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Sushila v. Bhimappa Rayappa Karigar & Others
Factual and Procedural Background
The petitioner, Sushila, filed this revision petition challenging an order of the (unnamed) Judge, Bijapur, in Mis. No. 26 of 1967 dated 7-2-68. The impugned order had called upon the petitioner to pay additional court-fee under the proviso to sub-clause (2) of Article 11(1)(ii) of Schedule II to the Mysore Court Fees and Suits Valuation Act, 1958, in connection with her application for revocation of a probate.
The petition arises from events after the death of the petitioner’s mother, Ningawwa, who left a will in favour of her brothers (the respondents in revision). Ningawwa and the petitioner had a joint bank deposit of Rs. 10,000 in the Syndicate Bank at Rabkavi. The respondents applied for and obtained probate from the District Judge, Dharwar, without notice to the petitioner. When the respondents sought to draw the deposit, the petitioner applied for revocation of the probate and paid court-fee of Rs. 12-50 on that application, as she understood to be required under Article 11(1)(ii).
The respondents objected that the court-fee paid by the petitioner was insufficient. The District Judge upheld that objection, holding (i) that the proviso to sub-clause (2) must be read as a proviso to both sub-clauses (2) and (3), and (ii) that an application for revocation of probate must be registered as a suit with the applicant as plaintiff and the court-fee to be assessed on one half the scale of fee prescribed in Article I of Schedule I on the market value of the estate. The District Judge called upon the petitioner to pay an additional balance of Rs. 715-75. The petitioner challenged that order by way of this revision petition.
Note: The provided opinion text contains several incomplete or redacted portions indicated by "???" in the source; the summary above restricts itself to material that is clearly stated in the opinion.
Legal Issues Presented
- What is the legal character and operation of the proviso to sub-clause (2) of Article 11(1)(ii) of Schedule II to the Mysore Court Fees and Suits Valuation Act, 1958 — i.e., whether the proviso is merely qualifying language limited to sub-clause (2) or a substantive provision applicable in broader circumstances?
- What is the nature of the proceedings to be taken by a court when an aggrieved party files an application for revocation of probate — specifically, whether such an application must be registered and tried as a regular suit?
Arguments of the Parties
Petitioner's Arguments
- The proviso to sub-clause (2) should be read as applying only to sub-clause (2) and not to other sub-clauses; it cannot be read as a proviso to other sub-clauses.
- When interpreting a fiscal (fee) statute, interpretation should not be strained against taxpayers (i.e., against persons required to pay fees).
- (Counsel for the petitioner) contended that an application for revocation of probate cannot be registered as a suit.
State/Respondents' Arguments
- Sri Annadanayya Puranik (for the State) argued that if the proviso operates only to sub-clause (2) and not to other sub-clauses it would produce anomalous results; therefore the proviso should be read as applying to sub-clause (3) as well.
- Sri G.B. Kulkarni (for the respondents) submitted that where an application for revocation of probate is made the opponents in whose favour probate was granted would have to enter a caveat, and once a caveat is entered the application for revocation must be registered as a suit because the matter becomes contentious and requires decision in the form of a regular suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Commissioner of Commercial Taxes, Madras v. R.S. Jhaver, AIR 1968 SC 59 | That in exceptional circumstances a proviso may not be merely a qualifying proviso but may be a substantive provision. | The court relied on this authority to support the conclusion that the proviso to sub-clause (2) is a substantive provision (a fresh provision adding to the main sub-clause) and not merely a qualification limited to sub-clause (2). |
| Goods of Nanda Lal Sett (per P.B. Mukharji, J.) | Definition and characteristics of a caveat in probate proceedings: a caveat is a warning entered by a person having or asserting an interest, addressed to the Court, preventing issue of a grant without notice to the caveator; it does not commence litigation. | The court cited this passage to explain the nature and effect of a caveat — that it is a warning to the Court and does not itself institute proceedings, and to resist the argument that caveat-entry converts a revocation application into a suit. |
| Florence Chelliah v. Sundararaj Peter, 1966 2 Mad. L.J. 33 (Veeraswami, J.) | Observed that once a caveat is entered, no further proceedings are to be taken without notice to the caveator; caveat serves as a warning that proceedings may become contentious and have to be tried as a suit. | The court used this decision to illustrate that a caveat is a procedural warning and indicates potential contentiousness, but does not itself convert a revocation application into a suit for purposes of registration and fee assessment. |
