Philo Peter and Another vs Divyanathan and Others

Sivasubramaniam, J.—These two civil revision petitions are coming before us on a reference being made by one of us, namely, Sathiadev,

J., to decide the question as to whether court-fees is payable on one half of the value of the properties, on an application filed under Sections 276

and 222 of the Indian Succession Act for grant of probate regarding a Will when the matter becomes contentious.

The petitioner in C.R.P. No. 1878 of 1987 filed the petition in O.P. No. 5 of 1985 on the file of the learned Principal District Judge,

Tiruchirappalli under Sections 276 and 222 of the Indian Succession Act praying for the grant of probate of the Will of the deceased Ignatious

dated 22.7.1981. Similarly, the petitioner in C.R.P. No. 2052 of 1987 filed the petition in O.P. No. 323 of 1983 praying for the grant of Letters of

Administration in respect of the estate of the deceased T. Arokiaswami Odayar with his Will dated 22.11.1982. In both these petitions, the

respondents contested and, therefore, the matter became contentious before the learned District Judge. The question arose whether court-fees is

payable under Article 11(k) of the Court-Fees Act treating the petitions as suits. It was contended by the petitioners that in spite of the fact that the

matter has become contentious, there is no necessity to register the petitions as suits, but only the procedure as laid down for trial of a suit has to

be followed and that the petitions should remain in the same form in which they have chosen to file the same in Court. However, the learned Judge,

following the decision of K. Veeraswami, J., as he then was in Flarence Chelliah Vs. Soundararaj Peter and Others, and another ruling of

Sengottuvelan, J., in Kanni R. Krishna Iyer v. K.L. Krishnamachari 98 L.W. 80 came to the conclusion that the petitions have to be registered as

suits and consequently he directed the petitioners to pay necessary court-fees under the Madras Court-Fees Act treating the petitions as suits.

Therefore, the petitioners preferred the above two civil revision petitions which came up for orders before one of us, namely Sathiadev, J. Before

my learned brother, Sathiadev, J., it was argued that Paul, J., has taken a different view in R. Natarajan v. N. Parthasarathy and Ors., T.O.S. No.

8 of 1972 dated 6.2.1973 holding that since no caveat had been entered, AD VALOREM Court-fee on one half of the market value of the estate

is not payable. It was found to be contrary to the decision of K. Veeraswami, J., as he then was, in Flarence Chelliah Vs. Soundararaj Peter and

Others, , who had taken a view that whether caveat has been filed or not where an application for probate becomes contentious and is tried as a

suit, it should be assumed for the purpose of the proviso that a caveat is impliedly entered. Finding that there is an apparent conflict between these

decisions, the present reference was made to solve the said conflict. That is how the matter comes before us.

Before considering the legal position emerging out of the above said decisions, it is necessary to take notice of the relevant provisions in the

Indian Succession Act (1925), Section 226 of the Act provides that the District Judge shall have, in relation to the granting of Probate and Letters

of Administration, all the powers and authority as are vested in him in relation to any civil suit. Section 288 lays down that the proceedings of the

Court of the District Judge shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Civil Procedure

Code. A proceeding for probate is initiated by the presentation of an application in that behalf. What are the matters which should be mentioned in

such an application, is provided in Section 276. Similarly, a proceeding for Letters of Administration is initiated by an application as provided in

Section 278. Section 295, which is the important section to be considered in these proceedings reads as follows:

If 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 (5 of 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.

Section 299 provides for an appeal against every order made by the District Judge.

4, Before construing the scope of Section 295 of the Indian Succession Act, it Is better to refer Order 25 of the Rules of the Original Side of the

High Court, Madras of 1956. It relates to the Testamentary and Intestate matters and prescribes a procedure for granting Probate or Letters of

Administration or succession certificate. It contains separate provisions for contentious and non-contentious matters, relating to Wills. A Will may

be proved either in common form or in solemn form. In a case where the petitioner wants to prove the Will in common form, it is enough if he files

the Will along with the affidavit of attesting witness. There is a provision for issuing public notice and also notice to the interested parties. In such

cases, anybody intending to oppose the issue of Probate or Letters of Administration, may enter caveat under Rule 51 of Order 25 of the Original

