Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Judges
  • Madhavan Nair
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Judges
  • Madhavan Nair
Acts
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The dispute arises from a suit instituted by the plaintiff seeking a declaration that he was the Sajjadanashin (trustee/manager) of two durgas in the South Arcot District and for possession of those durgas and their properties. The plaintiff alleged appointment by the last Sajjada and that he took possession upon the last Sajjada's death, but was later dispossessed by the first defendant, a female heir of the founder's family.

The lower Court found the plaintiff was not nominated by the last Sajjada and was not the nearest male heir, and dismissed the suit. On appeal the High Court remanded the case to the lower Court to rehear it after bringing on record the descendants of the original founder and to appoint a trustee from among them, because the last Sajjada had not nominated a successor. After remand, the plaintiff compromised with the first defendant and sought to withdraw the suit; the Court refused withdrawal, transposed some defendants into plaintiffs, made the original plaintiff a defendant, and continued the suit.

By decree dated 27th March, 1923, the Subordinate Judge appointed the (re-titled) 1st and 2nd plaintiffs as Muthawallis of the two durgas on probation for three years and ordered that they take possession of the durgas and their properties; the decree directed distribution of surplus income among family members. The 6th defendant appealed, seeking appointment as trustee of both durgas in place of plaintiffs 1 and 2. The present reference concerns the correct Court-fee to be paid on the memorandum of appeal filed by the 6th defendant.

Legal Issues Presented

  1. What is the proper Court-fee payable on the memorandum of appeal filed by the 6th defendant: should the appeal be valued under Article 17, Clause (b), Schedule II of the Court Fees Act (where the subject-matter is alleged to be incapable of monetary valuation) or under Section 7, Clause (5) of the Court Fees Act requiring ad valorem fee on the value of the suit properties?
  2. Whether a claim by a party for trusteeship or management of trust properties (without personal beneficial interest) renders the appeal incapable of valuation for the purposes of Article 17, Clause (b), Schedule II, thereby exempting it from ad valorem court-fee under Section 7, Clause (5).
  3. Whether decisions relating to suits under Section 92 (Order 92 of the Civil Procedure Code) — where mere inclusion of a prayer for account or for appointment as trustees does not attract ad valorem fee on that part — apply to the present suit.
  4. Whether earlier decision(s) such as Swaminatha Aiyar v. Ramier affect the correctness of the prior order on Court-fees in this matter.

Arguments of the Parties

Appellant's Arguments (as presented)

  • The appellant (represented by the learned Advocate-General and Mr. Govindaraghava Aiyar in related references) contended that where all parties claim properties for and on behalf of the trust the sole dispute is who is entitled to manage the trust; the right of management is incapable of monetary valuation and therefore Article 17, Clause (b), Schedule II of the Court Fees Act applies.
  • It was further argued that because the plaintiff sued for trusteeship only and had no beneficial or personal interest in the properties in his capacity as trustee, the claim should not attract ad valorem Court-fee under Section 7, Clause (5).
  • The appellant relied on authorities (including Ramadoss v. Hanumantha Rao and other decisions) to support the position that possession need not be the subject of suit in certain trustee disputes and that valuation for court-fee purposes may thus be inappropriate under Article 17(b).
  • Reference was made to cases under Order 92 (Section 92 of the Civil Procedure Code) to argue that inclusion of a prayer for appointment as trustees or for accounts does not necessarily make ad valorem fees payable on that portion of the plaint.