| Pratapchandra Shaha v. Kali Bhanjan Shaha, 4 C.W.N. 666 (Calcutta High Court) | Dealt with the scope of S.83 of the Probate and Administration Act and supported the view on procedural posture of revocation proceedings. | The court cited this Calcutta High Court view to support the conclusion that a person seeking revocation of probate does not become the plaintiff in a suit and that revocation proceedings are not in the form of a regular suit. |
Court's Reasoning and Analysis
On the first issue (interpretation of the proviso to sub-clause (2) of Art.11(1)(ii)), the court observed that the latter part of sub-clause (2) styled as a proviso is, in context, a substantive provision — it adds a new matter rather than merely qualifying the main part of sub-clause (2). The court reasoned that the main parts of sub-clauses (1), (2) and (3) do not deal with payment of court-fee in cases where an application for probate or letters of administration becomes contentious. The proviso addresses precisely that contingency: where proceedings become contentious (for example, when a caveat is entered) and it provides for payment of court-fee when such matters proceed in the form of a suit. The court relied on S.295 of the Indian Succession Act to explain that where a caveat is entered before grant, the matter becomes contentious and "such proceedings shall be taken in the form of a regular suit" with the applicant as plaintiff and the caveator as defendant; the proviso, therefore, is an independent provision dealing with court-fee in that eventuality.
The court also referred to the Supreme Court decision in Commissioner of Commercial Taxes v. R.S. Jhaver to support the proposition that a proviso may, in exceptional cases, be substantive in character.
On the second issue (nature of proceedings on an application for revocation of probate), the court examined the statutory concept of a caveat (S.284 of the Indian Succession Act and the prescribed form in Schedule V). It emphasized that a caveat is a warning entered in the court registry that no grant should be made without notice to the caveator; it does not itself commence litigation or institute proceedings. The court quoted and relied on prior judicial statements (Goods of Nanda Lal Sett; Florence Chelliah v. Sundararaj Peter) to show that a caveat suspends further proceedings until notice to the caveator and serves as a warning that matters might become contentious.
The court then turned to S.263 of the Succession Act which provides for revocation of a probate or letters of administration for "just cause" and enumerates what those causes are. The court reasoned that, on an application for revocation, the court must only consider whether a cause for revocation is made out and should not proceed to an inquiry into the genuineness of the will at that stage; such an inquiry into genuineness will arise only after revocation if necessary. Consequently, proceedings for revocation are miscellaneous proceedings and not proceedings in the form of a regular suit. The court found that the provisions of the Succession Act (notably S.295) support this conclusion, and it cited the Calcutta High Court's view in Pratapchandra Shaha v. Kali Bhanjan Shaha in aid of this interpretation.
Putting the points together, the court concluded: (a) the proviso to sub-clause (2) is substantive and envisages fee consequences where an application for probate becomes contentious and proceeds as a suit; and (b) an application for revocation of probate itself cannot be equated with a suit merely because disputation may follow — revocation proceedings are miscellaneous and do not, by their nature, have to be registered as a regular suit for fee-assessment purposes.
Holding and Implications
Holding: The revision petition is allowed. The court held that the court-fee already paid by the petitioner on her application for revocation of probate was adequate and she need not pay the additional amount demanded under the proviso to sub-clause (2) of Article 11(1)(ii) of Schedule II to the Mysore Court-fee and Suits Valuation Act, 1958. The order under revision was set aside. The District Judge was directed to register the petitioner’s application as a miscellaneous case and to dispose of it in accordance with law. The court made no order as to costs.
Implications: The direct effect of the decision is that the petitioner is relieved of the demand for additional court-fee and her revocation application must be treated and dealt with as a miscellaneous proceeding by the District Judge. The opinion confines itself to the facts and the interpretation of the relevant fee provision and succession provisions; it does not purport to establish a broader novel principle beyond the interpretation applied to the proviso and the characterization of revocation proceedings for fee and procedural purposes.
