S RAMASUBBA IYER Vs. AYYALU NAIDU

JUDGEMENT

(1.) This is a petition seeking to revise an order of the learned subordinate Judge of Mayavaram and it involves a question under the Court-fees Act. The point may be shortly stated. The petitioners con-tend that they should pay a court-fee under Art. 17A(1) of the Act and the learned Judge has held that the fee should be paid under Section 7, Clause (iv-a). The history of this matter, so far as it is relevant, is as follows : It appears that one Ayyalu Naidu, a grocer, brought a suit against the temple of Sri Mayuranathaswami Abisheka Kattalai re-presented by its hereditary trustee Sri La Sri Ambalavana Pandarasannadhi and against Sri La Sri Ambalavana Pandarasannadhi himself. The suit was founded upon a promissory note, and the promissory note had been executed by the trustee in respect of goods supplied by the plaintiff. The end of the suit was that the plaintiff obtained a decree against the temple properties alone and did not press the suit against the trustee against whom the suit was dismissed. The petitioners before us are three worshippers of the temple and they have filed the suit now under consideration in which they impugn the decree passed against the temple shortly on the ground that the trustee was not looking after the temple's interests but allowed the temple to be sacrificed in return for himself being exonerated, and we have to consider exactly what it is that the plaintiffs have prayed for in this suit. After setting out the facts which I have shortly narrated and alleging collusion between Ayyalu Naidu and the trustee, they finally conclude their plaint with the following prayer: The plaintiffs therefore pray that this Honourable Court may be pleased to pass a decree (a) declaring that the decree in O.S. No. 22 of 1937 on the file of this Court is not binding on defendant 2 herein; (b) directing defendant 1 to pay the plaintiffs the costs of this suit and (c) granting the plaintiffs such further or other reliefs, etc.

(2.) The Subordinate Judge has held that however worded, this is in substance and in effect a prayer for the cancellation of the decree and that therefore Section 7, Clause (iv-a) was applicable. It has been argued before us that that view is wrong because this is a prayer for a decree "declaring that the decree in O.S. No. 22 of 1937 is not binding on defendant 2" and that therefore Art. l7A(1) is the appropriate article. I have felt some difficulty in approaching this case owing to the position of the petitioners, the plaintiffs in this suit. I find it difficult to understand what their position is. They do not claim any personal benefit. It is not a case of a suit by a worshipper who claims that he has been excluded from his rights as a worshipper. It is not a suit under Section 92, Civil P.C., in which a worshipper seeks various remedies that are provided against trustees. It would appear that the position of the plaintiffs can only be regularized by leave of the Court under Order 1, Rule 8. Before us the petitioners were inclined to concede that they are three of numerous persons and the numerous persons are the worshippers having the same interest in this suit and that they are suing representing all other persons like themselves. Later, this aspect may become material in the Court below, but I mention it because there is no doubt what-over and there is ample authority for the position, that in order to decide a matter of court-fee, the Court is entitled to examine the substance of the suit, and obviously, in order to examine the substance of the suit, the position of the parties thereto, and particularly in this case of the plaintiffs, must necessarily be defined.

(3.) What is it that the plaintiffs here are seeking to do? They are asking that the decree passed in previous suit should be declared to be not binding. They have made in this suit both the temple and the trustee himself parties. In my view, the position of the plaintiffs is clear. They have come forward to represent the temple itself. If they seek to sue as individuals only, it would seem that an impossible position arises, because there would be nothing to prevent other worshippers coming forward and asking for declarations in other terms. If authority is required for the proposition that the substance of the suit must be regarded, it is to be found in two cases in this High Court - Arunachalam Chetti V/s. Rangaswami Pillai ( 15) 2 A.I.R. 1915 Mad. 948 and Ramaswami Ayyangar V/s. Rangachariar ( 40) 27 A.I.R. 1940 Mad. 113 at page 277. The learned Counsel for the petitioners has not contended that the substance of the suit is not an extremely relevant consideration. There is another group of cases which assists him in this matter, of M. Varaka Desikar y. Balagopalakrishna Chetti ("06) 29 Mad. 553 is an example. The effect of this case is that a trustee, who seeks not to be bound by a decree, cannot raise that contention in execution but must bring a suit to set the decree aside. There is no direct authority on the position before us, but our attention has been drawn to one or two cases. I propose to confine my remarks to the decisions of this High Court, because no decision of any other High Court has rendered me any assistance. Vallabhacharyulu V/s. Rangacharyulu was a suit by reversioners for a declaration that a decree obtained against the widow of the last male holder was collusive and not binding, and in that case a question arose as to whether the decree was governed by Sec. 7 (iv-c), Court-fees Act, or Section 7 (iv-a) as amended in Madras. It may be convenient at this stage to set out the articles and sections with which we are concerned. Art. 17A(1) reads as follows : "To obtain a declaratory decree where no consequential relief is prayed." Section 7(iv-a) reads: In a suit for cancellation of a decree for money or other property having a money value, or other document securing money or other property having such value....