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1999 DIGILAW 280 (KER)

Paul v. Susan

1999-07-06

G.SASIDHARAN, P.K.BALASUBRAMANYAN

body1999
Judgment :- P.K. Balasubramanyan, J. An application for probate under S.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 S.295 read with R.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 S.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 S.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 (2) KLT 527 =1999 (1) KLJ 756) 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 Sch. II Art.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 Sch. I Art.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, S.299 of the Indian Succession Act providing for appeals against decisions of District Court in such an application did not apply and since the appeal was only one under S.5 of the High Court Act, court fee was payable only under Sch. II Art.3(iii) (A) of the Court Fees Act. II Art.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 S.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 Dlmr (AIR 1960 All 692 (FB) and R.C, Powell v. Administrator General (AIR 1967 All. 231). 4. Then the question is, what is the court fee payable on such an appeal? The Appellant has invoked Sch. II Art.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 Art.3 of Sch. II of the Court Fees Act was considered by a Division Bench of this Court in Chacko v. Catholic Bank of India Ltd. (1963 KLT 1068). In this case the appeal was under S.45 N of the Banking Companies Act against an order under S.45D(4) of that Act. There was a specific provision in Sch. II Art.3(iii) (A)(3) providing for payment of Rs. 100 where the appeal is under S.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 S.45N of the the Banking Companies Act and not under S.45B of the Banking Companies Act, Sch. II Art.3(iii)(A)(3) could not be applied and since that could not be applied, court fee was payable under Sch. II Art.3(iii)(A) (2) (c) of the Court Fees Act. II Art.3(iii)(A)(3) could not be applied and since that could not be applied, court fee was payable under Sch. II Art.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 S.5 of the High Court Act and S.45N of the Banking Companies Act, had to bear court fee under Art.3(iii)(A)(2)(c) of Sch. II of the Act. In re Seethalakshmi & Ors (1980 KLT 560) a Division Bench held that Art.4 of Sch. I applied only in a case where Sch. I Art.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 Art.3(iii)(A)(1)(n) of Sch. II of the Court Fees Act was alone called for. The correctness of this decision was doubted by a Full Bench in Kurian v. Ayyappan (1982 KLT 434). 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 advalorem, it did not follow that Art.1 Sch. I could not apply to an appeal from that order despite the specific provision in Art.4 of Sch. I of the Court Fees Act. The Full Bench held that S.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 Art.4 of Sch. 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 Art.4 of Sch. I of the Act. 5. It is clear from Art.3 of Sch. 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. Art.4 of Sch. I of the Court Fees Act is a specific provision dealing with appeals against orders passed under the Indian Succession Act. 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. Art.4 of Sch. 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 S.5 of the High Court Act, since the appeal is against an order passed in the proceeding initiated under S.276 of the Indian Succession Act, court fee has to be paid in terms of Art.4 of Sch. 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 Sch. II Art.3 includes a judgment do not appear to be very relevant. Art.3 of Sch. II could be applied only in the absence of any other provision in the Court Fees Act. In view of the presence of Art.4 of Sch. I in the Court Fees Act, the application of Art.3 of Sch. II of the Court Fees Act stands excluded. We therefore, hold that the appellant is bound to pay court fee under Art.4 of Sch. I of the 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 Art.4 of Sch. I of the Court Fees Act.