1. 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. 11, 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 11 Art. 11 (k) of the Tamil Nadu Court-fees payable on the application for Probate or Letters of Administration, which is as follows :-
Proper feeTwenty five rupees.Seventy-five naya paise.Five-rupees.
As per Sch. 11 Art. I l(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. 11 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. ll,(k)(ii)(2) of Sch. 11 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 caveat had been entered the Court-fee payable is only Rs. 5/- as per the above article. In-support of this contention he relies upon an unreported decision of Paul J., in R. Natarajan v. N. Parthasarathy (T. O. S. No. 8 of 1972) dt. 6-21973. In that case also the plaintiff had impleaded the persons who are likely to contest the Will and paid a Court-fee of Rs. 5/-. On a reference by the office the learned Judge came to the conclusion that since no caveat had been entered ad valorem Court-fee of one-half of the market value of the estate is not payable. The reasoning of the learned Judge for coming to such conclusion is as follows : -
'In this case the petitioner himself chooses to prove the Will in solemn form so that all interested persons may come in, watch and participate in the proceedings when he can as well apply for probate on proving the Will in common form to avoid contest. If the proviso to clause (2) is extended to cases where a petitioner applying for probate or letters of administration with a will annexed wants to prove the will in the solemn form, it would encourage such person to apply for probate on moving the will in the common form and avoid any contest in order to avoid payment of ad valorem Court-fee. It is perhaps this aspect that has led to no provision being made for payment of ad valorem Court-fee in cases coming under Rule 58 of Order XXV of the Original Side Rules. In these circumstances, I am of the opinion that the petitioner need not pay ad valorem Court-fee under the proviso to sub-cl. (2) of Art. 11(k)(ii) of Sch. II of the Court-fees and Suits Valuation Act.'
But there is a contrary decision of Veeraswami, J., as he then was, in Flarance Chelliah v. Soundaraj Peter : (1966)2MLJ33 . In that case the petitioner herself had impleaded a number of respondents in the Original Petition -and in view of such impleading the Court had directed the petition be registered as a suit. In that case it was argued that the proviso to sub-cl. (2) will have application only if a caveat is entered and not merely When a petition is registered as a suit. In coming to the conclusion that ad valorem Court-fee on the market value is payable the learned Judge observed as follows : -
'But the question is whether for the purpose of the proviso to Art. 11(k) of the Court-fees and Suits Valuation Act, there should be a formal entry of caveat in order to attract the proviso, for there is contention and the application is, therefore, to be tried as a suit. Merely because there is no formal en try of caveat, it does not appear that the proviso is none the less applicable. Art. 18 of Sch. II prescribes a separate Court-fee of Rs. 10/- on caveat. But merely because a caveat does not bear stamp, it cannot be said that it is not a caveat any more than a plaint which bears less than the required Court-fee ceases to be a plaint on that account. Where an application for probate becomes contentious and is tried as a suit, it should be assumed for the purpose of the proviso that a caveat is impliedly entered'.
5. A reading of Sch. II Art. 11(k) of the Tamil Nadu Court-fees and Suits Valuation Act. 1955 clearly shows that in case of Wills not disputed a fixed Court-fee is made payable and where the Wills are disputed and the matter becomes contentious a Court-fee of one-half of the ad valorem value is made payable. In view of the procedure for such matters as laid down by the Original Side Rules, 1956, by which if an objection is taken by means of a caveat an enhanced Court fee is made payable. It is also seen that the enhanced Court foe is made payable 'if a caveat is entered and the application is registered as a suit'. In cases where the contesting respondents were already made parties, the original petition is registered as a suit straightway as per O.25, R. 58 of the Original Side Rules, 1956. Perhaps if the respondents cited in the original petition do n(At enter contest, the petition may contend that in view of the fact that there is no contest no enhanced Court-fee is payable. But whenever there is contest, whether a caveat is entered or not, according to the provisions of the Tamil Nadu Court-fees and Suits Valuation Act 1955 enhanced Court-fee is payable. The reasoning of Paul J., that the proviso to subcl. (2) Cl. (ii) is extended to cases where a petition applying for Probate or Letters of Administration with the will annexed wants to prove the will in the solemn form, that it would encourage such persons to apply for probate on proving the will in common form and avoid any contest in order to avoid payment of' Court-fee, does not appear to reflect the provisions of the Article which lays down that enhanced Court fee is payable in cases where a caveat is entered. Even if an application for probate is filed in common form there will be contest if the parties want to do so. The observation of Veeraswami. J., as he then was, that in case of contest even where the will is sought to be proved in common form, a caveat is implied, is acceptable.
6. Consequently I hold that the Court-fee of one-half prescribed in Art. 1 of Sch. I of the Tamil Nadu Court-fees and Suits Valuation Act, 1955, on the market value of the estate is payable. Accordingly the Court-fee question is decided. Court fee to be paid in four weeks.
7. Ordered accordingly.