N MUTHUSAMI PILLAI Vs. NSMANICKAVASAGAM PILLAI

JUDGEMENT

(1.) This civil revision petition raises a question of court-fee. The suit was originally instituted under Section 92, Civil Procedure Code, with the sanction of the Advocate-General for the removal of the defendants from the possession of the suit property, for the appointment of a trustee to manage it, for vesting the said property in the said trustee, for framing a scheme for its management and for other incidental reliefs. A fixed fee of Rs. 50 was paid under Article 17 (III) of Schedule II of the Madras Court Fees Amending Act. The main allegations in the plaint were that the plaintiffs are members of a caste known as Siruvaikudi Vellalars, that the suit property was acquired and constructed out of caste funds subscribed from time to time by members of the caste for the general purposes of the caste, that the object of the acquisition was to use the property as rest house for such of the members of the community as might visit Thiruvannamalai for rendering worship, whether at festival times or during ordinary periods that the said property was also used for the purpose of affording accommodation and convenience of the members of the community when assembling for caste meetings, which were being held periodically, that the property was thus a specific endowment of a religious and charitable character in which the entire community is interested, that the defendants were in exclusive possession of the property and were denying the rights of the members of the community to use it in the manner they were entitled to do. The learned Subordinate Judge passed a decree removing the defendants from possession of the property and calling for a draft scheme as in his opinion "a scheme for the better management of the trust" was necessary. On appeal Varadachariar and Burn, JJ., set aside the decree holding that the suit was not maintainable under Section 92, Civil Procedure Code, but they, however, gave leave to amend the plaint as one under Order I, Rule 8, Civil Procedure Code, leaving the question open whether in the circumstances of the case the said rule would be applicable. The condition of the amendment was that the said plaintiffs should pay such additional court-fee as may be payable on the plaint in consequence of the amendment. The learned Subordinate Judge has now directed an additional court-fee of Rs. 1,312-7-0 to be paid. It is against the said order the above revision petition has been preferred.

(2.) It is contended by Mr. K.V. Krishnaswamy Ayyar for the petitioner that the reliefs claimed in the plaint are incapable of valuation as the plaintiffs are not seeking any personal benefit for themselves and that the nature of the claim as originally laid is not in any way altered by the amendment. Before examining the soundness of that contention, it is necessary to look into the substance of the plaintiff's claim. So far as the nature of the property is concerned, in respect whereof the reliefs are sought, the said judgment of the Bench is binding on the parries and it is not open to me to go behind it. It is thus observed therein: It may be conceded that the interest of each of such member of the community in caste property is not identical with ordinary co-ownership in property held in common. But it, will necessarily follow from this alone, that the property can be regarded as held in trust and much less that it is property held in trust for a charitable purpose.

(3.) The suit, therefore, cannot be viewed as one for Ihe administration of a trust. It is in substance one for the administration of property of a caste wherein all the members of the caste are interested after ejectment of persons who are in exclusive possession thereof and refuse to have the same administered for the common benefit, As Varadachariar J., pointed out in the said judgment it may not be strictly accurate to describe the interest of a member of a caste in the property as one of co-ownership: A caste is not a co-operation or a partnership and it is difficult to describe it under any legal conception. A caste is well-defined, body of persons associated together for certain purposes and governed by usages of its own and where membership is regulated by birth, property can be owned by such a body and all the members have a beneficial interest therein in that every member is entitled to use and enjoy it in accordance with the rules and regulations prescribed by it and it cannot be dealt with or alienated without the consent of the members of the community expressed or declared in accordance with caste usage. This legal relationship of a member of a caste with reference to its property has to be kept in mind in considering the cases cited at the bar with reference to suits under Section 92, Civil Procedure Code. In most of the said cases a view has been taken that suits under Section 92, Civil Procedure Cede, are incapable of valuation and can be valued under Schedule II, Art. 17 (xi) of the Court Fees Act and the fact that reliefs are prayed directing a trustee who is sought to be removed to hand over possession of the trust property or to refund moneys misappropriated by him does not matter. The reason assigned is that the plaintiffs do not claim beneficial interest for themselves (vide Thakuri V/s. Brahma Narain 19 A. 60 : A.W.N. 1896, 187 and Girdhari Lall V/s. Ram Lal 21 A. 200 : A.W.N. 1899, 32 and it is thus expressed mRamrup Das V/s. Mohant Sitaram Das, 7 Ind. Cas. 92 12 C.L.J. 211 : 7 Ind. Cas. 92. The judicial person who is in possession of the only property which can have any value is the idol and if the shebait, who is alleged to have neglected his duty and to have embezzled the idol's property, is sought to be removed and another manager put in his place, it cannot be said that this is a suit involving the value of any portion of the idol's property.