In Re: Syed Mahammad Gouse and Others

Madhavan Nair, J.—In S.R. No. 9636 of C.C. 1923 in, Appeal No. 186 of 1923 : This is a reference u/s 5 of the Court Fees Act as

regards the proper Court-fee to be paid on the memorandum of appeal filed by the 6th defendant.

This suit out of which this appeal arises was instituted by the plaintiff for a declaration that he is the Sajjadanashin of two durgas in the South

Arcot District and for the possession of the durgas and their properties. The plaintiff alleged that he was appointed by the last Sajjada as his

successor and that he took possession of the durgas and the properties on the last Sajjada''s death, but that he was subsequently dispossessed by

the first defendant, one of the female heirs of the original family of the founder. The lower Court holding that the plaintiff was not nominated by the

last Sajjada and also that he was not the nearest male heir, dismissed the suit. On appeal by the plaintiff, the High Court remanded the Suit to the

lower Court to rehear the case after bringing on record the descendants of the original founder and to appoint a trustee from amongst them, since

the last Sajjada had failed to nominate his successor. After remand the plaintiff compromised the suit with the first defendant and asked for

permission to withdraw it, but the Court refusing such permission transposed some of the defendants as plaintiffs, made the original plaintiff a

defendant, and proceeded with the suit. By his decree, dated 27th March, 1923, the Subordinate Judge appointed the 1st and 2nd plaintiff''s,

according to the revised cause-title, as Muthawallis of the two durgas on probation for a period of three years and directed that they should take

possession of the durgas and their respective properties (see Clauses 1, 3, 4 and 6 of the decree). The decree also provided that the surplus

income after meeting the expenses of the durgas should be distributed amongst the members of the family. The 6th defendant in his appeal against

this decree prays that he should be appointed trustee of both the durgas in the place of plaintiffs 1 and 2.

In the lower Court and previously in this Court on appeal, Court-fees were paid ad valorem on the value of the plaint properties. The appellant

now seeks to value his appeal under Article 17, Clause (b), Schedule II of the Court Pees Act on the ground that it is not possible to estimate at a

money value the subject-matter in dispute; on the other hand, it is contended by Mr. Varadaohariar, on behalf of the Government, that the case is

governed by Section 7, Clause (5) of the Court Pees Act and that the appellant should pay ad valorem Court-fee on the value of the suit

properties.

The main argument of the learned Advocate-General on behalf of the appellant is this : If the suit had been against persons claiming adversely to

the trust, ad valorem Court-fee might have to be paid; but in a case like the present, where all the parties to the suit claim the properties for and on

behalf of the trust, the only point in dispute is as to who amongst them is entitled to manage the trust properties and as that, viz., the right of

management is, incapable of valuation, the proper article applicable is Article 17, Clause (b), Schedule II of the Court Pees Act. This argument

appears to me to be untenable, because, though the defendants do not claim the properties adversely to the trust, they do claim the right to hold

them adversely to the plaintiff and therefore plaintiff has necessarily to ask for relief by way of possession as against them. In Ramadoss v.

Hanumantha Rao (1911) 36 Mad. 364 relied upon for the appellant the lands were in the possession of persons who were willing to pay rent to

the plaintiff as soon as he recovered the office of Dharmakartha. In distinguishing the caso before them from the decision in Rathnasabapatki Pillai

v. Ramaswami Aiyar (1910) 33 Mad. 452 and the other case brought to their notice the learned Judges indicate their opinion that, if the

possession bad boon adverse to the plaintiff, then it would have been necessary for him to sue for the relief of possession, also : see page 366. In

Sonachala v. Manika (1885) 8 Mad. 516 where the plaintiffs prayed for a decree for the removal of the defendant from the management of

properties endowed for charity and for the appointment of himself as the manager thereof, it was held that the plaintiff was to sue for possession of

the properties and that he should pay ad valorem Court-fee u/s 7 of the Court Foes Act.

Reference has been made by Mr. Govindaraghava Aiyar, the learned vakil for the appellant in the connected S.R. No. 13123 of 1923 in which

also the same question is raised, to the decisions in Thakuri v. Brahma Narain (1896) 19 All. 60 Girdhari Lal v. Ram Lal (1899) 21 All. 200 and

Bamrup Das v. Mohunt Sitaram Das (6). These are cases under B. 92 of the CPC and do not really help him. Shortly stated, what was decided in

those cases was that in suits coming u/s 92 (Section 539 of the old Code) of the Civil Procedure Code, the mere inclusion in the plaint of a prayer

either for account, or for the appointment of plaintiffs themselves as trustees, does not render the plaintiffs liable to pay ad valorem Court-fee on

that part of their plaint. The suit which has given rise to this appeal is not one u/s 92 of the Civil Procedure Code, nor does it possess the essential

characteristics of such a suit. It cannot also be said that the nature of the suit has in any way been altered subsequent to the remand by the High

Court.

