without the will annexed”.
6. The primary argument is that singling out such proceedings by not
providing an upper ceiling or maximum court fees, even though a
ceiling or maximum of Rs. 3 Lakhs is provided for all other types of
suits, amounts to practising hostile discrimination, which is
abhorred by Article 14 of the Constitution of India.
7. Mr. Pratyush Kumar, learned counsel for the petitioner, clarifies
that the challenge in this writ petition is restricted to the
discrimination on account of non-providing an upper ceiling or a
maximum limit for actions seeking a probate of a will or letters of
administration with or without a will annexed and that no other
point is being pressed in this writ petition, even though several
other points may have been raised in the writ petition.
8. Mr Pratyush Kumar submits that there is no distinction between
actions seeking probate of a will or letters of administration with or
without a will annexed and the suits, even though a ceiling or
maximum of Rs. 3 Lakhs in court fees is provided for suits and
actions other than those seeking probate or letters of
administration. He argues that this clearly results in equal being
treated unequally, thus constituting a blatant violation of the
principle of equality enshrined in Article 14 of the Constitution. He
contends that on this simple ground, the impugned provision ought
to be struck down and equality restored.
9. Mr Pratyush Kumar submits that the issue he now raises is no
longer res integra. He relied on P.M. Ashwathanarayana Setty
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& Ors. v. State of Karnataka & Ors., reported in 1989 Supp
(1) SCC 696; Jyoti Nikul Jariwala & Anr. v. State of
Maharashtra & Anr., reported in 1988 Mh. L.J. 96; Prafulla
Govinda Baruah v. The State of Assam & Anr., reported in
2024 Supreme (Gau) 708; Subrata Das v. The Collector of
24 Parganas (South) & Others, reported in 1992 Supreme
Court of India (Calcutta) 10; and Kishore Kumar Kataruka
v. State of Bihar & Ors., reported in 1990 Supreme (Pat) 244
to support his contention. In particular, he stressed the decision
of the Bombay High Court in the case of Jyoti Nikul Jariwala
(supra) and its explicit approval by the Hon’ble Supreme Court in
the case of P.M. Ashwathanarayana Setty (supra).
10. Mr Jai Prakash, learned A.A.G-IA, who appears along with Mr
Yogesh Modi on behalf of the State, defended the impugned
provision on the basis of the reasoning reflected in the State’s
counter-affidavit. In addition, he submitted that “will” constitutes
an exception to the general law of succession and therefore any
proceedings to obtain probate of a will or letters of administration
can never be compared with ordinary suits seeking to enforce the
general law of succession. He submits that on account of this
fundamental distinction, the State is justified in treating actions for
probating wills or obtaining letters of administration differently. He
submits that these are all matters of policy where the scope of
judicial review is minimal. For these reasons, he submits that this
writ petition may be dismissed.
11. The rival contentions now fall for our determination.
12. The Court Fees (Jharkhand Amendment) Act, 2022 substitutes
Schedule I and II appended to the Court Fees Act, 1870 by the
following Schedule:
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Schedule-I
Ad Valorem Fees
Table of rate of Ad-valorem Fees leviable on institution of suits:
Sl. Subject Description Rates
No.
1 Plaint, written When the amount or value of
statement the subject matter in dispute-
pleading a set-off (i) up to Rs. 30,000/- (Rupees 15% of the amount or
or counter claim or thirty thousand) value
memorandum of (ii) exceed Rs. 30,000/- Rs. 4,500/- (Rupees four
appeal or of cross (Rupees thirty thousand) but thousand five hundred) +
objection not does not exceed Rs.50,000/- 10% of amount or value
otherwise provided (Rupees fifty thousand) exceeding Rs.30,000/-
for in this Act (Rupees thirty thousand).
presented to any (iii) exceed Rs. 50,000/- Rs.6,500/- (Rupees six
Civil or Revenue (Rupees fifty thousand) but thousand five hundred)
Court except those does not exceed Rs.20,00,000/- +3% of amount or value
mentioned in (Rupees Twenty lakhs) exceeding Rs.50,000/-
Section-3. (Rupees fifty thousand)
(iv) exceeds Rs.20,00,000/- Rs. 65,500 (Rupees sixty
(Rupees twenty lac) but doesn't five thousand five
exceed Rs. 1 (one) crore hundred) + 0.5% of the
amount or value
exceeding Rs. 20,00,000/-
(Rupees Twenty lakhs)
(v) exceeds Rs. 1(one) crore Rs.1,05,000/- (Rupees
one lac five thousand)
+ 0.3% of the amount
or value exceeding
Rs.1(one) crore.
