Mathew Mathews Kathanar and Others vs Kuriakose Easus Kathanar and Others

Govinda PilLal, J.—C.R.P. 37/1124 (u). In order to appreciate properly the points raised in this case, it is necessary to give a summary of the Plaint together with the reliefs prayed for. There are four Plaintiffs and seven Defendants and the Plaint allegations are as follows:

The Plaintiffs are members of Malankara, Jacobite Syrian Christian Community. There are parishioners attached to the St. George Jacobite Church in Puthupally under the diocese of Kottayam. This church was established accepting the supremacy of the Patriarch of Antioch for the worship of the parishioners under the guidance of Metropolitans, appointed by the Patriarch and of other dignitaries appointed by the Metropolitan. Defendants 1 to 5 and some other parishioners do not accept the supremacy of the Patriarch or the metrans ordained by the Patriarch or the canons accepted by the said community. They behave as if the head of their community is Catholicos who is not accepted by the Patriarch or the Jacobite Syrian Christian Community. These Defendants and their partisans had passed on 11-5-1110 (26-12-1934) a scheme for the due conduct of their constitution and for management. By this act, they have seceded from the Jacobite Syrian Community and so they have no further right to the church in question or to the properties appertaining thereto.

By the decision A.S. 1 of 1119 of the High Court against the decision in O.S. 111 of 1113 of the District Court, Kottayam they had become aliens to the Jacobite Syrian Community. They have no right to participate in the meetings of the community or to the properties belonging to that community. The parishioners of the above church, in its meeting of 16-4-1122 (1-12-1946) elected Plaintiffs 2 to 4 as the trustees and so they along with Plaintiff 1 who is the vicar have filed this suit. Defendants 1 to 3 have no right to enter the church or to conduct ceremonies there. Defendants 4 and 5 and Ors. why have accepted the Catholicos as their head have no right to enter this church and participate in the ceremonies conducted there or to get any benefit out of the properties attached to this church. The properties oil this Church were under the management of Defendants 4 and 5 as trustees. They are now in the possession of Defendants 6 and 7 who had been appointed as receivers in O.S. 164 of 1119. The gold and silver vessels belonging to the Church are in the iron safe kept in one of the rooms of the Church. That safe has three keys.

The room where that safe is kept, and the church building have two keys each. Defendant 1 is now keeping without any right the two keys of the church and one key each of the safe and the room and he is to surrender the same. Defendants 4 and 5 are also liable to account for the collections made by them while they were trustees. The reliefs prayed for are (a) for an injunction to Defendants 1 to 5, their partisans and the priests restraining them from entering the church and the cemetery and conducting ceremonies after declaring that Catholicos and his followers have no manner of right over the church in question and its properties and over the cemetery, (b) For termination of the office of Defendants 6 and 7 as receivers and of Defendants 4 and 5 as trustees and for handing over the possession of the movable and immovable properties belonging to the Church and the keys with Defendant 1 to Plaintiffs 2 to 4. (c) For taking accounts while Defendants 4 and 5 were trustees and for a decree directing them to pay the money thus found due.

Fourteen items of immovable properties and 137 items of movable properties are scheduled to the Plaint. Items 8 to 137 among the movable properties are not valued, but it can be seen from the description that some of these are very valuable, e.g., item 8 is a gold cross having the weight Rs. 325. Items 1 to 6 are monies deposited by Defendants 4 to 6 in banks etc. and the total of these as shown in the Plaint (sic)mes to Rs. 62500 with interest for several years.

The Plaintiffs paid court-fees as follows: For reliefs

(a) value of relief 700 fanams (Rs. 98-4 As. nearly) court-fees Rs. 5.

(b) Court-fees of Rs. 15 under Schedule II Clause viii(ii), Court-fees Act and Rs. 10 under schedule II Clause viii(vii).

(c) Value of relief 700 fanams (Rs. 98-4 As nearly) - Court-fees Rs. 5.

It is also stated that the valuation for purposes of jurisdiction to remove the trustees and receivers from office is Rs. 2000.

Defendants 1 to 3 by a joint written statement and Defendant 4 by a separate written statement denied the status of the Plaintiffs in the Plaint church, and affirmed the supremacy of the Catholicos and of their right to the church and the properties appertaining thereto. They have raised a contention relating to the valuation of the reliefs and the court-fees paid. According to them, the Plaintiffs, for relief (b) were to pay court-fees on the market value of the movable and immovable properties scheduled. The District Court raised an issue relating to the sufficiency of court-fees and found that relief (b) is incapable of valuation and so the fixed fees of Rs. 15/- was sufficient. The present petition is to revise this order. This came up before a Division Bench. That Bench, after considering some of the conflicting decisions, passed the following direction towards the concluding portion of the order:

In view oil this as also the importance of the question raised in this civil revision petition, we think that the question involved may be referred to a Full Bench for an authoritative decision. Accordingly we refer this civil revision petition to a Full Bench for decision.

This order was passed on 9-12-1952.

The Plaintiffs would argue that the properties scheduled belong to a trust, that they want only a declaration that they are the properly constituted trustees, that this relief was incapable of valuation and that with the declaration made, the properties would vest in them.

The fundamental principle of ad valorem court-fees has been Lald down by the Privy Council in - ''Phul Kumari v. Ghanshyarn'' 35 Cal 202 (PC) (A), that the value of the action must mean the value to the Plaintiff. Hence the provisions of the Court-fees Act which prescribed ad valorem fees must be taken to be applicable only to those cases in which the Plaintiff claims any beneficial interest in the litigation for himself or for somebody else whom he represents and not when the suit is a public suit in which it is the general public that is interested and not by any particular person or institution.

In this case, as seen from the Plaint allegations summarised above, there are two factions in the Malankara Jacobite Syrian Christian Community, one headed by the Patriarch of Antioch, and the other headed by the Catholicos. The properties scheduled belong to the church in Puthupally. They are admittedly in the possession of the followers of Catholicos. The trustees were Defendants 4 and 5. Because of the alleged mismanagement of the prior trustees from among the party of Catholicos, a suit had been filed by some members of that party, and Defendants 6 and 7 were appointed as receivers to the immovable properties in that suit. Thus, the possession of these receivers is on behalf of the party of the Catholicos.

The Plaintiffs say that the followers of the Catholicos have seceded from the Malankara church and as such they are aliens that they have no right to worship in the church or conduct religious service and ceremonies, that they cannot bury dead bodies in the cemetery attached to the church, that they are to surrender the properties movable and immovable belonging to the church along with the keys of the church buildings and of the iron safe and of the rooms where the safe is kept and that they are to be restrained by an injunction from entering the properties and the church.

Even according to the Plaintiffs, Defendants 1 to 5 were at one time entitled to be beneficiaries of the institution. They are now to be ousted from possession and the Plaintiffs want the church and the properties for the benefit of the followers of the Patriarch of Antioch. They want, therefore, a declaration that the followers of the Patriarch alone are entitled to the church and its properties, and a decree for possession of those properties for the benefit of the followers of the Patriarch. The suit is for possession of the church in question and the properties appertaining thereto from a rival faction.

Schedule II, Clause VIII sub- Clause (ii) and (vii), Travancore Court-fees Act under which the court-fee is said to have been paid for relief (b) reads as follows:

Cl. VIII. Plaint or memorandum of appcai in each of the follow ing suits:

(ii) to remove a trustee Fixed. fees��Fifteen rupees.

(vii) every other suit where it is not possible to estimate at a money value, the subject matter in dispute and which is not otherwise provided for by this iiognlatton ... len rupees.

