PAPPOO Vs. KURUVILLA

JUDGEMENT

(1.) THIS is a petition under S. 276 of the Indian succession Act for the issuance of a Probate in regard to the estate of late sri Mathew J. Kollam-parambil on the strength of a registered Will said to have been executed by him. Some of the persons interested in the matter have entered caveat and the petition has been directed to be numbered and treated as suit. A question has now arisen regarding the court-fee payable on the petition. It is pointed out by one of the parties that under the proviso appearing under Art. 11 (k) of Schedule II of the Kerala Court Fees and Suits Valuation Act. 1959 (for short the 'act') court fee has to be paid on the basis of one half of he scale of fee prescribed under Art. 1 of Schedule I on the market value of the estate less the fee already paid on the application in a case where it is registered as a suit on the basis of a caveat. According to the learned counsel for the petitioner, the proviso will not govern the present case and therefore the fee prescribed by the proviso need not be paid in the instant case. THIS case arises under clause (i) of Art. 11 (k ).

(2.) WE are considering the question of court fee not on the probate as such, but on the application for probate under Art. 11 (k) of schedule II of the Act. Art. 11 (k) prescribes court-fees in regard to applications falling in two different categories. Sub-clause (i) prescribes court-fee of Rs. 25/-on application for probate or letters of administration to have effect throughout India. Clause (ii) prescribes the court-fee for application for probate or letters of administration not falling under clause (i ). The court fee is 75 paise if the value of the estate does not exceed Rs. 1,000/- and Rs. 5/- if the value of the estate exceeds Rs. 1,000/ -. The proviso prescribing one half of the ad valorem fee of the market value of the estate less the fee already paid occurs below clause (ii) of Art. 11 (k) of the Act.

(3.) MERELY because the proviso occurs below clause (ii), it cannot be said that it is intended to apply only to clause (ii) and not to clause (i ). Even if the intention of the Legislature was that the proviso should apply to both the clauses, the logical place where the proviso should occur is below clause (ii) and not below clause (i) As already pointed out, there is nothing in the proviso itself which would indicate that it is intended to relate only to clause (ii) and not to clause (i ). Since application is registered as a suit on a caveat the proviso applies.