CICILY MATHEW Vs. GEORGE

JUDGEMENT

(1.) Ext. P5 order is challenged in this petition filed under Art. 227 of The Constitution of India. A petition was filed under S. 276 of the Indian Succession Act for grant of Letters of Administration in respect of the Will allegedly executed by late Paily. Petitioners herein entered caveat and filed objections disputing the genuineness of the Will and as such the Trial Court converted the petition into a regular suit as provided under S. 295 of Indian Succession Act. Petitioners herein contended that after the conversion of the petition into suit it was not properly valued. Respondents on the other hand contended that after conversion, the suit has to be treated as a suit for declaration falling under S. 25 of the Kerala Court Fees and Suits Valuation Act and accordingly a valuation statement was filed by the respondents (plaintiffs in the suit) under S. 7(2) and 7(3) of the said Act and the said valuation has to be accepted and that court fee is payable accordingly and not based on the market value as contended by the defendants. Section 7 of the Act reads thus:

(2.) There is no dispute regarding the fact that since the caveat was entered and the application was registered as suit, the court fee is to be paid as governed by the proviso to Art. 11(k) and as per the said proviso, the court fee on half the scale of fee prescribed in Art. 1 of Schedule 1 on the market value of the estate, less the fee already paid on the application, should be paid. It was for computation of the fee so payable the valuation statement (Ext. P2) was filed. If the computation of the valuation statement as provided under Ss. 7(2) and 7(3) is accepted, then the court fee payable by the plaintiff as determined by the court below may be correct.

(3.) But the learned counsel for the petitioners/defendants submits that the market value has to be determined as provided under S. 7(3A) of the Kerala Court Fees and Suits Valuation Act as amended in 1990. (The amendment came into force with effect from 5.12.1990). After the amendment., the market value of the agricultural lands alone. in suits falling in Ss. 25(a), 25(b) etc, shall be deemed to be ten times the annual gross profit of such land where it is capable of yielding annual profits, minus the assessment if any made to the Government. In other words, if the property in question is not an agricultural land, the computation cannot be had at the rate often times the annual gross profit of such land. Similarly, since the building situated in the plaint schedule property is stated to be a residential house, the contention that the value of the building shall be computed at ten times its rental value cannot be accepted. If so, the market value of the building as on the date of the suit also has to be shown.