These provisions are the same in the Tra-vancore-Cochin Court-fees Act of 1125. Sub-Clause (vii) corresponds to Schedule II Article 17(vi) of the Indian Act. There is no provision corresponding to Sub-Clause (ii) except in Madras and Orissa where there is a Sub-Clause (iii) which runs as follows:

Plaint or memorandum of ap peal in a suit� (iii) for relief unler Section 14 of the iteligious Endowments Act 1863, or u/s 91 or Section 92 of the CPC 190 Section Fixed fees. Fiity rupees in Madras and fifteen rupees in Orisia.

(9a) It was the Defendants'' contention that, so far as the movable properties i.e. money, vessels and other articles mentioned in the schedule to the Plaint are concerned, the court- fee has to be paid u/s 4(i)(iii), Travancore Court-fees Act corresponding to Section 7(i) and (iii) of the Indian Act. Those provisions are as follows:

Section 4(i). In suits for money-court-fees to be paid according to the amount claimed.

(iii) In suits for movable where the subject matter has a market value. According to such value at the date of presen at the date of presen

As regards the immovable properties it was argued that Section 4(v) (a) (corresponding in general to Section 7(v) of the Indian Act) would govern the valuation. That provision is as follows:

Section 4(v)(a). In suitsifor According to the market the recovery of land, house, value of the subject- or garden which are not matter. based on a contract. (Provision is also made as to how the market velue is to ho deter- mined in cases of disput).

The subject-matter of the suit is therefore capable of valuation and ad valorem court-fees has to be paid. The suit is not solely for removal of the trustees for which a fixed court-fees is provided in Sub-Clause (ii) of Clause (viii) of | Schedule II (Travancore). The Plaintiffs knew the difficulty and so paid court-fees under Sub-Clause (vii) also as if it is not possible to estimate at a money value the subject-matter in dispute. This latter provision corresponds to Clause (vi) of Article 17 in Schedule II of the Indian Act. In order that a suit may fall within this Clause it must fulfil two essential conditions i.e., that the subject-matter must be incapable of being estimated at a money value and that it must not be provided for by any other provisions of the Act. This is also not a suit u/s 72, CPC corresponding to Section 92 of the Indian Code.

In - Parsottamanand Giri Vs. Mayanand Giri , it had been held that when a Plaintiff who claims possession of mutt properties as a duly elected Mohant on the allegation that Defendant 1 had lost his trusteeship because of his marriage, illegal transactions and c. he was to pay court-fees u/s 7(v), Indian Court-fees Act as no distinction could be drawn between a suit by a beneficial owner and a suit for possession as a trustee or as the manager of a religious endowment.

The case - ''Mirza Momtazali Khan v. Ban-wari Lal'' AIR 1949 Cal 98 (C) related to a suit by Mutwalli of a wakf praying for a decree declaring that certain property apportioned to the wakf vesting the suit property in the Plaintiff Mutwalli, removing the Defendant from possession of wakf property, appointing the Plaintiff as permanent Miutwalli and directing Defendant to render accounts. It was held that such a suit will not fall under Article 17(vi) of the Court-fees Act, Schedule II. In Re: Syed Mahammad Gouse and Others, , it was held that when the Plaintiff sued for a declaration that -he was sajjadanshin of two durgas he was to pay for possession of the durgas and their properties he was to pay court-fees u/s 7(v).

This was followed in a later decision of that Court in- N. Muthusivami Pillai and Others Vs. N.S. Manickavasagam Pillai and Others, . When the suit is for declaration of right to the office of the Shebait of a temple and also for permanent injunction restraining Defendant from interfering with that right, the Plaint is to be valued for purposes of jurisdiction and court- fee at the value of the debatter property or such portion of it from which the Plaintiff is dispossessed, vide - Manik Chandra Sarma Vs. Dambharudhar Sarma and Others, .

Reference was made by the Plaintiff to the decision in this Court in - ''Kunju Meethyan v. Kunjan Marackar Mether'' AIR 1954 Trav-C. 51 (G), to which I was a party. This decision refers to all the cases relied on by the present Plaintiff. The Plaintiffs in that case instituted the suit to establish a right of heri- ditary management of a mosque, to remove the Defendants who claimed to be elected Kykars of the mosque from management, for recovery of the mosque properties and for rendition of accounts. For the relief for the declaration sought and for recovery of possession of the properties, fixed court-fees under the article corresponding to Article 17(vi) of the Indian Act had been paid. It was held there that in a suit for an office where there was no dispute as to the right of the trust to those properties, no possession of the properties relating to the office, need be asked, and that in computing court-fee an unnecessary or incidental relief can well be ignored.

It was admitted there that both the contesting parties are beneficiaries under the trust and the dispute related only to the right to manage the trust properties. It is not the case in the present suit. Here there are two factions and each faction claims the trust properties. Each party contends that the opposite party consists of members alien to the church and as such has no right to benefit arising under the trust. The properties are now in the possession of the Defendants and the Plaintiffs want recovery of possession of the same treating the Defendants as are trespassers as they had seceded from the church. So the decision in the civil revision petition is no authority for the position contended for by the Plaintiffs. I am, therefore, of the view that for relief (b) the Plaintiffs have to pay ad valorem court-fees u/s 4(i), (iii) and (v)(a), Travancore Court-fees Act which was in force at the time of the institution of the suit.

The next question is whether the order passed by the District Judge is revisable by this Court. My learned brother Subramania Iyer, J. has without entering into the merits of the case proposed the dismissal of the petition on the short ground that the matter in hand does not fall under any of the provisions laid down in Section 115, CPC I regret that I cannot agree with him in this view. The limit within which revisional jurisdiction can be exercised is pointed out by the Supreme Court in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . But the revisional powers of the High Court regarding the question of court-fees were recognised by the Supreme Court in - Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, . It had been laid down that the finality declared by Section 12, Court-fees Act is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit falls. It was laid down at page 32 of the report thus:

In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of court-fee non-appealable and place it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that. If a decision u/s 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision f. the order obviously would be revisable by the High Court in the exercise of revisional powers..... The word "finality" construed in the limited sense in which it is often used in Statutes means that no appeal lies from an order of this character as such and it means no more than that.

If this suit will not fall under the category mentioned in Article 17(vi) of Schedule II (Indian) but only u/s 7(i)(iii) and (v), then the order of the lower Court is passed by a wrong exercise of jurisdiction and that order is revisable. Where jurisdiction originates in some special enactment, the construction of enactment is always a matter for revision vide -''Harihar Prasad v. Gopal Saran'' AIR 1935 Pat 385 (J), and - ''Reg v. Manchester Justices'' 1899-1 QB 571 (K). A superior Court will interfere in revision where the jurisdiction is derived from statute and the matter is one of the constructions of the Statute. The Privy Council had interfered with the misconstruction of Order 21, Rule 89, Code of Civil Procedure, - ''Brij Mohun Thakoor v. Rai Uma Nath Chowdhry'' 20 Cal 8 (PC) (L) with the construction of Order 17, Rule 2 (''Hindley v. Joy- narain'', AIR 1920 Cal 305 (M) and with the construction of the section of Religious Endowments Act (''Lachmi Narain v. Balmakund'' AIR 1924 PC 198 (N)

Some of the High Courts had taken the view that interference in revision, regarding court-fees can be had only when it is against the Plaintiff and the reason mentioned is that this is a question not between the parties but between the Crown and the Plaintiff. It cannot be said that the Defendant is in no way interested in the suit being properly valued. In several cases the costs in the suit are calculated on the value of the suit. The right of appeal to the Supreme Court does in many cases depend on the value of the subject-matter involved in the suit. The argument that even if a higher valuation is fixed, the District Court will be the Court competent to try the suit and so the decision of the District Court is not by assuming jurisdiction cannot also be accepted.

