ITTOOP Vs. MATHUNNI

JUDGEMENT

(1.) This matter arises on a reference made by the taxing officer for determination of the proper court-fee payable in the appeal. When the matter came up before the Division Bench, it was felt by the learned Judges that the matter in issue deserves to be considered by a Full Bench. The Division Bench felt that in view of the doubt expressed by the Full Bench in Kuriyan. v. Ayyappan (1952 Ker LT 434 : (AIR 1982 Ker 214) about the approach and observations in In Re Seetha-lakshmi (1980 Ker LT 560), the matter merits consideration by a Full Bench. Accordingly, it was heard by this Full Bench.

(2.) The facts of this case are in a narrow compass. The appellant in the miscellaneous Appeal was the petitioner in O. P. No. 77 of 1981. It was a petition filed under Section 278 of the Succession Act for obtaining letters of administration with the will annexed. The father of the petitioner, Pulikkoottil Chaeku executed Ext. A1 will dt. 15-1.1-1956. He died on 2-3-1957. The will was registered subsequent to the death of the testator as document No. 12 of 1957. Deceased Chaeku left behind him Ms wife Kurihayi, three sons--the petitioner and two respondents and a daughter Kachannes. Kunhayi died on 89-1960. Kunhamen died on 16-3-1981. Kunhannen was allotted properties under the will and she sold those properties on 5-6-1978 with the knowledge of the respondents. Under the will the property was allotted to the petitioner with a direction that the petitioner should pay Rs. 500/- to the 1st respon-dent and Rs. 1000/- to the 2nd respondent. Thus the petitioner claimed that he is entitled to the estate of deceased Chaeku as legatee under the will. He filed an application for granting letters of administration of the property and credits of the deceased with the will annexed. Respondents 1 and 2, petitioner's brothers, filed a counter-statement and opposed the petition. It was contended that Chaeku had not executed any will on 5-11-1956, that he had, no testamentary capacity to execute the case, that he had no power to take an independent decision and that the will is concocted. The genuineness of the Will was disputed. It was said that the will was not valid that Kunhamen did not obtain any right under the will and she had no right to sell the properties. The value of the properties will come to Rs. 75,000/-. It was also contended that there are circumstances to show that fraud was practiced by the petitioner in bringing about the will. After taking evidence in the matter the learned Additional District Judge dismissed the O. P. The petitioner has filed the miscellaneous First Appeal from the aforesaid decision in O. P. No. 77 of 1981 dt. 17th of September, 1982.

(3.) In the appeal memorandum the petitioner has specified the valuation as follows : "Valuation as in the lower court under petition fee as per Article Rs. 5.00" 11(k)(ii)(2) of Schedule II of the Kerala Court-fees Act 10/60 ... The said article runs as follows: "11 (k)(i). Application for probate or letters of administration to have effect throughout India Twenty-five rupees. (ii) Application for probate or letters of administration not falling under clause (I) (1) if the value of the estate does not Seventy-five exceed Rs. 1,000 paice. (2) if the value exceeds Rs. 1,000/Five rupees. Provided that if a eaveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Article 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied." The taxing officer took the view that court-fee paid on the appeal memorandum is insufficient The petitioner maintained that the court-fee paid under Schedule II Article 11(k)(ii)(2) is proper,, At any rate, according to the appellant, the maximum court-lee payable is under Schedule II Article 3(A)(l)(b) --i.e. Rs. 10/-. He relied on Section 52 of the Court Fees Act also. According to the taxing officer this plea is unsustainable and the relevant provision applicable is, schedule I Article 4, under which one-half of the scale of fee prescribed in Article 1 on the amount on value of the subject-matter, is payable. In view of the dispute, the matter was referred to the Bench for consideration.