SUSHILA v. BHIMAPPA RAYAPPA KARIGAR — 1971 DIGILAW 365 (KAR)

( 1 ) IN this revision petition, the petitioner Sushila challenges the order of the District Judge, Bijapur, in M/s. No. 26 of 1967, dt. 7-2-68, calling upon her to pay the court fee as provided by proviso to sub-clause (2) of Art. 11, (1) (ii) of Sch. II to the Mysore Court Fees and Suits Valuation Act, 1958, on her application for revocation of a probate. ( 2 ) THE petitioner's mother Ningawwa died leaving behind a will in favour of her brothers who are the respondents before me. The said Ningawwa along with the petitioner had deposited Rs. 10,000 in their joint names in the Syndicate Bank at Rabkavi. After the death of Ningawwa, the respondents filed an application for probate in the Court of the District judge, Dharwar. The probate was granted without notice to the petitioner. When the respondents were about to draw the amount in deposit, the petitioner filed an application for revocation of the probate. She paid a court fee of Rs. 12-50 on her application as provided in sub-clause (3) of art. 11 (1) (ii) of the Act. The objection of the respondents as to the insufficiency of the Court-fees was upheld by the learned District Judge. He held as follows: (i) that the proviso to sub-clause (2) must be read as a proviso to both the sub-clauses (2) and (3); and (ii) The application for revocation of probate must be registered as a suit with the applicant as the plaintiff who shall pay the court fee on the amount or value, one half the scale of fee prescribed in Article I of Schedule I on the market value of the estate. On these findings, he called upon the petitioner to pay the balance of rs. 715-75p. Hence, this revision petition. ( 3 ) THE petition raises two points of considerable importance as to the nature of the proviso to sub-clause (2) of Art. 11 (1) (ii) of Sch. II to the Act; and the nature of the proceedings to be taken on an application for revocation of probate. ( 4 ) FOR considering the first question, it is necessary to extract hereunder the relevant article :"art 11 (1 ). (i) Application for probate or letters of administration or for revocation thereof to have effect throughout India. (Twenty-five rupees ). ( 4 ) FOR considering the first question, it is necessary to extract hereunder the relevant article :"art 11 (1 ). (i) Application for probate or letters of administration or for revocation thereof to have effect throughout India. (Twenty-five rupees ). (ii) Application for probate or letters of administration or for revocation thereof not falling under clause (i) or an application for a certificate under part X of the Indian Succession Act, 1925, or Bombay regulation VIII of 1927 (1) if the amount or value of the estate does not exceed Rs. 2,000 (Two Rupees and Fifty Naye Paise: (2) If the value exceeds Rs. 2,000 but does not exceed Rs. 5,000 (Six Rupees and Twenty-five Naye Paise ). Provided that if a caveat is entered and the application is registered as a suit, one half the scale of fee prescribed in Art. I of Sch. I on the market value of the estate less the fee already paid on the application shall be levied. (3) If the amount or value exceeds five thousand rupees (Twelve rupees and Fifty Naye paise ). " ( 5 ) SRI Sridharan, learned Counsel for the petitioner urged that the proviso is an exception tp the main part of sub-clause (2) and that it cannot be read as a proviso to any other sub-clause or clauses of the said article. He further contended that in interpreting a fiscal statute, I should not strain the interpretation against the tax payers. Sri Annadanayya puranik, for the State, sought to answer those contentions by saying that if the proviso is held to operate only to sub-cl. (2) and not the other sub-clauses, it would lead to anomalous results which the Courts must avoid. According to him, the said proviso must be read as a proviso to sub-cl. (3) also. ( 6 ) IN my opinion, both the contentions are extreme, overlooking the real nature of the said proviso. Though the latter part of sub-clause (2) is in the form of a proviso, it is a fresh provision (adding to and not merely qualifying that which goes before it ). A reference to the sub-clause (1), (3) and the main part of sub-clause (2) make it clear that they do not deal with the payment of Court-fee, when an application for probate or letters of administration becomes contentious. A reference to the sub-clause (1), (3) and the main part of sub-clause (2) make it clear that they do not deal with the payment of Court-fee, when an application for probate or letters of administration becomes contentious. If a caveat is entered, before the grant of probate or letters of administration, the matter becomes contentious and as per S. 295 of the Succession Act, such proceedings shall be taken in the form of a regular suit, wherein the applicant becomes plaintiff and the person who enters caveat becomes defendant. The said proviso provides for the payment of court-fee on such a suit. This is an independent matter which is not carved out from the main part of the sub-clauses. ( 7 ) IN Commissioner of Commercial Taxes, Madras v. R. S. Jhaver, AIR. 1968 SC. 59, the Supreme Court after referring to its previous decisions, has stated that in exceptional circumstances a proviso may not be really a proviso in the accepted sense but may be a substantive provision itself. It seems to me that the proviso under consideration, in the context in which it is bet out, and the matter which it deals with is a substantive provision. ( 8 ) THE question next I am concerned with is, what is the nature of the proceedings to be taken by a Court when an aggrieved party files an application for revocation of probate. Learned Counsel for the petitioner said that such an application cannot be registered as a suit. According to him, it is where a caveat is entered against the grant of probate the application for grant of probate has to be registered as a suit. It is convenient to notice at this stage the contentions of Sri G. B. Kulkarni, learned counsel for the respondents. He submitted that in an application for revocation of probate, the opponents in whose favour the probate was granted, will