SUSHILA Vs. BHIMAPPA RAYAPPA KARIGAR

JUDGEMENT

(1.) In this revision petition, the petitioner Sushila challenges the order of the District Judge, Bijapur, in M/s.No.26 of 1967, dt.7-2-68, calling upon her to pay the court fee as provided by proviso to sub-clause (2) of Art.11, (1) (ii) of Sch.II to the Mysore Court Fees and Suits Valuation Act, 1958, on her application for revocation of a probate.

(2.) The petitioner's mother Ningawwa died leaving behind a will in favour of her brothers who are the respondents before me. The said Ningawwa along with the petitioner had deposited Rs.10,000 in their joint names in the Syndicate Bank at Rabkavi. After the death of Ningawwa, the respondents filed an application for probate in the Court of the District Judge, Dharwar. The probate was granted without notice to the petitioner. When the respondents were about to draw the amount in deposit, the petitioner filed an application for revocation of the probate. She paid a court fee of Rs. 12-50 on her application as provided in sub-clause(3) of Art.11(1) (ii) of the Act. The objection of the respondents as to the insufficiency of the Court-fees was upheld by the learned District Judge. He held as follows: (i) that the proviso to sub-clause (2) must be read as a proviso to both the sub-clauses (2) and (3); and (ii) The application for revocation of probate must be registered as a suit with the applicant as the plaintiff who shall pay the court fee on the amount or value, one half the scale of fee prescribed in Article I of Schedule I on the market value of the estate. On these findings, he called upon the petitioner to pay the balance of Rs.715-75P. Hence, this revision petition.

(3.) The petition raises two points of considerable importance as to the nature of the proviso to sub-clause(2) of Art.11(1) (ii) of Sch.II to the Act; and the nature of the proceedings to be taken on an application for revocation of probate.