Maulavi Sayeed and Others vs Shah Tafazul Hussain and Another

Courtney-Terrell, C.J.—This is an appeal from the appellate decision of the Subordinate Judge of the second Court of Arrah returning to the plaintiffs their plaint on the ground that it did not bear a proper court-fee, together with an order that when the proper court-fee is paid it should be filed in a Court of competent jurisdiction. The dispute is really between the plaintiffs and defendant 2, rival claimants to the mutwalliship of a certain wakf in favour of a mosque. The wakf property consists, amongst other things, of a number of katra shops. The plaintiffs brought a suit in the Court of the Judge of Small Causes claiming Rs. 151 against defendant 1, who was tenant of one of the shops, and the plaintiffs claimed as being the trustees under the wakf.

The defendant defended on the ground that he was already sued by defendant 2 for similar arrears of rent, and the Small Cause Court Judge seeing that the dispute was between the rival claimants to the mutwalliship directed that the case must go before a Court capable of dealing with the issue of title.

Accordingly, the plaintiffs amended their plaint and filed it in the Court of the Munsif, and they made defendant 2, a party to the suit. They claimed as against defendant 1 the amount of rent as they had done in the Small Cause Court, and they claimed against defendant 2 a declaration that he (defendant 2) had no claim to be considered as the mutwalli and had no right to collect any rents. They paid a court-fee upon the sum of Rs. 151 as being the valuation of the remedy which they sought.

The Munsif on the objection of the defendant held that the benefit, which would accrue to the plaintiffs by the suit if they be successful, was limited to Rs. 151 which they sought to recover from defendant 1, and dismissed the defendant''s objection. The matter then went on appeal to the Subordinate Judge, who rejected the plaint on the ground that the proper court-fee had not been paid and considered that the proper System of Valuation was to take the capital value of the shop the rent of which was in suit as against defendant 1 and to demand payment upon that sum of an ad valorem court-fee. From that decision the plaintiffs appeal to us.

It seems to me, notwithstanding the length of time that this case has taken to argue, that the point is really a simple one. Both sides agree in two primary matters. They agree that the house or shop property, the rent of which is in dispute, is the property of the mosque for the support of which the wakf was created; it is the property of the cestui que trust and is not in dispute at all.

The real point in dispute is the mutwalliship. The second point upon which both sides agree is that whether the plaintiff or defendant 2 is the mutwalli, in no case does the mutwalli derive any personal benefit from his position. He is a mere trustee, and the income of all the property is to be devoted to the purposes of the trust. What is in dispute in the case is, as I have said, the right to the mutwalliship, and not the property which is in trust. A question arises whether this is a matter which is capable of valuation. The Court-fees Act provides for two classes of cases. On the one hand, u/s 7 it provides for cases in which the subject matter of the suit is capable of monetary valuation. On the other hand, by Schedule 2, Article 17, Para. 6 it provides for the court-fee which shall be payable in the case where ne monetary valuation can be given to the subject matter of the suit.

If the office of mutwalli were a salaried office or if material benefits were derived from enjoyment of the office, then it is clear that it would be capable of monetary valuation and so should be valued; but both sides agree that this is not the case. In that case I do not see how it can be capable of monetary valuation, and accordingly the proper court-fee is the fixed fee provided by Schedule 2, Article 17, Para. 6, that is to say, a sum of Rs. 15. As was suggested by my learned brother Luby, J., in the course of argument, the case is analogous to, although not governed by, Section 92, Civil P.C., in which the administration of trust property is in dispute or the appointment or removal of a trustee requires a judicial decision.

In those cases which are in fact governed by Section 92 the subject matter in dispute is not capable of valuation and a fixed and nominal fee is provided. So, in this case no monetary valuation is possible, and in my opinion, the article of the Schedule. I have mentioned, applies and the nominal court-fee will be paid. But it must be remembered also that the plaintiff''s have also sued defendant 1 for the amount of the rent, and ad valorem court-fee must be paid upon the amount of the rent payable in addition to the fee of Rs. 15, which is payable on the claim for the relief against defendant 2. I am of opinion that the appeal should be allowed and that the case should now be sent back to the Subordinate Judge''s Court for the reception of the plaint, upon which the fees I have indicated should be paid, and for determination of the issues upon merits. The appeal is allowed with costs.

Luby, J.

I agree.