Side Rules and file an affidavit in support of the caveat under Rule 52 within eight days of entering the caveat stating the grounds of objection to the

grant of Probate or Letters of Administration. On such contest being made, the proceeding, which was originated by the original petition, is

converted into T.O.S. In such a case, the plaintiff is bound to pay the required court-fee as provided in Article 11 (k) of Schedule II of the Tamil

Nadu Court-Fees and Suits Valuation Act, 1955. Therefore, here, we find that there is a definite procedure prescribed for converting the petition

into a regular suit, in which case the liability for payment of court-fee is automatically attracted.

A difficulty was felt in construing the real scope of Section 295 of the Indian Succession Act. There is no difficulty, as long as the Petition is not

opposed by anybody. But when somebody files a caveat and opposes the grant of Probate or Letters of Administration, the question arose

whether it should be treated as a suit and payment of court-fee can be insisted on that basis. Two contentions were raised in such matters. One

was whether the proceeding can be treated as a suit when it is not opposed by means of a caveat filed by the opposing parties even though such

opposing parties are respondents in the petition. In considering this petition, Paul, J. in R. Natarajan v. N. Parthasarathy and Ors., T.O.S. No. 8 of

1972, dated 6.2.1973 held as follows:

In this case the petitioner himself chooses to prove the Will in solemn form so that ail interested persons may come in, watch and participate in the

proceedings when he can as well apply for probate on proving the will in common form to avoid contest. If the Proviso to Clause (2) is extended

to cases where a petitioner applying for Probate or Letters of Administration with a Will annexed wants to prove the Will in the solemn form, it

would encourage such persons to apply for probate on proving the Will in the common form and avoid any contest in order to avoid payment of

AD VALOREM court-fee. It is perhaps this aspect that has led to no provision being made for payment of AD VALOREM court-fee, in cases

coming under Rule 58 of Order 25 of the Original Side Rules. In these circumstances, I am of the opinion that the petitioner need not pay AD

VALOREM court-fee under the Proviso to Sub-clause (2) of Article 11(k)(ii) of Schedule II of the Court Fees and Suits Valuation Act.

In Flarence Chelliah Vs. Soundararaj Peter and Others, , Veeraswami, J., as he then was, had to consider a similar position. In that case, the

petitioner herself had impleaded certain persons as respondents who are likely to oppose the petitioner in the original petition. The learned Judge

directed the petition to be registered as a suit. Regarding the payment of court-fee on AD VALORAM basis, the learned Judge held as follows:

But the question is whether for the purpose of the Proviso to Article 11(k) of the Court Fees and Suits Valuation Act, there should be a formal

entry of caveat in order to attract the proviso, for, there is contention and the application is, therefore, to be tried as a suit. Merely because there is

no formal entry of caveat, it does not appear that the proviso is nonetheless applicable. It is true Article 18 of Schedule II prescribes a separate

court-fee of Rs. 10 on caveat. But merely because a caveat does not bear stamp, it cannot be said that it is not a caveat, any more than a plaint

which bears less than the required court-fee ceases to be a plaint on that account. Where an application for probate becomes contentious and is

tried as a suit, it should be assumed for the purpose of the proviso that a caveat is impliedly entered.

This decision was followed by Sengottuvelan, J., in KANNI R. KRISHNA IYER v. K.L. KRISHNAMACHARI 98 L.W. 80. The learned

Judge, after considering the other decisions, came to the following conclusion.

A reading of Schedule II, Article 11(k) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 clearly shows that in case of Wills not

disputed a fixed court-fee is made payable and where the Wills are disputed and the matter becomes contentious, a court-fee of one-half of the

AD VALOREM value is made payable in view of the procedure for such matters as laid down by the Original Side Rules, 1956, by which if an

objection is taken by means of a caveat an enhanced court-fee is made payable. It is also seen that the enhanced Court-fee is made payable ""if a

caveat is entered and the application is registered as a suit. In cases where the contesting respondents were already made parties, the original

petition is registered as a suit straightaway as per Order 25, Rule 58 of the Original Side Rules, 1956. Perhaps if the respondents cited in the

original petition do not enter contest, the petitioner may contend that in view of the fact that there is no contest no enhanced court-fee is payable.

