KURIAN Vs. AYYAPPAN

JUDGEMENT

(1.) SINCE the correctness of the decision of a Division Bench of this Court reported in In Re Seethalakshmi & Others (1980 KLT. 560) was doubted, the matter was referred to a Full Bench and thus the case is before us on the question of proper court-fee payable for the appeal. The appeal is against O.P. No. 67 of 1974 of the District Court, Trichur, that petition being one for letters of administration with copy of the Will annexed. The proceedings were contentious. But nevertheless the proceedings have not been registered as a suit as it ought to have been. There was in fact no caveat entered as it ought to have been. The practice of failing to enter a caveat and failing to register such proceedings as contentious suits has been adverted to by this Court in the decision in Kamala Bai Nelson v. Sam Vedaraj (ILR. 1981 (2) Kerala 1).

(2.) THE appellant valued the appeal under Art.4 of Schedule I of the Kerala Court-Fees and Suits Valuation Act and paid court-fee of Rs. 786/-due under the abovesaid Article. But when the Office noted that the amount computed is not adequate and therefore the balance court- fee bad to be paid, he contended that court-fee is payable not under Art.4 of Schedule I, but only a fee of Rs. 5/- need be paid by him on his petition in the lower court, a petition which was not one on which court-fee was imposable as in a contentions suit. It is the correctness of this contention that calls for examination.

(3.) THE scheme with regard to an application for probate or letters of administration appears to be clear from the aforesaid provisions. THE provision in Schedule H Art.11(k) (ii)read with the proviso indicates that in a non-contentious proceeding nominal fee of seventy-five paise to five rupees has to be paid, the amount depending upon the value of the estate. But if the proceeding is contentious court-fee payable is one-haif of the scale of fee prescribed advalorem in Article I Schedule I. This is the effect of the proviso under which such fee is payable in a case where a caveat is entered and the application is registered as a suit. This has reference to the requirement of the Indian Succession Act. S.284 of the Indian Succession Act deals with lodging of caveat. S.285 deals with the obligation to give notice to the caveator. S.295 deals with treating the proceedings as contentious and trying the case in the form of a regular suit when there is contention in a suit. As already adverted to, this Court had occasion to examine these provisions in the decision in Kamala Bai Nelson v. Sam Vedaraj (ILR. 1981 (2) Kerala 1) and it was found in that case that the rules do not oblige a person to file a caveat even when a citation has been issued. It is an enabling provision. This Court further held in that case that the mere fact that caveat was not entered did not result in the consequence that the proceedings should be considered as non-contentious and appearance to oppose a proceeding by a party would be sufficient to turn the proceeding contentious Evidently Art.11 (k) (ii) uses the term entering a caveat and registering as a suit as those are the normal requirements of procedure to be adopted to render a non contentious proceeding a contentious proceeding. Evidently what is contemplated by the Article is that when an application for a grant of probate or letters of administration has to be disposed of without a contest the fee payable is nominal whereas when once there is contest the fee payable is one- half the ad valorem value on the subject-matter of the probate application. Read in this context Art.4 of Schedule I can easily be appreciated. That calls for payment of the same court-fee as the applicant has to pay in a probate application when thai application is contentious. That is only fair because if for the purpose of the trial of the probate application he has to pay one- half of the ad-valorem court-fee in a contentious proceeding, in an appeal, which by its very nature is contentious, the fee payable would be the same. THEre is do absence of logic in such an approach. That is what Art.4 of Schedule I means.