1962 (10) TMI 79 - HC - Indian Laws

Summary

Issues Involved:
1. Amount of court fee payable on a memorandum of appeal filed under Section 299 of the Indian Succession Act.
2. Whether the order appealed against can be described as a decree or an order having the force of a decree.
3. Applicability of Schedule II Article 11 or Schedule II Article 17, Clause (vii) of the Court Fees Act.
4. Applicability of Schedule I Article 1 of the Court Fees Act.
5. Appropriate court fee for a memorandum of appeal under Section 299 of the Indian Succession Act.

Detailed Analysis:

1. Amount of Court Fee Payable:
The primary issue before the Full Bench was the determination of the correct amount of court fee payable on a memorandum of appeal filed under Section 299 of the Indian Succession Act. The appeal arose from a petition for letters of administration concerning the estate of a deceased individual, contested by the widow of the deceased.

2. Whether the Order is a Decree or an Order Having the Force of a Decree:
The appellant's counsel argued that the order in question was not a decree as it was not passed in a suit. The Court agreed, stating that a decree under the Code of Civil Procedure can only be passed in a proceeding termed as a "suit," which is initiated by a plaint. Proceedings for letters of administration are commenced by an "application" or a "petition," not a plaint. The Court emphasized that the decision appealed against is described as an "order" in Section 299 of the Indian Succession Act and not a decree.

The Court further examined whether the order could be described as an order having the force of a decree. The appellant's counsel argued that such an order does not decide the right or title of any party and is not executable. The Court disagreed, noting that the right to represent the estate of the deceased is a valuable right, and such an order adjudicates on this right conclusively. Therefore, the Court concluded that the order granting letters of administration has the force of a decree.

3. Applicability of Schedule II Article 11 or Schedule II Article 17, Clause (vii) of the Court Fees Act:
The appellant's counsel argued that the court fee should be governed by Schedule II Article 11, which applies to a "memorandum of appeal when the appeal is not from a decree, or an order having the force of a decree." The Court disagreed, stating that the decision of a Court in proceedings for letters of administration cannot be described as a decree but can be described as an order having the force of a decree. Therefore, Schedule II Article 11 is inapplicable.

The Court also considered Schedule II Article 17 (vii), which applies to "plaint or memorandum of appeal in each of the following suits." The Court found this provision inapplicable as the proceedings for letters of administration are not instituted by a plaint and do not arise out of a suit.

4. Applicability of Schedule I Article 1 of the Court Fees Act:
The State's counsel suggested that Schedule I Article 1, which relates to court fees payable on "plaint, written statement, pleading, a set-off or counterclaim or memorandum of appeal (not otherwise provided for in this Act)," should apply. The Court found this provision inapplicable as the right to represent the estate of the deceased is incapable of valuation. The Court emphasized that the subject matter in dispute is the right to represent the estate, not the title to the estate.

5. Appropriate Court Fee:
The Court concluded that the appropriate provision governing the court fee for a memorandum of appeal under Section 299 of the Indian Succession Act is Schedule II Article 1(e)(5), which applies to "application or petition presented to a High Court in any other case not otherwise provided for." The Court held that an appeal under Section 299 is an application or petition within the meaning of these terms and that a court fee of Rs. 5/- is payable.

Conclusion:
The Court held that the court fee payable on a memorandum of appeal under Section 299 of the Indian Succession Act is Rs. 5/- as laid down in Schedule II Article 1(e)(5) of the Court Fees Act. The appeal was not governed by Schedule II Article 11 or Schedule II Article 17 (vii), nor by Schedule I Article 1. The Court emphasized that the right to represent the estate of the deceased is a valuable right, and the order granting letters of administration has the force of a decree.