M.N. Jayalakshmi vs Nil

Venkatachala, J.—This is an appeal preferred, against an order made by the Court of first instance in a proceeding, u/s 389 of the Indian Succession Act, 1925 (for short ''the Succession Act''). A Court fee of Rs. 20/-was paid on the Memorandum of Appeal as was paid in the proceeding of the Court of first instance. Since the Registry of this Court directed the appellant to pay Court fee on the Memorandum of Appeal as required under Article 4 of Schedule 1 to the Karnataka Court Fees and Suits Valuation Act, 1953 (for short ''the Court Fees Act''), the appellant has got the matter listed before Court for orders. Need to decide upon the question of the exact Court fee payable on the Memorandum of this appeal has thus arisen.

Article 4 of Schedule I to the Court Fees Act, relying upon which the Registry of this Court has directed the appellant to make good the deficit Court fee payable on this Memorandum of Appeal, reads:

Article

Particulars

Proper Fee

Memorandum of appeal against order in proceedings under the Indian Succession Act, 1925.

An amount of one-half of the scale of fee prescribed in Article 1 on the amount or value of the subject matter.

Section 49 of the Court Fees Act and Article 11(1)(ii)(3) of Schedule II thereto, relied upon by the appellant in support of his stand that the Court fee payable on the Memorandum of this appeal is what was paid in the proceeding before the Court of first instance, in so far as they are material, read thus:

"Section 49:

"49. Appeals - Save as provided in Section 48, the fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal.

Article 11(1)(ii)(3) of Schedule II: (1)(i) ... ... ...

(ii) ...... or an application for a certificate under Part X of the Indian Succession Act, 1925 or Bombay Regulation VIII of 1927-

(1) and (2) ... ... ...

(3) If the amount or value exceeds ten thousand rupees ... Twenty Rupees"

If the Memorandum in this appeal was a document of the description in Section 49 of the Court Fees Act and not a document of the description in any other provision of the Court Fees Act, the Court fee chargeable thereon would have been what was chargeable in the Court of first instance on the subject matter of the appeal, to wit, Court fee chargeable under Article 11(1)(ii)(3) of Schedule II to the Court Fees Act. But, the Memorandum of this appeal since answers special description of document in Article 4 of Schedule I above, as well as general description of documents in Section 49 above, Court fee chargeable thereon has to be determined according to Section 9 of the Court Fees Act, which reads:

"9. Documents falling under two or more descriptions: -- Subject to the provisions of the last preceding Section, a document falling within two or more descriptions in this Act shall, where the fees chargeable thereunder are different, be chargeable only with the highest of such fees:

Provided that, where one of such descriptions is special and another general, the fee chargeable shall be the fee appropriate to the special description."

The Memorandum of Appeal in the instant case if has to be charged with Court fee as required u/s 9 above, it has to be charged with fee chargeable under Article 4 of Schedule I to the Court Fees Act, firstly because it is the highest fee chargeable as compared to fee chargeable under Article 11(1)(ii)(3) of Schedule II read with Section 49 of the Court Fees Act and secondly because it answers the special description of the document in Article 4 of Schedule I and not merely general description of document in Section 49 read with Article 11(1)(ii)(3) of Schedule II to the Court Fees Act.

We, therefore, hold that the present Memorandum of appeal is chargeable with Court fee as required by Article 4 of Schedule I to the Court Fees Act.