[maximum of
Rs.3,00,000/- (three
lac only)]
2 Plaint in a suit for According to rates as
possession under prescribed in item no.1.
Section 6 of Specific
Relief Act, 1963.
3 Probate of a will or 10% of the amount or
letters of value [minimum
administration Rs.500/- (Rupees five
with or without hundred)]
will annexed.
4 Certified under the As prescribed in item no.
Succession Certificate 3 on amount or value
Act, 1889. indicated on certificate.
13. From the above, it is apparent that in the case of almost all types
of suits referred to in Article 1 of Schedule-I, court fee is payable
on an ad-valorem basis. However, where the valuation of such suits
exceeds Rs. 1 Crore, the court fee payable is Rs. 1,05,000/-
(Rupees one lakh five thousand) + 0.3% of the amount or value
exceeding Rs. 1 Crore (maximum of Rs. 3 Lakhs only). Thus, in the
case of almost all types of suits referred to in Article 1 of Schedule-
I, court fee is payable, is subject to a ceiling of Rs three lakhs only.
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14. However, when it comes to a suit seeking a probate of a will or
letters of administration with or without will annexed, the court fee
payable is 10% of the amount or value (minimum Rs. 500/-).
However, unlike in the case of other suits referred to in Article 1 of
Schedule I, Article 3 of Schedule I, which deals with suits for
probate or letters of administration, does not provide for any ceiling
or maximum limit of the court fees payable. The differential
treatment is, therefore, apparent. The issue, therefore, is whether
there exists any rational basis for such discrimination or differential
treatment.
15. In response to the petitioner’s specific challenge that non-providing
of any ceiling or maximum limit for the court fees payable in a suit
seeking probate of a will or letters of administration with or without
a will annexed amounting to patent and hostile discrimination, the
State has filed a counter affidavit wherein it is pleaded that the
probate proceedings invoke the special testamentary jurisdiction of
a civil court and entail a comprehensive judicial process including
scrutiny of the genuineness of the will, examination of
testamentary capacity of the testator, determination of valuation of
the estate, issuance of public citations and adjudication of
objections, if any. It is pleaded that the grant of a probate is not a
routine ministerial act, but a solemn judicial determination, which
culminates in a final and conclusive certification or testamentary
succession conferring legal authority upon the executor and
imparting marketability and legal sanctity to the estate. Counter
affidavit further pleads that probate proceedings require “enhanced
judicial time, administrative supervision, maintenance of permanent
records and continuing legal responsibility, thereby clearly
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distinguishing them from ordinary civil filings or procedural
applications”.
16. The pleadings also echo Mr Jai Prakash’s contention that the levy of
probate fee is attached to the voluntary invocation of a statutory
privilege, namely, the conferment of legal conclusiveness and
enforceability upon a testamentary instrument, and it is different
from inheritance or succession.
17. The counter affidavit, therefore, primarily for the reasons
mentioned above, states that suits or actions seeking a probate of
a will or letters of administration, with or without a will annexed,
constitute a distinct class. Consequently, this is not a case of equal
classes of proceedings being treated unequally or plaintiffs similarly
placed being treated dissimilarly to conclude some hostile
discrimination.
18. As a matter of principle, we cannot agree with the contentions
raised in the counter affidavit and articulated by Mr Jai Prakash,
learned A.A.G.-IA, appearing on behalf of the State. Firstly, the
statements regarding probate proceedings requiring increased
judicial time and administrative oversight, etc., are not supported
by any empirical data to justify their validity. Secondly, the counter-
affidavit sworn by the Under Secretary of the Law Department has
verified such statements as “true to his own knowledge,” which
alone does not inspire much confidence. Thirdly, the statements in
the counter affidavit incorrectly suggest that the factors relevant to
Court fees, which arise in suits for probate of a will or letters of
administration with or without a will annexed, do not occur in suits
referred to in Article I or that the Courts, when disposing of the
suits under Article I, perform “routine or ministerial acts,” in
contrast to the Courts handling the suits under Article III.
