MARAGADHAMMAL Vs. YASODHAMMAL

JUDGEMENT

(1.) The question for decision is, what is the Court-fee payable on the Memorandum of Appeal which was presented against the judgment of my learned brother Somayya, J., in T.O.S. No. 11 of 1938 by which he directed the issue of a probate after declaring the will propounded by the respondent to be genuine. The appellant paid a court-fee of Rs. 225. The learned Master is of the opinion that an ad valorem stamp duty is payable under No. 35 of the High Court Fees Rules. The office is of the opinion that under No. 35 the appellant has to pay a stamp duty on Rs. 7,615-12-5 at which the testamentary suit has been valued and the same must be deemed to be the valuation in the appeal. The appellant contends that the subject-matter is incapable of valuation, but he however values it at Rs. 2,000 and states that the stamp duty paid by him is correct. The question is, is the contention of the appellant sound?

(2.) The rule governing this matter is No. 35 of the Original Side Fees Rules which runs thus: Memorandum of appeal from a final judgment:

(3.) There can be no question that the appeal is from a final judgment vide Perumal Chetty V/s. Kandasamy Chetty (1922) 44 M.L.J. 146 : I.L.R. 46 Mad. 592. But the question that has to be decided is, what is the subject-matter of the appeal? In deciding this question the nature of the probate proceedings has to be considered. In a probate proceeding no question of title to property is adjudicated as it is not within the province of a Probate Court to go into it. The only question before it is whether a person died testate or intestate and who is entitled to the administration of the estate, and if he died testate whether the executor is entitled to the grant of probate. In Pran Kumar Pal Chaudhury V/s. Darpahari Pal Chaudhury (1926) I.L.R. 54 Cal. 126, Sanderson, C.J., described the nature of a probate proceeding thus: I propose to consider what is the nature of the proceedings in connexion with an application for a grant of probate. There is no doubt that in such proceedings the question of title to property does not arise. The question is whether one or other of the parties to the proceedings is entitled to represent the estate. But, when the proceedings are contested, as in this case, the Court has to try an issue which arises between the parties and which involves the question whether the plaintiff is entitled to have a grant of probate or whether the person, who has entered a caveat and who has become a defendant, has substantiated and proved the defence which he has set up.