Sri La Sri Somasundara Gnana Desiga Swamigal, Madathipathi of Kovilur Mutt, represented by Power-Agent Sivaprakasa Swamigal vs Sri Krishnandaswami

M. Natesan, J.—This Revision Petition involves the construction of Sections 12 and 28 of the Madras Court-fees and Suits Valuation Act,

1955 (Madras Act XIV of 1955) The suit was originally instituted in the Subordinate Judge''s Court, Thanjavur, in 1960 and registered there as

O.S. No. 14 of 1961. The suit was laid for recovery of possession of the properties set out in Schedules A to D-2 of the plaint and for rendition of

accounts by the defendant and future profits, the plaintiff instituting the suit as Madathipathi of Kovilur Mutt. The plaintiff had valued the suit for

purpose of Court-fee and jurisdiction at Rs. 2,34,652 and paid Court-fee Rs. 200 u/s 28 of the Act on the relief of possession, the maximum

Court-fee payable under that section, and a Court-fee of Rs. 75 in respect of relief for accounting u/s 35(1) of the Act. The suit was later

transferred to the Subordinate Judge''s Court, Kumbakonam, where it became O.S. No. 14 of 1964. Then for the first time the office raised the

question of Court-fee payable on the plaint, but later dropped that matter, as the plaint had already been registered. The defendant who did not

raise any objection as regards the Court-fee in his written statement filed when the suit was pending on the file of the Subordinate Judge of

Thanjavur, in August, 1964 by way of additional written statement, raised the question that the suit has not been properly Valued and the fee paid

is not sufficient. It is on this objection by the defendant that the Court considered the question and passed an order on the 19th of April, 1965

holding that the Court-fee paid by the plaintiff was not correct and that he had to re-value the plaint in regard to recovery of possession u/s 30 of

the Act and pay Court-fee thereon u/s 30 of the Act.

It is necessary to set out briefly the averments in the plaint. The plaintiff claims to be the present Madathipathi or Adhinakarathar of Kovilur Mutt

in Ramnad District. It is stated that a predecessor of the present plaintiff, the 5th Madathipathi of the Kovilur Mutt, before his death, went to

Tirukkalar in or about 1907 for renovating Sri Parijathavaneswarar temple there and for the purposes of his stay, he built a madam there and called

it as Ko, a Madalayam. It is stated that as the head of the Kovilur Mutt, with the funds of the Mutt, for the upkeep of the Mutt and for Kattalai

started by him in the temple at Tirukkalar, he acquired properties and a Samadhi has been erected for him at Tirukkalar. The present plaintiff states

that succeeding head of the Kovilur Mutt added further properties and he also purchased further properties and utilised the income for the

Madalayam at Tirukkalar, for the maintenance of the Samadhi Pooja and worship there. The plaint proceeds to aver that an establishment was

maintained at Tirukkalar to look after the lands purchased, to have worship at the Samadhi conducted and to feed devotees and disciples that

might resort there, and that the practice of the Adhinakarathars (head) of Kovilur Mutt was to send one or other disciple to Tirukkalar as agent to

supervise and look after the Madalayam, the buildings and lands, all detailed in the schedule to the plaint. It is stated that the defendant as a disciple

has been similarly sent to Tirukkalar to supervise and attend to the affairs by the Adhinakarathar Mahadeva Gnana Desiga Swamigal, a

predecessor of the present plaintiff. The position of the defendant in relation to the suit properties is thus set out in paragraph 6 of the plaint:

The defendant came over to Tirukkalar and supervised and attended to the said affairs as a disciple and agent of Mahadeva Swamigal. He Was

sometimes called karwar....After the demise of the said Mahadeva Swamigal, plaintiff in turn orally appointed and required defendant to supervise

and manage the properties on his behalf and as his agent and he Was doing so and sending accounts of such management as before to plaintiff.