But whenever there is contest, whether a caveat is entered or not, according to the provisions of the Tamil Nadu Court-Fees and Suits Valuation

Act, 1955 enhanced court-fee is payable.

It must be borne in mind that the decisions of Paul, J., and Sengottuvelan, J., relate to the proceedings before the Original Side of this Court and

Whereas the case decided by Veeraswami, J., as he then was, arose out of the proceedings before the District Judge. In so far as the proceedings

relating to Testamentary and Intestate matters covered under Order 25 of the Original Side Rules are concerned, we have already seen that there

are specific provisions providing for registering a petition as a suit as and when the application is resisted by means of a caveat. In such a case, the

payment of court-fee is automatically payable under the Court-Fees Act as it stands. We are not concerned with such matters in this case as the

validity of such a procedure is not being challenged before us. Therefore, we confine ourselves to the short question relating to the original petitions

filed before a District Judge u/s 295 of the Indian Succession Act only. Viewing from this angle, there cannot be a real conflict between these

decisions. But however, Sengottuvelan, J., has chosen to differ from the view expressed by Veeraswami, J., as he then was, in so far as the

payment of court-fee is concerned, as it has become necessary to resolve this apparent conflict. It is significant to note that the points now raised

before us to the effect that when there is no provision for registering a petition as a suit by the District Judge in the Indian Succession Act and as

long as the petition is not registered as a suit, no Court fee is payable on AD VALOREM basis, have not been taken in the earlier decisions.

Mr. R. Arunagirinathan and Miss. M.B. Dominique learned Counsels appearing for the petitioners in these Revision Petitions contended that

there is absolutely no provision in the Indian Succession Act to convert the original petition as a suit whenever a caveat is entered by the opposing

party. According to them, what is provided u/s 295 of the Indian Succession Act is the procedure to be followed when the proceedings become

contested. The use of the words ""as nearly as may be"" in the said section itself indicates that the proceeding in question was not considered to be

exactly the same as, a suit. It was further contended that even if such an extreme interpretation could be given, the proceeding cannot be treated as

a suit in the absence of a Caveat being filed by the opposing party. Learned Counsels submitted that the Court-Fees Act being a taxing statute, it

has to be strictly construed as it has always been held that liberal construction in favour of the litigant has to be adopted. Learned Counsels have

relied on the decisions reported in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros and Others, and Balai Lall Banerjee and Others Vs. Debaki

Kumar Ganguly and Others, . The other decisions may not be relevant for the purpose of this case.

Per contra, Mr. R. Srinivasan, who is appearing for the respondents in C.R.P. No. 2052 of 1987 and Mr. T.N. Vallinayagam, learned

Government Pleader, submitted that the language of Section 295- of the Indian Succession Act is clear and mandatory that a petition filed for grant

of Probate or Letters of Administration should be treated as a suit as soon as it is opposed by a contesting party either by filing a caveat or

otherwise. The words found in Section 295 that the proceedings shall take the form of a regular suit and that the petitioner in such a case is termed

as the plaintiff and the persons, who have appeared to oppose the grant, shall be the defendants, denote that for all practical purposes the

proceeding is nothing but a suit. According to them, if that is not the intention, such positive terms would not have been used in the section. Mr. R.

Srinivasan, in support of his contentions, relied on the decisions reported in Kalyanchand Lalchand v. Sita Bai, ILR 38 Bom. 309 Ganga Bai v.

Jaikishindas, AIR 1938 Sindh 36, In Re Seethalakshmi and Ors. ILR (1980) Ker. 348 and Bai Zabu Khima Vs. Amardas Balakdas, , wherein it

was held that contentious probate proceedings must take the form of a suit and that they constitute a suit within the meaning of the Code of Civil

Procedure. Further reliance was placed on the decision in Chotalal v. Bai Kabubai ILR 22 Bom. 261, wherein it was held that since the

proceeding becomes contentious, it must be treated as a plaint in a suit and that the suit is governed as far as practicable by the procedure

prescribed in the Civil Procedure Code. It is a case relating to the original side of the Bombay High Court. Reliance was also placed on the

decision reported in Dr. Mrs. I.S. Bose Vs. Mrs. H.N. Judah, , which held that contested applications for Probate and Letters of Administration

have been classed along with first appeal for the matter of taxation. We are presently going to see that the same High Court has taken a different

view in a later decision.