Anyhow all these difficulties are solved by the Supreme Court by the decisions reported in - Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, '' for their Lordships are of the view that if a decision u/s 12, Court-fees Act is reached without observing the formalities which are prescribed for reaching such a decision the order would obviously be revisable by the High Court in the exercise of its revisional jurisdiction. It has also to be mentioned that if'' the Plaintiffs have to pay court-fees on the market value of the properties and if they are allowed to continue the suit on payment of the fixed fees, then the revenue of the State would be affected detrimentally and the Court of revision will have the power to correct the valuation and direct the party to pay the necessary court-fees. As the result of the conclusion arrived by me, I am of the view that the order sought to be revised is wrong and has to be set aside, and that the Plaintiffs are to pay court-fees on the market value of the schedule properties-moveable and immovable. This revision petition is, therefore, allowed with costs as indicated above.

''C.R.P. No. 387 of 1951'': This revision petition is against the order passed by the Temporary Second Judge, Mavelikara, in O.S. 56 of 1122 of that Court holding that the fixed court-fees paid was sufficient. That suit also arises under circumstances similar to this and O.S. 84 of 1122 of the Kottayam District Court from the decision in which relating to court-fees C.R.P. 37 of 1124 had arisen. There also the fight is between the two factions of the Jacobite Syrian Christian community in Anr. place regarding the Valia Palli (Church) in Kalloopara and the properties appertaining thereto. The Plaintiff is the follower of the Patriarch of Antioch and the Defendants of the Catholicos. A declaration that the Defendants are not entitled to any benefit from the church and the properties is sought for coupled with a prayer for injunction to restrain the Defendants from entering the church and performing or attending to any of the ceremonies there. The immovable and movable properties, scheduled and in the possession of the Defendants, are sought to be recovered from them. There are prayers for taking accounts and for setting aside a document executed by Defendants 5 and 6. For the reasons given in my order in ''C.R.P. 37 of 1124'', a copy of which will be appended to and forms part of this, I hold that the Plaintiff is to pay court-fees on the market value of the properties scheduled in the Plaint. The order of the lower Court is set aside to this extent and the revision petition allowed with costs.

This C.R.P. (No. 37/1124) is before a Full Bench having been referred to it by a Division Bench for disposal.

The revision is directed against a finding recorded by the District Judge, Kottayam on issue 15 in O.S. No. 84 of 1122 on his file, which reads: Whether proper court-fee has been paid. The finding was in favour of the Plaintiffs. Defendants 1 to 3 are the applicants in revision.

A preliminary objection to the maintainability of the revision was taken by learned Counsel for the Plaintiffs-Respondents in that the present case does not fall within the ambit of Section 115, Indian CPC which was, extended to this State by the CPC (Amendment), Act, 2 of 1951. Section 115 reads as follows:

The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.

Learned Counsel for the Petitioners 6ought to meet the objection by submitting first that the application was presented u/s 89, Travancore Code of Civil Procedure, the ambit of which is wider than that of Section 115 of the Indian Code and that Act 2 of 1951 by Section 20 which repealed the earlier Act provided that-

(1) If, immediately before the date on which the said Code comes into force in any Part B State there is in force in that State any law corresponding to the said Code, that law shall on that date stand repealed:

Provided that the repeal shall not affect-

(a) the previous operations of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) X X X X

(The rest of the section is immaterial for this case).

The argument is that the applicants for revision have a privilege within the meaning of Clause (b) and that even if the application may not be sustainable u/s 115, that would not bar its consideration.

Secondly it was contended that the revision would be maintainable even u/s 115 of the Indian Act. Section 89, Travancore CPC runs thus:

Revision: The High Court may call for the record of any case decided in any Court subordinate thereto, in which no appeal lies, for the purpose of satisfying itself as to the legality of any judgment, decree or order passed therein and as to the regularity of any, proceedings of such inferior Court, and pass such order in the case as the High Court thinks fit.

Its ambit is obviously wider than that of Section 115 of the Indian Act which has been already read, and would embrace the present application according to its language as well as according to the practice that prevailed thereunder.

The question is whether this revision is saved by Clause (b) of Section 20 of Act 2 of 1951.

No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure he has no other right than to proceed according to the altered mode.

Says-Maxwell (Interpretation of Statutes, 10th Edition, 1953 p. 225).

The learned author observes at page 226 as follows:

But to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. The Appellate Court must give effect to the same law as that which was in force at the date of the earlier proceedings.

The CPC enables the. High Court to exercise revisional powers and may suo motu call for any record should itl appear desirable to do so. - AIR 1943 333 (Nagpur) . It does not entitle a party litigant to invoke the exercise of that jurisdiction, that is to say, no right is conferred upon any one in matters of revision. A party or even a non-party may bring to the notice of the High Court a state of things attracting the exercise of the High Court''s jurisdiction in revision. That facility is afforded merely for purposes of convenience and efficiency of the administration and not on account or in recognition of any right or privilege in the applicant whose function is merely to give information to the Court. Interference in revision is discretionary with the High Court. Even if circumstances justifying interference exist, the High Court will refrain from exercising the power if its exercise, far from doing justice, would work injustice, - T.P. Kuppuswami Pillai Vs. Alwar Chettiar, . It is clear that Section 20(b) of Act 2 of 1951 does not save this revision whose maintainability has therefore to be decided u/s 115 Indian Code of Civil Procedure.

The Supreme Court - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , has held, following decisions of the Privy Council, that unless a case comes wit any one of the three Clauses of Section 115, no Inter ference in revision is justified. It would be supererogation to discuss the reasons or the decisions here as the matter is set at rest the Supreme Court.

The question then is whether the Present case comes within any of the three Clauses of Section 115. The matter relates to court-fee. In - ''Rachappa Subrao v. Shidappa Venkata-rao'' AIR 1918 P.C. 188 (Q), the Judicial Committee said at pp. 191, 192:

The Court-fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. This is evident from the character of the Act, and is brought out by Section 12, which makes the decision of the first Court as to value final as between the parties, and enables a Court of Appeal to contact any error as to this, only where the first Court decided to the detriment of the revenue. The Defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to obstruct the Plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction. In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court.

On the question whether deficiency of court- fee would at all affect jurisdiction, their Lordships say at page 31:

If as to any other part of the suit a deficient or no fee was paid, the objection would be, not that the suit was outside the Court''s jurisdiction, but that the proper fee had not been paid, and that in contravention of Section 6, Court-fees Act a document had been filed in Court in respect of which the fee indicated in the schedules had not been paid.

A decision regarding the category of a suit within which a particular Plaint comes may affect its valuation and consequently the jurisdiction of the Court. If it does so affect the case would come within Clause (b) of Section 115 or within Clause (c) if the manner in which the decision is reached is illegal or materially irregular. The Court-fees Act, Section 12, makes the decision of a Court regarding valuation final. The finality attaches only to the valuation not to a decision relating to the categroy under which the ease falls.

Whether a case falls under one particular section of the Act or Anr. is a pure question of law and does not directly determine the valuation of the suit for purposes of court- fee. The question of determination of valuation- or appraisement only arises after it is settled in what class or category it falls.... If a decision u/s 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are proscribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers." - ''See Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, .