In paragraph 7 it is stated that the plaintiff learnt that out of the funds and income of the properties '' entrusted'' to his management, the defendant

had purchased some items of properties in his own name. The defendant is charged with changing the name of the Madalayam without the

knowledge of the ''plaintiff from Ko, a Matam to Ko, a Veera Madalayam. It is stated that thereupon the plaintiff asked the defendant to explain

the matter and also called upon him to render accounts and deliver possession of the mutt and other properties set out in the plaint schedules. In

paragraph 8 it is stated that the plaintiff is not willing to allow the defendant to be in possession or management of the Madam and the properties or

to look after the same as his agent. The plaintiff, therefore, as head of the mutt, it is stated, is entitled to recover the suit properties from the

defendant and entitled further to call upon the defendant to render accounts for the past years.

In the additional written statement the defendant filed questioning the propriety of valuation of the suit the defendant states that the suit was not

one where the properties admittedly belonged to the plaint madam, and that the dispute did not relate to claims by rival trustees of the same

madam. It is stated, that this is a case where the defendant denied the title of the plaintiff to the suit, proper ties and where the defendant claims title

to the same on behalf of another mutt. The defendant''s case in his written statement is that he was not sent to Tirukkaiar as Karvar and is not a

subordinate of the Kovilur Mutt. He claims to have been installed as madathipathi of the suit mutt and to be functioning as such. As the basis for

determination of Court-fee is the suit as laid in the plaint, it is not necessary to refer to the contentions in the defendant''s written statement or the

claims put forward by him.

Before taking up the question as to the proper valuation of the plaint in the case, I shall dispose of what may be regarded as a preliminary

objection raised by the plaintiff to the consideration of the question of Court-fee at the instance of the defendant after the registration of the suit. It

is pointed out that the defendant has taken objection to the valuation more than three years after the registration of the suit and after the plaintiff had

taken out an application under Order 26 of the CPC for the issue of a commission for examination of the plaintiff as witness at Kovilur, Ramnad

District. The application had been filed when the suit was pending in the Sub-Court at Thanjavur on the 16th of July, 1962 and the suit was

transferred to the Sub-Court, Kumbakonam, by an order dated 29th February, 1964. The application was taken up for hearing on 12th August,

1964, and an order was passed directing the issue of a commission, on the 21st August, 1964. The additional written statement raising objection to

the valuation is dated 24th August, 1964. The defendant filed a Civil Revision Petition against the order allowing the application for examination of

the plaintiff on commission and that was disposed of in favour of the plaintiff on the 5th of March, 1965. The order in question now under challenge

in the present revision petition was passed on the 19th of April, 1965 on the plea raised by the defendant in his additional statement. Learned

Counsel for the plaintiff-petitioner relies upon the provisions of Section 12 of the Court-fees Act. The material portion of the section is set out.

(1) In every suit instituted in any Court other than the High Court, the Court shall, before ordering the plaint to be registered, decide on the

materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed u/s 10 the proper fee payable thereon,

the decision being however subject to review, further review and correction in the manner specified in the succeeding Sub-sections.

(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim

but, subject to the next succeeding Sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid

is not sufficient. All question arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of

the claim....

(3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him plead that the subject-

matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided

before evidence is recorded affecting such defendant, on the merits of the claim...

It will be seen that under the present Court-fees Act a statutory right has been given to the defendant to raise objection to the adequacy of the

Court-fee paid on the plaint. But under the guise of raising objection to the valuation, the defendant cannot question the correctness of the

allegations in the plaint or seek to go behind the same for the purpose of valuation. The field of investigation at the stage is limited. The pleas open

to the defendant are two : one that the subject-matter of the suit has not been properly valued and two that the fee paid is not sufficient. A

defendant evidently has been statutorily given a right to raise the question of valuation of the subject-matter of the suit and Court-fee paid, as he is

interested in the taxation of costs of the suit. Also the question of valuation may affect the jurisdiction of the Court in some cases. But the category

into which the suit falls or the classification for the purpose of Court-fee must be decided only on the allegations in the plaint irrespective of the

defence set up in the written statement. I am unable to appreciate how the issue of commission can preclude the Court from deciding whether a

proper fee has been paid on objection raised by the defendant. Sub-section (2) of Section 12 entitles the defendant to plead that the subject-

