N. Muthusivami Pillai and Others vs N.S. Manickavasagam Pillai and Others

Venkataramana Rao, J.—This civil revision petition raises a question of court-fee. The suit was originally instituted u/s 92, Civil P.C., with

the sanction of the Advocate-General for the removal of the defendants from the possession of the suit property, for the appointment of a trustee to

manage it, for vesting the said property in the said trustee, for framing a scheme for its management and for other incidental reliefs. A fixed fee of

Rs. 50 was paid under Article 17(iii), Schedule 2, Madras Court-fees Amending Act. The main allegations in the plaint were that the plaintiffs are

members of a caste known as Siruvaikudi Vellalars, that the suit property was acquired and constructed out of caste funds subscribed from time to

time by members of the caste for the general purposes of the caste, that the object of the acquisition was to use the property as a rest house ''for

such of the members of the community as might visit Thiruvannamalai for rendering worship, whether at festival times or during ordinary periods,''

that the said property was also used for the purpose of affording accommodation to and convenience of the members of the community when

assembling for caste meetings which were being held periodically, that the property was thus a specific endowment of a religious and charitable

character in which the entire community is interested, that the defendants were in exclusive possession of the said property and were denying the

rights of the members of the community to use it in the manner they were entitled to do.

The learned Subordinate Judge passed a decree removing the defendants from possession of the property and calling for a draft scheme, as in

his opinion ""a scheme for the better management of the trust"" was necessary. On appeal Varadachariar and Burn, JJ. set aside the decree holding

that the suit was not maintainable u/s 92, Civil P.C., but they however gave leave to amend the plaint as one under Order 1, Rule 8, Civil P.C.

leaving the question open whether in the circumstances of the case the said rule would be applicable. The condition of the amendment was that the

said plaintiffs should pay such additional court-fee as may be payable on the plaint in consequence of the amendment. The learned Subordinate

Judge has now directed an additional court-fee of Rupees 1,312-7-0 to be paid. It is against this said order the above revision petition has been

preferred.

It is contended by Mr. K.V. Krishnaswami Iyer for the petitioner that the reliefs claimed in the plaint are incapable of valuation as the plaintiffs

are not seeking any personal benefit for themselves and that the nature of the claim as originally laid is not in any way altered by the amendment.

Before examining the soundness of that contention, it is necessary to look into the substance of the plaintiff''s claim. So far as the nature of the

property is concerned in respect whereof the reliefs are sought, the said judgment of the Bench is binding on the parties and it is not open to me to

go behind it. It is thus observed therein:

It may be conceded that the interest of each of such member of the community in caste property is not identical with ordinary co-ownership in

property held in common. But it will not necessarily follow from this alone, that the property can be regarded as held in ''trust'' and much less that it

is property held in ''trust'' for a ''charitable purpose.''

The suit therefore cannot be viewed as one for the administration of a trust. It is in substance one for the administration of property of a casta

wherein all the members of the caste are interested after ejectment of persons who are in exclusive possession thereof and refuse to have the same

administered for the common benefit. As Varadachariar, J. pointed out in the said judgment, it may not be strictly accurate to describe the interest

of a member of a caste in the property as one of co-ownership. A caste is not a corporation or a partnership and it is difficult to describe it under

any legal conception. A caste is a well defined body of persons associated together for certain purposes and governed by usages of its own and

where membership is regulated by birth property can be owned by such a body and all the members have a beneficial interest therein, in that every

member is entitled to use and enjoy it in accordance with the rules and regulations prescribed by it and it cannot be dealt with or alienated without

the consent of the members of the community expressed or declared in accordance with caste usage. This legal relationship of a member of a caste

with reference to its property has to be kept in mind in considering the cases cited at the bar with reference to suits u/s 92, Civil P. Order In most

of the said cases a view has been taken that suits u/s 92, Civil P.C., are incapable of valuation and can be valued under Schedule 2, Article 17(vi),

Courts-fees Act, and the fact that reliefs are prayed directing a trustee who is sought to be removed to hand over possession of the trust property

or to refund moneys misappropriated by him does not matter. The reason assigned is that the plaintiffs do not claim beneficial interest for

themselves (vide Thakuri v. Brahma Narain (1896) 19 All 60 and Girdhari Lal v. Ram Lal (1899) 21 All 200) and it is thus expressed in Ramrup

Das v. Surjaram Das (1910) 12 CLJ 211:

The juridical person who is in possession of the only property which can have any value is the idol, and if the she bait, who is alleged to have

neglected his duty and to have embezzled the idol''s property, is sought to be remoevd and another manager put in his place, it cannot be said that

this is a suit involving the value of any portion of the idol''s property.

This is the view taken by Krishnan, J. in Sudalaimuthu Pillai and Others Vs. Peria Somasundaram Pillai, . But I must point out a different view

was expressed in two early cases of this Court. In Srinivasa v. Venkata (1888) 11 Mad 148, the suit was for the removal of a manager under the

Religious Endowments Act of 1863, and for recovery of damages misappropriated by him. Dealing with the question of court-fee, the learned

Judges observed thus:

The contention that the plaint needs only a stamp of Rs. 10, even when damages are claimed, cannot be supported, inasmuch as the compensation

claimed would then form part of the subject matter of the suit, capable of being estimated at a money value within the meaning of the Court-fees

Act.

