Rajagopala Naidu vs Ramasubramania Aiyar and Another

Spencer, J.—The plaintiffs in this representative suit claim to have an exclusive right to manage certain Devastanams mentioned in the plaint and to appoint and remove a Dharma-kartha for those temples whenever occasion arises. They pray for a declaration accordingly and ask for delivery of possession by defendants 1 and 2 of all the properties of the suit temples and for payment of certain amounts that may be found due on examination of accounts of the income and expenditure.

The question in this Civil Revision Petition is bow such a suit should be valued. The Subordinate Judge has valued it according to the estimate made by a Commissioner of the value of the temples and all the properties attached to them which amounts to more than Rs. 2,00,000. The 1st plaintiff as petitioner contends that he is not liable to pay Court-fees upon the valuation of the temple properties according to their market value. He maintains that he can value the relief u/s 7, Clause 4(c) of the Court-fees Act as he pleases, as the only right in issue in the suit is the right pertaining to trustees of managing the suit properties. In C.R.P. No. 862 of 1917, a similar question came before a Bench consisting of Mr. Justice Sadasiva Aiyar and myself, the question then being whether a plaintiff who sued for joint possession along with other trustees was bound to pay Court-fees ad valorem as in a suit for possession falling u/s 7, Clause 5, upon the market value of the temple and its properties. We made a reference to a Full Bench upon the point. When the reference came before the Full Bench the Civil Revision Petition was withdrawn. The question which was a very important one, upon which Sadasiva Aiyar, J., and I differed, thus remained undecided. Most of the authorities were collected in the reference made by my learned brother and myself, and after full consideration I expressed an opinion that the plaintiff''s valuation was conclusive and should be accepted u/s 7, Clause 4(c) and (d) and Article 17, Clause (vi) of Schedule 2 of the Court-fees Act. I pointed out in that case that the plaintiff was only asking for such possession as he was entitled to on the footing of a trustee without having any personal interest in the trust property and for such possession as the holder of the office was capable of, the ownership of the temple properties being vested in the idol. If a plaintiff sets up any proprietary right over temple properties I was willing to concede that he must pay Court-fees valuing his relief of possession upon the value of the temple properties. I then held that the cases in Sonachala v. Manika [1885] 8 Mad. 516 and Appeal No. 10 of 1911 were distinguishable and I quoted Mohendra v. Denabandhu [1914] Cri.L.J. 15, and certain other authorities for the proposition that if a plaintiff claims no higher right than that of administering endowed properties he should not be made to pay Court-fees on the same footing as a plaintiff who sues for possession claiming rights as proprietor. The question is an important one, and I am not satisfied that Appeal No. 10 of 1911 and Section A. No. 1410 of 1917 in which it was held that the temple and its properties must be valued were1 correctly decided. It is advisable also that in a matter where no party is more concerned than Government who are interested in the payment pf the full Court-fees, the Advocate-General should have notice and should be heard in the matter.

I therefore refer to a Full Bench the question what are the Court-fees legally payable on the plaint in this suit O.S. No. 28 of 1920 in the Court of the Subordinate Judge of Mayavaram?

Venkatasubba Rao. J.

I am also of the opinion that the question should be referred to the Full Bench. The matter was fully discussed and the authorities in support of the rival contentions were set forth in the referring judgments of my learned brother and Sadasiva Aiyar, J., in C.R.P. No. 862 of 1917, and I therefore refrain from covering the same ground again. But, there is one point to which I would like to advert. It has been stated that, in the present case, Court-fee was paid on the value of the subject-matter so far as if consists of "lands" u/s 7(c)(5) of the Court-fees Act. The plaintiff, however, has not paid the fee payable on the market value of the temple in question. The Commissioner appointed valued the temple at Rs. 2,22,000, odd. The estimate was based, inter alia upon the cost of the materials used, on the ground that by that process the "market value" of the structure could be ascertained.

Whatever may be held to be the correct view in regard to the mere general question discussed in the Judgment in C.R.P. No. 862 of 1917, it seems to me that there is considerable force in the argument of the learned Vakil for the appellant, that the structures constituting a temple which are the abodes of the idols, are not "houses" u/s 7(c)(5) on which "a market value" can be placed under Sub-clause (e). A "house" according to Murray''s Dictionary, no doubt, includes a "place of worship, temple, or a church." I do not think we shall be justified in turning to English decisions for interpreting the word "house" as they deal with particular statutes where the word occurs. As Stroud, in his Judicial Dictionary, points out, a Church consecrated according to the rites of the Established Church was held not to be "a house" u/s 105, Metrop. Man. Act, 1885, whereas a Dissenting Chapfel was held to be such a "house." Again, a Consecrated Church, though held not to be a "house" within the Section just cited, was nevertheless held to be a "house " qua a building line which a local authority has a right to prescribe. I do not think we can derive much assistance from the definitions or interpretations given above in construing the word "house" in the Section of the Court-fees Act.