Learned Government Pleader relied on the decision of this Court in Noor Mohammed v. Mohammed Kareem AIR 1938 Mad. 502, in which it

was held as follows:

Under Section 295, where there is contention, the proceeding must take the form of a regular suit according to the CPC and in such a case it is not

open to the Court to refuse to make full inquiry and to proceed to decide the matter in a summary fashion leaving his decision subject to

modification in a suit to be filed afterwards.

They have also relied upon the view expressed by Veeraswami, J. as he then was, and Sengottuvelan, J., in the above-said case in support of their

contentions. They urged that whether there is caveat or not, it matters little because what is intended under the Act is that once there is contest in

such proceedings, it should be treated as a suit. Therefore, according to them, even if there is no formal caveat, it is enough if the contesting parties

are impleaded as respondents in the petition and they raised a contention opposing the Will. We feel that the principles laid down in the said rulings

are of no help to the respondents as they have not directly considered the points that are being projected now in these proceedings. Moreover, we

are unable to agree with the reasonings expressed in those decisions.

Since the question raised before us is of some importance relating to payment of court-fee, we have to carefully analyse the various views in

this connection to find out the actual scope of Section 295 of the Indian Succession Act in so far as payment of court-fee is concerned. In order to

find out the meeting of ""suit"" found in Section 295 of the Succession Act, which came to be passed in 1925, we have to see the provisions relating

to suits in old CPC of the year 1859. Section 25 of the old CPC provided as follows:

all suits shall be commenced by a plaint which shall be presented to the Court by the plaintiff in person, or by his recognised agent or by a pleader

duly appointed to act on his behalf.

Further, Section 26 specified the particulars that are to be furnished in the plaint. Section 27 provided the manner in which the plaint was to be

signed and verified. The provisions of the old and new CPC disclose that a decree marks the culmination of a proceeding which is described as a

suit and which, according to the Code, is initiated by means of a plaint. But in so far as the proceedings under the Indian Succession Act are

concerned, they are not commenced by the institution of a plaint. But on the other hand, as Sections 278 to 281 of the said Act show, they are

commenced by an ""application"" or a ""petition"".

There is another angle from which we have to test the intention of the Legislature in prescribing the procedure as if it is a suit. Once we held

that the proceeding under the Act is not a suit, the orders passed in such a petition cannot be termed as a decree. Though the term ""decree"" was

not defined in the old CPC of 1859, it was defined in Section 2(2) of the Code of Civil Procedure, 1908 as follows:

a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard

to all or any of the matters in controversy in the suit, and may be either preliminary or final.

It is, therefore, possible to hold that the use of the term ""suit"" in the above definition indicates that a decree under the CPC could only be passed in

a proceeding which could be termed as a ""suit"". In this connection, we have to notice the provisions in Section 299 of the Indian Succession Act

relating to the filing of appeals and it reads as follows:

APPEALS FROM ORDERS OF DISTRICT JUDGE: Every order made by a District Judge by virtue of the powers hereby conferred upon

him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to

appeals.

Under the said section, every order including the order passed at the final stage granting the probate made by the District Judge shall, be subject to

appeal to the High Court. Even for the final judgment granting the probate, the word that has been used is ""order"". This provision also shows that

the proceedings, even if they had become contentious, did not become proceedings in the suit, and unless there is a suit as provided under the Civil

Procedure Code, there can be no decree, except in cases of certain orders which are expressly included in the definition of decree.

