Subramonian Poti, Ag. C. J.
1. Since the correctness of the decision ofa Division Bench of this Court reportedin In Re Seethalakshmi (1980 Ker LT560) was doubted, the matter was referred to a Full Bench and thus thecase is before us on the question of proper court-fee payable for the appeal. Theappeal is against O. P. No. 67 of 1974of the District Court, Trichur, that petition being one for letters of administration with copy of the will annexed. Theproceedings were contentious. Butnevertheless the proceedings have notbeen registered as a suit as it ought tohave been. There was in fact no caveatentered as it ought to havebeen. The practice of failing toenter a caveal and failing to registersuch proceedings as contentious suits hasbeen adverted to by this Court in thedecision in Kamala Bai Nelson v. SamVedarai (ILR (1981) 2 Ker 1).
2. The appellant valued the appeal under Article 4 of Schedule I of the Kerala Court-fees and Suits Valuation Act and paid court-fee of Rs. 786/- due under the abovesaid Article. But when the Officer noted that the amount computed is not adequate and therefore the balance court-fee had to be paid, he contended that court-fee is payable not under Article 4 of Schedule I, but only a fee of Rs. 5/- need be paid by him on his petition in the lower court, a petition which was not one on which court-fee was imposable as in a contentious suit. If is the correctness of this contention that calls for examination.
3. Section 21 of the Kerala Court-fees and Suits Valuation Act, 1959 provides for reckoning of fee in accordance with the provisions of Chapters IV, VI, IX and Schedules I and II of the Act. Therefore the authority for imposition of fee under Schedules I and II is Section 21 of the Act. Section 52 is a general provision relating to court-fee payable on appeal that provides that the fee payable in on appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal. We are not concerned with the proviso and the Explanations to that Section for the purpose of this case. Schedule I prescribes ad valorem fee in certain cases. Article I of this Schedule provides for payment of ad valorem fee on plaint, written statement pleading of set off or counter-claim or memorandum of appeal presented to any court Article 4, which we have to specifically notice here, provides that on a memorandum of appeal against order in proceedings under the Indian Succession Act, 1925 the court-fee payable is an amount of one-hali the scale of fee prescribed in Article 1 of the amount or value of the subject-matter. Article 1, as we already indicated, prescribes a scale of ad valorem fee for proceedings like plaints and it is that scale which applies to Article 4 with the only difference that it will be only an amount of one-half the scale of fee that would be payable in the case of a memorandum of appeal against order in proceedings under the Indian Succession Acl falling within Article 4 of Schedule 1. We may also advert, at this juncture, to the residuary Article in Schedule II of the Act. That applies to a case not otherwise provided for and the fee payable in such a case of a memorandum of appeal to the High Court would vary from Rs. 3/- to Rs. 100/-. We may also advert to a particular entry in Schedule II, namely, Article 11 (k) (ii). That concerns an application for probate or letters of administration other than that which has effect throughout India. On such application the court-fee payable, where the value does not exceed Rupees 1,000/- is seventy-five paise and where the value exceeds Rs. 1,000/- it is five rupees.
4. There is a proviso to Article 11 (k) (ii) which is relevant and that reads:
'Provided that if a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Article 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied'?
5. The scheme with regard to an application for probate or letters of ad-minstration appears to be clear from the aforesaid provisions. The provision in Schedule II Article 11 (k) (ii) read with the proviso indicates that in a non-contentious proceedings nominal fee of seventy-five paise to five rupees had to be paid, the amount depending upon the value of the estate. But if the proceeding is contentious court-fee payable is one-half of the scale of fee prescribed ad valorem in Article I Schedule I. This is the effect of the proviso under which such fee is payable in a case where a caveat is entered and the application is registered as a suit. This has reference to the requirement of the Sucession Act. Section 284 of the Succession Act deals with lodging of caveat. Section 285 deals with the obligation to give notice to the caveator. Section 295 deals with treating the proceedings as contentious and trying the case in the form of a regular suit when there is contention in a suit. As already adverted to, this Court had occasion to examine these provisions in the decision in Kamala Bai Nelson v. Sam Vedaraj (ILR (1981) 2 Ker 1) and it was found in that case that the rules do not oblige a person to file a caveat even when a citation has been issued. It is on enabling provision. This Court further held in that case that the mere fact that caveat was not entered did not result in the consequence that the proceedings should be considered as non-contentious and appearance to oppose a proceeding by a party would be sufficient to turn the proceeding contentious. Evidently Article 11 (k) (ii) uses the term entering a caveat and registering as a suit as those are the normal requirements of procedure to be adopted to render a non-contentious proceeding a contentions proceeding. Evidently what is contempleted by the Article is that when an application for a grant of probate or letters of administration has to be disposed of without a contest the fee payable is nominal whereas when once there is contest the fee payable is one-half the ad valorem value on the subject-matter of the probate application. Read in this context Article 4 of Schedule 1 can easily be appreciated. That calls for payment of the same court-fee as the applicant has to pay in a probate application when that application is contentious. That is only fair because if for the purpose of the trial of the probate application he has to pay one-half of the ad valorem court-fee in a contentious proceedings, (sic) of Schedule I means.