1. In this revision petition, the petitioner Sushila challenges the order of the ??? Judge, Bijapur, in Mis. No. 26 of 1967, dt. 7-2-68, calling upon, her to ??? the court fee as provided by proviso to sub-clause (2) of Art. 11, (1)(ii) of Sch. II to the Mysore Court Fees and Suits Valuation Act, 1958, or her application for revocation of a probate.
2. The petitioner's mother Ningawwa died leaving behind a will in favour ??? her brothers who are the respondents before me. The said Ningawwa ??? with the petitioner had deposited Rs. 10,000 in their joint names in the Syndicate Bank at Rabkavi. After the death of Ningawwa, the respondents filed an application for probate in the Court of the District Judge, Dharwar. The probate was granted without notice to the petitioner. When the respondents were about to draw the amount in deposit, the petitioner filed an application for revocation of the probate. She ??? court fee of Rs. 12-50 on her application as provided in sub-??? Art. 11(1)(ii) of the Act. The objection of the respondents ??? to the insufficiency of the Court-fees was upheld by the learned District Judge. He held as follows:—(i) that the proviso to sub-clause (2) must be read as a proviso to both the sub-clauses (2) and (3); and (ii) The application for revocation of probate must be registered as a suit with the applicant as the plaintiff who shall pay the court fee on the amount or value, one half the scale of fee prescribed in Article I of Schedule I on the market value of the estate. On these findings, he called upon the petitioner to pay the balance of Rs. 715-75 P. Hence, this revision petition.
3. The petition ??? two points of considerable importance as to the nature of the provision to sub-clause (2) of Art. 11(1)(ii) of Sch. II to the Act; and the ??? the proceedings to be taken on an application for revocation of ???
4. For consider ??? first question, it is necessary to extract hereunder the relevant ???
“Art. 11 ??? Application for probate or letters of administration or ??? thereof to have effect throughout India. Twenty-five ???
(ii) ??? probate or letters of administration or for ??? revocation ??? under clause (i) or an application for a ??? of the Indian Succession Act, 1925, or Bombay ???
??? of the estate does not exceed Rs. 2,000 ???
??? does not exceed Rs. 5,000 ???
??? application is registered ??? in Art. I of Sch. I on the ??? paid on the application
??? rupees Twelve ???
5. ??? urged that the ??? sub-clause (2) and that it cannot be read as a ??? other sub-clause or clauses of the said article. He further contended that in interpreting a fiscal statute, I should not strain the interpretation against the tax payers. Sri Annadanayya Puranik, for the State, sought to answer those contentions by saying that if the proviso is held to operate only to sub-cl. (2) and not the other sub-clauses, it would lead to anomalous results which the Courts must avoid. According to him, the said proviso must be read as a proviso to sub-cl. (3) also.
6. In my opinion, both the contentions are extreme, overlooking the real nature of the said proviso. Though the latter part of sub-clause (2) is in the form of a proviso, it is a fresh provision (adding to and not merely qualifying that which goes before it). A reference to the sub-clause (1), (3) and the main part of sub-clause (2) make it clear that they do not deal with the payment of Court-fee, when an application for probate or letters of administration becomes contentious. If a caveat is entered, before the grant of probate or letters of administration, the matter becomes contentious and as per S. 295 of the Succession Act, such proceedings shall he taken in the form of a regular suit, wherein the applicant becomes plaintiff and the person who enters caveat becomes defendant. The said proviso provides for the payment of court-fee on such a suit. This is an independent matter which is not carved out from the main part of the sub-clauses.
7. In Commissioner of Commercial Taxes, Madras v. R.S Jhaver . AIR. 1968 SC. 59., the Supreme Court after referring to its previous decisions, has stated that in exceptional circumstances a proviso may not be really a proviso in the accepted sense but may be a substantive provision itself. It seems to me that the proviso under consideration, in the context in which it is set out, and the matter which it deals with is a substantive provision.