matter of the suit has not been properly valued or the fee paid is not sufficient either in his written statement or before evidence is recorded on the

merits of the claim. It cannot be said in this case that any evidence has been recorded on the merits of the claim. Only a commission has been

issued under Order 26 for examination of the plaintiff himself as witness. Under Order 26, Rule 7 after a commission has been duly executed it

shall be returned to the Court together with the evidence taken under it and the commission and the return thereto then form part of the record of

the suit. Order 26, Rule 8 set out when evidence taken under a commission shall be read as evidence in the suit. Learned Counsel for the petitioner

laid stress on Sub-section (3) of Section 12. I fail to see anything in the language of the Sub-section to help the plaintiff in precluding the defendant

from raising the objection at the stage in which the suit now stands. It is pointed out in Raju Gramani v. Srinivasa Gramani (1958) 71 L.W. 116

that the term ''plead'' in the section has to be understood in a comprehensive manner and the defendant, after the written statement has been filed

and before evidence is recorded, may either apply to the Court for permission to amend the written statement, or, if that is not done, he may

approach the Court with a petition raising the question of inadequacy of Court-fee. Here the defendant has been permitted to raise the question of

Court-fee by way of additional written statement and I see no bar to the Court entertaining the objection, as no evidence has been recorded in that

matter. The fact that the defendant is proceeding mala fide and wants to deter recording of evidence of the plaintiff who is stated to be old and

infirm is neither here nor there.

I shall now take up for consideration the question whether the plaint in the present case falls u/s 28 of the Act. Section 28 runs thus:

In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of

it, between trustees or rival claimants to the office of trustees or between a trustee and a person Who has ceased to be trustee, fee shall be

computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market

value, on rupees one thousand:

Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such

amount as the plaintiff shall state in the plaint.

Explanation.--For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed

to be trust property and the manager of any such property shall be deemed to be the trustee thereof.

Section 30 of the Act, the section relied upon by the defendant and now accepted by the trial Court as the section applicable, is a general

provision relating to suits for possession of immovable property and runs thus:

In a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property or on rupees

four hundred, Whichever is higher.

By reason of Section 9 of the Act, when a plaint falls under two categories and one such category is special and another general, the fee

chargeable shall be the fee appropriate to the special description. In the present case if the suit can fall u/s 28, the fact that Section 30 can also be

applied will not take away the right of the plaintiff to value the suit u/s 28 and pay the Court-fee accordingly. A reading of Section 28 makes one

thing clear that it contemplates Suits where the right of management is alone in dispute. There can be no dispute and in fact there is no dispute that

the property in question in the present suit is trust property. The suit is also for possession of trust property. But for the applicability of Section 28

that will not be sufficient. A suit for recovery of trust property by the trustee from a stranger to the trust must be valued like any other suit for

possession, by an owner against a stranger in possession. The law does not make any distinction in that regard. For the applicability of Section 28

the suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee. Mr.

Gopalaswami Iyengar for the petitioner contends that the suit can be viewed as one between trustees or rival claimants to the office of trustee. He

refers to the contention of the defendant that he himself is the Madathipathi of Tirukkalar Mutt. On this it is contended that the defendant claims to

hold office as a Madathipathi. He is therefore a trustee holding trust property. The plaintiff claims the property also as Madathipathi as property

belonging to the Kovilur Mutt. His claim also is therefore as a trustee. Therefore, it is contended that the suit is between trustees. The contention is

wholly untenable. To start with such is not the plaintiff''s case. Secondly, the liability for Court-fee is determined on the allegations in the plaint and

the defendant''s pleas cannot affect it. Further as I understand the section, the suit contemplated u/s 28 is not a suit between rival trusts. Any

ambiguity in the first part of the section is cleared up in including suits between rival claimants to trusteeship and suits between a new trustee and an

ex-trustee within the scope of the section. The latter categories can properly comprise only suits where the plaint proceeds not merely on the basis

that the property belongs to the trust of which the plaintiff is the trustee but that the defendant''s connection with the property is also as belonging to

the same trust. The fact that the plaint may set out the defendant''s repudiation of such claim cannot alter the position, the averments that determine

