HANUMANGADI VENKATALAL Vs. DAMMANGI KOSALDASU BAVAJI

JUDGEMENT

(1.) Plaintiffs 1, 2 and 4 of whom are now the petitioners before me brought the suit as beneficiaries under a certain trust, the primary object of which was to provide for the wants of Bhairagis but in which they possessed a beneficiary interest in the surplus income, in order to recover certain properties forming the subject-matter of the trust which had been alienated by the trustees, who are defendants 1 and 2, to the remaining defendants. The alienations were made one by sale, one by mortgage and the remainder by lease. The plaintiffs offered to pay a Court-fee Rs. 100 under Art. 17-B, Schedule II, Court Fees Act, on the ground that the subject-matter of the suit was incapable of valuation. This was contested by the defendants in their written statement and the learned Subordinate Judge took up the question of Court-fee as a preliminary issue. He came to the conclusion that it must be paid under Section 7(iv)(c), Court Fees Act, read with the proviso added to it by the Madras Court Fees Amendment Act (V of 1920), on half the market value of the suit properties, that is to say, on Rs. 20,000. It is against this decision that the revision petition has been preferred.

(2.) The plaintiffs adhere to their contention that the case falls within the terms of Arty 17-B as being a plaint where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. Two questions arise out of the terms of the article, whether it is possible to estimate the money value of the subject-matter and whether the case is otherwise provided for by the Act. It has been contended that the subject-matter in dispute must here be deemed to be the benefit accruing to the person suing, but I do not think this is at all a tenable proposition. My own view is that it is purely an irrelevant question, and that we must look to the nature of the suit and the nature of the decree to be passed in it. The real question indeed is the second one, whether any other article of Schedule II or whether any other provision in the Court Fees Act can be applied to a suit of the nature in question. I have been referred to rulings relating to suits falling under Section 92, Civil Procedure Code not notably to Sudalaimuthu Pillai V/s. Peria Sundaram Pillai (1924) 48 M.L.J. 514, which was a case decided under the old Court Fees Act by Krishnan, J. The suit was one to recover the trust moneys said to have been embezzled by the trustees and following Ramrup Das V/s. Mohunt Sitaram Das the learned Judge held that Art. 17 (vi) of the old Act, corresponding to Art. 17-B of the new Act, should be applied. He decided the case rather on authority than on any express line of reasoning except that he gave expression to the view that it would be a hardship to worshippers who bring suits under Section 92 in order to see that the trusts are properly carried out and that the trustees do not misappropriate the moneys belonging to the trust or abuse the trust, to have to pay Court-fees upon such large sums of money.

(3.) The authority followed Ramrup Das V/s. Mohunt Sitaram Das (1910) 12 C.L.J. 211 dealt with a suit of the same character. The reliefs prayed for comprised the appointment of a certain person as trustee, the removal of trustees and the rendering of accounts by them. I find it very difficult to follow the line of reasoning adopted on page 215 of the judgment, where it is said that the suit was not one involving the value of any portion of the idol's property and again where, as I understand the learned Judges, they say that the amount of Court-fee payable depends upon whether any part of the reliefs sought is due to the plaintiffs. I do not think it necessary to further examine these cases because my view is that the nature of such suits is different from that of the suit now in question. It has been explained in Ghazaffar Husain Khan V/s. Yawar Husain (1905) I.L.R. 28 A. 112 what were the limits of a suit under old Section 539, Civil Procedure Code, corresponding to the present Section 92. In such a suit no possession can be given against alienees of the trust property, and from the observations made by the learned Judges I think it is clear that they were of opinion that a suit for such a remedy against alienees would be nothing short of a suit for possession and subject to a Court-fee fixed upon that basis : see the remarks of Stanley, C.J., on pages 117 and 118 and Burkitt, J., on page 120. The latter says: When such a plaintiff prays to recover possession of immoveable property he must (like any other plaintiff in a similar suit) pay the Court- fee chargeable on that relief.