Enhanced court fees are payable in cases of contest, whether a caveat is entered or not, under the Tamil Nadu Court Fees and Suits Valuation Act, 1955, Sch. II, Art. 11(k)(ii)(2).

ORDER :- In the above T. O. S. a preliminary objection is raised regarding the question of Court fees. The petitioner had filed O.P. No. 85 of 1982 seeking to prove the will of one late K. E. Krishnaswamy alias Krishnamachari, in Solemn form and for the issue of Letters of Administration in respect of the will, with the registration copy of the will annexed. In that O.P. the said petitioner had impleaded all the interested parties who are likely to dispute the will and prayed for reliefs. Since some of the respondents disputed the will the said O.P. was converted into T. O. S. No. 10 of 1982, in which the contesting defendants have raised the issue regarding the Court fees, which is agreed to be decided as the preliminary issue. On the O.P. No. 85 of 1982 a Court fee of Rs. 5/- had been paid under Sch. II, Art.11 (k)(2) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. The contention of the contesting defendants is that one-half the scale of fees prescribed in Art.1 of Schedule I of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 on the market value of the estate less the fee of Rs. 5/-already paid, should be paid on the plaint.

2. Schedule II Art.11 (k) of the Tamil Nadu Court-fees payable on the application for Probate or Letters of Administration, which is as follows : -

Proper fee

Twenty five rupees.

Seventy-five naya paise.

Five-rupees.

As per Sch.II Art.11(k) (ii) (2) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955, in case of application for Probate or Letters of Administration if the value exceeds Rs. 1,000/- the Court-fee payable is Rs. 5/-. There is also a proviso to this article to the effect that if a caveat is entered and the application is registered as a suit one-half the scale of fee prescribed in Art.1 of Sch.I on the market value of the estate less the fee already paid on the application shall be levied.

3. Order XXV of the Rules of the High Court, Madras, Original Side, 1956, deals with the testamentary and intestate matters. A will may be proved either in common 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 or in case the affidavit of attesting witness is not available the reasons for not filing such affidavit. Public notice is directed to be issued and the Court may also direct the notice to be given 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 R.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 the original petition is converted into T. O. S. and the plaintiff is bound to pay the required Court-fee as provided in Art.11(k)(ii)(2) of Sch. II of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. But in the case the petitioner/plaintiff without giving an opportunity for anybody to enter a caveat had impleaded all the persons who are likely to contest the genuineness of the Will as party respondents even at the time of filing of the petition. Hence there is no necessity for anybody to enter caveat since the party respondents are enabled to straightway contest the petition.

4. The plaintiff contends that as per the proviso to Art.11(k)(ii)(2) of Sch. II of the Tamil Nadu Court-fees and Suits Valuation Act, 1955 one half the scale of fee prescribed in Art.1 of Schedule I on the market value of the estate is payable, only if caveat is entered and since in this case no c