I am of the opinion that under the Court-fees Act a temple which is mainly the abode of the deity cannot be said to be a "house" the "market value" of which is capable of being ascertained. A temple being extra commercium is ex hypothesi incapable of having a market value. It is well known that, to construct structures similar to numerous temples in India. sums amounting to lakhs or tens of lakhs of rupees would be required, and I do not think that the Legislature intended that a Court-fee should be levied on what is described before us as the "market value" of the temples. I am therefore inclined to hold that it is not possible to estimate at a money value, a temple and the idols in it and that, in any event, so far as the subject matter comprises the aforesaid, the case falls within Article 17 B of Schedule II of the Court-fees Act V of 1922. (Mad. Amending Act.)

OPINION

Schwabe, C.J.

This is a reference to a Full Bench on the question of the Court-fee payable on a suit by the Plaintiff claiming to be a trustee of a temple against the Defendant who is in possession of the temple, also claiming to be a trustee. The property in question has been valued by the Plaintiff for purposes of Court-fee at a certain amount, but the Commissioner has reported that the amount is too small solely on the ground that the temple buildings ought to be valued at their cost of construction less, presumably, something for depreciation. It is contended by the Plaintiff that the temple buildings as such are not assessable at all for purposes of Court-fee. The Section of the Court-fees Act alleged to be applicable is Section 7(V)(e) which provides that, where the subject-matter is a house or garden, it has to be valued "according to the market value of the house or garden." It is first argued, and with considerable force, that the temple is not a house at all. I do not think it necessary to go into the question of what is and what is not "a house" or whether any part of this temple could be properly included within the proper definition of the word "house." I think it better to leave that question over until it arises definitely for decision, for we have not in this case the full facts as to the exact nature of the buildings in question and the use to which they are or can be put. But, it is further argued that this temple, even if it can be considered as a house, has no market value. "Market value" has been defined in England as meaning what it would fetch in the market under the state of things existing at the time, and that definition is to be found repeated with great clearness in Manmatha Nath Miter v. Secretary of State [1898]. 25 Cal. 194 That was a case under the Land Acquisition Act and what was acquired was a road and compensation was claimed in respect of that road based on the value of the land on which the road stood when it ceased to be a road, for agricultural or building purposes or the like; and their Lordships of the Privy Council made it quite clear that, apart from the fact that the Land Acquisition Act itself in terms prohibited such considerations, the principle of compensation based on the "market value," which is the wording in that Act as well as in the Court-Fees Act, is that things have to he taken as they stand at the time.

Now, this temple is an ancient temple and its history dates at least thousand years back, and there seems to be no doubt, that the temple is devoted absolutely and in perpetuity to religious purposes. On those facts one has to enquire whether there is a market for such a thing. In my judgment, such enquiry results in the conclusion that there is no market and that it can have no market value at all. The principle applied by the Commissioner, when he has taken as the market value, what may be called the hypothetical construction value, is, in my judgment, entirely wrong. He has got to find the market value of the thing as a temple at the time. It is not suggested before us, on behalf of the respondent or on behalf of the Crown, who attended as amicus curiae, that in fact there is any market for such things. I think also that it would be conclusive against such a contention, that the property is inalienable and was devoted in perpetuity to religious purposes.

On these grounds, I come to the conclusion, that there is no market value at all for this temple as such. That being so, it does not come under that Section of the Act, and has to be dealt with as a matter "not otherwise provided for"--under Schedule II(17),--except that, apparently, there is in this case some market value for some part of the property claimed, and in respect of that the plaintiff has put on a valuation. There is no appeal in respect of that valuation by him and therefore that valuation stands and must be taken as correct.

Taking this view of the case it is unnecessary to consider the question specially referred to us by the Referring Bench, namely, whether, on a claim by a trustee for possession of trust properties for the purposes of proper administration of that trust, he will have to pay Court-fee on the value of the trust property, or whether in that case he is only bound to pay the nominal amount of Rs. 10 or Rs. 15. This question had been referred on a former occasion to a Full Bench of this Court, but it was not decided then, and, owing to the facts of this case, it shares the same fate now.

The answer to the question referred to the Court is, the Court-fee legally payable are the fees already paid.

Oldfield, J.

I entirely agree.

Ramesam, J.

I agree.