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19. Therefore, based on the statements in the counter affidavit, we are
unable to accept that a case has been made out to distinguish suits
described in Article III seeking probate of a will or letters of
administration with or without will annexed from the suits
described in Article I, which do not meet this description. If, in the
case of such other suits, a ceiling or maximum of Rs. 3 Lakhs for
court fees has been provided, the State is obliged to explain why
no such ceiling is imposed on suits seeking probate or letters of
administration, even though no significant distinction can be made
between the two classes of suits or the Plaintiffs instituting such
suits.
20. The additional contention that a will, by its very nature, constitutes
an exception to the general law of succession may be correct in
one sense. However, we fail to understand how such a contention
is relevant to the treatment of a suit or action seeking probate of a
will or letters of administration with or without a will annexed,
differently, when it comes to the payment of court fees. To dispel
the charge of discrimination prohibited by Article 14, it is not
sufficient for the State to merely demonstrate that the classification
it makes is based on some reasonable differentia. The State must
further establish that such a differentia has a rational nexus with
the object that the law seeks to achieve. Unless such a twin test is
satisfied, the discrimination practised will not pass the
Constitutional muster.
21. In State of West Bengal v. Anwar Ali, AIR 1952 SC 75, the
Hon’ble Supreme Court explained that while Article 14 does not
take away from the State the power to classify persons for the
purposes of the legislation, but the classification must be rational,
and in order to satisfy this test, (i) the classification must be
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founded on an intelligible differentia which distinguishes those that
are grouped together from others, and (ii) that differentia must
have a rational relation to the object sought to be achieved by the
Act. The differentia, which is the basis of classification and the
object of the Act, are distinct matters, and what is necessary is that
there must be a nexus between them. But the mere fact that
inequality has not been made with the special intention of
prejudicing a certain person or persons, but in the general interest
of administration, will not validate a law if, in fact, it results in
inequality of treatment. Nor can the constitutionality of a statute
depend on the degree of inequality brought about by the law.
22. In the present case, the State has scarcely produced any credible
material to establish a rational basis or distinction for classifying the
suits described and grouped in Article I separately from those in
Article III. Even if one extends a very broad interpretation, and
assuming that the State has done so, it has still failed to
demonstrate that the distinction has a rational relation to the
objective intended to be achieved by the Act. The twin test
prescribed has not been fulfilled in this case.
23. The petitioner has provided sufficient materials on record to rebut
the presumption of constitutionality and shift the burden onto the
State. However, the State has failed to meet this burden.
Suggesting that the suits referred to in Article I never involve
complex issues of fact and law, or that the suits in Article III always
do, is neither accurate nor supported by even any modicum of
empirical data. The suggestion that the Courts dealing with the
suits referred to in Article I perform “routine or ministerial acts” in
contrast to the Courts that deal with the suits in Article III is also
difficult to commend acceptance.
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24. Moreover, factors such as verifying the authenticity of a will may
not even be relevant in a suit for letters of administration without a
will attached. The fact that the legal effect of a will may differ from
the usual laws of succession does not always mean that probate
proceedings are fundamentally different from other procedures
mentioned in Article I, particularly in the context of payment of
court fees.
25. Accordingly, the petitioner has succeeded in making out a case of
equal processes being treated unequally, and consequently, the
impugned provision does practice hostile discrimination against the
class of suits involving seeking probate of a will or letters of
administration with or without a will annexed. The impugned
provision, consequently, practices hostile discrimination against
plaintiffs instituting suits seeking probate of a will or letters of
administration (with or without a will annexed) by providing no
ceiling on the Court fees payable when the benefit of such a ceiling
is provided to persons instituting practically all other types of suits.
26. Mr Pratyush Kumar is justified in submitting that the issue he now
raises is no longer res integra. This precise issue arose before the
learned Single Judge of the Bombay High Court in Jyoti Nikul
Jariwala (supra). Even there, with regard to all other types of
suits, except suits seeking probates and letters of administration,
the plaintiffs were not required to pay court fees in excess of Rs.