Respondent / Government's Arguments

  • Mr. Varadaohariar, on behalf of the Government, contended that the case is governed by Section 7, Clause (5) of the Court Fees Act and that the appellant should therefore pay ad valorem Court-fee on the value of the suit properties.
  • The Government's position, as framed in the opinion, is that since the plaintiff in fact sought possession of the trust properties, the "subject-matter" of the suit includes a claim for possession which is susceptible to monetary valuation and thus attracts ad valorem fee under Section 7, Clause (5).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ramadoss v. Hanumantha Rao (1911) 36 Mad. 364 Illustrated a situation where lands were in possession of persons willing to pay rent to the plaintiff once he recovered office of Dharmakartha; discussed necessity of suing for possession when possession is adverse to plaintiff. The Court relied on the distinction drawn in that case to support the view that if possession is adverse to the plaintiff he must sue for possession; accordingly Article 17(b) is inapplicable where possession is sought.
Rathnasabapatki (Rathnasabapathi) Pillai v. Ramaswami Aiyar (1910) 33 Mad. 452 In that case the plaint alleged defendants had illegally taken possession and leased out portions; the plaintiff combining actions was bound to ask for the relief of possession where a present right of possession was asserted. The Court relied on the reasoning to emphasize that where the plaint alleges dispossession and asks for possession, the suit must be treated as including a claim for possession attracting ad valorem fee under Section 7, Clause (5).
Sonachala v. Manika (1885) 8 Mad. 516 Held that a plaintiff seeking removal of a defendant from management of endowed properties and seeking appointment as manager should sue for possession and pay ad valorem Court-fee under Section 7. Used to support the proposition that claims for management/removal which in substance involve possession fall within Section 7 and require ad valorem fees.
Thakuri v. Brahma Narain (1896) 19 All. 60 One of several cases under Order 92 (Section 92 of the Civil Procedure Code) showing that inclusion of a prayer for account or for appointment as trustees does not automatically render plaintiffs liable to pay ad valorem Court-fee on that part. The Court observed these decisions do not assist the appellant because the present suit is not one under Section 92 and lacks the essential characteristics of such suits.
Girdhari Lal v. Ram Lal (1899) 21 All. 200 Similarly an Order 92 case establishing limits to when ad valorem fees apply to trustee/account prayers in suits under that provision. The opinion records that this line of authority is inapplicable to the present case which is not a Section 92 suit.
Bamrup Das v. Mohunt Sitaram Das (citation as in opinion) Another decision under Order 92 holding that mere inclusion of a prayer for account or appointment of plaintiffs as trustees does not necessarily attract ad valorem fee in suits under that provision. Noted by the Court as not helpful to the appellant because the present suit is not one under Section 92.
Ramamirtha Mudaliar v. Govinda Mudaliar C.R.P. No. 862 of 1917 (Order of Reference to Full Bench) Contains observations (by Spencer, J.) that were said to support the appellant's contention that a trustee-only claim may not attract ad valorem fee. The Court acknowledged the observations but rejected the proposition that the absence of beneficial interest in the plaintiff should alter the Court-fee payable when possession is claimed (illustrated by the guardian example).
Swaminatha Aiyar v. Ramier A.I.R. 1925 Mad. 421 Held that plaintiffs were not bound to sue for possession where tenants in possession were willing to pay rents to the proper trustee; the Court there was not required to consider what Court-fee would be payable if possession had been asked for. The present Court considered this decision but concluded it did not contradict the present order because the judges in Swaminatha Aiyar did not rule on the Court-fee question where possession was actually claimed; the present case involved a plaint that did seek possession.

Court's Reasoning and Analysis

The Court's analysis proceeded in discrete steps, tied closely to the framing of the "subject-matter" of the suit and the actual relief sought in the plaint:

  1. The Court framed the decisive inquiry as what constitutes the "subject-matter" of the suit for Court-fee purposes. The judge emphasized that the nature of the relief actually claimed controls the classification for fee liability.
  2. The appellant's principal contention (that the dispute was merely about management of the trust and thus incapable of valuation, invoking Article 17, Clause (b), Schedule II) was rejected. The Court reasoned that although parties claimed for the trust, they were claiming the right to hold the properties adversely to the plaintiff; hence the plaintiff must necessarily seek relief by way of possession against them.
  3. The Court distinguished authorities relied upon by the appellant. It accepted that some cases (under Order/Section 92 of the Civil Procedure Code) hold that inclusion of a prayer for account or for appointment as trustees does not automatically attract ad valorem fee in suits of that class; but concluded the present suit is not of that class and lacks those essential characteristics.
  4. The Court further addressed the appellant's contention that lack of beneficial interest (a trustee-only claim) should exempt the claim from ad valorem fee. The Court rejected this by analogy (a guardian suing on behalf of a ward has no beneficial interest yet must pay ad valorem fees when suing for recovery of immovable property) and by reference to observations in Ramamirtha Mudaliar which did not persuade it to treat trusteeship claims differently for fee purposes.
  5. Relying on earlier decisions (Ramadoss; Sonachala; Rathnasabapathi Pillai), the Court stressed that where the plaint in fact prays for possession (the present case does so) the suit falls within Section 7, Clause (5) of the Court Fees Act. Thus Article 17, Clause (b) is inapplicable to such a suit.
  6. The Court applied this reasoning uniformly to connected references (other S.R. numbers) raising the same question and considered but distinguished Swaminatha Aiyar v. Ramier on the ground that that case did not decide the Court-fee consequence when possession had been asked for; accordingly the prior order was maintained.

