Valuation of Court Fees

ORDER :

The tone for this judgment can be set by what the following clauses 39 & 40 from the Magna Carta of 1215 read :

“To none shall we sell,

To none shall we deny

And to none shall we delay

right or justice”

2. This Reference arose from a learned Single Judge’s order dated 17.1.2017 made under Section 9 of the Karnataka High Court Act, 1961. She doubted the correctness of the Division Bench’s view in ANTHONY SWAMY vs. CHOWRAMMA, ILR 1989 KAR 1284, that ‘once a petition for grant of probate or letters of administration is contested, that petition automatically takes the form of a regular suit… in which the petitioner shall be the plaintiff and the person who appeared to oppose the grant shall be the defendant…’. Therefore, she opined that the proviso to Article 11(l)(ii)(3) of Schedule II to the Karnataka Court Fees and Suits Valuation Act, 1958 (hereafter ‘1958 Act’), would become applicable and as a consequence, ad valorem court fee is payable. Another Division Bench inter alia comprising one of us (Dixit, J.), directed ‘the Registrar (Judicial) to place the petition before the Hon’ble Chief Justice on the administrative side for necessary orders’. Hon’ble the Chief Justice, having constituted this Bench has placed the Reference at its hands.

3. FOUNDATIONAL FACTS OF THE CASE :

Petitioner has instituted P & S.C.No.39/2012 under the provisions of Section 270 of the Indian Succession Act, 1925 (hereafter ‘1925 Act’), seeking the grant of Letters of Administration on the basis of the subject testament, no executor having been named therein. The respondents entered appearance and opposed the Petition. Their application in I.A. No. IV filed under Sections 288 & 289 of the 1925 Act to treat the subject P & SC proceeding as a regular suit in terms of section 295 of the Act, having been favoured, the said proceeding is registered as O.S.No.488/2015. Subsequently, their two applications i.e., I.A.Nos.6 & 7 filed under Section 11 of the 1958 Act read with Order VII Rule 11 of CPC, 1908, also came to be allowed by the learned trial Judge vide order dated 16.4.2015, directing the petitioner to value the suit on ad valorem basis in terms of Article 11(l) of Schedule II of the 1958 Act and pay the court fee accordingly. This has been the subject matter of challenge in the present Writ Petition, that has on Reference landed at our hands.

4. CONTENTIONS OF THE PARTIES :

(a) Learned counsel appearing for the petitioner in substance argued that a probate proceeding, as generically called, is instituted by the presentation of a Petition u/s 270 of the 1925 Act; ordinarily, it is tried summarily after notice to other side if any, or on citation; once contested, the same needs to be tried in the manner a civil suit is tried under CPC, that too ‘as far as possible’, as provided u/s 295 of the Act; merely because it is tried in a procedure prescribed by CPC for the trial of a regular suit, the proceeding does not become a suit as such and therefore, Article 11(l)(ii)(3) of Schedule II to the 1958 Act providing for the payment of ad valorem court fee, is not applicable. He hastens to add that for the invocation of said Article, the filing of caveat as provided u/s 284 of the 1925 Act, is a sine qua non and that admittedly, there being no such caveat in the trial proceedings, the said Article has to remain miles away. So arguing, he seeks invalidation of the impugned order. In support of his contention, he has placed reliance on certain decisions.

(b) Learned counsel appearing for the contesting respondents per contra contended that: the Division Bench in ANTHONY SWAMY, supra, having considered all aspects of the matter, has answered the question to the effect that a contested probate proceeding partakes the character of a regular suit, wherein the petitioner becomes the plaintiff and the contestant becomes the defendant, regardless of the caveat and therefore, the court fee has to be paid on ad valorem basis in terms of Article 11(l)(ii)(3) of Schedule II t