It has been further urged on behalf of the appellant that since the plaintiff sues for trusteeship only and has no beneficial or personal interest in the

properties in his capacity as trustee, no ad valorem Court-fee need be paid. This argument receives a pertain amount of support from the

observations of Spencer, J., in his Order of Reference to the Full Bench in Ramamirtha Mudaliar v. Govinda Mudaliar C.R.P. No. 862 of 1917.

With all respect, I am unable to see how the question as to whether the plaintiff has or has not any beneficial interest in the properties that he sues

for, can make any difference as regards the Court-fee payable by him. A guardian of a minor, for instance, suing on behalf of his ward for recovery

of possession of immovable property has no beneficial interest in the property, but I do not think that it can be argued that he need not pay ad

valorem Court-fee u/s 7, Clause (5), when he sues for possession of properties of the ward.

It seems to me that in determining the Court-fee payable in these oases the sole question to be considered is, what is the ""subject-matter"" of the

suit. As already pointed out in a case like the present one, the plaintiff is bound to ask for possession and the plaintiff here has, as a matter of fact,

prayed for possession of the trust properties. So far as this relief is concerned, the suit, in my opinion, falls u/s 7, Clause (5), Court Fees Act, and

the appellant should pay Court-fee under that Section. As in my view the case comes u/s 7, Clause (5), it follows that Article 17, Clause (b) is

inapplicable. I give six weeks time for the appellant to pay the necessary Court-fee.

In S.R. Nos. 13674 of 1923, 12052 of 1923 and 13423 of 1923. - The same question arises in these stamp reference numbers which deal with

the other appeals filed against the lower Court''s judgment. The order passed in S.R. No. 9636 of 1923 will apply to them also.

ORDER

These stamp references were posted to be spoken to at the instance of Mr. Govindaraghava Aiyar, but after hearing the arguments of the

learned vakils on both sides, I do not see any reason to modify or alter the order which I have already made.

The only point now urged by Mr. Govindaraghava Aiyar is that the decision of this Court reported in Swaminatha Aiyar v. Ramier AIR 1925

Mad. 421 is against the view which I have taken in my prior order and that I should, therefore, reconsider my order in the light of the said decision.

I will assume that if the decision in Swaminatha Aiyar v. Ramier AIR 1925 Mad. 421 has really taken a contrary view, it is open to me to

reconsider my order. In that case the plaintiffs sued for a declaration that they and the 1st defendant were the lawfully appointed trustees of a

certain temple; and they prayed for a direction that defendants 2 and 3 should be made to restore the office of trustee to them and for an injunction

restraining them from interfering with the exercise by the plaintiffs and the 1st defendant of their duties as trustees. The tenants who were in

possession of the properties were willing to pay the rents to whomsoever was the proper trustee. It was held that the plaintiffs were not bound to

sue for the possession of the temple properties and their omission to sue for such possession did not offend against the proviso to Section 42 of the

Specific Relief Act. The learned Judges had not to consider the question as to what is the Court-fee payable if the plaintiffs had, as a matter of fact,

asked for possession and nowhere do they say that in such a case ad valorem Court fee need not be paid. Even as regards the necessity of asking

for possession where the plaintiff alleges that some others had illegally taken possession of the temple lands, the learned Officiating Chief Justice

states thus when distinguishing the case in Rathnasabapathi Pillai v. Ramaswami Pillai (1910) 33 Mad. 452 - ""The maintainability of the suit must

depend upon the allegation in the plaint.... In this plaint he the plaintiff in the case in Rathnasabapathi Pillai v. Ramaswami Pillai (1910) 33 Mad.

452 mentioned that the defendants 8 and 9 bad illegally taken possession of the temple lands and leased out the fishery in the tank and collected

rent. The plaintiff in that case having, for reasons best known to himself, combined two actions in one, namely, one action against the Temple

Committee for the restoration of his trustee''s office and for damages, and a second action for the recovery of the trust properties against persons

who had wrongfully dispossessed him of such property, was bound to ask for the relief of possession of the temple properties to which he asserted

a present right of possession. On the allegations in the plaint in that suit it may have been right to require the plaintiff to add a prayer for possession

of the lands, and if he refused to do so, his suit might have been dismissed. But he was not bound to sue for possession of the lands before he was

restored to office. If he had chosen to strike out from his plaint his statement as to the part played by defendants 8 and 9, he might have waited, till

he was restored to his office of trustee, and he might then have brought a separate suit on behalf of the trust to recover the trust properties which

had been wrongfully alienated, The plaintiff in the present case alleges in his plaint that he was dispossessed, by the 1st defendant and asks for

possession from him, and I do not think that the remand by the High Court and the subsequent re-arrangement of the parties can in any way alter

the nature of the case. It is not necessary for me to decide whether even in this case the plaintiff is bound to ask for possession. But as possession

has been asked for and as the decree also directs that the durga should be taken possession of, I think that Court fee should be paid under Article

7, Clause (5) of the Court Fees Act. Time for payment of the Court-fee is extended by six weeks from to-day in all the references.