Holding and Implications

Holding: The Court held that the appeal must be valued and the Court-fee paid under Section 7, Clause (5) of the Court Fees Act (i.e., ad valorem on the value of the suit properties); Article 17, Clause (b), Schedule II is inapplicable where the plaint prays for possession.

Direct Consequences and Orders:

  • The appellant (6th defendant in the lower Court) is required to pay the necessary Court-fee under Section 7, Clause (5); six weeks' time was granted for payment.
  • The same order and time for payment apply to the connected stamp references (S.R. Nos. 13674 of 1923, 12052 of 1923 and 13423 of 1923) dealing with other appeals against the same judgment.
  • The Court declined to modify its prior order after full hearing and extended time for payment of Court-fee by six weeks from the date of the opinion.

No broader new legal principle was laid down beyond applying established rules: the decision applies the existing distinction that a suit which in substance seeks possession of trust properties is to be treated as a subject-matter capable of valuation for court-fee purposes under Section 7, Clause (5). The opinion expressly distinguishes authorities relied on by the appellant and does not purport to overturn prior decisions.

Show full summary ...

    In Re: Syed Mahammad Gouse And Ors.

    1. In S.R. No. 9636 of C.C. 1923 in, Appeal No. 186 of 1923 : This is a reference under Section 5 of the Court Fees Act as regards the proper Court-fee to be paid on the memorandum of appeal filed by the 6th defendant.

    2. This suit out of which this appeal arises was instituted by the plaintiff for a declaration that he is the Sajjadanashin of two durgas in the South Arcot District and for the possession of the durgas and their properties. The plaintiff alleged that he was appointed by the last Sajjada as his successor and that he took possession of the durgas and the properties on the last Sajjada's death, but that he was subsequently dispossessed by the first defendant, one of the female heirs of the original family of the founder. The lower Court holding that the plaintiff was not nominated by the last Sajjada and also that he was not the nearest male heir, dismissed the suit. On appeal by the plaintiff, the High Court remanded the Suit to the lower Court to rehear the case after bringing on record the descendants of the original founder and to appoint a trustee from amongst them, since the last Sajjada had failed to nominate his successor. After remand the plaintiff compromised the suit with the first defendant and asked for permission to withdraw it, but the Court refusing such permission transposed some of the defendants as plaintiffs, made the original plaintiff a defendant, and proceeded with the suit. By his decree, dated 27th March, 1923, the Subordinate Judge appointed the 1st and 2nd plaintiff's, according to the revised cause-title, as Muthawallis of the two durgas on probation for a period of three years and directed that they should take possession of the durgas and their respective properties (see Clauses 1, 3, 4 and 6 of the decree). The decree also provided that the surplus income after meeting the expenses of the durgas should be distributed amongst the members of the family. The 6th defendant in his appeal against this decree prays that he should be appointed trustee of both the durgas in the place of plaintiffs 1 and 2.

    3. In the lower Court and previously in this Court on appeal, Court-fees were paid ad valorem on the value of the plaint properties. The appellant now seeks to value his appeal under Article 17, Clause (b), Schedule II of the Court Pees Act on the ground that it is not possible to estimate at a money value the subject-matter in dispute; on the other hand, it is contended by Mr. Varadaohariar, on behalf of the Government, that the case is governed by Section 7, Clause (5) of the Court Pees Act and that the appellant should pay ad valorem Court-fee on the value of the suit properties.

    4. The main argument of the learned Advocate-General on behalf of the appellant is this : If the suit had been against persons claiming adversely to the trust, ad valorem Court-fee might have to be paid; but in a case like the present, where all the parties to the suit claim the properties for and on behalf of the trust, the only point in dispute is as to who amongst them is entitled to manage the trust properties and as that, viz., the right of management is, incapable of valuation, the proper article applicable is Article 17, Clause (b), Schedule II of the Court Pees Act. This argument appears to me to be untenable, because, though the defendants do not claim the properties adversely to the trust, they do claim the right to hold them adversely to the plaintiff and therefore plaintiff has necessarily to ask for relief by way of possession as against them. In Ramadoss v. Hanumantha Rao (1911) 36 Mad. 364, relied upon for the appellant the lands were in the possession of persons who were willing to pay rent to the plaintiff as soon as he recovered the office of Dharmakartha. In distinguishing the caso before them from the decision in Rathnasabapatki Pillai v. Ramaswami Aiyar (1910) 33 Mad. 452 and the other case brought to their notice the learned Judges indicate their opinion that, if the possession bad boon adverse to the plaintiff, then it would have been necessary for him to sue for the relief of possession, also : see page 366. In Sonachala v. Manika (1885) 8 Mad. 516 where the plaintiffs prayed for a decree for the removal of the defendant from the management of properties endowed for charity and for the appointment of himself as the manager thereof, it was held that the plaintiff was to sue for possession of the properties and that he should pay ad valorem Court-fee under Section 7 of the Court Foes Act.

