SEETHALAKSHMI Vs. STATE

JUDGEMENT

(1.) THIS M. F. A. is filed against an order dismissing an application for a grant of a succession certificate on the ground that the security furnished is insufficient. The taxing officer of the court has made a note that the court-fee for the appeal should be paid as provided for in Art. 4 schedule I of the Kerala Court -fees and Suits Valuation Act which reads thus: Table:1 According to the appellant he need pay court-fee only under Art. 3 of Schedule II. The question for consideration is whether the appeal is to be taxed under Art. 4 Schedule I or under any other provision.

(2.) IN the matter of applications for a succession certificate under the INdian Succession Act, S. 379 provides that every application for a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act in respect of the certificate applied for. If the application is allowed, the sum deposited by the applicant shall be expended in the purchase of the stamp to be used for denoting the fee payable as aforesaid. If the sum is not expended for any reason, the same has to be refunded to the person who deposited it. The fee for a succession certificate is that mentioned in Art. 7 Schedule I, which provides for ad valorem fee depending upon the amount for which certificate is asked for. From the above it is seen that what is taxed ad valorem is the certificate and not the application. An application for a succession certificate shall be made by a petition only as provided for in S. 372 of the Succession Act. The fee for it is governed by Schedule II, Art. 11 (1) (i) or (ii) i. e. Rs. 5/- or Rs. 10/-depending on the court where it is filed. When that application is dismissed for any reason that order is one in the category 'not otherwise provided for' mentioned in Art. 3 Schedule II of the Kerala Court-fees and Suits valuation Act for the purpose of determining the fee payable for an appeal, and not an order mentioned in Art. 4 of Schedule I of the Court-fees Act. That article speaks of an order in proceedings under the INdian Succession Act 1925 and to the scale of fee prescribed in Art. 1 on the amount or value of the subject matter. No doubt an order on an application for the grant of a succession certificate is an order in a proceeding under the Succession Act. But as we saw it earlier, for that application Art. 1 of Schedule I does not apply. The latter Article applies to only plaints, written statements and memorandum of appeal to which an ad valorem court-fee is payable under specific provisions of the Act. There is no specific provision in the Court-fees Act relating to applications for a succession certificate. Hence we have to find out whether ad valorem court-fee is payable to any proceedings under the succession Act. Art. 11 (k) of Schedule II of the Court-fees Act provides for the court-fee for applications for probate or letters of administration. That clause reads as follows: Table:#2 S. 295 of the Succession Act provides the procedure for contentious cases. That reads as follows: "295. IN any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure. 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. " Thus it will be seen that contested probate proceedings are really in the nature of suits and are taxed at one half of the scale of fee prescribed in Article I on the amount or value of the estate. An order in such proceedings is the one referred to in Art. 4 Schedule I. The court-fee is sensibly the same for the application and an appeal in such cases.