6. Section 52 which prescribes the same fee for an appeal as the fee paid on the original proceeding must necessarily be read and understood as a general provision subject to the special provisions in the Act. (Vide Ediga Muniyya v. Stale of Andhra Pradesh (1961 (2) Andh WR 113).
7. Though we find no difficulty in such an approach what evidently prompted the Division Bench to refer the matter to a Full Bench was the decision of a Division Bench already adverted to. That was a case where the question the court had to examine was the applicability of Article 4 Schedule I to a case of a memorandum of appeal against an order on a succession certificate application. The learned Judges noticed that a succession certificate application calls for only payment of Rs. 5/- or Rs. 10/- as it is governed by Schedule II, Article 11 (I) (i) or (ii) Article 7 Schedule I which provides for payment of ad valorem fee refers to a payment of court-fee on the succession certificate. In other words, the ad valorem fee is payable not on an application for issue of succession certificate but on the certificate itself. On the application the fee is nominal. For that reason, whether in an appeal the court-fee payable should not be that provided under Article 4 of Schedule I was the question which the court had to examine. The Court rightly noticed that that Article speaks of an order in proceedings under the Indian Succession Act and that the court-fee payable is that prescribed in Article 1 as the amount or value of the subject-matter. With great respect, we are unable to agree with the learned Judges in the approach to this question, an approach which is referred in the following passage:
'No doubt an order on an application for the grant of a succession certificate is an order in a proceeding under the Succession Act. But as we saw it earlier, for that application Article 1 of Schedule I does not apply. The latter Article applies to only plaints, written statements and memorandum of appeal to which an ad valorem court-fee is payable under specific provisions of the Act. There is no specific provision in the Court-fees Act relating to applications for a succession certificate. Hence we have to find out whether ad valorem court-fee is payable to any proceedings under the Succession Act.' The learned Judges proceeded to extract Article 11 (k) of Schedule II and refer to Section 295 and then conclude:
'Thus, it will be seen that contested probate proceedings are really in the nature of suits and are taxed at one half of the scale of fee prescribed in Article I on the amount or value of the estate. An order in such proceedings is the one referred to in Article 4 Schedule I. The court-fee is sensibly the same for the application and an appeal in such cases.'
8. Because court-fee payable on a succession certificate application is not ad valorem it does not follow that Article 1 Schedule I cannot apply to court-fee payable On a memorandum of appeal despite the specific provision in Article 4. The learned Judges, when they say that 'But as we say it earlier, for that application Article 1 of Schedule I does not apply' are referring to the succession certificate application and that has no bearing on the question of court-fee payable on the memorandum of appeal. May be for a good reason court-fee payable on the memorandum of appeal is one-half of the ad valorem value though it is not so in a succession certificate application and that perhaps in view of the provision in Article 7 Schedule l to pay full court-fee on the succession certificate. There could be no objection to the legislature providing for payment of one half of the fee ad valorem in appeal though not on the application. The learned Judges have attempted to distinguish the case of a probate application from a succession certificate. Of course, the learned Judges have stated that the court-fee payable on a probate appeal would be under Article 4 of Schedule I. Therefore, irrespective of the question of correctness of the view of the Division Bench, to agree with which we have certainly reservations, even according to the learned Judges of the Division Bench in the case of a probate application the court-fee payable in an appeal is under Article 4 Schedule I. The contention urged before us by the learned counsel, nevertheless, is that court-fee payable should be governed by Section 52 and If so since he has paid court-fee other than ad valorem in the court below that should be the case in the appeal also. We need not go into the question whether he should have paid ad valorem court-fee in the court below, which, at the moment, we are not called upon to decide. But we find that irrespective of that question in this appeal the court-fee payable by him is that prescribed under Article 4 of Schedule I of the Kerala Court-Fees and Suits Valuation Act. That shall be paid within a period of one month.