the character of the claim being the averments on which the plaintiff''s claim to relief is rested. Equally, the fact that on the pleadings issues are

raised as to the title of the plaint trust to the suit property is immaterial. Section 28 contemplates trust institutions in respect of which there may be

several trustees and possession, more properly joint possession, is sought by one or more trustees against the other or others, or there may be

disputes as to possession between rival persons claiming to be trustees of the self-same trust. The person impleaded as defendant may deny the

plaintiffs title, but when the suit is framed as one for possession between trustees or between rival claimants to the office of trustee or between a

trustee and a person who has ceased to be a trustee in respect of a trust institution, then the only matter really raised in issue by the plaintiff is the

right of management of the property. If the cause of action as adumberated in the plaint itself is between different trusts represented by their

respective trustees, it becomes just a claim to the property and not a claim to property as annexed to a trusteeship about which there is dispute.

The plaint in this case does not proceed on the basis that the defendant is also at present a trustee; nor is it alleged that the defendant

wrongfully claims to be a trustee of the plaint trust. The case in the plaint may be concisely placed thus : The suit properties inclusive of a

Madalayam at Tirukkalar described in schedules A to D-2 in the plaint are properties belonging to the Kovilur Mutt of which the plaintiff is the

present Adhinakarthar or Madathipathi. The defendant had been sent out as the agent of the Kovilur Mutt to look after and supervise the suit

properties and placed in management of the suit properties. In pursuance of this arrangement he had been managing the properties and sending

accounts of management to the plaintiff, and for the reasons set out in the plaint the plaintiff is not willing to allow the defendant to continue in

management of the Madalayam and its properties or look after the same as his agent. The plaintiff therefore seeks recovery of possession of the

properties from the defendant. In subsistence the plaintiff seeks to relieve the defendant of his management of the suit properties and assume

management of the same. One thing is clear that this is not a suit for possession or joint possession of trust properties between trustees or rival

claimants to the office of trustee.

The question for consideration Is whether the suit could be considered to be one between a trustee and a person who has ceased to be a

trustee, the Explanation to Section 28 providing that a manager of the property of religious or charitable endowment shall be deemed to be a

trustee thereof. On behalf of the State, the learned Government Pleader contends that the word ''manager'' in the Explanation to Section 28 is used

in a special sense and Is a legislative recognition of the position of the head or Mahant or Madathipathi by whatever name he may be called of a

religious or charitable endowment. It is therefore argued that the defendant in this case could not be considered to be a manager as contemplated

in the Explanation, it not being the plaintiff''s case that the defendant, was at any time a head or Madathipathi of the plaint institution. The contention

on behalf of the plaintiff as against this is, that when we interpret a fiscal enactment we must interpret the provision as it stands and should not limit

or otherwise restrict the language of the enactment by reference to any past history. Learned Counsel for the. plaintiff submits that in interpreting

taxing provisions one should not import logic or reason and must go by the plain terms of the section, particularly where there is no ambiguity and if

the provisions so interpreted, is favourable to the subject. In Partington v. Attn. Gen. (1869) L.R. 4 H.L. 100 Lord Cairns, said:

I am not at all sure that, in a case of this kind--a fiscal case--form is not amply sufficient; because, as T understand the principle of all fiscal

legislation, it is this, if the person sought to be taxed cornel Within the letter of the law he must be taxed, however great the hardship may appear to

the judicia mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the Law, the subject

is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute,

what, called at equitable construction, certainly such a construction is not admissible in a taxing statute where you simply adhere to the words of the

statute.

In Canadian Eagle Oil Co. v. R. L.R. (1946) A.C. 119, 140 Viscount Simon, L.C., said:

In the Words of the late Rowlatt, J. (in Cape Brandy Syndicate v. I.R.C. L.R. (1921) 1 K.B. 64, whose outstanding knowledge of this subject

Was coupled with a happy conciseness of phrase ""in a taxing Act one has to look at what is clearly said. There is no room for any intendement.

There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at

the language used.

