M A KODAKANI Vs. M T NARVEKAR

JUDGEMENT

(1.) This revision petition is referred to a Division Bench by a learned Single Judge of this Court as the case involves a question of general importance namely, the interpretation of the proviso to Schedule II, Article 11(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. The learned Single Judge has made a reference on the assumption that the proceedings which gave rise to the revision is a probate application which became contested and in that context the question arises as to whether the proviso aforesaid mentioned applies to the case. But on going through the records and order of the lower Court, we find that probate had already been granted on 15-4-1981 and that the proceedings pending before the learned District Judge is the application for revocation of the probate under Section 263 of the Indian Succession Act.

(2.) The facts of the case as revealed from the records is as follows : The revision petitioner M.A. Kodakani has filed original P and SC Proceeding No. 1 of 1981 under Section 276 of the Indian Succession Act for the grant of a probate in respect of a Will dated 5-7-1977 executed by one Tungabai, wife of Ananth Narvekar. The revision petitioner filed the above application in her capacity as an executor of the Will. The citation were issued and nobody entered a caveat nor filed any objection. So, probate was granted on 15-4-1981 without any contest. Thereafter, one Mangesh Narvekar, the brother of Anantha Rao Narvekar (husband of the testator) filed an application to revoke the probate under Section 263 of the Indian Succession Act. On the filing of such an application, the lower Court ordered P and SC Proceeding No. 1 of 1981 to be registered as a suit on 2-8-1983. Thereafter, the question arose as to whether the revision petitioner, the applicant in the probate application is liable to pay the Court fee under the proviso of Schedule II, Article 11(1) of the Karnataka Court Fees and Suits Valuation Act. The office having raised an objection to that effect, the revision petitioner submitted that his application for probate had already been allowed and that the present application under Section 263 of the Indian Succession Act is for revocation of the probate and as such he is not liable to pay the Court fee under the proviso aforesaid mentioned. The District Judge held that the revision petitioner is liable to pay the advolarum Court fee as provided for in the proviso, in view of the fact that the Court had ordered on 2-8-1983, to convert P and SC application as a suit. It is the correctness of this order that arises for consideration in this revision petition.

(3.) Schedule II, Article 11(1) deals with the Court fee payable for an application for probate or for letters of administration or for revocation thereof. Ordinarily an application for probate attracts a Court fee of Rs. 25/- and sub-clauses (i), (ii) and (iii) provides for varying Court fee depending upon the value of the estate. Further in the sub-clause, there is a proviso to the following effect :