PARSOTTAMANAND GIRI Vs. MAYANAND GIRI

JUDGEMENT

(1.) This is a reference under Section 5, Court-fees Act. The plaintiff alleged that defendant 1 who was a Mahant of a mutt, had lost his title to Mahant ship owing to his marriage, illegal transfers of properties and other wrongful , acts, and that the plaintiff had been duly elected as Mahant in his place. The-plaintiff sued for possession as Mahanb of the properties attached to the mutt, including the properties which had been unlawfully transferred. The suit was-valued for the purposes of jurisdiction, at Rs. 2,30,242 and for the purposes of the court-fee at Rs. 1,59,842 on which a court-fee for Rs. 1,750 was paid. The plaintiff paid a further court-fee of Rs. 525 under a subsequent order of the Court. The suit was partially dismissed and the plaintiff appeals. He has valued his appeal at Rs. 1,59,842 and has paid a court-fee of Rs. 10 only. He contends that it was by mistake that an ad valorem court-fee had been paid in the trial Court and the proper court-fee would have been Rs. 10 in the trial Court and the same in the appellate Court. The appellant's argument is that-he is not claiming the property as a proprietor but is only seeking possession as manager or Mahant. He is only asking for such possession as pertains to the office of a Mahant and the subject- matter in dispute is not capable of valuation so a court-fee of Rs. 10 only is payable under Art. 17, Clause (vi), Schedule 2. Apart from authority it would seem that the suit is for possession of immovable property and that the court-fee should be governed by Section 7 Clause (5). This clause is applicable to suits for possession of immovable property and no distinction is made between a suit for possession as a beneficial owner, and a suit for possession as a trustee or as the manager of a religious endowment. The appellants counsel has cited several rulings but none of them is directly applicable to the facts of this case.

(2.) In Thakuri V/s. Bramha Narain [1896] 19 All. 60 the suit was under Section 539 of the old Civil P.C., which corresponds to Section 92 of the Code of 1908. The plaintiff sued for a declaration that certain property was endowed property and for the appointment of himself as superintendent of the endowment and for an injunction forbidding the denfendant to interfere with his management. It was held that the relief regarding the appointment of the plaintiff as superintendent of the religious endowment was governed by Section 17, Clause (vi), as it was not capable of valuation. This case is distinguishable because the plaintiff did not seek possession of the property. On the other hand, he did claim to be appointed as superintendent whereas the plaintiff in this case alleges that he has already been appointed as Mahant and seeks possession of the property.

(3.) The case of Girdhari Lal V/s. Ram Lal [1899] 21 All. 200 was also a suit under Section 539. The plaintiffs claimed that new superintendents should be appointed for the management of the endowed property and that the property should be taken from the defendant and placed in the possession of the new superintendents. Here, again, it was held that the court-fee was governed by Section 17, Clause (vi), but the case is distinguishable because the plaintiffs claimed nothing for themselves personally : they only asked that the trust property should be placed in the possession of the now superintendents whether they might be. It was not contended that it was a suit for possession of trust property.