In the present case the finding sought Ito be revised was recorded by the District Court which is a Court of unlimited original Jurisdiction and it cannot be said that whatever be the valuation or court-fee, that Court''s jurisdiction would be ousted. Clause (a) of Section 115 cannot, therefore, apply. The decision in this case was in favour of the Plaintiffs and therefore there has not been a failure to exercise jurisdiction which would be the position had the decision been against the Plaintiffs. The view of the High Court is uniform that when the decision regarding court-fee is in the Plaintiff''s favour no revision lies. The controversy that there is relates only to the question as to whether the Plaintiff affected by the adverse decision regarding court-fee can straightway approach the High Court invoking its revisional jurisdiction or should wait until after, for non-payment of the excess court-fee ordered to be paid, his suit is thrown out: see - Shankar Maruti Girme Vs. Bhagwant Gunaji Girme, ; - Sailendra Nath Kundu Vs. Surendra Nath Sarkar and Others, ; - ''People''s Bank of Northern India Ltd. v. Kanayalal'' AIR 1938 Lah 80 (T) ; - Karuppayya Nadar through his authorised agent Ratnasami Nadar Vs. Ponnuswami Nadar and Another, ; - ''Hajrabi v. Md. Ibrahim'' AIR J948 Nag 219 (V) ; - AIR 1949 97 (Nagpur) ; and - Ram Bhusan Das Vs. Bachu Rai,

It is not urged on behalf of the Petitioners that there was any defect attaching tot, the manner in which the Court below arrived at its decision regarding the sufficiency off court-fee. The attack is confined to the correctness of that decision. The Privy Council observed in - AIR 1949 156 (Privy Council) , as follows:

Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on question of fact or law.

See - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, ''.

It is thus clear that the finding recorded by the Court below is not subject to interference by the High Court in revision. In this view the question of the correctness of the finding, does not fall to be decided in this case.

The C.R.P. is therefore dismissed with costs.

C.R.P. 387/1951: This case was argued along with C.R.P. 37/1124 just now disposed of. The points are the same. For the reasons mentioned in that judgment which will be read as judgment in this case as well, this revision is incompetent and should be dismissed with costs.

Having had the advantage of perusing, the judgments of my learned brethren and in deference to their having dealt with the question of the proper valuation of and the court- fee payable in the concerned suits, it behoves me to add the following: It is trite law that the proper court-fee payable on a Plaint depends upon its contents and that the defence entered would be irrelevant in that behalf. Regard must be had to all the averments made, and the reliefs claimed by the Plaintiff, and the real import of the Plaint ascertained notwithstanding attempts to camouflage it.

In the case of a mosque, temple or church (a public trust) ordinarily the properties appurtenant thereto vest in the institution. There is no trustee in the sense that the property vests in him. The individual who is in possession is so for purposes of management though he is often designated a trustee. Conflicts between persons claiming such trusteeship can, therefore, relate but to the management and not to title to property. The continued possession of trust properties by such a trustee after termination of his office, though wrongful, cannot be characterised as that of a trespasser so it cannot be adverse to the trust. For the rightful trustee to get into possession, the removal of the wrongful one is enough as on that event happening, possession perforce goes to him.

A prayer for possession of property added to one for removal of the trustee would and has to be regarded as a surplusage. Even if that prayer be otherwise regarded, the subject-matter would merely be possession for purposes of management sought from one who was in possession also for that purpose, that is to say, the subject-matter would be management or right to management of the property and not the property itself. This subject-matter is incapable of valuation. Whether the Plaint in such a case be regarded as one for removal of a trustee and/or for recovery of management, the court- fee payable is a fixed fee. Court-fee is payable ''ad valorem'' on the market value of the property where it is sought to be recovered on basis of title to it. This would be the case when property is sought to be recovered by the trust from a stranger to and unconnected with it on foot of title. Should there be any jural relation between the trust, and the stranger from whom possession is sought, other appropriate provisions of the Court-fees Act would be attracted.

In my judgment the view taken by the Division Bench of this Court in C.R.P. 1001/24 is correct and has to be affirmed. My learned brother Govinda Pillai J. who was a party to it is not against the view expressed by the learned Chief Justice in that decision with which he concurred. He only states that that decision is distinguishable on facts. In my view the facts of the present cases are similar to those in C.R.P. 1001/24, the decision wherein applies, and I agree with Sankaran J. in that view as well as in affirming the decision in Civil Revision Petition No. 1001/1124. Applying that decision to the present cases I concur with Sankaran, J. and hold that the fee payable in the two cases leading to the two C.R.Ps. under ''consideration is a fixed and not a fee ''ad valorem''. This view is not limited to a public trust which was mentioned as an illustrative instance but extends to all causes where the ambit of the action is merely management and matters ancillary or appurtenant thereto.

K. Sankaran, J.

I am in agreement with the order proposed by my learned brother Subramonia Iyer J., in the two revision petitions under consideration. In view of the importance of the questions involved in these petitions and also in view of the fact that my learned brother Govinda Pillai J., has expressed himself differently on these questions, I propose to state my reasons for the inability to agree with his conclusions.

The first question for consideration is whether it is the revisional jurisdiction that is conferred on this Court u/s 115 CPC that is now in force or whether it is the revisional jurisdiction that had been conferred by Section 89, Travancore Code of Civil Procedure, that can be exercised in dealing with these petitions. Of the two petitions, C.R.P. No. 387 of 1951 was presented after the Travancore CPC had been replaced by the Indian Code, and as such there can be no doubt that Section 115 of the present Code can alone be invoked in dealing with that petition. The contention that the jurisdiction conferred on the High Court by Section 89 of the Travancore Code has to be exercised in dealing with C.R.P. No. 37/1124, which was filed when that Code was in force, could prevail only if the Petitioner had acquired any right or privilege in that direction u/s 89. The wording of the section makes it abundantly clear that it was not intended to confer any such right or privilege on any party. On the other hand, the section merely empowered the High Court under the specified circumstances to revise the orders passed by subordinate Courts where there is no right of appeal against such orders.

The question of the exercise or non-exercise of the revisional jurisdiction conferred by Section 89, Travancore CPC and by Section 115 of the Indian Code, has been left to the discretion of the High Court, as is evident from the manner in which these sections have been drafted. Even when the High Court chooses to exercise such a jurisdiction, the same has to be confined to the limits prescribed by the section itself. It is obvious that the limitations to govern the exercise of the revisional jurisdiction are those in force at the time when such a jurisdiction is attempted to be exercised and not those that were in force at the time when the exercise of that jurisdiction was invited by the presentation of the revision petition or at the time when the order sought to be revised was passed. Now that Section 115 of the Indian Code has taken the place of Section 89 of the Travancore Code, it is not open to the Court to fall back upon Section 89 of the Travancore Code in the matter of the exercise of the revisional jurisdiction. The exercise of that jurisdiction has necessarily to be controlled by the restrictions imposed by Section 115 of the Indian Code. In other words, the High Court can interfere in revision only when it is satisfied that its interference is called for and justified by the existence of one or more of the conditions prescribed by Clauses. (a), (b) and (c) of Section 115.

In all the three Clauses (a), (b) and (c) of Section 115 it is particularly emphasised that the High Court should first be satisfied that the subordinate Court has seriously erred in the exercise or non-exercise of its jurisdiction in passing the order in question and that then only it can proceed to review that order. In the matter of deciding these questions Clauses (a) and (b) can present no difficulty at all. Clause (a) will be attracted where the subordinate Court has exercised a jurisdiction not vested in it by; law and Clause (b) will be attracted where such Court has failed to exercise a jurisdiction vested in it by law. But some difficulty may be felt in deciding the question as to the applicability of Clause (c). Here again the Legislature has made it clear that every illegality or irregularity committed by the subordinate Court will not attract the revisional jurisdiction of the High Court.