The principle is well established that if in-giving words of the statute their natural meaning that in their literal construction, a case would not be

covered by the statute imposing a fee, the fee should not be levied. There should be no attempt to construe the statute benevolently in favour of the

State on a supposed intendment, as the omission if any could be cured by legislation. But equally it is a well known principle of construction that

when in the language used in an Act there is a legal term which has received judicial Interpretation, it must be assumed that the term is used in the

sense in which it has been judicially interpreted unless a contrary intention appears. Here I am unable to say that the word ''manager'' has received

a restricted meaning and with reference to religious or charitable endowments could denote only the head of the institution for the time being. On

the contrary, judicial decisions have only given a wider scope and content to the words ''trust'' and ''trustee'' in relation to Hindu and Muslim

religious or charitable endowments for certain purposes, to take in the heads of these institutions who are In reality only managers.

The learned Government Pleader drew my attention to the decision of the Judicial Committee In Vidya Varuthi Thirtha v. Balusami Ayyar

(1928) L.R. 48 IndAp 302 : 1928 41 M.L.J. 346 : ILR Mad. 831. In. that case the Judicial Committee had to construe the words, conveyed or

bequeathed in trust and afterwards transferred by the trustee, found in Article 134 of the Limitation Act of 1908.

Neither under the Hindu Law nor in the Muhammadan system is any property ''conveyed'' to a Shebait or a Muta walli, in the case of a dedication.

Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests

regulated by custom and usage.

It is observed by the Judicial Committee:

These men (spiritual teachers under Whom were founded Hindu colleges and monasteries under the names of Mutt) had and have ample discretion

in the application of the funds of the institutions, but always subject to certain obligations and duties equally governed by custom and usage...called

by whatever name, he is only the manager and custodian of the idol or the institution.

As in view of the decision of the Judicial Committee in the above case that heads of Hindu and Muhammadan religious or charitable institutions

Shebait, Mutawalli Mahant or Madathipathi however described are not trustees in the technical sense of the word, the Limitation Act itself was

amended in 1929 by a specific provision u/s 10, in the following words:

For the purposes of this section any property comprised in a Hindu, Muhammadan or Buddhist leligious or charitable endowment shall be deemed

to be property vested in trust for specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.

The learned Government Pleader referred to this amendment and emphasised that the language is more or less similar to that employed in the

Explanation to Section 28. But in the Limitation Act the phraseology used is "" shall be deemed to be property vested in trust for a specific purpose

as against the language in the present Court fees Act ""shall be deemed to be trust property"". Section 10 of the Limitation Act requires for its

application that the property should be vested in trust.

Reference may also be made to the decision of the Judicial Committee in 43 M.I.A. 73 (Privy Council) where referring to the position of a

Mahant, Lord Shaw said:

He sits upon the Gadi; he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual

rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the

institution itself.

These decisions only show that from a legalistic view a mahant or head of the institution only manages the property of the institution and

administers its affairs, and that he is not a trustee in the strict sense of the word as defined in the Indian Trust Act or as understood in the English

system. Also it followed that the office could not be separated from the properties which form endowment of the office. In Kandaswami

Thambiran Vs. Vagheesam Pillai, wrongfully styling himself as Ponnambala Desikar, before the present Court-fees Act, after noticing that there

was no distinction between the office and property of an endowment and that the plaintiff could not ask for a mere declaration of title to the office

when not in possession but must ask for possession and failure to do so would vitiate the suit, it was observed by the Full Bench:

It may be regrettable that a person Who has been ousted wrongly from an office and the control of the properties attached to it should be required

to pay a Court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into

consideration when deciding the effect of Section 42 of the Specific Relief Act. When a Court-fee fixed by the Court-fees Act is unfair, it is for the

Legislature to interfere.

