Judgment :- 1. This is a petition under S.276 of the Indian Succession Act for the issuance of a Probate in regard to the estate of late Sri Mathew J. Kollam-parambil on the strength of a registered Will said to have been executed by him. Some of the persons interested in the matter have entered caveat and the petition has been directed to be numbered and treated as suit. A question has now arisen regarding the court-fee payable on the petition. It is pointed out by one of the parties that under the proviso appearing under Art.11 (k) of Schedule II of the Kerala Court Fees and Suits Valuation Act. 1959 (for short the 'Act') court fee has to be paid on the basis of one half of he scale of fee prescribed under Art.1 of Schedule I on the market value of the estate less the fee already paid on the application in a case where it is registered as a suit on the basis of a caveat. According to the learned counsel for the petitioner, the proviso will not govern the present case and therefore the fee prescribed by the proviso need not be paid in the instant case. This case arises under clause (i) of Art.11 (k). 2. We are considering the question of court fee not on the probate as such, but on the application for probate under Art.11 (k) of Schedule II of the Act. Art.11 (k) prescribes court-fees in regard to applications falling in two different categories. Sub-clause (i) prescribes court-fee of Rs. 25/-on application for probate or letters of administration to have effect throughout India. Clause (ii) prescribes the court-fee for application for probate or letters of administration not falling under clause (i). The court fee is 75 paise if the value of the estate does not exceed Rs. 1,000/- and Rs. 5/- if the value of the estate exceeds Rs. 1,000/-. The proviso prescribing one half of the ad valorem fee of the market value of the estate less the fee already paid occurs below clause (ii) of Art.11 (k) of the Act. 3. There does not appear to be any difference between the two clauses, in so far as the conditions necessary for the applicability of the proviso are concerned. Both the clauses deal with applications for probate or fetters of administration. 3. There does not appear to be any difference between the two clauses, in so far as the conditions necessary for the applicability of the proviso are concerned. Both the clauses deal with applications for probate or fetters of administration. Clause (i) applies to cases where the probate or letter of administration are to have effect throughout India and clause (ii) deals with other cases There does not appear to be any reason or ground to believe that the Legislature intended payment of ad valorem court-fee (as suggested in the proviso) only in cases covered by clause (ii) and not cases covered by clause (i) of Art.11 (k) of Schedule II of the Act. Prima facie it appears that the proviso is intended to govern both clauses (i) and (ii) I am unable to find anything particular in the applications contemplated by clause (i) which would have persuaded the Legislature to come to the conclusion that ad valorem court-fee need not be paid in those cases. 4. The only difference is that clause (i) relates to cases where the estate is situated in more States than one. while clause (ii) will take in cases where the estate is situated only in one State. Almost all the States in India have now their own local laws regarding payment of court-fee. The learned counsel for the petitioner pointed put that similar provision as in the Kerala Act finds a place in the Acts applicable in the States of Karnataka, Tamil Nadu, Andhra Pradesh, and Rajasthan, while in some other States the pattern of the Indian Court-fees Act is followed and in the latter cases ad valorem court-fee is not prescribed in any case at all. It is true that where an option is given to a party to move a probate petition in any one of two or more States, it is open to him to choose the State in which he is to so move. It may be that in such contingency, the petitioner may choose that State where his liability to pay court-fee is less. But, that will not have any bearing on the interpretation of the proviso occurring in Art.11 (k) of Schedule II of the Act. I fail to see how it is relevant to any extent at all. 5. It may be that in such contingency, the petitioner may choose that State where his liability to pay court-fee is less. But, that will not have any bearing on the interpretation of the proviso occurring in Art.11 (k) of Schedule II of the Act. I fail to see how it is relevant to any extent at all. 5. Merely because the proviso occurs below clause (ii), it cannot be said that it is intended to apply only to clause (ii) and not to clause (i). Even if the intention of the Legislature was that the proviso should apply to both the clauses, the logical place where the proviso should occur is below clause (ii) and not below clause (i) As already pointed out, there is nothing in the proviso itself which would indicate that it is intended to relate only to clause (ii) and not to clause (i). Since application is registered as a suit on a caveat the proviso applies. 6. The learned counsel for the petitioner sought to place reliance on the decision reported in In the Goods of, Ernest Raymond Yakchee, late of Gorakhpur (AIR, 1956 Allahabad 152). That case related to a non-contentious probate proceeding. The estate consisted of certain amounts left in Bank deposits The executor moved for the issue of probate on the will of the testator. He had no money to pay the court-fee and prayed that an arrangement may be made to release the funds in the Bank towards the court-fee payable. The court accepted this request and made the necessary arrangements. A reading of this decision does not show that a caveat was entered in that case. On the other hand it would show that it was a non-contentious proceeding. In such a case there can be no difficulty for the court to direct that a part of the assets could be utilised for payment of the court fee But, the present case is a contentious case There is a serious dispute between the parties regarding the genuineness of the will. Certain heirs of the deceased, who would have inherited a part of the estate of the deceased have been disinherited under the will and they are challenging the validity of the will. Certain heirs of the deceased, who would have inherited a part of the estate of the deceased have been disinherited under the will and they are challenging the validity of the will. It the will is upheld and the probate is issued, there will be no difficulty in making an adjustment of monies in case they are to be adjusted towards court-fee. But at this stage, the court cannot proceed on the basis that a probate will necessarily have to be issued in this case. It may be that ultimately a probate may not be issued. If that be so, any directional present, as sought for by the learned counsel for the petitioner, whereunder a part of the money belonging to the estate of the deceased is to be utilised for payment of court fee would create complications. I am, therefore, unable to agree to the suggestion made on behalf of the petitioner to make some arrangement out of the funds belonging to the estate of the deceased for payment of the court-fee. 7. I hold that the petitioner in this case has to pay court-fee on the application as mentioned in the proviso to Art.11 (k) of Schedule II of the Act. The petitioner shall pay court fee within two months from to-day.