It has, therefore, to be examined whether in -passing the order in question the Court had acted illegally or with material irregularity in the exercise of its jurisdiction. If the manner of exercising the jurisdiction vested in the Court under law there has been no illegality, or material irregularity, the order will not be open, to revision even if it happens to be wrong 1 or unsustainable for other reasons. The limit prescribed by Clause (c) cannot be enlarged so as 1 to bring such wrong orders also under that Clause.

The attempt to put a liberal construction upon this Clause and to enlarge its scope has been repeatedly discountenanced by the Privy Council even from early times and finally by the Supreme Court in the ruling in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, ''. In - ''Balakrishna Udayar v. Vasudeva Aiyar'' AIR 1917 PC 71 (Z) it was pointed out by the Privy Council as follows:

The section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved.

In - AIR 1949 156 (Privy Council) '', the Privy Council defined the limits of the revisional jurisdiction conferred by Section 115 in the following terms:

The section empowers a High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction and (c) that in exercising jurisdiction the Court has, not acted illegally i.e., in breach of some provision of law, or with material irregularity i.e., by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on these three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court on questions of fact or law.

The Privy Council again pointed in - AIR 1949 239 (Privy Council) that

Error in a decision of a subordinate Court does not by itsef involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in prevision under Clause (a) of Section 115.

All these rulings of the Privy Council have been cited with approval in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, ''. The Supreme Court has further pointed out that the words ''illegally'' and ''with material irregularity'' as used in Clause (c) of Section 115 do not cover errors of fact or law, that they do not refer to the decisions arrived at but to the manner in which it is reached and that the errors contemplated relate to material defects of procedure and not to errors of either law or get committed after the formalities which the law prescribes have been complied with.

The question whether this Court will be justified in interfering with orders covered by the two revision petitions has to be decided in the light of the decision of the Supreme Court in - Keshardeo Chamria Vs. Radha Kissen Chamria and Others, defining the limits of the revisional jurisdiction conferred on the High Court u/s 115, CPC The fact that these orders relate to the quantum of the court-fees payable by the Plaintiffs in the respective suits cannot in any way affect this position. There is no warrant for assuming that in respect of such orders relating to court-fees, the revisional Court has a larger jurisdiction than that conferred by Section 115 of the Code.

The Court-fees Act does not contain, any provision enlarging this jurisdiction. On the other hand the question that had been agitated in the several High Courts in India in a series of cases was whether an order relating to valuation for the purpose of determining the amount of court- fee chargeable in a particular case could be interfered with at all in view of the provision contained in Section 12, Indian Court-fees Act, to the effect that such decision shall be final as between the parties to the suit. There was also a similar provision in Section 10, Travancore Court-fees Act (Act 6 of 1087) which has now been replaced by the Travancore-Cochin Court-fees Act of the year 1125. Section 9 of the new Act is a reproduction of Section 10 of the repealed Act.

The controversy over the question of the finality contemplated by Section 12, Indian Court-fees Act has been set at rest by the decision of the Supreme Court in - Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, ''. It has been ruled in that case that

Section 12 when it says that such a decision shall be final as between the parties, only makes the decision of the Court on a question of court-fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that.

It has also been pointed out that the finality contemplated by this section is restricted to the question of valuation pure and simple and that it does not relate to the question of the category under which the case falls for the purpose of valuation leading up to the fixation of the quantum of the court-fee payable. This distinction is explained in these terms:

Whether a case falls under one particular section of the Act or Anr. is a pure question of law and does not directly determine the valuation of the suit for purposes of court-fee. The question of determination of valuation or appraisement only arises after it is settled in what class or category it falls." "The expression ''valuation'' interpreted in the ordinary meaning of "appraisement" cannot be said to necessarily include within its ambit the question of category which is a matter of law.

It may also be pointed out in this connection that it is clear from Section 12 itself that the word "final" has been, used in the section in a narrow and restricted sense. Even though the decision on the question of valuation is declared to be final as per the first part of the section, it is expressly stated in the second part that

whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such tee has been paid to pay so much additional fee as would have been payable, had the question been rightly decided, and the provisions of Section 10, para. (11) shall apply.

By this provision the force of the finality declared by the earlier part of the section has been considerably diluted. At the same time it has to be remembered that the second part of the section does not confer any unrestricted or unlimited jurisdiction on the superior Court to interfere with the trial Court''s decision on the question of valuation of the suit for purposes of payment of court-fee. The expression "whenever any such suit comes before a Court of appeal, reference or revision" only indicates that such superior Court will get jurisdiction to interfere when it gets seisin of the matter by means of a properly constituted appeal, reference or revision, as provided for in the Code of Civil Procedure. It will be wrong to construe the second part of Section 12, as conferring a larger revisional jurisdiction on the High Court than that conferred by Section 115, Code of Civil Procedure.

The construction put upon this section by the Supreme Court in - Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another, '' does not also contain any indication in that direction. Merely because a decision on the question of the particular category under which the suit falls for the purpose of valuation is not hit by the finality declared by Section 12, Court-fees Act, it cannot be assumed that the decision is open to revision. Such a decision can be revised only if it can be brought under any of the Clauses of Section 115 of the Code. The dictum laid down by the Supreme Court that

If a decision u/s 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of the revisional powers.

does not go beyond this limit.

A wrong decision as to the particular category under which the suit falls for the purposes of court-fee may involve a question of jurisdiction so as to attract the revisional jurisdiction of the High Court. A decision that the court-fee paid is insufficient carries with it an implication that unless the deficiency is made up the Court will not proceed with the suit. If such a decision happens to be wrong, the result will be a failure on the part of the Court to exercise the jurisdiction vested in the Court to try the suit and in such instances the decision of the subordinate Court will undoubtedly be revisable by the High Court. Where, however, the decision is that the court- fee paid is sufficient, it may not ordinarily involve a question of jurisdiction particularly when the decision is by a Court of unlimited jurisdiction. But if the decision is by a Court with limited pecuniary jurisdiction, a wrong decision that the court-fee paid is sufficient may in some instances result in the assumption or usurpation of a jurisdiction by that Court in the matter of trying the suit.

For instance a correct decision on the question of valuation and also on the question of the amount of court-fee payable on the Plaint may take the suit out of the pecuniary jurisdiction of that Court. In such cases also the orders of the subordinate Courts will be open to revision. But where the order that the court fee paid is sufficient is passed by a court of unlimited jurisdiction, it will not normally result in that Court assuming a jurisdiction which is not vested in it by law. At the same time there may be cases where the decision by such a Court has been reached without observing the formalities prescribed for reaching such a decision i.e., without a due consideration of the particular Article of the Court-fees- Act under which the suit has to fall in the nature of the allegations made in the Plaint and of the reliefs claimed therein. It will then amount to a material defect in the procedure followed by the Court in arriving at its decision or, in other words, it could be said that the Court had acted illegally or with material irregularity in the exercise of its jurisdiction in arriving at the decision. A wrong decision thus arrived at may also attract the revisional jurisdiction of the High Court.

Applying these tests to the two orders under consideration, it is clear that they do not fall under any of the Clauses of Section 115, CPC It is not even contended that these orders would fall either under Clause (a) or under Clause (b) of the section. The attempt has been to bring these orders under Clause (c). Even that attempt has to fail because it is not shown that in passing these orders the Court acted illegally or with material irregularity in the exercise of its jurisdiction or that the decisions have been arrived at without observing the formalities required by law or by the adoption of a procedure grossly defective.

