KUNHANUNNI NAIR Vs. KUNHANUNNI MOOPPIL NAIR

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 Ubhayarkunnu 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 1st 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 7 1975 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/- 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.) Learned counsel on both sides addressed elaborate arguments and, in support of their contentions, have referred to a number of decisions. In K. A. Samajam v. Commissioner H. R. & C. E. ( AIR 1971 SC 891 ) the Supreme Court has said in Para.10: