Sri Radhakrishna Bhakta Mandali Trust vs Sri Kannan

K.L. Manjunath, J.—The short question that arises for consideration of this Court in this petition is, if the Trust has filed a suit for declaration of title and for possession of a immovable property of third party, whether the Court fee has to be paid either u/s 24 of the Karnataka Court Fee and Suits Valuation Act, 1958 (in short ''the KCF & SV Act'') or under Sec. 27 of the KCF & SV Act?. Heard the learned counsel for the parties. The petitioner-trust filed suit against the defendant in OS 3325/09 before the City Civil Judge, Bangalore to declare the plaintiff-Trust as owner of the suit property and to direct the defendant to deliver the possession of the suit property to the plaintiff-Trust or to its trustees or to representatives and also to restrain the defendant from interfering with the peaceful possession and enjoyment of property and direct to pay mesne profits at the rate of Rs. 6,000/- per month from the date of suit till the date of delivery of possession.

The suit property is a residential property bearing No. 102 Geddalahalli, 6th Main Road, Sanjayanagar, P & T Colony, Bangalore. According to plaint averments, one Smt. S. Thirumangai was the owner of the suit property and she constructed a house consisting of ground floor, first floor on the site allotted to her. Thereafter, she executed a Will on 1.7.2007 bequeathing suit property in favour of plaintiff-Trust contending that defendant who is none other than the husband of S. Tirumangai is in unlawful possession of the property. The suit came to be filed valuing the suit property u/s 27 of the KCF & SV Act.

The issue regarding whether the court fee paid is proper or not was the preliminary issue taken by the Court below. The defendant contested the suit and contended that the court fee paid was insufficient. The plaintiff is required to value the suit u/s 24 of the KCF & SV Act and not u/s 27 of the KCF & SV Act.

The petitioner-plaintiff submitted that the plaintiff-Trust has paid proper court fee as per Sec. 27 of the KCF & SV Act.

The Trial Court considering the case of the parties, allowed the application filed by the respondent thereby plaintiff-petitioner has been directed to file fresh valuation slip and pay the Court fee in accordance with Section 24 of the KCF & SV Act. Therefore, the present petition is filed.

Mr. Kedilaya, learned counsel for the petitioner submits that in a similar situation, this Hon''ble Court in Kannambadi Sreenivasa Iyengar''s Sri Harihareswara Devasthana Trust and Others Vs. M. Somashekar and Others, has ruled that the suit has to be valued u/s 27 of the KCF & SV Act when the property is concerning a Trust and therefore, he requests the Court to allow this petition by setting aside the order of the trial Court.

Per contra, the learned counsel for the defendant-respondent contends that Section 27 of the KCF & SV Act has no application to the KCF & SV Acts to the facts of this case. He requests this Court to dismiss the petition.

Having heard the learned counsel for the parties, the question that arises for consideration of this Court is whether the trial Court has committed an error in directing the petitioner to value the suit property u/s 24 of the KCF & SV Act or not?.

In order to appreciate the rival contentions, it would be proper for this Court to examine Section 27 of the KCF & SV Act. Section 27 of the KCF & SV Act reads as under:

Suits relating to trust property-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 trustee 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 hall be such amount as the plaintiff shall state in the plaint.

On perusal of the Section 27 of the KCF & SV Act, this Court is of the opinion that, Section 27 can be pressed into service only if the suit is between trustees or co-trustees relating to trust property and does not apply to suits against a third person and when a suit is filed for declaration of title to declare the plaintiff as owner of the property for possession, the Court fee has to be computed only u/s 24 of the KCF & SV Act and not u/s 27 of the KCF & SV Act, more particularly in the background of this case because, the plaintiff-trust is claiming the suit property under the Will said to have been executed by the wife of respondent-defendant and defendant is disputing the execution of Will by his wife. At no point of time, suit property had belonged to the trust, for the first time, trust is claiming the suit property under the Will executed by the wife of defendant-respondent. When the Will is disputed, it is for the plaintiff-Trust to prove the Will. Without proving the Will, the plaintiff cannot be declared as owner of the property.

In the present case, the person who has executed the Will is the wife of defendant who is not a Trustee and it is not a dispute between trust and Trustees or between the trust and co-trustees.

Under the circumstances, this Court is of the view that the trial Court is justified in directing the petitioner to value the suit property u/s 24 of the KFS & SV KCF & SV Act. In the result, the writ petition is dismissed.