8. The question next I am concerned with is, what is the nature of the proceedings to be taken by a Court when an aggrieved party files an application for revocation of probate. Learned Counsel for the petitioner said that such an application cannot be registered as a suit. According to him, it is where a caveat is entered against the grant of probate the application for grant of probate has to be registered as a suit. It is convenient to notice at this stage the contentions of Sri G.B Kulkami learned Counsel for the respondents. He submitted that in an application for revocation of probate, the opponents in whose favour the probate was granted, will have to enter caveat, in which event, the application for revocation of probate must be registered as a suit. His contention as I see it. Is that when a caveat is entered, the matter becomes contentious and it requires to be decided in the form of a regular suit.
9. I think, much of the controversy will disappear if one tries to understand what a caveat means. S. 284 of the Indian Succession Act provides for the lodging of caveats against the grant of probate or letters of administration. A caveat can be entered by any person having or asserting an interest in the estate of the debased person. It is a caution entered in the registry of the Court, to the effect that probate or letters of administration should not be granted without notice to the person who enters it. It may be filed before or after the application for a grant of probate. It should he in the form prescribed in Sch. V to the Act. The form is very simple and it is as follows:
“Form of Caveat. 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.”
10. This gives us an indication that a caveat is nothing but a warning.
11. P.B Mukharji, J., in the Goods of Nanda Lal Sett2, has stated at page 89, as follows:
“A Caveat is simply a warning given by a person having or asserting an interest in the estate of the deceased against the Court, issuing any probate without notice to the caveator. It is essential to observe here that a caveat is not a notice to any particular person but is a notice to the Court not to allow proceedings to be taken in the matter of the will of the deceased without notice to the caveator. It does not commence litigation nor does it institute proceedings. The whole object of the caveat is to prevent the issue of any grant without notice to the caveator. The main purposes for which a caveat is entered are to give time to the caveator to make enquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant or to give him an opportunity of raising any question arising in respect of the grant of probate or to enable the caveator to apply for an order that the sureties of the administration bond shall justify or as a step preliminary to an action or to the issuing of citation.”
12. In Flarence Chelliah v. Sundararaj Peter . 1966 2 Mad. L.J 33., Veeraswami, J. has observed:
“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 work ‘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 contentious and will have to be tried as a suit.”
13. From the above decisions, it is clear that there cannot be an entering of a caveat by any party, against the revocation of a probate, and, therefore, the application for revocation of probate or letters of administration, cannot be registered as a suit. There is nothing in the Succession Act or the Rules made by this Court, to lend support to the contention of Sri G.B Kulkami.
14. S. 263 of the Succession Act provides for the revocation of a probate or letters of administration for what is called ‘just cause’. The said section enumerates what those just causes are. When such an application is made, the Court has only to see whether the applicant has made out a cause for revocation, and not to embark upon an enquiry about the genuineness of the will. The execution or the genuineness of the will be enquired into only after the revocation of the probate. In my view, the proceedings instituted for revocation of probate cannot be in the form of a regular suit. It is a miscellaneous proceeding. The provisions of the Succession Act, in particular, Sec. 295, lend support to my conclusion. In proceedings for the grant of probate or letters of administration, when there is contention, the proceedings shall take the form of a regular suit in which the petitioner for probate or administration shall be the plaintiff, and the person who opposes the grant shall be the defendant. That a person who wants revocation of probate is one who opposes the probate and such a person cannot take the place of a plaintiff in a suit. The come was the view taken by the Calcutta High Court in Pratapchandra Shaha v. Kali Bhanjan Shaha . 4 CWN. 666., while dealing with the scope of S. 83 of the Probate and Administration Act (V of 1881).
15. For the reasons stated above, I hold that the court fee paid by the petitioner on her application for revocation of probate is adequate and she need not pay as provided by the proviso to sub-clause (2) of Art. 11(1), (ii) of the Mysore Court-fee and Suits Valuation Act, 1958. In the result, the revision petition is allowed; the order under revision is set aside. The District Judge is directed to register the application of the petitioner as a miscellaneous case and dispose of this same in accordance with law.
16. Under the circumstances of the case, I make no birder as to costs.
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