Application for refund of Court-fee on caveat.

ORDER :- T.O.S. No.3 of 1959 was disposed of by me after the withdrawal of contest by the defendant. The plaintiff in the suit has applied for refund of court-fee paid on the plaint when the application was converted into a suit.

2. A fixed fee of Rs.25 was paid when the proceeding was instituted as a original petition as required by Art.11(k) of Sch.II of the Madras Court-fees and Suits Valuation Act, 1955. When a caveat was entered the proceeding was converted, into a suit under Or.XXV of the Original Side Rules, and thereupon court-fee was demanded in accordance with the proviso to Art.11(k) of Sch.II of the Madras Court-fees Act and ad valorem court-fee to the extent of one-half of the scale of fee prescribed in Art.1 of Sch.I of the Court-fees Act on the market value of the estate, less the fee already paid on the application, was collected. It is this fee that was levied and collected which is sought to be refunded by the present application.

3. Counsel for the plaintiff based his argument upon two grounds. First, he contended that despite the absence of any provision in the Court-fees Act, 1955 for refund of fee collected at fee time when this proceeding was converted into a suit, the court has an inherent power in suitable circumstances to order such refund. In support of his argument he contended that the purpose for which the fee was paid when the proceeding was converted into a suit was not achieved, having regard to the subsequent event that the defence was withdrawn and the probate was ordered to be issued. He also maintained that the question whether the fee actually levied at the time when the proceeding was converted into a suit was in excess of the requirements should be decided not only with reference to the state of affairs existing at the time when the fee was collected, but also with reference to subsequent events. The second argument of learned counsel was that the proviso to Art.11(k) would only govern clause (2) and not clause (1) of that Article. Clause (i) of the Article 11 (k) reads thus:

"Application for probate or letters of administration to have effect throughout India. Proper fee, twenty five rupees."

Clause (ii) reads thus:

"Application for probate or letters of administration not falling under clause (i) -

(1) if the value of the estate does not exceed Rs.1000:12 annas

(2) if the value exceeds Rs.1000: five rupees."

Then follows the proviso in question which reads thus:

"Provided that if a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Art.I of Sch.I on the market value of the estate less the fee already paid on the application shall be levied."

It is apparent that there is a classification of application? for probate or letters of administration in this provision based on the question whether the probate sought to be issued will have effect throughout India or only within the State over which the High Court or the District Court has jurisdiction. In respect of the former class a heavier fixed fee is levied while in respect of the latter class a lower fee of either twelve annas or Rs.5 depending upon the value of the estate, is levied The condition upon which the higher fee indicated in the proviso can be levied does not depend upon either the value of the estate involved or upon the nature of the probate asked for. The point of distinction between the two classes turns solely upon whether the probate is to have effect throughout India or it should be restricted to the State in which the probate is issued, irrespective of its being issued by the High Court or by a District Court. I am, therefore, unable to find any basis for the argument of the counsel that the proviso should be attached only to clause (2) of Art.11(k) end not to the entire provision covered by the Clause (k).

4. I have come to this conclusion for two reasons. Unless there are special indications to show that a proviso to a section is limited to one part of it, normally the