KURIYAN Vs. ALURU OUSEPH

JUDGEMENT

(1.) The Order of the Court was pronounced by Subramanian Poti, Acting Chief Justice. - Since the correctness of the decision of a Division Bench of this Court reported in In Re Seethalakshmi ( 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) Ker. 1 ).

(2.) The appellant valued the appeal under Art.4 of Schedule 1 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 had to be paid, he contended that court fee is payable not under Art.4 of Schedule 1, 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 contentious suit. If is the correctness of this contention that calls for examination.

(3.) S.21 of the Kerala Court fees and Suits Valuation Act, 1959 provides for reckoning of fee in accordance with the provisions of Chap.4, 6, 9 and Schedules 1 and 2 of the Act. Therefore the authority for imposition of fee under Schedules 1 and 2 is S.21 of the Act. S.52 is a general provision relating to court fee payable on appeal that provides that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. We are not concerned with the proviso and the Explanations to that Section for the purpose of this case. Schedule 1 prescribes ad valorem fee in certain cases. Art.1 of this Schedule provides for payment of ad valorem fee on plaint, written statement pleading of set off or counter claim or memorandum of appeal presented to any court Art.4, which we have to specifically notice here, provides that on a memorandum of appeal against order in proceedings under the Indian Succession Act, 1925 the court fee payable is an amount of one half the scale of fee prescribed in Art.1 on the amount or value of the subject matter. Art.1, as we already indicated, prescribes a scale of ad valorem fee for proceedings like plaints and it is that scale which applies to Art.4 with the only difference that it will be only an amount of one half the scale of fee that would be payable in the case of a memorandum of appeal against order in proceedings under the Indian Succession Act falling within Art.4 of Schedule 1. We may also advert, at this juncture, to the residuary Article in Schedule 2 of the Act. That applies to a case not otherwise provided for and the fee payable in such a case of a memorandum of appeal to the High Court would vary from Rs. 5/- to Rs. 100/-. We may also advert to a particular entry in Schedule 2, namely, Art.11(k)(ii). That concerns an application for probate or letters of administration other than that which has effect throughout India. On such application the court fee payable, where the value does not exceed Rupees 1,000/- is seventy-five paise and where the value exceeds Rs. 1,000/- it is five rupees.