In Sonachala v. Manicka, (1885) 8 Mad 516 where with reference to a family charity a suit was filed for the removal of the then manager and

for appointment of the plaintiff in his stead and for other appropriate reliefs, Muthuswami Ayyar, J. remarked at p. 518:

A suit therefore for removing a trustee in possession and for appointing the plaintiff in his stead and placing him in possession of the trust property

must be treated, for purposes of Court-fees in the absence of a special provision of law, as a suit falling u/s 7, Court-fees Act.

It seems to me that this is a correct; principle to be followed. Madhavan Nair, J. cited the observation of Muthuswami Iyer, J. with approval in

In re Muhammad Gouse AIR 1925 Mad 804 and decided the case before him accordingly. He pointed out in that case that the question of the

plaintiff having beneficial interest in the property has nothing to do with the question of court-fee. I expressed the same view in Somasundaram

Chetty v. Chidambaram Chetty (1935) 42 MLW 765, and I see no reason to change it: (cf. also Bhagwan Sahai and Others Vs. Ram Chander

and Others, , where King, J. also seems to take the same view.) If one examines the cases which have taken the view that a suit u/s 92, Civil P.C.,

need not be valued as one for possession it will be seen that the learned Judges do not treat the suit as one for possession. In Thakuri v. Brahma

Narain (1896) 19 All 60 the following observations occur:

The plaintiffs nowhere seek possession of the property. Although they ask that they may be appointed superintendents they might never be

appointed to that office. The Judge might see fit to appoint some other person as trustee or superintendent, and no occasion might arise for the

plaintiffs taking possession of the property. It might also not be necessary to eject the defendant. If the declaration sought for be made, the

defendants might themselves cease to interfere with the property.

The learned Judges in that case do not say that if it is necessary to eject the defendant, the suit need not be valued as one for possession.

Burkitt, J. in Ghazaffar Hussain Khan v. Yawar Hussain (1905) 28 All 112 seems to think that no relief for possession can be awarded to plaintiffs

in such a suit and a separate suit for possession may be necessary, if the trustee removed, declined to deliver possession. In most cases the

property is in the possession of tenants and vesting was considered enough: vide Ramadass v. Haniamantha Rao (1913) 36 Mad 364. But if it is

necessary to recover possession from the defendants-trustees, as Muthuswami Ayyar, J. observed, the claim would directly come within 01. (v)

Section 7, Court-fees Act. The question of hardship noticed by Krishnan, J. in Sudalaimuthu Pillai and Others Vs. Peria Somasundaram Pillai, and

in the Allahabad cases is hardly a matter for consideration if the language of the statute is plain. It is a matter for legislation and now the Madras

Amending Act by enacting Schedule II, Article 17(iii) has obviated the hardship; and a fixed court-fee of Rs. 50 would be enough in a suit u/s 92,

Civil P.C. even if a trustee is asked to refund money: Ramanuja Naidu and Others Vs. Muthu K.R.V. Alagappa Chettiar and Another, . But if the

suit does not fall u/s 92, Civil P.C., in the absence of a provision of law, Clause (v), Section 7, Court-fees Act must govern a case where the suit is

in substance one for the recovery of possession. In the present case, the material allegation in the plaint leaves no room for doubt that recovery of

possession is a substantial relief. I give herein below the necessary allegations:

The aforesaid minority--which has managed to possess itself of the keys of the premises and other communal properties and funds have been

evincing a desire to hold exclusive possession of the undermentioned premises in the sole interest of the individuals composing the faction. 11. The

defendants are setting up exclusive right to the possession and management of the undermentioned property; and in the exercise of such right, claim

to interfere with the rights of the members of the general body of the community to use the premises for which they are intended. There was in

consequence a police enquiry on the matter of the possession of the undermentioned premises. 12. Acting on the strength of the onesided report of

the police, the Subdivisional Magistrate has passed proceedings on 18th October 1929 prohibiting the members of the general body of the

community from using the premises in the manner they are entitled to do. 13. The interests of the body of the community peremptorily demand that

the suit properties should be placed on a proper footing of administration and it is essential that a scheme should be settled by the Court for

ensuring that the premises are put to their proper use. 14. Although the defendants have no manner of right to the possession of the premises, yet

as they are actually in possession, they are liable to be removed from possession, and it is essential that they should be so removed.

It will thus be seen that the recovery of possession is absolutely necessary from persons who are setting up a title in derogation of the rights of

the members of the caste before the property can be administered for the common purposes of the caste, whether by Courts or the caste and I do

not express my opinion by whom it should be. And recovery of possession is sought on behalf of all the members of the caste who are virtually

plaintiffs in the case and who, as I have already pointed out, do possess an interest in the property and claim to get a benefit therein by having it

preserved for their common use. Thus even on the theory of beneficial interest enunciated in the cases relied on, the present suit will come within

the purview of Clause (v), Section 7, Court-fees Act. The decision of the lower Court in directing the plaintiff to value the suit as one for

possession under Clause (v) is correct. In regard to the valuation of the other reliefs in the plaint, the assessment by the lower Court has not been

impeached to be incorrect if the main contention of the petitioners were to fail. The plaintiffs are however entitled to get credit for the sum of Rs. 50

already paid by them at the time when they instituted the suit. The plaintiffs will have three months'' time from this date to pay the court-fee. Subject

to this modification the Civil Revision Petition fails and is dismissed with costs.