The main legal point established in the judgment is the interpretation and application of the proviso under Art.11 (k) of Schedule II of the Kerala Court Fees and Suits Valuation Act.

1. This is a petition under S.276 of the Indian Succession Act for the issuance of a Probate in regard to the estate of late Sri Mathew J. Kollam-parambil on the strength of a registered Will said to have been executed by him. Some of the persons interested in the matter have entered caveat and the petition has been directed to be numbered and treated as suit. A question has now arisen regarding the court-fee payable on the petition. It is pointed out by one of the parties that under the proviso appearing under Art.11 (k) of Schedule II of the Kerala Court Fees and Suits Valuation Act. 1959 (for short the 'Act') court fee has to be paid on the basis of one half of he scale of fee prescribed under Art.1 of Schedule I on the market value of the estate less the fee already paid on the application in a case where it is registered as a suit on the basis of a caveat. According to the learned counsel for the petitioner, the proviso will not govern the present case and therefore the fee prescribed by the proviso need not be paid in the instant case. This case arises under clause (i) of Art.11 (k).

2. We are considering the question of court fee not on the probate as such, but on the application for probate under Art.11 (k) of Schedule II of the Act. Art.11 (k) prescribes court-fees in regard to applications falling in two different categories. Sub-clause (i) prescribes court-fee of Rs. 25/-on application for probate or letters of administration to have effect throughout India. Clause (ii) prescribes the court-fee for application for probate or letters of administration not falling under clause (i). The court fee is 75 paise if the value of the estate does not exceed Rs. 1,000/- and Rs. 5/- if the value of the estate exceeds Rs. 1,000/-. The proviso prescribing one half of the ad valorem fee of the market value of the estate less the fee already paid occurs below clause (ii) of Art.11 (k) of the Act.

3. There does not appear to be any difference between the two clauses, in so far as the conditions necessary for the applicability of the proviso are concerned. Both the clauses deal with applications for probate or fetters of administration. Clause (i) applies to cases where the probate or letter of administration are to have effect throughout India and clause (ii) deals with other cases There does not appear to be any reason or ground to believe that the Legislature intended payment of ad valorem court-fee (as suggested in the proviso) only in cases covered by clause (ii) and not cases covered by clause (i) of Art.11 (k) of Schedule II of the Act. Prima facie it appears that the proviso is intended to govern both clauses (i) and (ii) I am unable to find anything particular in the applications contemplated by clause (i) which would have persuaded the Legislature to come to the conclusion that ad valorem court-fee need not be paid in those cases.

4. The only difference is that clause (i) relates to cases where the estate is situated in more States than one. while clause (ii) will take in cases where the estate is situated only in one State. Almost all the States in India have now their own local laws regarding payment of court-fee. The learned counsel for the petitioner pointed put that similar provision as in the Kerala Act finds a place in the Acts applicable in the States of Karnataka, Tamil Nadu, Andhra Pradesh, and Rajasthan, while in some other States the pattern of the Indian Court-fees Act is followed and in the latter cases ad valorem court-fee is not prescribed in any case at all. It is true that where an option is given to a party to move a probate petition in any one of two or more States, it is open to him to choose the State in which he is to so move. It may be that in such contingency, the petitioner may choose that State where his liability to pay court-fee is less. But, that will not have any bearing on the interpretation of the proviso occurring in Art.11 (k) of Schedule II of the Act. I fail to see how it is rel