Karnataka High Court
M.A. Kadakani vs M.T. Narvekar on 23 July, 1996
Equivalent citations: AIR1997KANT75, 1997(1)KARLJ217
Author: C.N. Aswathanarayana Rao
Bench: C.N. Aswathanarayana Rao
ORDER Krishna Moorthy, J.
1. This revision petition is referred to a Division Bench by a learned single Judge of this Court as the case involves a question of general importance namely, the interpretation of the proviso to Schedule 2 Article 11(1) of the Karnataka Court Fee and Suit Valuation Act, 1958. The teamed single Judge has made a reference on the assumption that the proceedings which gave rise to the revision is a probate application which became contested and in that context the question arises as to whether the proviso aforesaid mentioned applies to the case. But on going through the records and order of the Lower Court, we find that probate had already been granted on 15-4-81 and that the proceedings pending before the learned District Judge is the application for revocation of the probate under S. 263 of the Indian Succession Act.
2. The facts of the case as revealed from the records is as follows :--
The revision petitioner M. A. Kadakani has filed original P and SC proceedings No. 1/81 under S. 276 of the Indian Succession Act for the grant of a probate in respect of a will dated 5-7-77 executed by one Tungabai, wife of Ananth Narvekar. The Revision petitioner filed the above application in her capacity as an Executor of the will. The citation were issued and nobody entered a caveat nor filed any objection. So, probate was granted on 15-4-81 without any contest. Thereafter, one Mangesh Narvekar, the brother of Anantha Rao Narvekar (husband of the testator) filed an application to revoke the probate under S. 263 of the Indian Succession Act. On the filing of such an application, the Lower Court ordered P and SC proceeding No. 1/81 to be registered as a suit on 2-8-1983. Thereafter, the question arose as to whether the revision petitioner, the applicant in the probate application is liable to pay the Court fee under the proviso of Schedule 2 Article 11(1) of the Karnataka Court Fee and Suit Valuation Act. The office having raised an objection to that effect, the revision petitioner submitted that his application for probate had already been allowed and that the present application under S. 263 of the Indian Succession Act is for revocation of the probate and as such he is not liable to pay the Court fee under the proviso aforesaid mentioned. The District Judge held that the revision petitioner is liable to pay the ad valorum Court Fee as provided for in the proviso, in view of the fact that the Court had ordered on 2-8-83, to convert P and SC application as a suit. It is the correctness of this order that arises for consideration in this revision petition.
3. Schedule 2 Article 11(1) deals with the Court fee payable for an application for probate or for letters of administration or for revocation thereof. Ordinarily an application for probate attracts a Court fee of Rs. 25/- and sub-clauses (i) (ii) and (iii) provide for varying Court fee depending upon the value of the Estate. Further in the sub clause, there is a proviso to the following effect :
"Provided that if a caveat is entered and the application is registered as a suit, one half the scale of fee prescribed in Article I of the Sch. I on the market value of the Estate less the fee already paid on the application shall be levied".
4. The question that arises for consideration is whether revision petitioner-applicant before the lower Court is liable to pay Court Fee by virtue of the proviso aforesaid mentioned. It is to be noted that in the original P and SC proceedings No. 1/81, there was no contest and probate was granted on 15-4-81. The question to be decided is as to whether the above proviso would be attracted to the application filed by the respondent for revocation of the probate under S. 263 of the Indian Succession Act. On going through the provisions of the Indian Succession Act as also the proviso to Article 11, we are clearly of the opinion that the revision petitioner is not liable to pay the Court fee under the proviso and that the order of the District Judge is liable to be set aside for the reasons which we mention below.
5. Under proviso to Article 11, half the scale of the fee prescribed in Article 1 of the Schedule 1 on the market value of the estate is payable if a caveat is entered in the probate proceedings and the application is registered as a suit. It is to be noted that S. 284 of the Indian Succession Act deals with entering of a caveat. That section provides that caveats against the grant of probate or administration may be lodged with District Judge or District Delegate. It is clear from the aforesaid provision that caveat can be entered only against the grant of probate or administration and not to the application for revocation of the probate already granted. There is no question of entering any caveat at that stage. The proviso to Article 11 will apply only in case if a caveat is entered and the application is registered as a suit. As there is no question of entering any caveat in a proceeding for revocation of a probate, we do not think that the proviso to Article 11 is applicable to the facts of the present case. On reading S. 295 of the Indian Succession Act, which provides that in certain contentious cases, the proceedings have to be tried as a suit can also apply only to a proceeding for the grant of a probate. From the various provisions contained in the Indian Succession Act which are mentioned above, we are clearly of the opinion that there cannot be any question of entering a caveat by any party in an application for revocation of a probate and consequently the application for revocation of a probate or letters of administration cannot be registered as a suit; In a proceeding for revocation of the probate, there is no question of entering a caveat or registering as a suit arises under the provisions of the Act. It is evident that the proviso to Schedule 2 Article 11(1) cannot have any application to such a proceeding.
6. The Counsel for the revision petitioner brought to our notice a decision of a learned single Judge of this Court in Sushila v. Bhimappa Rayappa Karigar (1972) 1 Mysore LJ 504. In that case, the learned Judge was considering the analogous and identical provisions contained in the Mysore Court Fee and Suit Valuation Act. Considering the aforesaid provisions learned Judge has observed as follows :--
"From the above decision it is clear that there cannot be any entering of a caveat by any party against the revocation of the probate and therefore, the application for revocation of probate or letters of administration cannot be registered as a suit."
We are in respectful agreement with the above said decisions.
7. As stated earlier, the proceedings in this case arises out of an application for the revocation of a probate under S. 263 of the Indian Succession Act and the learned single Judge proceeded to refer the case to a Division Bench on the assumption that the original application for the grant of the probate itself was contested and was registered as a suit. As a matter of fact it is not so. The probate was already granted on 15-4-81 and the proceedings now pending before the District Judge is a proceeding under S. 263 of the Indian Succession Act for revocation of the probate. By a wrong order dated 2-8-83, the District Judge converted the same into a suit. By such a wrong order the liability cannot be caused on the plaintiff to pay the Court fee which is not otherwise payable. The application is for revocation of the probate and we hold that plaintiff is not liable to pay the Court fee at this stage under Schedule 2 Article 11(1) of the Karnataka Court Fee and Suit Valuation Act. Accordingly, the order of the District Judge is liable to be set aside. We do so.
In the result, we allow the revision petition and set aside the order of the District Judge dated 2-9-86 and hold that the plaintiff is not liable to pay any further Court fee. The revision is allowed. There will be no order as to costs.
8. Revision allowed.