N. Nataraj vs Gangawar Mahajana Trust

V. Balasubrahmanyan, J.—For a disposal of this revision, some background facts may be stated. Gangawar Mahajana Trust, which is a

charitable trust, instituted a suit O.S. No. 76 of 1966 in the District Munsif''s Court, Coimbatore against two persons, for a permanent injunction

restraining the defendants from preventing the entry of the plaintiff trust or any of its members in the temple for holding their meetings, celebrating

their festivals and the like. The suit was opposed by the defendants. Although the relief claimed was for a bare injunction, the learned District

Munsif appears to have covered a wider field at the trial having regard to the details of the pleadings between the parties. One of the issues raised

in the suit by the trial Court was:

Whether the Gangawar Mahajana Trust is entitled to or has any interest in Mahali Amman temple or its premises?

The learned District Munsif answered this issue in favour of the plaintiff and also granted a permanent injunction as prayed for by the plaintiff. The

2nd defendant preferred an appeal before the Sub-Court, Coimbatore. The Sub-Court, while affirming the decree of the trial Court on the issue as

to the relief of permanent injunction, declined to go into the question of title raised by the issue extracted by me earlier. On the last part of the

decision of the Sub-Court, the plaintiff felt aggrieved and carried the matter in second appeal before this Court. Ismail, J,, as he then was, while

disposing of Gangawar Mahajana Trust v. N. Natarajan S.A. No. 1552 of 1972, observed that the Sub-Court was technically right in holding that

the issue as to title did not properly arise in the suit, which was one for a bare injunction and nothing more. Nevertheless, the learned Judge thought

fit to remand the case to the Sub-Court for a decision on the question as to title, since in the opinion of the learned Judge, it was proper not to

drive the parties to a separate suit on the question of title. While making his order of remand in the manner aforesaid, the learned Judge also

incidentally directed that if by reason of the Court below going into the question of title, there was any liability for payment of court-fee in respect

of the property, the deficient court-fee on that basis may be collected from the parties both in respect of the plaint and in respect of the

memorandum of first appeal.

After this remand, the matter came before the Sub-Court for a disposal, afresh on the issue of title. At that stage, a question was mooted as to

the court-fee payable on the relief as to title. The 2nd defendant, who is the petitioner in this revision, then moved the Sub-Court for the

appointment of a Commissioner to ascertain the market value of the temple and its precincts, so that the proper court-fee may be determined on

the relief as to the declaration title. This application was dismissed by the Sub-Court by order, dated 24th October, 1977. It is this order which

has been brought before this Court in revision.

I may first observe that it is somewhat late, in the day for me to rake up the question whether, having regard to the frame of the suit, it is worth

anybody''s while or the Sub-Court''s while to have gone into the question of title at all, for that matter, rightly or wrongly has been concluded by the

order of remand made by Ismail, J., in the second appeal, to the terms of which I have made reference earlier. I must also make it clear that in the

order of remand made by Ismail, J., there is no specific finding, based on any determination of calculation, that the court-fee paid already in the

Courts below was deficient under any provisions of the Court-fees Act, Ismail, J., merely made a tentative observation to the effect that, if there is

any deficit court-fee, that might be collected before the parties may be allowed to join issue on the question of title before the Sub-Court.

In this revision, as I said, the only question is whether the Sub-Court was right in rejecting the application for appointment of a Commissioner for

ascertaining the market value of the said temple and its precincts for the purpose of determination of court-foes. The learned Subordinate Judge

pointed out that the dispute in the suit relates to the temple and the site on which the temple stands. He took the view that there is no such thing as

the determination of any market value, once the suit property was acknowledged by the parties to be a temple. He noticed that the plaintiff had

already paid court-fee on the plaint purporting to pay it u/s 30 of I he, Tamil Nadu Court-fees and Suits Valuation Act, 19SS. The learned Judge

held that Section 30 is an inappropriate provision, having regard to the fact that the suit property is a temple and could not be valued in terms of

market value. After considering whether any other provision in the Court-fees Act would apply to a property of this kind, in respect of which relief

is claimed in the suit, the learned Judge held that the court-fee would fall to be payable only u/s 50 of the Act. In that view, the learned Judge held

that there was no question of ascertainment of market value either by the appointment of a Commissioner or otherwise.

