Kerala High Court
C.P. Paul vs C.P. Susan And Ors. on 6 July, 1999
Equivalent citations: AIR1999KER415, AIR 1999 KERALA 415, (1999) ILR(KER) 3 KER 273, (1999) 2 KER LJ 243, (1999) 2 KER LT 848
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT Balasubramanyan, J.
1. An application for probate under Section 276 of the Indian Succession Act was filed before the High Court. The application was filed in the High Court in view of Sections 273, 276 and 300 of the Act on the ground that the portion of the assets likely to come into the hands of the petitioner situate outside the State exceeded Rs. 10000. The application for probate was opposed and hence was treated as a contentious proceeding in terms of Section 295 read with Rule 26 of the Rules framed by the High Court of Kerala. The petition filed was numbered as a suit. The suit was tried and disposed of by a learned single Judge of this Court exercising original jurisdiction. The learned single Judge after trial held that the due and valid execution of the will propounded by the plaintiff has not been established. The learned single Judge thus dismissed the suit. Feeling aggrieved by the dismissal, the plaintiff filed this appeal under Section 5 of the High Court Act. According to the appellant, the judgment rendered by the learned single Judge in exercise of his original jurisdiction falls within Section 5 (i) of the High Court Act and was appealable. In the light of the decision rendered by this Court in Fr. V.M. Skaria v. K.T. George, 1999 (1) KLJ 756 : (AIR 1999 Ker 320) the appeal was described as a Miscellaneous First Appeal on the basis that what was rendered by the learned single Judge was an order under the Indian Succession Act.
2. The appellant paid Court-fee on the appeal under Schedule II Article 3 (iii) (A) (2) (c) of the Kerala Court-Fees and Suits Valuation Act and paid a Court-fee of Rs. 100. The Registry raised an objection that since the appeal was one challenging an order passed under the Indian Succession Act, Court-fee was payable on the appeal under Schedule I Article 4 of the Court-fees Act. The appellant took the stand that since the application for probate was tried and disposed of by a learned single Judge of the High Court, Section 299 of the Indian Succession Act providing for appeals against decision of District Court in such an application did not apply and since the appeal was only one under Section 5 of the High Court Act, Court-fee was payable only under Schedule II Article 3 (iii) (A) of the Court-fees Act. The Registry not having accepted this position, the appeal has been sent up for orders regarding the Court-fee payable on the appeal.
3. There cannot be much doubt that an appeal under Section 5 of the High Court Act would lie to a Division Bench from the decision rendered by the learned single Judge, whether one were to treat the decision rendered as a judgment or order. If authority were needed for this position, the same could be found in the decisions of the Allahabad High Court in Standard Glass Beads Factory v. Shri Dhar, AIR 1960 All 692 : (1960 All LJ 387) (FB) and R. C. Pawell v. Administrator General, AIR 1967 All 231 : (1967 All LJ 536).
4. Then the question is, what is the Court-fee payable on such an appeal? The appellant has invoked Schedule II Article 3 (iii) (A) of the Kerala Court-fees and Suits Valuation Act. But a reference to that Article shows that the said Article applies, when it is not otherwise provided for by the Court Fees Act. The scope of Article 3 of Schedule II of the Court-fees Act was considered by a Division Bench of this Court in Chacko v. Catholic Bank of India Ltd., 1963 Ker LT 1068 : (AIR 1964 Ker 181). In that case, the appeal was under Section 45N of the Banking Companies Act against an order under Section 45D (4) of that Act. There was a specific provision in Schedule II Article 3 (iii) (A) (3) providing for payment of Rs. 100 where the appeal is under Section 45B of the Banking Companies Act, 1949. The Division Bench noticed that the amendment to the Banking Companies Act and the alteration of the Section conferring right of appeal, was unfortunately omitted to be noticed by the Kerala Legislature when it enacted the Court-fees Act in the year 1960 and since the appeal was one under Section 45N of the Banking Companies Act and not under Section 45B of the Banking Companies Act, Schedule II Article 3 (iii) (A) (3) could not be applied and since that could not be applied, Court fee was payable under Schedule II Article 3 (iii) (A) (2) (c) of the Court-fees Act. The Division Bench specifically stated that in the absence of a specific provision applicable to appeals of the kind then before them, they have to hold that the appeal filed under Section 5 of the High Court Act and Section 45N of the Banking Companies Act, had to bear Court-fee under Article 3 (iii) (A) (2) (c) of Schedule II of the Act. In re Seethalakshmi, 1980 Ker LT 560 a Division Bench held that Article 4 of Schedule I applied only in a case where Schedule I Article 1 had applied in the Court of first instance and hence in an appeal against an order dismissing an application for the grant of a succession certificate on the ground that the security furnished was insufficient, Court fee of Rs. 5 under Article 3 (iii) (A) (1) (n) of Schedule II of the Court Fees Act was alone called for. The correctness of this decision was doubted by a Full Bench in Kurian v. Alum Ouseph, 1982 Ker LT 434 : (AIR 1982 Ker 214). The Full Bench stated that merely because Court fee payable in the first instance in an application for the issue of a succession certificate was not ad valorem, it did not follow that Article 1 Schedule I could not apply to an appeal from that order despite the specific provision in Article 4 of Schedule I of the Court Fees Act. The Full Bench held that Section 52 of the Court Fees Act providing for payment of Court fee on appeals as the same as that paid in the first instance, must be read and understood as a general provision subject to the special provisions in the Act and Article 4 of Schedule I of the Court Fees Act was a specific provision in regard to appeals against orders passed under the Indian Succession Act and in the appeal, Court fee had to be paid in terms of Article 4 of Schedule I of the Act.
5. It is clear from Article 3 of Schedule II of the Court Fees Act that the said Article would be attracted only in a case where there is no other specific provision providing for payment of court fee under the Act. Article 4 of Schedule I of the Court Fees Act is a specific provision dealing with appeals against orders passed under the Indian Succession Act. Even if the appeal be one under Section 5 of the High Court Act, since the appeal is against an order passed in a proceeding initiated under Section 276 of the Indian Succession Act, Court fee has to be paid in terms of Article 4 of Schedule I of the Court Fees Act. In this context, the question whether, what is appealed against is a judgment or an order or whether the expression 'order' used in Schedule II Article 3 includes a judgment, do not appear to be very relevant. Article 3 of Schedule II could be applied only in the absence of any other provision in the Court Fees Act. In view of the presence of Article 4 of Schedule I in the Court Fees Act, the application of Article 3 of Schedule II of the Court Fees Act stands excluded. We therefore hold that the appellant is bound to pay Court fee under Article 4 of Schedule I of the Kerala Court Fees and Suits Valuation Act. The stand adopted by the Taxing Officer is hence upheld.
The appellant is given time of three weeks to amend the valuation portion of the Memorandum of Appeal and also to pay the requisite Court fee in terms of Article 4 of Schedule I of the Court Fees Act.