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2009 DIGILAW 609 (KER)

Ammalukutty Amma v. Damodaran

2009-07-08

K.M.JOSEPH, M.L.JOSEPH FRANCIS

body2009
Judgment :- M.L. Joseph Francis, J. Heard the learned counsel for the appellants. 2. The rate and quantum of Court Fee payable in an appeal under S.384 of the Indian Succession Act, 1925 (for short the Act') is the subject matter of this order. 3. The above unnumbered M.F.A. is filed by the petitioners in S.O.P. No. 13 of 2006 on the file of the Sub Court, Palakkad. That is a petition filed under S.372 of the Indian Succession Act, for the issuance of succession certificate. An appeal lies under S.384 of the Act from an order under S.372 of that Act. The taxing officer of this Court made a note that the court fee for the appeal should be paid as provided under Art.4 Sch.I of Kerala Court Fees and Suits Valuation Act. 4. According to the appellants, they need pay court fee only under Art.3 of Sch.II. The question for consideration is whether the appeal is to be taxed under Art.4, Schedule I or under any other provision. 5. In the decision reported in Re Seethalakshmi & Ors. (1980 KLT 560) it was held: "S.295 of the Succession Act provides the procedure for contentious cases. That reads as follows: 295. In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Thus it will be seen that contested probate proceedings are really in the nature of suits and are taxed at one half of the scale of fee prescribed in Art. 1 on the amount or value of the estate. An order in such proceedings is the one referred to in Art.4 Sch.I. The court fee is sensibly the same for the application and an appeal in such cases. It follows that Art. 4 of Sch.I relates to such appeals only and not to appeals of the kind we have in hand. To this appeal a fee of only Rs.5/-under Art.3(iii)(A)(1)(a) of Sch.2 is the correct court fee. But the appellant has paid Rs. 10/-as court fee, that is more than sufficient for the appeal. It follows that Art. 4 of Sch.I relates to such appeals only and not to appeals of the kind we have in hand. To this appeal a fee of only Rs.5/-under Art.3(iii)(A)(1)(a) of Sch.2 is the correct court fee. But the appellant has paid Rs. 10/-as court fee, that is more than sufficient for the appeal. Therefore we hold that the court fee paid is sufficient." 6. In the decision reported in Kurian v. Ayyappan 1982 KLT 434 (F.B.) the correctness of this decision was doubted. It was not overruled. In that decision, the appeal was filed under S.299 of the Act against an order under S.278 of the Act for letters of administration in which the proceedings were contentious. 7. In the decision reported in Ittoop v. Mathunni (1983 KLT 1097 (F.B.), the decision in Re Seethalakshmy (supra) was distinguished stating that in that case an application for the grant of a succession certificate was dismissed on the ground that the security furnished was insufficient and that the application was not a contentious one. In Ittoop (supra), the appeal was filed under S.299 of the Act, against the order under S.276 of the Act, which was a petition for probate. The contested probate proceedings are really in the nature of suit and taxed at one-half of scale of fee prescribed in Art. 1 on the amount or value of the estate. An order in such proceedings is the one referred to in Art.4 Sch.I of the Court Fees Act. 8. It follows that Art.4 of Sch. I relates to such appeals only and not to appeals of the kind which we are dealing with. S.373(3) of the Succession Act provides that in proceedings for grant of succession certificate if the District Judge cannot decide the right to the certificate without determining the question of law or fact which seems to be too intricate and difficult for determination in summary proceedings, he may neverthless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. In proceedings for grant of succession certificate there is no contentious procedure as in the case of grant of Probate or letter of administration as provided under S.295 of the Succession Act. To this appeal, Court fee of Rs.25/-is payable under Sch.11, Art.3(iii)(A)(1)(a) of the Court Fees Act. In proceedings for grant of succession certificate there is no contentious procedure as in the case of grant of Probate or letter of administration as provided under S.295 of the Succession Act. To this appeal, Court fee of Rs.25/-is payable under Sch.11, Art.3(iii)(A)(1)(a) of the Court Fees Act. The appellants have remitted the court fee of Rs.25/-, which is sufficient for this appeal. Therefore, we are of the view that the court fee paid on the appeal memorandum is sufficient. The office will number the appeal and proceed in accordance with law.