It seems to me that the learned Subordinate Judge had arrived at a correct conclusion on a proper understanding of the nature, of the property

in the suit and on a correct application of the relevant provisions of the Courtfees Act.

Learned Counsel for the plaintiff, who is the contesting respondent in this revision, referred us to a very early judgment in a Full Bench of this

Court in Rajagopala Naidu Vs. Ramasubramania Aiyar and Another, . That was a case, in which the question arose, whether there was any

market value for a temple, as such, for the purpose of court-fees in a suit for recovery of possession of a temple. The case arose under the Court-

fees Act, 1870. A study of this Full Bench decision shows that ultimately the members constituting the Full Bench did not think fit to consider or

answer the question specifically referred to them. Nevertheless the expressions of opinion of the learned Judges, who constituted the Full Bench as

well as of the learned Judges who made a reference to the Full Bench, are instructive. They explain from different angles, the law on the subject.

Spencer, J. and Venkatasubba Rao, J., constituted the Bench, which made the reference. Spencer, J., observed in his referring judgment, that

where a plaintiff, who is a trustee of the temple, prays for possession along with other trustees, then the question of his possession should be dealt

with as possession to which he is entitled in the status of trustee that is to say, without having any personal interest in the trust property; likewise the

possession claimed by the temple trustee is also only such possession as the holder of the office is capable of. These observations were made by

Spencer, J., in the view that the ownership of temple properties can only be vested in the idol. Venkatasubba Rao, J., in his separate referring

judgment expressed a similar view when he observed that a temple, being extra commercium, was incapable of having a market value and court-

fee cannot be demanded on the basis of ascertainment of the value of the temple in a suit for possession filed by the trustee. When the matter came

before and was considered by the Full Bench, Sir Walter Salis Sehwabe, the learned Chief Justice, also expressed much the same view of the

relationship between a trustee of a temple and the temple, as such for the purpose of the enactment relating to court-fees. He observed that a

temple is non-alienable and has no market for it and hence there can be no market value, for it too, for purpose of the Court fees Act. ''According

to the learned Chief Justice, a suit for possession of a temple will have to be valued for purposes of court-fees under the residuary provision in the

statute which lays down the court-fee for proceedings ""not otherwise provided for"". The other two learned Judges constituting the Full Bench

agreed with the view expressed by the learned Chief Justice.

Although the Full Bench had clearly expressed that they were not deciding the question referred to them, the expressions, of opinion of the

learned Judges. which I have briefly summarised in the foregoing paragraph, show clearly the nature of the temple as a species of property,

particularly in relation to the fiscal provisions of the Court-fees Act. The opinion uniformly expressed by the learned Judges is to the effect that it

would be inapt to regard a temple as a marketable property having or possessing a market value as such. It is also clear that a trustee of a temple,

or any one making a claim to the office of a trustee of a temple, thereby does not have, or claim, any interest in any property as owner. The temple

properties are, in the strict sense, the properties of the idol. The temple as such, as an item of property, also belongs to the idol and the ownership

cannot be attributed to the trustee either of the temple as such or other temple properties merely for the reason that as trustee, he has the power

and the authority to manage and administer those properties.

Learned Counsel for the 1st defendant sought to make a point of distinction based on the fact that the suit temple was not claimed to be a public

temple, but was claimed to be only a shrine belonging to the plaintiff-trust composed of members of a particular community. I do not think that the

distinction sought to be made by the learned Counsel leads to a difference in the application of the principles I have stated above. A temple is a

temple whether it is a public temple or a sectarian temple. A temple may be a structure of stones or brick and mortar, but it can hardly be regarded

as an item of marketable property, because1 as a place of religious worship, it is extra commercium. A temple is sometimes called a House of God

but the learned Judges in the Full Bench decision have pointed out that a temple cannot be equated to a house in the sense that it is marketable or

that it has a market value. It may be that the plaintiff in this case had claimed title to the temple. But they have also described themselves

unmistakably as a trust. Such title, as they claim, therefore, must be regarded only as a claim consistent with their status as trustees. In that sense,

the present case cannot be distinguished at all from that of a public temple, managed and administered by the temple authorities.

Having regard to the considerations stated above, the, learned Subordinate Judge was right in holding that the court-fee already paid must be

dealt with as having been properly paid for a suit of this description u/s 50 of the Act. This revision is accordingly dismissed. However, there will

be no order as to costs.