PHILO PETER Vs. DIVYANATHAN

JUDGEMENT

(1.) These two civil revision petitions are coming before us on a reference being made by one of us, namely, Sathiadev J., to decide the question as to whether Court-fee is payable on one half of the value of the properties, on an application filed under Ss.276 and 222 of the Succession Act, for grant of Probate regarding a Will when the matter becomes contentious.

(2.) The petitioner in C.R.P. 1878 of 1987 filed the petition in O.P. 5 of 1985 on the file of the learned Principal District Judge, Tiruchinapalli, under Ss.276 and 222 of the Succession Act praying for the grant of Probate of the Will of the deceased Ignatious dt. 22-07-1981. Similarly, petitioner in C.R.P. 2052 of 1987 filed the petition in O. P. 323 of 1983 praying for the grant of Letters of Administration in respect of the estate of the deceased T. Arokiasami Odayar with his Will dt. 22-11-1982. In both these petitions, the respondents contested and, therefore, the matter become contentious before the learned District Judge. The question arose whether Court-fees is payable under Art.11(k) of the Court-fees Act, treating the petitions as suits. It was contended by the petitioners that in spite of the fact that the matter has become contentious there is no necessity to register the petitions as suits but only the procedure as laid down for trial of a suit has to be followed and that the petitions should remain in the same form in which they have chosen to file the same in Court. However, the learned Judge, following the decision of Veeraswami J. as he then was, in Chelliah v. Peter, (1966) 2 Mad LJ 33 and another ruling of Sengottuvelan J. in Kanni Krishna Iyer v. Krishnamachari, 98 Mad LW 80 came to the conclusion that the petitions have to be registered as suits and consequently, he directed the petitioners to pay necessary Court-fees under the Madras Court-fees Act, treating the petitions as suits. Therefore, the petitioners preferred the above two civil revision petitions which came up for orders before one of us, namely, Sathiadev J. Before my learned brother, Sathiadev J. it was argued that Paul J. has taken a different view in Natarajan v. Parthasarathi, T.O.S. No. 8 of 1972, dt. 6-2-1973, holding that since no caveat had been entered ad valorem Court-fee on one half of the market value of the estate is not payable. It was found to be contrary to the decision of Veeraswami J. as he then was, in Chelliah v. Peter, (1966) 2 Mad LJ 33, who had taken a view that whether caveat has been filed or not, where an application for probate becomes contentious and is tried as a suit, it should be assumed for the purpose of the proviso that a caveat is impliedly entered. Finding that there is an apparent conflict between these decisions, the present reference was made to solve the said conflict. That is how the matter comes before us.

(3.) Before considering the legal position emerging out of the above said decisions, it is necessary to take notice of the relevant provisions in the Succession Act, 1925. S.266 of the Act provides that the District Judge shall have, in relation to the granting of Probate and Letters of Administration, all the powers and authority as are vested in him in relation to any civil suit. S. 288 lays down that the proceedings of the Court of the District Judge shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Civil Procedure Code. A proceeding for Probate is initiated by the presentation of an application in that behalf. What are the matters which should be mentioned in such an application, is provided in S.276. Similarly, a proceeding for Letters of Administration is initiated by an application as provided in S.278. Section 295, which is the important section to be considered in these proceedings, reads as follows - "If any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure 1908 (5 of 1908), in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. " Section 299 provides for an appeal against every order made by the District Judge.