The question relating to the meaning of the words ""as nearly as may be"" used in Section 295 of the Indian Succession Act has to be

understood in the context in which it is used in the Act. A perusal of Section 295 of the Indian Succession Act, 1925, which corresponds to

Section 261 of the Indian Succession Act of 1865, itself indicates that such a proceeding is not a suit. Since the Legislature did not treat the

proceeding itself as a suit, it was found necessary in Section 295 of the Act to lay down that such proceeding should, as nearly as possible, taken

the form of a regular suit. In this connection, we have to give special meaning to the words ""as nearly as may be"" in the section. The use of the said

words itself indicates that the proceeding in question was not considered to be exactly the same as a suit. Again, we have to notice that the fact that

the section itself directs that such a proceeding shall take the form of a regular suit, indicates that in substance it is not a suit. It is evident that the

Legislature thought fit to make a distinction between a regular suit and the proceedings u/s 295 of the Act. As there is basic difference of the two

proceedings, it was found necessary to direct that one was to take the form of the other. It is also significant to note that such a direction regarding

the change of the, form is to be adopted only in cases where there is contention. Therefore, when there is no contention, the change of form

contemplated in Section 295 of the Act does not come into operation and the proceedings fully retain their initial form. These principles have been

elaborately considered by a Full Bench of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros and Others, and the

learned Judges came to the same conclusion. We are in respectful agreement with the reasonings of the learned Judges who decided the said case.

We have bestowed our anxious consideration to the meaning of the words ""as nearly as may be"" and we are unable to persuade ourselves to

come to a conclusion that the proceeding u/s 295 can be termed to be a regular suit. The main reason is that if the Legislature had intended that

such proceedings should be treated as suits and not as applications, there is nothing to prevent the Legislature from making a simple and clear

provision to the effect that such proceedings might be converted into a suit and treated as such. This inference is strengthened by the fact that in

Section 47 of the Code of Civil Procedure, it is laid down that it is open to a court to treat a proceeding under that section as a suit and order

payment of additional court-fee. The fact that such a specific provision was not made in Section 295 of the Indian Succession Act demonstrates

the intention of the Legislature in clear terms.

In this context, we have to consider as to the proper court-fee payable in a proceeding u/s 295 of the Indian Succession Act. We have already

seen that the petition filed under the said Act does not become a suit on a contention being raised by the opposite party. The proceedings are

treated as a regular suit in form only and not in substance. Court-fee is now demanded on the basis of the provision contained in Article 11, Sub-

clause (k) of Schedule II of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, which provides as follows:

______________________________________________________________________

Particulars Proper fee

______________________________________________________________________

(k) (i) Application for Probate or Letters

of Administration to have effect

throughout India Twenty-five rupees

(ii) Application for Probate or Letters

of Administration not falling under

Clause (i)---- Seventy-five paise

1) If the value of the estate

does not exceed Rs. 1,000/- Seventy-five paise

2) If the value exceeds Rs. 1,000/- Five rupees

Provided that if a caveat is

entered and the application

is registered as a suit, one

half of the scale of fee

prescribed in Article 1 of Schedule I

on the market value of the Estate less

the fee already paid on the application

shall be leived

______________________________________________________________________

It is seen that Sub-clause (2) of Clause (ii) provides for payment of one-half the scale of fee prescribed in Article 1 of Schedule I on the market

value of the estate when a caveat is entered and the application is registered as a suit. Therefore, before a party is called upon to pay court-fee

under this provision, two conditions must be satisfied, namely, that a ceveat must have been entered and that the application must have been

registered as a suit. Unless and until these conditions are satisfied, there is no warrant for demanding court-fee as if it is a regular suit. We have

already seen that when the proceeding becomes contentious, it does not become a suit as such as contemplated under the CPC and that it is

considered to be a suit only in form and not in substance. Therefore, as long as there is no suit in the eye of law, this provision for payment of

court-fee cannot be invoked. We have also noticed that there is no provision anywhere in the Indian Succession Act or in the Court-Fees Act to

register a petition under'' the Indian Succession Act as a suit. When, there is no such specific provision in any of these Acts, it is not open to the

State to demand court-fee as If it is a regular suit, on such a petition at any stage of the proceedings.

