ORDER
Venkatachala, J.
1. Court fee liable to be paid in this appeal by the appellants, arises for our decision.
2. The appellants here had filed a petition, P & SC No. 1/1984, in the Court of District Judge at Hassan ('the District Court'), impleading the respondent here as the respondent therein. That was a petition for grant of probate or letters of administration with the Will annexed purporting to have been filed under Section 213 of the Indian Succession Act, 1925 ('the Act'), while it has to be regarded as a petition filed under Section 276 of the Act. The respondent in that petition contested the grant of prayer therein by filing his statement of objections thereto. Because of the contest (contention), the District Court treated the petition as a contentions case and decided it conforming to the requirement of Section 295 of the Act, which reads:
'295. Procedure in contentious cases -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.'
The decision (order) dated 18th April 1987 so rendered by the District Court was appealed against by the petitioners in that petition, in the present appeal under Section 299 of the Act before this Court. The petitioner as appellants in this appeal paid on the memorandum of appeal a Court fee of Rs. 25/- purporting to be under Article 11(I) of Schedule it to the Karnataka Court Fees and Suits Valuation Act, 1958 ('the Court Fees Act').
3. On the scrutiny of the memorandum of appeal and the associated papers, the Registry of this Court found that the appellants are liable to pay in this appeal deficit Court fee payable by them on two counts - (1) deficient Court fee to make good the Court fee payable on the memorandum of appeal, under Article 4 of Schedule I to the Court Fees Act; and (2) deficient Court fee to make good the Court fee, which was liable to be paid by them on their petition in the District Court, under the proviso to Article 11(I) of Schedule II to the Court Fees Act, when that petition, became contentious As the liability of the appellants to pay deficient Court fee, as found by the Registry of this Court, is disputed on behalf of the appellants, two questions which arise for our decision, are:
(1) Whether the appellants are liable to pay Court fee under Article 4 of Schedule I to the Court Fees Act, on their memorandum of appeal filed under Section 299 of the Act against the order made by the District Court under the Act?
(2) Whether the appellants, who were the petitioners in their petition under the Act for grant of probate or letters of administration with the will annexed filed before the District Court, did become liable to pay Court fee on that petition, under the proviso to Article 11(1) of Schedule II to the Court Fees Act when that petition became contentious? If so, could the appellants be directed by this Court to make good such Court fee?
Re. Question (1):
The memorandum of the present appeal is directed against an order made by the District Court in a proceeding taken before it under the Act, cannot be disputed and it is rightly not disputed. Article 4 of Schedule I to the Court Fees Act specifies the Court fee payable on such memorandum of appeal. It reads:
Schedule 1
Article
Particulars
Proper fee
4
Memorandum ofappeal against order in proceeding under the Indian Succession Act, 1925.
An amount ofone-half of the scale of fee prescribed for under Article I on the amount orvalue of the subject matter.
From a perusal of the above Article, it becomes obvious that an amount of one-half of the scale of fee on the amount of value of the subject matter is liable to be paid on a memorandum of appeal directed against an order in proceedings under the Act. Since the order, which is appealed against under Section 299 of the Act, is admittedly an order made in a proceeding under the Act, the Court fee liable to be paid on the memorandum of appeal under Article 4 has to be necessarily paid. Indeed, the question relating to the liability of an appellant to pay Court fee on a memorandum of appeal against an order in a proceeding under the Act, having come up for consideration before a Division Bench of this Court in KRISHNASWAMY v. VEERANNASHETTY, 1964(1) Mys.L.J. 248 it is ruled that on a memorandum of appeal against the order in a proceeding under the Act, the fee leviable on the memorandum of appeal under Article 4 of Schedule I to the Court Fees Act, shall be paid by such appellant. Hence, our answer to Question (1) is in the affirmative and we hold that the appellants are liable to pay on the memorandum of the present appeal, Court fee payable under Article. 4 of Schedule I to the Court Fees Act, less the Court fee already paid thereon.
