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Flarence Chelliah Vs. Soundararaj Peter and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1966)2MLJ33
AppellantFlarence Chelliah
RespondentSoundararaj Peter and ors.
Excerpt:
- .....petition is to revise that order.2. it is argued that the proviso will have application only if a caveat is entered and not merely when an application is registered as a suit. the proviso is: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. i shall presently consider what a caveat means. section 295 of the succession act,1925 lays down the procedure to be followed where there is a contention in probate proceedings. in such a case the proceedings shall take as nearly as may be the form of a regular suit, according to the provisions of the code of civil procedure and the petitioner shall figure as a.....
Judgment:
ORDER

K. Veeraswami, J.

1. The petitioner filed an application for probate which bore a Court-fee stamp of Rs. 5 under Article 11(k)(ii)(2) of the Madras Court-fees and Suits Valuation Act, 1958. The applicant herself had impleaded a number of respondents of whom the first three, her brothers, objected to the grant of probate on certain grounds. In view of this contention, the Court below directed that the application should be registered as a suit and Court-fee paid under the proviso to Article 11(k). This petition is to revise that order.

2. It is argued that the proviso will have application only if a caveat is entered and not merely when an application is registered as a suit. The proviso is:

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.

I shall presently consider what a caveat means. Section 295 of the Succession Act,1925 lays down the procedure to be followed where there is a contention in probate proceedings. In such a case the proceedings shall take as nearly as may be the form of a regular suit, according to the provisions of the Code of Civil Procedure and the petitioner shall figure as a plaintiff and the person who opposes the grant as a defendant. The substance of the section is that when there is an opposition to an application for probate, it becomes contentious and it is, therefore, to be tried as a suit. How a caveat is to be entered is provided for by Section 284 of the Succession Act. It should be lodged with the District Judge and should be in the form set forth in Schedule V to the Act. The form in that Schedule is:

Let nothing be done in the matter of the estate of A. B, late of...deceased, who died on the...day of...at...without notice to C.D. of...

Once a caveat is entered no further proceedings shall be taken in the application for probate until after notice to the caveator. Though the Act does not define the term ' caveat ', from the Form in the 5th Schedule it is clear that it serves as a warning that nothing should be done in the application for probate until notice goes out to-the person named or indicated. The Concise Oxford Dictionary gives the meaning of the word 'caveat' as process to suspend proceeding, warning. In Latin it means let him beware as in the case of caveat emptor, that is to say, let the buyer see to it. Caveat in probate proceedings is nothing more than a warning that the application is likely to become contentions and will have to be tried as a suit. Entering of a caveat has generally to conform to the procedure prescribed in the Succession Act.

3. But the question is whether for the purpose of the proviso to Article 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 entry of caveat, it does not appear that the proviso is none the less applicable. It is true Article 18 of Schedule 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.

4. On that view the petition is dismissed. No costs.


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