have to enter caveat, in which event, the application for revocation of probate must be registered as a suit. His contention as I see it, ss that when a caveat is entered, the matter becomes contentious and it requires to be decided in the form of a regular suit. ( 9 ) I think, much of the controversv will disappear if one tries to understand what a caveat means. His contention as I see it, ss that when a caveat is entered, the matter becomes contentious and it requires to be decided in the form of a regular suit. ( 9 ) I think, much of the controversv will disappear if one tries to understand what a caveat means. S. 284 of the Indian Succession Act provides for the lodging of caveats against the grant of probate or letters of administration. A caveat can be entered by any person having or asserting an interest in the estate of the deceased person. It is a caution entered in the registery of the Court, to the effect that probate or letters of administration should not be granted without notice to the person who enters it. It may be filed before or after the application for a grant of probate. It should be in the from prescribed in Sch. V to the Act. The form is very simple and it is as follows: "form of Caveat. Let nothing be done in the matter of the estate of A. B. , late of deceased, who died on the day of at without notice to C. D. of. " this gives us an indication that a caveat is nothing but a warning. P. B. Mukharji, J. , in the Goods of Nanda Lal Sett, AIR. 1960 Cal 88, has stated at page 89, as follows :"a Caveat is simply a warning given by a Iperson having or asserting an interest in the estate of the deceased against the Court, issuing any probate without notice to the caveator. It is essential to observe here that a caveat is not a notice to any particular person but is a notice to the Court not to allow proceedings to be taken in the matter of the will of the deceased without notice to the caveator. It does not commence litigation nor does it institute proceedings. The whole object of the caveat is to prevent the issue of any grant without notice to the caveator. It does not commence litigation nor does it institute proceedings. The whole object of the caveat is to prevent the issue of any grant without notice to the caveator. The main purposes for which a caveat is entered are to give time to the caveator to make enquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant or to give him an opportunity of raising any question arising in respect of the grant of probate or to enable the caveator to apply for an order that the sureties of the administration bond shall justify or as a step preliminary to an action or to the issuing of citation. "in Florence Chelliah v. Sundararaj Peter, (1966) 2 Mad. L. J. 33, Veeraswami J. has observed:"once a caveat is entered no further proceedings shall be taken in the application for probate untijl after notice to the caveator. Though the Act does not define the term 'caveat', from the Form in the 5th Schedule it is clear that it serves as a warning that nothing should be done in the application for probate until notice goes out to the person named or indicated. The Concise Oxford Dictionary gives the meaning of the work 'caveat' as process to suspend proceeding, warning. In Latin it means let him beware as in the case of caveat emptor, that is to say, let the buyer see to it. Caveat in probate proceedings is nothing more than a warning that the application is likely to become contentious and will have to be tried as a suit. " ( 10 ) FROM the above decisions, it is clear that there cannot be an entering of a caveat by any party against the revocation of a probate, and, therefore, the application for revocation of probate or letters of administration, cannot be registered as a suit. There is nothing in the Succession act or the Rules made by this Court, to lend support to the contention of Sri G. B. Kulkarni. ( 11 ) S. 263 of the Succession Act provides for the revocation of a probate or letters of administration for what is called 'just cause'. The said section enumerates what those just causes are. There is nothing in the Succession act or the Rules made by this Court, to lend support to the contention of Sri G. B. Kulkarni. ( 11 ) S. 263 of the Succession Act provides for the revocation of a probate or letters of administration for what is called 'just cause'. The said section enumerates what those just causes are. When such an application is made, the Court has only to see whether the applicant has made out a cause for revocation, and not to embark upon an enquiry about the genuineness of the will. The execution or the genuineness of the will be enquired into only after the revocation of the probate. In my view, the proceedings instituted for revocation of probate cannot be in the form of a regular suit. It is a miscellaneous proceeding. The provisions of the succession Act, in particular, Sec. 295, lend support to my conclusion. In proceedings for the grant of probate or letters of administration, when there is contention, the proceedings shall take the form of a regular suit in which the petitioner for probate or administration shall be the plaintiff and the person who opposes the grant shall be the defendant. That a person who wants revocation of probate is one who opposes the probate and such a person cannot take the place of a plaintiff in a suit. The same was the view taken by the Calcutta High Court in Pratapchandra Shaha v. Kali Bhanjan Shahu, 4 CWN. 666, while dealing with the scope of S. 83 of the probate and Administration Act (V of 1881 ). ( 12 ) FOR the reasons stated above, I hold that the court fee paid by the petitoner on her application for revocation of probate is adequate and she need not pay as provided by the proviso to sub-clause (2) of Art. 11 (1), (ii) of the Mysore Court-fee and Suits Valuation Act, 1958. ( 13 ) IN the result, the revision petition is allowed; the order under revision is set aside. The District Judge is directed to register the application of the petitioner as a miscellaneous case and dispose of the same in accordance with law. ( 14 ) UNDER the circumstances of the case, I make no order as to costs. --- *** --- .