The orders are seen to have been passed, after a proper approach to the question of court-fee raised in the two cases and after a, due consideration of the question whether the suits fall under the particular Articles of the Court-fees Act relied on by the Plaintiffs or whether they fall under the Articles as contended for by the Defendants. Thus it cannot be side that these orders can be brought under Clause (c) of Section 115, CPC It follows, therefore, that this Court cannot exercise its jurisdiction u/s 115 and interfere with these orders even if the orders are wrong.

The above finding is sufficient for a disposal of the two revision petitions. But these petitions have come up before the Full Bench not merely for a decision on the question of the sustainability or otherwise of the petitions, but also for an authoritative decision on the question raised in these petitions. This is clear from the order of reference passed on these two petitions. No doubt the closing portion of each of these orders merely states that the C.R.P. is referred to a Full Bench for decision. But the full scope of the reference is indicated in the referring order passed on C.R.P. 37 of'' 1124. That order shows that the correctness; of this Court''s decision in C.R.P. No. 1001/1124 was canvassed before the referring Bench and that it was contended that the principle laid down in that decision requires reconsideration and that it is for an authoritative decision on the correctness or otherwise of the ruling in jl that case and also on the question involved in the present revision petitions that these two petitions have been referred to a Full Bench.

This position is amply borne out by the closing portion of the reference order in C.R.P. 37 of 1124 which is extracted below:

The learned advocate for the Plaintiffs brought to our notice a decision of this Court in C.R.P. 1001 of 1124. That was a suit "to establish a right of hereditary management of a mosque at Thazhathangadi, Kottayam, in their Methar and Moosambi families, to remove the Defendants who claim to be the elected kaikkars of the mosque from management, for recovery of the mosque properties and for rendition of accounts." It was held that the valuation adopted by the Plaintiffs under Clause V, Article 8 of Schedule 2, Travancore Court-fees Act, 6 of 1087, was proper. But it is argued by the learned advocate for the Petitioners and also by the learned advocate for the State that the specific provisions contained in Section 4, Clause (v), sub- Clauses. (a) and (d), Travancore Court-fees Act have not been adverted to and the import of those provisions considered in the above decision. In view of this as also the importance of the question raised in this civil revision petition, we think that the question involved may be referred to a Full Bench for an authoritative decision. Accordingly we refer this C.R.P. to a Full Bench for decision.

Such being the nature and scope of the reference order, this Full Bench has to give a ruling as to whether the decision in C.R.P. No. 1001 of 1124 is correct or not The Full Bench has also to Rive an authoritative decision on the question involved in the present revision petitions. That question has not boon definitely formulated in the referring order, but from a reading of that order in the light of the contentions urged on behalf of the Petitioners, it is clear that the general question involved in these petitions and on which the Full Bench has to give an authoritative ruling, is whether in suits like the present ones where the Plaintiffs claim themselves to be duly appointed or elected trustees, managers or representatives of the Plaint trust and seek reliefs by way of removal from office of the Defendants, who came into possession of the trust properties in their capacity as trustees, and also of recovery of the trust properties, movable and immovable, from such trustee, the Plaintiffs are bound to pay ''ad valorem'' court-fees on the value of such properties under Clauses. (1), (3) and (5-a) of Section 4, Travancore Court-fees Act, Act 6 of 1087, or whether it is sufficient if the fixed fees as provided in Clauses. (2) and (7) of Article 8 of Schedule 2 of the same Act are paid. It may also be stated here that the identical provisions are contained in the Travancore-Cochin Court-fees Act, 1125, which is the Act now in force in the State.

The question as to whether a suit falls under which particular category as provided in the Court-fees Act for the purpose of fixation of the amount of court-fee payable, has to be decided in the light of the real nature and scope of the suit. For this purpose it is not enough to look at the reliefs alone as they are worded, but those reliefs should be read and understood in the light of the allegations contained in the Plaint read as a whole. This position is well settled by a long series of decisions and it is now beyond the stage of controversy. In - Thakurji and Another Vs. Raghveshsurendra Sahi, it was ruled that in determining the nature of the suit for the purpose of fixation of court-fees the allegations made and the reliefs sought in the Plaint are the only relevant materials. In AIR 1949 97 (Nagpur) , it has been pointed out that the amount of court-fee payable should be determined on the allegations of the Plaintiffs as to the cause of action and the reliefs and that the Court should look to the substance and not merely to the form of the Plaint. To the same effect is the decision in - ''Ranjit Singh v. Birinder'' AIR 1952 Pepsu 168 (Z3). This Court has also taken the same view in two Full Bench decisions.

In - ''Apparahan v. Rappel Kutty'' 1949 Trav-C.L.R. 225, it has been ruled that the amount of court-fee payable should be determined on the allegations in the Plaint as to the cause of action and on the real nature of the relevant reliefs claimed and that in doing so the Court must look into the substance of the Plaint and not merely to its form. This aspect has again been emphasised in the later Full Bench decision in - ''Pattabhi Rama Iyer v. Subramoniam'' AIR 1952 Trav-C 509 (FB) (Z5), where it was held that though the amount of the court-fee payable on a Plaint has to be determined with reference to the allegations in the Plaint and to the reliefs claimed therein, the Court has the right and the duty to look into the substance of the Plaint and the true scope of the suit.

The question whether the two suits which have given rise to this revision petition have been placed under the correct category for the purpose of valuation and payment of court-fee, must be decided in the light of the above principles. Reading the respective Plaints as a whole, it is clear that the Plaintiffs do not seek any reliefs for their benefit exclusively and that all the reliefs are claimed for and on behalf of the Plaint trust. It is unequivocally admitted, in the Plaint that the suit properties are trust properties, the ownership of which is vested in the Plaint church. The only right asserted by the Plaintiffs is that they are the duly elected trustees entitled to be in management of the church and its properties.

According to the Plaintiffs, the contesting defts. who came into possession of these properties solely in their capacity as duly elected trustees or managers have by their conduct become disqualified and disentitled to continue their management as trustees. It is on the basis of these allegations that the Plaintiffs have sought for a removal of these Defendants from their office as trustees and for the other reliefs which are ancillary and incidental to the removal of these Defendants from trusteeship. It is conceded by these Defendants also that it was in their capacity as trustees that they got into possession and management of the trust and its properties. They do not contest the position that the properties are trust properties belonging to the Church.

On this question there is thus no dispute between the parties and neither side has put forth any claim for beneficial ownership for themselves or for their adherents or followers in respect of these trust properties. The only dispute is about the trusteeship or the right of management, the Defendants in their turn maintaining that they have not in any way forfeited their trusteeship and that they are therefore the only persons entitled to continue to be in management of the Church and its properties. The rivalry between these two sets of trustees has naturally resulted in the formation of two factions among those claiming to be. the beneficiaries of the trust, the Plaintiffs and their followers forming one faction and the defts. And their followers forming the other rival faction. But the mere existence of these two factions cannot mean that there is any dispute about the ownership of the trust properties which is unquestionably vested in the Plaint Church. Since the properties are admittedly trust properties, its possession and management will vest in the lawful trustees for the time being.

The real and the essential relief claimed by the Plaintiffs in these suits is a declaration that they are the lawful trustees. Such a declaration will necessarily carry with it their right of possession and management of the trust properties even in the absence of a specific prayer in that direction. The effect of a decree removing the Defendants-trustees from office is to terminate their possession and management of the trust properties which they have obtained solely by virtue of their office as trustees. The termination of such possession will inevitably result in such possession becoming vested in the succeeding trustees.