15,000/-. However, no such upper limit was prescribed for plaintiffs
seeking probate and letters of administration.
27. The learned Single Judge of the Bombay High Court accepted the
challenge based upon hostile discrimination and struck down the
offending provision as unconstitutional, ultra vires, null and void.
The learned Single Judge has held that until the said Article is duly
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amended, the petitioners i.e., seekers of probate and/or letters of
administration shall not be required to pay more than the maximum
payable by the persons seeking decrees in civil suits i.e.,
Rs.15,000/-.
28. The discussion on the above aspects is in paragraph Nos. 5 & 6 of
the case of Jyoti Nikul Jariwala (supra), and the same is
transcribed below for the convenience of reference:-
“5. Petitioners next contend that the impugned
clause discriminates as between different types of
suitors and that there is no justification for this
discrimination. Plaintiffs who go to civil courts claiming
decrees are not required to pay court fee in excess of
Rs. 15,000/-. This is irrespective of the amounts claimed
over and above Rs. 15/- lakhs. As against this, persons
claiming probates have no such relief in the form of an
upper limit to fee payable. There is no answer to this
contention, except that the legislature has not
thought it fit to grant relief to the seekers of
probates, whereas plaintiffs in civil suits were
thought deserving of such an upper limit. The
discrimination is a piece of class legislation
prohibited by the guarantee of equal protection of
laws embodied in Article 14 of the Constitution.
On this ground also item 10 cannot be sustained.
6. To sum up, item 10 suffers from the vice of
violation of Article 14 of the Constitution and also in that
the fee chargeable thereunder, is out of all proportion to
the value of the service rendered to the seekers of
probates and letters of administration. I now come to
the nature of relief to be granted to the
petitioners. Item 10 of Schedule I, to the extent it
does not have an upper limit corresponding to
that payable by the plaintiffs seeking decrees
from the civil courts, will have to be declared
void. Until the said Article is duly amended,
petitioners shall not be required to pay more than
the maximum payable by persons seeking
decrees in civil suits i.e. Rs. 15,000/-. The office
shall revise the fee payable by the petitioners in the light
of what has been stated earlier. Rule in these terms
made absolute, with parties being left to bear their own
costs.”
29. The State of Maharashtra vide Civil Appeal Nos. 1511-12 of 1988
carried the matter before the Hon’ble Supreme Court, and the
decision in this appeal, together with other connected appeals, is
reflected in the case of P.M. Ashwathanarayana Setty (supra).
30. In paragraph No. 31(d), the Hon’ble Supreme Court framed the
following points for determination:
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“31(d). Whether, insofar as the provisions of
Section 29(i) read with entry 20 Schedule I of the
‘Bombay Act‘ are concerned, singling out of a class of
litigation viz., applications for grant of probate and
letters of administration for levy of ad-valorem court fee
without the benefit of the upper limit of Rs.15,000
prescribed in respect of all other suits and proceedings,
as declared by the High Court, exposes that class of
litigants to a hostile discrimination and is violative of
Article 14 of the Constitution.”
31. The above point was answered by the Hon’ble Supreme Court in
paragraphs 90 to 94 and the contents thereof are transcribed
below for the convenience of reference:-
“90. In the appeal of the State of Maharashtra
arising out of the Bombay Court Fees Act, 1959, the
High Court has struck down the impugned provisions on
the ground that the levy of court fee on proceedings for
grant of probate and letters of administration ad valorem
without the upper limit prescribed for all other litigants–
the court fee in the present case amounts to Rs
6,14,814 –is discriminatory. The High Court has also
held that, there is no intelligible or rational differentia
between the two classes of litigation and that having
regard to the fact that what is recovered is a fee, the
purported classification has no rational nexus to the
object. The argument was noticed by the learned Single
Judge thus:
Petitioners next contend that the
impugned clause discriminates as between
different types of suitors and that there is no
justification for this discrimination. Plaintiffs who
go to civil courts claiming decrees are not
required to pay court fees in excess of Rs
15,000. This is irrespective of the amounts
claimed over and above Rs 15 lakhs. As against
this, persons claiming probates have no such
relief in the form of an upper limit to fee
payablee.
