The court-fee payable on a memorandum of appeal from an order refusing to grant probate of a will is governed by Article 11 and not Article 17-A of Schedule II of the Court Fees Act.

ORDER :- In this reference made by the Registrar the question is whether the court-fee on a memorandum of appeal from an order refusing to grant probate of a will in R. S. 15 of 1963 on the file of the Subordinate Judge, Bolangir, is payable under Article 11 or Article 17-A of schedule II of the Court Fees Act. The appellant has valued the appeal for the purpose of jurisdiction at Rs. 5,000 but paid court-fee of Rs. 6/- treating it as an appeal against an order under Article 11. The Stamp Reporter pointed out that the appeal is from a decree and the Court fee is Rs. 150/- as payable under Article 17-A and that accordingly the deficit of Rs. 144/- is realisable from the appellant. The appellant contested the stamp report before the Registrar stating that the order appealed against is not a decree and that the court-fee payable is not under Article 17-A.

2. Having regard to the position that the matter has assumed some general importance for the reasons stated by the Registrar he referred the matter to me as Taxing Judge for a decision on the point.

3. Article 11 on which the appellant relies is as follows :

"11. Memorandum of appeal when the appeal is from an order inclusive of an order determining any question under S.47 or S.144 of the Code of Civil Procedure, 5 of 1908 and is presented.

(a) to any Civil Court then than High Court or to any Revenue Court or Executive Officer other than the High Court or Chief Controlling Revenue or Executive Authority.

One rupee.

(b) to a High Court or Chief Commissioner or their Chief Controlling Executive or Revenue Authority Four rupees."

Article 17-A on which the learned Advocate-General appearing for the State relies reads as follows :

"17. A Plaint or memorandum of appeal in every suit where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by this Act.

(a) A Revenue Court in the district of Ganjam or Koraput.

Ten rupees.

(b) Any other Revenue Court or any Court of a District Judge, Subordinate Judge or Munsif.

Fifteen rupees if the value for purposes of jurisdiction does not exceed four thousand rupees. One hundred rupees if such value exceeds 4 thousand rupees."

4. The main argument of the learned Advocate General in support of his point that this appeal is to be treated as an appeal from a decree and not from an order and as such Article 17-A will apply is this : Under Sec. 295 of the Succession Act, where there is contention between the parties, the proceedings should take the form of a suit according to the Civil Procedure Code; as soon as it becomes contentious, it is to be treated as a plaint in a suit, governed as far as practicable by the procedure under the Civil Procedure Code. Where there is a contention, the probate proceedings take the form of a suit. His submission is that after a proceeding, as in the present case, becomes contentious the objector becomes the defendant and the petitioner becomes the plaintiff and the proceeding assumes the character of a suit and a decree follows : therefore, an appeal from such a decree falls within Article 17-A.

5. In my opinion this argument overlooks the very spirit and language of Section 295 of the Succession Act which reads as follows : "295. In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 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.

" The words "as nearly as may be" in the section are not without significance. It is not that it becomes a suit but that after caveat is entered the proceeding shall be treated as if it was a suit. That apart, the words "form of a regular suit" in the section also support this view. The proceeding assumes the character of a suit and not that the pro