My learned brother Govinda Pillai, J., has taken the view that the Plaintiffs are seeking recovery of possession of the trust properties from the Defendants on the basis that they are mere trespassers in possession of these properties. But with all respect to him I have to point out that this view is unsupportable. As already, stated, the Plaintiffs do not seek for recovery of possession of the properties on the strength of any title in themselves, but only in their capacity as lawful trustees as alleged by them. It is common ground that the Defendants obtained possession and management of these properties not as mere trespassers but only in their capacity as duly elected trustees or managers.

The Plaint allegation that these Defendants by their subsequent conduct have become disqualified and disentitled to continue in management as trustees, does not and cannot mean that they are in possession of the trust properties as mere trespassers and their eviction from such properties sought for on that basis. The effect of taking such a view will be that in all suits for removal of trustees from office on grounds of their misconduct, the Plaintiffs will have to pay ''ad valorem'' court-fees on the value of the trust properties which had come into their possession merely by virtue of their office as trustees.

The legislature has deemed it necessary to avoid such a contingency and to afford protection to trusts against such hardships and loss. That appears to be the reason for making a special provision relating to suits for the removal of trustees. In Clause 2 of Article 8 of Schedule II, Travancore Court-fees Act provision is made for the payment of a fixed fee of Rs. 15/- only on the Plaint or memorandum of appeal in suits for the removal of a trustee. The purpose intended to be served by this Clause would undoubtedly be defeated if such suits are deemed to be suits for recovery of the trust properties from such trustees on the basis that their possession is akin to the possession of trespassers and insisting on payment of ''ad valorem'' court-fees on the value of such properties. To bring the suit under that category, it must be one instituted by or for the trust for recovery of possession of the properties on the strength of title from persons who claim to be in possession in their own right and independent the trust.

Clause 2 of Article 8 of Schedule II, Travancore Court-fees Act is so worded as to cover all suits for the removal of a trustee, no matter whether the trust in question is a public trust or is only a private trust. In a somewhat, similar provision contained in the Madras Act, its scope is expressly restricted to suits falling u/s 14, Religious Endowments Acts of'' 1863 or u/s 91 or Section 92, CPC In the absence of any such restriction expressions in Clause 2 of Article 8 of Schedule 2 of the Travancore Act, it will be unwarranted and unjustifiable to limit its application to any particular class of trusts. It must apply to all suits for the removal of a- trustee from office in respect of all classes of trusts.

In the nature of the present suits, it will not be correct to construe them as suits for possession of the properties scheduled to the Plaints so as to attract Clauses. 1, 3 and 5 (a) of Section 4, Travancore Court-fees Act for the purpose of payment of court-fees. The suits are essentially for the establishment of the right to the office of trusteeship in respect of the Plaint trust and such right alone is the subject- matter in dispute. Merely because the successful party will be entitled to be in possession of the trust properties by virtue of their office as trustees, it cannot be said that the properties themselves form the subject-matter in dispute. The question as to what is the real subject-matter in dispute in suits of this nature has come up for consideration in several cases.

In - ''Paili Thomman v. Cheria Mathupilla'' 31 Trav L.R. 6 (Z6), the suit that had to be construed was a suit to set aside an ''Udampadi'' which made certain provisions for the management of the trust properties of a Church and to compel the trustees in management to render accounts. It was held in that case that in a suit of that kind it is not possible to estimate at the money value the subject- matter in dispute because it was only the method of management that was in dispute in the suit and that therefore the court-fee payable was only the fixed fee as provided in Clause 7 of Article 8 of Schedule II, Travancore Court-fees Act. It was also held that it is only in suits to establish any right to trust properties that court-fees need be paid on their market value.

In - ''Janardanan v. Ponnu Pillai'' 26 Trav L.J 128 (Z7), the suit was for removal of trustees and for other consequential reliefs and there it was held that in the nature of the suit the Plaintiffs were not asking for any beneficial or personal interest in their own behalf and that the prayer for compelling the trustees to account was only ancillary to the main relief of removal of the trustees. Accordingly it was ruled that the subject-matter of the suit fell within Clause 7 of Article 8 of Schedule II Court-fees Act.

In - ''Beli Ram v. Ishar Das'' AIR 1928 113 (Z8), the suit was one u/s 92, CPC and the reliefs claimed were that the Mahant may be removed from office and a new appointed in his place and that the proper of the trust may be made over to the Mahant and the committee to be appointed assist him. It was held that there was nothing in the reliefs claimed which would take the case out of the purview of Clause 6 of Article 17 of Schedule 2, Indian Court-fees Act (corresponding to Clause 7 of Art 8 of Schedule II of the Travancore Act) and that the fixed court-fee of Rs. 10 paid on the Plaint was sufficient.

In - ''Sudalaimuthu v. P. Soraasundaram'' AlR 1925 Mad 722 (Z9), also the suit was one u/s 92, CPC It was ruled in that case that the Plaintiff in such a suit did not claim any beneficial interest in the property and that the relief by way of accounting claimed as against the trustees sought to be removed from office was only ancillary to the main relief and that the proper court-fee to be paid was that fixed under Clause 6 of Art 17 of Schedule II.

In - Maulavi Sayeed and Others Vs. Shah Tafazul Hussain and Another, , it was held that where the subject-matter of the suit is the right to mutawalliship and the office does not carry any salary or any other material enjoyment, it is not capable of monetary valuation and that therefore the proper court-fee to be paid is that fixed under Article 17 Clause 6.

In - ''Ramadas v. Hanumantha Row'' 36 Mad 364 (Z11), the suit was for a declaration that the Plaintiff was the original Dharmakartha of the Plaint temple and for his reinstatement in office and also for an injunction restraining the Defendants from interfering with the exercise of his rights pertaining to that office. There was no dispute that the properties in respect of which he sought to exercise his right as trustee and to recover the rent from the lessees in actual possession of those properties, belonged to the Plaint trust. It was held that the subject-matter of the litigation did not consist of the properties themselves but only the right claimed by the Plaintiff to manage such properties.

In - K.R. Swaminatha Aiyar and Another Vs. A. Ramier and Others, it was held that where the Plaintiffs sue for a declaration that they are the lawful trustees of a temple and its endowments and for a direction that the Defendants who claim to be trustees should be compelled to restore the trusteeship to the Plaintiffs and also for an injunction to restrain the Defendants from interfering with the exercise by the Plaintiffs of their duties as trustees, there is no necessity for the Plaintiffs to specifically ask for possession of the temple and its properties. It was further pointed out that in such B suit the Plaintiffs are only asserting their right to the office of trusteeship and that

it would be preposterous that the trustees claiming only a right to administer the trust should be compelled to sue for physical possession of all trust properties against the Defendants who claim only a similar right of management and that the Plaintiffs should be compelled to pay court-fee calculated on the total value of the trust properties.

In - ''Gauri Shankar v. Mohan Lal'' AIR 1938 OU 20 (Z13), also the suit was for the removal from office of a mutawalli and for other ancillary reliefs. A contention was raised in that case that the suit was essentially one for possession of the trust properties and that therefore the Plaintiff was bound to pay ''ad valorem'' court-fee on the market value of such properties. That contention was overruled and it was held the suit was for the office of mutawalliship and that even without a specific prayer for possession of the trust properties the Plaintiff will be entitled to get possession as- a consequence of his being declared as the lawful mutawalli and as such it will be unnecessary and superfluous to claim a relief by way of recovery of possession of the properties. It was held that such a suit would fall under Clause 6 of Article 17 of Schedule II, Court-fess Act. It was also pointed out that in suits of that category it would be clearly erroneous to value, the claim as if it were a claim for recovery of possession of the property and that a specific relief in that direction being unnecessary and superfluous has only to be ignored and need not be taken into account in valuing the real subject-matter in dispute in the suit for the purpose of fixing the court-fee payable.