There is one other reason for holding that the said provision under the Court-Fees Act cannot be made applicable to a case of this nature. It is

seen that Article 11(k) of Schedule II provides that one-half the scale of fee prescribed in Article 1 of Schedule I of the market value of the estate

is payable in the proceedings under the Indian Succession Act, as and when a caveat is entered and the application is registered as a suit. Article 1

in Schedule I provides for payment of court-fee on the value of the subject-matter of the suit. This provision of law cannot be made applicable

since the subject-matter in dispute in a proceeding relating to Probate or Letters of Administration is the right of the grant to represent the estate of

the deceased and as such it is incapable of valuation. The said provisions contained in the Court-Fees Act contemplate payment of court-fee in

cases where the subject-matter is capable of valuation and not otherwise. It cannot be disputed that the value of the properties comprised in such

applications cannot be taken to be the value for purposes of payment of court-fee in such applications. The properties as such are not the subject-

matter in dispute here and on the other hand the subject-matter in dispute is the right to represent the estate of the deceased and not the title to the

said estate. It has to be noted that before an order actually entitling the petitioner to the grant of Probate or Letters of Administration is passed, he

is required to pay court-fee on the probate or Letters of Administration on the value of the estate under Schedule I of the Court-Fees Act. Apart

from this payment of court-fee, when the petitioner wants to recover the property comprised within the estate of the deceased, he is again required

to pay AD VALOREM court-fee on the plaint in the suit filed for recovery of the property. It is, therefore, clearly seen that it would result in

payment of court-fee more than once. It is a well established principle of law that such fiscal statutes should be construed strictly and whenever

there is a doubt in the matter, an interpretation favourable to the litigants should be preferred. These principles have been clearly laid down in the

abovesaid decision of the Allahabad High Court following the decisions reported in A.V. Fernandez Vs. The State of Kerala, and The Central

India Spinning and Weaving and Manufacturing Company, Limited, The Empress Mills, Nagpur Vs. The Municipal Committee, Wardha, . We,

therefore, hold that a proceeding referred to in Section 295 of the Indian Succession Act dows not become a suit in the strict sense of the term

even after it becomes contentious and as such court-fee is not payable as a suit under Article 11(k) of Schedule II to the Tamil Nadu Court-Fees

Act.

In so far as the decisions rendered by Paul, J., in R. Natarajan v. N. Parthasarathy and Ors. T.O.S. No. 8 of 1972, dated 6.2.1973 and

Sengottuvelan J., in Kanni R. Krishna Iyer v. K.L. Krishnamachari 98 L.W. 80, are concerned, they relate to the proceedings in the Original Side

of the High Court and as such it cannot be stated that they have taken a different view in so far as the proceedings taken before the courts outside

the original jurisdiction of the High Court. As regards the decision of Veeraswami, J., as he then was, in Flarence Chelliah Vs. Soundararaj Peter

and Others, , it is seen that the question was not raised in the form in which it is raised in these proceedings and, therefore, the learned Judge had

no opportunity to consider the matter from this angle. The only question that was raised before the learned Judge was whether the filing of a caveat

is a condition precedent for treating the proceedings as a suit. It was a case where the objectors were impleaded as respondents in the original

petition itself, and, therefore, it was contended that in the absence of a caveat being entered on their behalf, court-fee was not payable. In dealing

with this question, the learned Judge came to the conclusion that merely because there was no formal entry of a caveat it does not mean that the

proviso is nonetheless applicable. Even if it is to be construed that the Judge has taken a different view, we hold that it is no longer a good law.

In the result, we answer the reference in the following terms:

When the proceeding initiated on a petition before a District Judge for grant of Probate or Letters of Administration becomes contentious and is

required to be tried in the form of a regular suit according to the provisions of the Code of Civil Procedure, it cannot be considered as a suit in the

strict sense of the term and as such AD VALOREM court-fee is not payable on such application under Article 11(k)(ii), Sub-clause (2) of

Schedule II of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. Since this is the only question to be decided in these two revision

petitions, it is unnecessary to send back them to be disposed of by a learned Single Judge of this Court on merits. Therefore, these Revision

Petitions are allowed and the orders of the lower Court are set aside. No costs.