91. This contention was accepted by the learned
Single Judge who has upheld the appeal. Indeed,
where a proceeding for grant of probate and
letters of administration becomes a contentious
matter, it is registered as a suit and proceeded
with accordingly. If in respect of all other suits of
whatever nature and complexity an upper limit of
Rs 15,000 on the court fee is fixed, there is no
logical justification for singling out this
proceeding for an ad valorem impost without the
benefit of some upper limit prescribed by the
same statute respecting all other litigants.
Neither before the High Court — nor before us
here — was the impost sought to be supported or
justified as something other than a mere fee, levy
of which is otherwise within the State’s power or
as separate “fee” from another distinct source. It
is purported to be collected and sought to be
justified only as court fee and nothing else.
92. The discrimination brought about by
the statute, in our opinion, fails to pass the
constitutional muster as rightly pointed out by
the High Court.
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The High Court, in our opinion rightly, held:
“There is no answer to this
contention, except that the legislature has
not thought it fit to grant relief to the
seekers of probates, whereas plaintiffs in
civil suits were thought deserving of such
an upper limit. The discrimination is a
piece of class legislation prohibited by the
guarantee of equal protection of laws
embodied in Article 14 of the Constitution.
On this ground also item 10 cannot be
sustained.”
93. We approve this reasoning of the High
Court and the decision of the High Court is
sustained on this ground alone. In view of this any
other ground urged against the constitutionality of the
levy is unnecessary to be examined.
94. Contention (d) is accordingly held an answer
against the appellant and the appeals preferred by the
State of Maharashtra are liable to be and are hereby
dismissed.”
32. From the above, it is apparent that the Bombay High Court, in
identical circumstances, struck down an identical provision in the
Court Fees Act in Maharashtra and the Hon’ble Supreme Court
expressly approved the decision of the Bombay High Court and the
reasoning therein. The Courts held that the discrimination brought
about by the statute in not providing an upper limit of Rs. 15,000/-
on the court fee payable for suits seeking probate and letter of
administration fails to pass the Constitutional muster. The Courts
further held that there was no logical justification for singling out
such proceedings for an ad valorem impost without the benefits of
some upper limit prescribed by the same statute respecting all
other litigants if in respect of all other suits of whatever nature and
complexity, an upper limit of Rs.15,000/- on the court fees was
fixed.
33. While we do not wish to multiply the authorities on the point, we
note that the Guwahati High Court in the case of Prafulla
Govinda Baruah (supra), Calcutta High Court in the case of
Subrata Das (supra) and the Patna High Court in the case of
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Kishore Kumar Kataruka (supra) have in quite similar
circumstances, struck down the provisions of the Court Fees Act
having no ceiling or a prescribed maximum on the Court fees
payable on suits for probate or letters of administration with or
without will annexed. Even in the above States, the provisions of
the Court Fees Act did not provide for any upper ceiling for suits
seeking probate or letters of administration, though an upper
ceiling was provided for all other types of suits, whatever their
complexity. In all these decisions, the High Courts relied on the
ruling of the Hon’ble Supreme Court in the case of P.M.
Ashwathanarayana Setty (supra).
34. For all the above reasons, we allow this writ petition and declare
that the impugned provisions to the extent they do not provide for
a ceiling or a maximum on the court fees payable for suits seeking
probate of a will or letters of administration with or without a will
annexed are ultra vires, illegal , null and void. We accordingly
forbear/restrain all concerned from insisting or demanding court
fees exceeding Rs. 3 Lakhs, as provided in the case of other suits
referred to in Article 1, on suits seeking probate of a will or letters
of administration with or without a will as referred to in Article III
of Schedule-I to the Court Fees (Jharkhand Amendment) Act, 2022
until a suitable legislation is brought into force by the Competent
Legislature.
35. Accordingly, the present writ petition is allowed to the above extent
without any order for costs.
(M. S. Sonak, C.J.)
(RAJESH SHANKAR, J.)
19.03.2026
Satish/Vikas/AFR
Uploaded on 21.03.2026
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