Kerala High Court
Thomas Martin vs Teresa Martin on 5 August, 2002
Equivalent citations: AIR2003KER29, AIR 2003 KERALA 29, ILR(KER) 2002 (3) KER 206 (2002) 3 KER LT 888, (2002) 3 KER LT 888
Author: J.B. Koshy
Bench: J.B. Koshy, K.K. Denesan
JUDGMENT J.B. Koshy, J.
1. This appeal has been preferred by the respondent in LA. No, 351/2000 in Succession O.P. No. 21/2000 on the file of the District Court, Wynad. The above O.P. was filed for grant of probate of a Will. The District Judge allowed the petition granting Letters of Administration with copy of the Will on condition that he will execute bond in accordance with law. The order was passed on 7th April 2000. Thereafter, respondent in the appeal filed I.A. No. 351/2000 under Section 263 of the Indian Succession Act, 1925 for revocation of the grant of probate. The petition for revocation of the probate was numbered as LA. No. 351/2000 and court fee of Rs. 10 was paid as no other rate of court fee was fixed and court fee for an interim application was paid. The District Court allowed the above I.A. revoking the probate granted in O.P. No. 21/2000 on 7th April 2000. The appellant had a case that what was granted is Letters of Administration but, not probate. That is a matter to be decided in the appeal. Now, the question is regarding the court fee payable.
2. When the appeal was filed, the registry raised an objection that court fee is to be paid as per Schedule I Article 4 of the Court Fees Act. Schedule I Article 4 of the Court Fees Act reads as follows:
"Memorandum of appeal against order in An amount of one-half the scale of fee proceedings under the Indian Succession prescribed in Article 1 on the amount or Act, 1925 value of the subject matter."
It is the contention of the appellant that he has not filed an appeal against granting of probate or Letters of Administration. The respondent has Filed only an I.A. to the District Court itself to revoke the grant of probate and it was allowed and in such circumstances court fee payable is not under Article 4 of Schedule I of Court Fees Act; but court fee is to be paid as provided under Section 52 of the Court Fees Act. Section 52 of the Court Fees Act reads as follows:
"52. Appeals. The fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal:
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree:
Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the court; in case the appeal is admitted:
Provided also that the court may, for sufficient reasons to be recorded in writing, extend the period upto thirty days.
Explanation.- (1) Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first Instance."
(Explanation (2) to (5) are not applicable.)
3. We are of the opinion that court fee payable in an appeal is the same fee that should be payable in the court of first instance as per Section 52. Explanation I makes the position clear.
4. Almost in an identical situation where an appeal was filed against an order in a petition which was filed by paying Rs. 10 as court fee for setting aside an arbitration award, a Division Bench of this Court held that court fee need not be paid under Article 4 of Schedule II in Jaisu Shipping Co. (P) Ltd: v. Oil corp Oil Marketing Corporation (2001 (2) KLT 772). In paragraph 6 of the Judgment pronounced in the above case by Justice K.S. Radhakrishnan on behalf of the Division Bench it was held as follows:
"6. We are of the view Counsel for the appellant is right in his contention since Arbitration and Conciliation Act, 1996 has not been incorporated under Article 4 of Schedule II of Court Fees Act, the provision which is applicable is Article 3 of Schedule II of the Court Fees Act which deals with memorandum of appeal from an order to the High Court. An order was passed by the Subordinate Court or any other authority and if the order relates to a suit or proceeding the value of which exceeds one thousand rupees court fee need be paid is only Rs. 10. We are of the view it is that article which applies. We may further add even before the Court below only Rs. 10 has been paid towards court fee in a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996. Under such circumstance going by Section 52 of the Court Fees. Act the appellant cannot be called upon to pay more than that was paid by the first respondent herein before the Court below. Under such circumstance objection raised by the registry is overruled. We are of the view the court fee paid by the appellant is sufficient. Number the MFA and post for admission."
5. We respectfully follow the principles laid down in the above decision and hold that since court fee paid for revocation petition filed before the court below is only Rs. 10, in the appeal filed from the order in that petition also, only Rs. 10 need be paid as court fee. Therefore, the registry is directed to number the MFA.