Re. Question (2):
It is not in dispute that the appellants' petition under Section 276 of the Act before the District Court for grant of probate or letters of administration with the Will annexed, became contentious and that Court decided the petition conforming to the requirement of Section 295 of the Act. Now, the point, which arises for decision, is whether the petitioners (appellants) did become liable to pay Court fee on that petition as required under the proviso to Article 11(I) of Schedule II to the Court Fees Act, when that petition became contentious, but not registered as a suit. As this point has to be decided upon, with reference to the material portion of the Article in the Court Fees Act, the same is extracted.
Article
Particulars
Proper fee
11(1)
(i)
Application for probate or letters of administration or forrevocation thereof to have effect throughout India.. Twenty-five rupees
(ii)
Application for probate or letters of administration or forrevocation thereof not falling under clause (i) or an application for acertificate under part X of the Indian Succession Act, 1925, or BombayRegulation VIII of 1927 -
(1)
If the amount or value of the estate does not exceed Rs. 2,000.. Five rupees
(2)
If the value exceeds Rs. 2,000 but does not exceed Rs. 10,000.. Ten rupees
(3)
If the amount or value exceeds ten thousand rupees.. Twenty rupees
Provided that if a caveat is entered and the application isregistered as a suit, one half the scale of the fee prescribed in Article Iof Schedule I on the market value of the estate less the fee already paid onthe application shall be levied.
(Emphasissupplied)
4. The argument for the appellants was that though the petition for grant of probate or letters of administration with the Will annexed, was treated by the District Court as a contentious case and decided upon conforming to the requirement of Section 295 of the Act, Court fee was not liable to be paid thereon as required under the proviso above, since the requirement relating to the registration of the petition (application) as a suit contemplated therein, had not been done. We find no merit in this argument for the reasons which we shall presently state.
5. As seen from the provision in Section 295 of the Act, when once a petition for grant of probate or letters of administration is contested, that petition automatically takes the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908 ('the Code'), in which the petitioners for probate or letters of administration, as the case may be, shall be the plaintiff and the person who appeared to oppose the grant, shall be the defendant. Then, if the proviso to Article 11(I) of Schedule II above is seen, the fee prescribed therein becomes payable on the application (petition for grant of probate or letters of administration) because of a caveat being entered therein, i.e., when the application becomes a contentious case. The reference in the proviso to the application being registered as a suit, having regard to the context in which such reference is made, in our view, has to be regarded as referring to the situation when the application takes the form of a regular suit as provided for under Section 295 of the Act and not to the actual registration of the application as a suit - a mere formality. Hence, the petitioners did become liable to pay the Court fee on the petition (application for grant of probate or letters of administration) as required under the proviso to Article 11(I) of Schedule II to the Court Fees Act, when that petition became contentious even though that petition is not registered as a suit as such.
6. The next point is whether this Court, as an Appellate Court, could direct the appellants to make good the Court fee, which they were liable to pay according to the proviso to Article 11(I) of Schedule II to the Court Fees Act and which, we have held, they are liable to pay. Section 11(4) of the Court Fees Act since enables this Court as an Appellate Court to direct the appellants to make good the Court fee which they were liableto pay in the District Court, but have not paid, we direct the appellants to make good the Court fee which they were liable to pay under the proviso to Article 11(I) of Schedule II to the Court Fees Act, but not paid. Thus, our answer to Question (2) is in the affirmative.
7. In the result, we direct the appellants to make good the deficient Court fee payable by them on the memorandum of the present appeal payable under Article 4 of Schedule I to the Court Fees Act, less the Court fee, if any, paid thereon and also the Court fee payable by them on the petition in the District Court, under the proviso to Article 11(I) of Schedule II to the Court Fees Act, less the Court fee, if any, paid thereon, within eight weeks from today. The Court fee so liable to be made good by the appellants shall be made good by them by filing in the Registry of this Court a proper memo of valuation indicating therein as to what is the value of the subject matter of the appeal as well as the petition in the District Court and other details.