In the suit which was the subject-matter of consideration by the Full Bench the plaintiff sought to establish his title to the office of

Pandarasannadhi or Mahant of the Tiruvannamalai Mutt and the first defendant on his part claimed to be the lawful holder of the office. In addition

to denying the right claimed by the plaintiff, the defendant set up the bar of Section 42 of the Specific Relief Act. Evidently in view of the

observations made by this Court in the aforesaid Full Bench decision, the Government in pursuance of its powers u/s .35 of the Court-fees Act

(VII of 1870), issued a notification G.O. No. 5791 dated 17th May, 1943 reducing the Court-fee payable in suits by trustees in certain cases. The

notification ran thus:

In exercise of the powers conferred by Section 35 of the Court-fees Act, 1870, His Excellancy the Governor of Madras is hereby ""pleased to

reduce the fee chargeble in any suit for possession or joint possession between trustees, or between a plaintiff who claims to be a trustee and a

defendant Who is alleged to have ceased to be a trustee to one-third of What it would be if the suit related to a claim in respect of private

property.

It will be seen that though the notification uses the word '' trustee '' the reduction granted has been understood to be applicable to Hindu and

Muslim religious institutions, Mutts, wakfs and other endowments. In an unreported case, P.A. Venkatalakshmi Narasimha Chryalu v. The Deities

of Pattabhiramaswami Varu and Kesavaswcmi Varu App. No. 535 of 1946 where the plaintiffs claiming themselves to be trustees alleged that

though the archakas in possession had no manner of right or interest in the suit properties nevertheless they and their predecessors in office in the

absence of properly constituted or de jure trustees got into possession of the suit properties and had been managing the same, that therefore they

should be deemed to be de facto trustee or trustees de son tort, and that they ceased to be trustees after coming into force of Madras Act XI of

1927 being trespassers, it is observed:

In our opinion, the facts alleged in paragraph 9 bring the case within the scope of the provision for reduction. We do not think that the application

of the notification should be restricted to cases in which trustees lawfully entitled to the office of trustee sue to recover possession of the property

from persons who had been lawfully appointed as trustees but Whose term of office had expired or who had otherwise ceased to be trustees, as

for instance by removal. We think that there is nothing either in the spirit or the letter of the notification which prevents its application to a case like

the present where the defendants are persons who originally came into possession and continued to be in possession on behalf of the deities and

who had been managing the properties as if they Were trustees though there was no specific legal authority in support of their possession as

trustees.

In another unreported decision of this Court in Masilathaswami Temple v. The Governor-General in Council C.R.P. No. 237 of 1946 where the

aforesaid notification was applied is a case of considerable significance. In that case the plaint alleged that in or about 1817 the East Indian

Company through the Board of Revenue at Madras took over the management of the temple and entered into possession of its properties including

the suit properties. In or about 1849 the management of the temple and some other properties were handed back to the trustees of the temple. The

suit properties had been retained and possession of them was sought by the trustees for the time being on the ground that the defendants the

Governor-General in Council and the Province of Madras, were successors of the East Indian Company. Reduction of Court-fee under the

aforesaid notification was sought contending that the defendants must be deemed to be trustees. Bell, J., on the allegations in the plaint to the

aforesaid effect held that the notification applied.

Madras Act XIV of 1955 which replaced the Court-fees Act of 1870 and purports to be an Act amending and consolidating the law relating

to Court-fee and valuation of suits in the State of Madras, by Section 28 not only gives statutory recognition to the old notification but makes it

wider in application. It practically covers cases of trust properties where the subject-matter of the suit relates only to management and not title to

the properties though ex necessitate re-possession has to be asked for. It must be noted that though the head of a religious institution, a Mahant,

Adhinakarta, Madathipathi or Mutawali may not have been considered to be a trustee in the strict sense of the word, decisions referred to above

show that he has been considered to be a trustee in a general way; only he is not a trustee in whom the property is vested in trust in law; see also

Mukherjee''s Hindu Law of Religious and Charitable Trusts II Edition at page 395. Even though there was no provision like the present

Explanation to Section 28, properties comprised in Hindu Religious and Charitable Endowments have been deemed to be trust properties for the

application of the notification.