To the same effect is the view taken in - K.A.V. Karuppanna Nadar Vs. M.K. Mathalai Karuppa Nadar, A similar question had come up for decision in - Sri Thakur Sitaramji Maharaj Brijman Mandir and Another Vs. Raghunath Das, The reliefs claimed in that suit were almost similar to the reliefs claimed in the two suits that have come up for consideration in the present revision petitions.

In Sri Thakur Sitaramji Maharaj Brijman Mandir and Another Vs. Raghunath Das, Plaintiff 2 claimed himself to be the duly appointed sarbarahkar of the Plaint temple and the reliefs claimed were that the Defendant who had been working as the sarbarahkar of the temple may be removed from management of the temple and that its properties may be handed over to Plaintiff 2 as the lawful sarbarahkar entitled to be in management of the temple and that the Defendant be called upon to render accounts for the period of his management. Neither side had disputed the title to these properties, it being admitted that such title vested in the temple. The only dispute was as to which of the rival claims for management was to prevail. It was pointed out that in such a suit the valuation of the subject-matter in dispute must be deemed to be the value of the interest in dispute and that such interest cannot be taken to be the full beneficial ownership of the properties involved. Where no such beneficial ownership is claimed or sought to be established, it cannot be taken that the value of the properties should be deemed to be the value of the subject-matter in dispute. It was further pointed out that

a suit between rival managers for the right to manage can hardly be deemed to be a suit for possession of the properties as both naturally admit that the possession is with the principal.

Accordingly it was held that the value of the subject-matter in dispute in the suit could not be estimated at a money value and that the proper court-fee payable will be the fixed fee as provided in Clause 6 of Article 17 of Schedule 2, Court-fees Act.

The same view has been taken by this Court also in the decision in - ''AIR 1954 Trav-C. 51 (G)'', which arose out of a suit to establish the right of management of a mosque. As in the two suits now under consideration, the reliefs claimed in that suit were to remove the Defendants from management and for recovery of possession of the properties of the mosque from the Defendants and for rendition of accounts. After examining the relevant provisions of the Court-fees Act and after reviewing the case law governing the question that had been agitated in the revision petition, it was ruled that the Plaintiff was not bound to pay court-fee on the market value of the properties involved in the suit and that the fixed fee paid under Clauses. 2 and 7 of Article 8 of Schedule 2, Travancore Court-fees Act was sufficient. The preponderance of judicial opinion is undoubtedly in favour of the correctness of this view.

The decisions on which my learned brother Govinda Pillai J. has placed reliance in support of the contrary view taken by him cannot be accepted as laying down the correct law in respect of the court-fee payable on a Plaint falling under the category already referred to. In - ''AIR 1932 AH 593 (B)'', it was ruled by a Single Judge of the Allahabad High Court that where the Plaintiff alleges that lie has been duly elected as Mahant in place of Anr. and brings a suit for possession as Mahant of the properties attached to the Mutt, the suit would fall under Clause 5 of Section 7, Court-fees Act and that ''ad valorem'' court-fee has to be paid on the value of the properties of the Mutt. The view taken was that there is no justification for interpreting the word "possession" as used in Clause 5 of Section 7 as meaning possession as beneficial owner and hence the question whether the Plaintiff has or has not any beneficial interest in the properties does not make any difference as regards the court-fee payable by him. With all respect to the learned Judge who decided that case I have to point out that this view is clearly erroneous, as has been explained in the series of decisions already referred to.

Reference may also be made in this connection to the decision of the Privy Council in - 35 Cal 202 (PC) (A)'', where it was pointed out that the value of an action must mean the value to the Plaintiff who brings the action and that the provisions of the Court-fees Act which prescribe ''ad valorem'' court-fees must be taken to be applicable only to those cases in which the Plaintiff claims any beneficial interest for himself or for Ors. whom he represents in the litigation.

In the Plaint that had to be construed in - ''AIR 1949 Cal 98 (C)'' for the purpose of fixation of the court-fee payable, there was also a prayer for a declaration that the property involved in the suit really belonged to the ''wakif'' which the Plaintiff claimed to represent as its muta- walli. Thus the subject-matter in the suit was not merely the dispute regarding the right to the office of mutawalliship but the title to the wakf property was also in dispute and formed the subject-matter in dispute. It was under such circumstances that the Court held that the Plaintiff was bound to pay ''ad valorem'' court-fees on the market value of the property.

In - In Re: Syed Mahammad Gouse and Others, also the suit was not merely for a declaration that the Plaintiff was the ''Sajjadanashin'' of the two ''Durgas'' involved in the suit and for getting possession of the properties solely by virtue of his office as ''Sajjadanashin''. According to the Plaintiff he was already in possession of the properties, but the Defendant had wrongfully dispossessed him and it was on the strength of such an allegation that the Plaintiff wanted recovery of possession of the properties from the Defendant. Thus it was not a suit for the removal of the Defendant from the office of ''Sajjadanashin'' and for establishing the Plaintiff''s right to that office and for other ancillary and incidental reliefs and as such the decision in that case cannot govern cases falling under the general category of suits for the establishment of a right to an office.

The decision in - N. Muthusivami Pillai and Others Vs. N.S. Manickavasagam Pillai and Others, is also distinguishable on facts. Even though it was a suit for removing a trustee in possession'' and for appointing the Plaintiff himself as the trustee and for recovery of possession of the properties from the Defendant, it is clear from the allegations in the Plaint that the Defendant in the suit really wanted to establish the title to the properties in himself. Thus the Plaintiff had denied the claim that the properties belonged to the trust and had set up exclusive title of the trust to the suit properties and to recover possession of the properties from the Defendant on the stength of such title. Such being the real nature of the suit, the view that the Plaintiff was bound to pay ''ad valorem'' court-fee on the value of the properties could be sustained.

Such a distinguishing feature was present in the suit that had to be considered in - Manik Chandra Sarma Vs. Dambharudhar Sarma and Others, . There the Plaintiff had sought for recovery of possession of the properties on ''the allegation that he had been wrongfully dispossessed by the Defendants. Thus it cannot be said that the decisions in these cases, excepting the decision in - Parsottamanand Giri Vs. Mayanand Giri really go counter to the decision of this Court in - ''AIR 1954 Trav-C. 51 (G)'' and in the other cases wherein a similar view has been taken.

Thus on a review of all these decisions I am clearly of opinion that the real nature and scope of the Plaints in the two suits under consideration are exactly similar to the real nature and scope of the suit considered in - ''AIR 1954 Trav-C. 5.1 (G)'' and that the decision in that revision petition is correct and has to be affirmed and I have the concurrence of my learned brother Subramonia Iyer J., in thus affirming the decision in - ''AIR 1954 Trav-C. 51 (G)'', of this Court. The answer to the general question involved in the present revision petition and which question has been formulated by me in the earlier part of this order is also furnished by decision in - AIR 1954 Trav-C. 51 (G), viz; that in suits of the nature covered by the general question, the Plaintiff is not bound to pay ''at valorem'' court-fee on the market value of the properties involved in the suit, but need only pay the fixed fee as provided in Clauses. 2 and 7 of Article 8 of Schedule 2, Travancore Court-fees Act (corresponding to the identical provisions contained in the Travancore-Cochin Court-fees Act, 1125). I hope that my learned brother, Subramonia Iyer J. will express himself on these general aspects also so that the answers to the points raised in the referring order may be complete.

C.R.P. No. 37/1124 (U) and 387 of 1951.

As per the majority decision C.R.P. 37/ 1124 and C.R.P. 387/1951 are both dismissed with costs.