KUNHANUNNI Vs. KUNHANUNNI MOOPIL NAYAR

JUDGEMENT

(1.) A question of court-fee arises for consideration in this Civil Revision Petition. The question is how a relief for a declaration that the 1st defendant, the hereditary trustee of a temple of a Swaroopam has no right to continue in management, for a permanent injunction to restrain him from continuing the management and for the appointment of the 2nd defendant or the 1st plaintiff as trustee in his place is to be valued for the purposes of court-fee. Is the relief capable of valuation and is the court-fee to be computed on the market value of the properties held under trust or is the relief incapable of valuation and is the court-fee to be levied under S. 25 (d) (ii) of the Kerala Court-Fees and Suits Valuation Act, 1959, for the short the act. The decision of the question depends upon the fact whether the hereditary trustee has only a bare right to manage or has a personal interest of a beneficial character in the properties of the trust. If a bare right to manage cannot be treated as property under Art. 19 (1) of the Constitution and the custody of the properties will not amount to a beneficial interest in the properties, is the relief prayed for capable of valuation?

(2.) THE plaintiffs in O. S. No. 21 of 1974 on the file of the Subordinate Judge, Ottappalam are the petitioners in this Civil Revision petition. The averments in the plaint are as follows: The plaintiffs and the defendants are members of a Swaroopam by name Kunnathattu Matampil. Their tarwad was known as Mannarkat Nayar Veedu. They have a temple known as ubhayar-kunnu Bhagavathi tempi;;. Some properties of the tarwad were set apart as a trust for the temple. The seniormost male member, the sthani, used to be in management of the temple and its properties as a trustee. In O. S. No. 65 of 1956, a suit for partition of the sthanam properties, a preliminary decree was passed by the Subordinate Judge, Ottappalam holding that the properties set apart for the maintenance of the temple are not properties of the sthanam liable to be partitioned. Accordingly the movables of the temple were also handed over to the Ist defendant who was managing the temple as trustee. The movable and immovable properties of the temple are included in A and B schedules to the plaint. The 1st defendant is acting against the interest of the Swaroopam. He has entrusted the management to defendants 4 and 7 to 9. This he has no power to do. Defendants 1, 4 and 7 to 9 have sold away valuable gold and silver ornaments of the temple. They have also made collections on behalf of the temple and appropriated the same. On these and other averments contained in the plaint the plaintiffs have prayed for a declaration that the 1st defendant has no right to continue in management of the temple and its properties as trustee and for a permanent injunction restraining him from continuing the management and for appointing the 2nd defendant or the 1st plaintiff as the trustee of the temple and its properties. Other consequential reliefs are also prayed for in the plaint; but they are not relevant for the purposes of this case. In the plaint A relief for the declaration, permanent injunction etc. was valued under S 28 of the Act and court-fee was paid accordingly. But the defendants raised a contention that the court-fee paid by the plaintiffs was not correct. An issue 'whether S. 28 of the Act is applicable and whether the court-fee paid is correct' was raised and it was heard as a preliminary point. The trial court held that S. 28 of the Act was not applicable and hence the court-fee paid was not correct and the plaintiffs were directed to revise the valuation and to pay the court-fee accordingly. Thereupon, I. A. No. 351 of 1975 was filed for the amendment of the plaint. As per the amendment, the valuation of A relief was sought to be changed as Rs. 4100/ -. The trial court by its order dated 18 71975 dismissed that application. The plaintiff challenged the above order of dismissal in CRP. No. 1301 of 1975 before this Court. This Court set aside the order of dismissal and directed the trial court to allow the plaintiffs to carry out the amendment and accordingly the plaint was amended and the plaintiffs paid an amount of Rs. 390.00 as court-fee on A relief under S. 25 of the Act. Again, issue No. 17 regarding the sufficiency of the court-fee paid was heard as a preliminary point. The trial court rejected the contentions of the plain tiffs that A relief is incapable of valuation and held that the court-fee paid was not correct. The above finding of the trial court on issue 17 is challenged in this Civil Revision Petition.

(3.) S . 25 of the Kerala Court Fees and Suits Valuation Act, 1959 reads. "25. Suits for declaration. In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under S. 26 (a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher; (b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher; (c) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher; (d) in other cases (i) where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and (ii) where the subject-matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees three hundred, whichever is higher. " The question is whether the relief has to be valued under s. 25 (d) (i) or (ii ). This question further depends upon the fact whether the subject matter of the suit in respect of which the relief is claimed is capable of valuation. The 1st defendant is the hereditary trustee and as he is in possession of the movable and immovable properties of the temple. It is true that when he ceases to be in management he will also cease to be in possession of the properties. The person who succeeds him will have to be in possession of the properties also, because without the possession of the properties the new trustee cannot continue in management. Then the question is whether the possession of the properties follows automatically on the assumption of office as trustee. It is here where the nature of the rights of the trustee over the properties comes up for consideration. If the trustee has only a bare right to manage and has no beneficial interest in the property, he cannot cling on to the properties when he ceases to be the trustee. In that case, why should one sue for the dispossession of the properties as such. This is all the more so since the Supreme Court has held in K. A. Samajam's case that a bare right of a hereditary trustee to administer the secular estate of the institution or endowment cannot be treated as property under Art. 19 (1) (f) of the Constitution. A hereditary trustee who has only a bare right of management of the properties of the endowment ceases to be in possession of the properties the moment another succeeds to the office by removing him from office and the possession of the properties automatically passes on to the successor. So, in a suit for a declaration that a hereditary trustee who has only a bare right of management has ceased to have any right to continue is office and for the appointment of another as trustee in bis place the market value of the properties of the endowment cannot at all be a relevant factor for the valuation of the suit for the purposes of court-fee. The right involved in the suit is only a bare right of management and not any right in the properties of the trust. So, the relief is not one which is to be valued under S. 25 (d) (i) of the Act as the same is not capable of valuation. On the other hand the relief is one which is to be valued under S. 25 (d) (ii) and the plaintiff is free to put his own valuation. The Court cannot interfere with that valuation. Going by the allegations in the plaint the Ist defendant-trustee has only a bare right of management. It goes without saying that the question of court-fee has to be determined on the basis of the allegations in the plaint. The mere possession of the properties and the fact that the granting of the relief will result in dispossession cannot by themselves be a reason for valuing the relief on the market value of the properties. The court below has gone wrong because it did not advert to the relevant aspects of the matter.