As already stated, the ambit of Section 28 is wider than that of the notification and the intent manifest on the plain terms of the section being to

limit the Court-fees payable when the claim put forward in the plaint for possession relates to competing claims for management I see no reason for

restricting the meaning of the word ''manager'' of the property of a Hindu, Muslim or other religious or charitable endowment to the head of the

endowment. If a person in possession against whom a suit is filed by the trustee of the endowment has been a manager of the property as

commonly understood the case would directly fall within the language of the section read with the Explanation. I am not constrained by anything in

the Act or by the language of the section to limit the applicability of the section. As pointed out in Maxwell on Interpretation of Statutes, nth edition,

at page 278, in construing statutes imposing burden, "" in a case of reasonable doubt the construction most beneficial to the subject is to be

adopted."" The Judicial pronouncements relied upon by the learned Government Pleader only point out that the heads of these institutions are only

in the position of managers with certain special rights, the ownership being vested in the institutions or deities. The Explanation to Section 28 only

states that the manager of the property of these institutions should be deemed to be trustees for the purpose of Section 28. But that does not

necessarily limit the concept of the term manager to the heads of institutions like Mahant or Mutawalli, Madathipathi only. When the Explanation on

the plain language, of the section includes also an ordinary manager of the property of the endowment who has been placed in possession by the

head of the institution, I do not see why the claims against such manager should be excluded from the benefits derived u/s 28 of the Act.

The plaint in this case read as a whole sets out a claim by the head of the institution against the manager of the properties belonging to the same

institution relieving him of his management. Prima facei, if this is a Hindu, Muslim or other religious or charitable endowment, Section 28 will apply

and the Court-fee paid will be sufficient. It is now contended on behalf of the defendant that the institution, the Kovilur Mutt in question is not a

Hindu, a Muslim or other religious or charitable endowment to come within the scope of the section. It is stated that it cannot be deemed to be a

Hindu religious or charitable endowment at all. Though the plaint proceeds on the basis of the existence of a religious institution with its

Madathipathi and endowments, there is no specific averment that the suit institution is a Hindu religious or charitable endowment. But the

arguments before me by the learned Government Pleader was on that basis and the matter has been discussed by the trial Court also on that basis.

Only at the close of the judgment, learned Counsel for the defendant with leave submitted that the character of this very institution the Kovilur Mutt

has been the subject of consideration in decisions of this Court. On behalf of the plaintiff it is submitted that the question that came up for

consideration in earlier proceedings was as to whether the Madras Hindu Religious and Charitable Endowments Act would apply to the institution

and there was no consideration of the question whether outside the Act, this institution could be considered to be a Hindu, religious or charitable

institution. Even if it is found that this institution does not fall under the provisions of the said Act, if in fact it is otherwise a Hindu religious or other

charitable institution, there can be no doubt that Section 28 will apply. The plaintiff had no opportunity to meet this aspect of the matter, the

defendant in the written statement setting up his own title as the Madathipathi of the Tirukkalar Mutt. At least, if the plaintiff had made specific

averments in this regard for the purpose of Court-fee, the Court can proceed on the basis of the averment. True the very claim to apply Section 28

implies that the institution is of the kind contemplated therein. But there is no specific averment to that effect, and learned Counsel for the plaintiff

has contented himself with claiming leave to amend the plaint suitably In the circumstances, the proper thing would be to declare the true scope of

Section 28 of the Court-fees and Suit Valuation Act and send the matter back to the trial Court for disposal after appropriate steps for amendment

of the plaint. Any recognition of the nature of the institution for purposes of Court-fee on the plaintiff''s averments even in this regard will not

preclude the defendant from questioning the same at the appropriate stage. For the present I leave it open to the plaintiff if he chooses, to apply for

amendment of the plaint. The application for amendment will be considered by the trial Court on the merits and Court-fee levied according to law.

A commission has been issued for the examination of the plaintiffs, who is said to be old. It is desirable in the circumstances that the evidence

be taken by the Commissioner without further delay. But the evidence shall not form part of the record till the question of Court-fee payable on the

plaint is adjudicated and decided upon. Learned Counsel for the plaintiff further submits that no objection will be taken by the plaintiff to the

defendant pursuing his contention as to the proper Court-fee payable on the ground that evidence had been taken on commission. As the suit is

already being old it is necessary that it should be brought up for trial as early as possible.

In the result, the Civil Revision Petition is allowed in the above terms. No costs.