    5. Reference has been made by Mr. Govindaraghava Aiyar, the learned vakil for the appellant in the connected S.R. No. 13123 of 1923 in which also the same question is raised, to the decisions in Thakuri v. Brahma Narain (1896) 19 All. 60, Girdhari Lal v. Ram Lal (1899) 21 All. 200 and Bamrup Das v. Mohunt Sitaram Das (6). These are cases under B. 92 of the Civil Procedure Code and do not really help him. Shortly stated, what was decided in those cases was that in suits coming under Section 92 (Section 539 of the old Code) of the Civil Procedure Code, the mere inclusion in the plaint of a prayer either for account, or for the appointment of plaintiffs themselves as trustees, does not render the plaintiffs liable to pay ad valorem Court-fee on that part of their plaint. The suit which has given rise to this appeal is not one under Section 92 of the Civil Procedure Code, nor does it possess the essential characteristics of such a suit. It cannot also be said that the nature of the suit has in any way been altered subsequent to the remand by the High Court.

    6. It has been further urged on behalf of the appellant that since the plaintiff sues for trusteeship only and has no beneficial or personal interest in the properties in his capacity as trustee, no ad valorem Court-fee need be paid. This argument receives a pertain amount of support from the observations of Spencer, J., in his Order of Reference to the Full Bench in Ramamirtha Mudaliar v. Govinda Mudaliar C.R.P. No. 862 of 1917. With all respect, I am unable to see how the question as to whether the plaintiff has or has not any beneficial interest in the properties that he sues for, can make any difference as regards the Court-fee payable by him. A guardian of a minor, for instance, suing on behalf of his ward for recovery of possession of immovable property has no beneficial interest in the property, but I do not think that it can be argued that he need not pay ad valorem Court-fee under Section 7, Clause (5), when he sues for possession of properties of the ward.

    7. It seems to me that in determining the Court-fee payable in these oases the sole question to be considered is, what is the "subject-matter" of the suit. As already pointed out in a case like the present one, the plaintiff is bound to ask for possession and the plaintiff here has, as a matter of fact, prayed for possession of the trust properties. So far as this relief is concerned, the suit, in my opinion, falls under Section 7, Clause (5), Court Fees Act, and the appellant should pay Court-fee under that Section. As in my view the case comes under Section 7, Clause (5), it follows that Article 17, Clause (b) is inapplicable. I give six weeks time for the appellant to pay the necessary Court-fee.

    8. In S.R. Nos. 13674 of 1923, 12052 of 1923 and 13423 of 1923. - The same question arises in these stamp reference numbers which deal with the other appeals filed against the lower Court's judgment. The order passed in S.R. No. 9636 of 1923 will apply to them also.

    ORDER

    9. These stamp references were posted to be spoken to at the instance of Mr. Govindaraghava Aiyar, but after hearing the arguments of the learned vakils on both sides, I do not see any reason to modify or alter the order which I have already made.

    10. The only point now urged by Mr. Govindaraghava Aiyar is that the decision of this Court reported in Swaminatha Aiyar v. Ramier A.I.R. 1925 Mad. 421 is against the view which I have taken in my prior order and that I should, therefore, reconsider my order in the light of the said decision. I will assume that if the decision in Swaminatha Aiyar v. Ramier A.I.R. 1925 Mad. 421 has really taken a contrary view, it is open to me to reconsider my order. In that case the plaintiffs sued for a declaration that they and the 1st defendant were the lawfully appointed trustees of a certain temple; and they prayed for a direction that defendants 2 and 3 should be made to restore the office of trustee to them and for an injunction restraining them from interfering with the exercise by the plaintiffs and the 1st defendant of their duties as trustees. The tenants who were in possession of the properties were willing to pay the rents to whomsoever was the proper trustee. It was held that the plaintiffs were not bound to sue for the possession of the temple properties and their omission to sue for such possession did not offend against the proviso to Section 42 of the Specific Relief Act. The learned Judges had not to consider the question as to what is the Court-fee payable if the plaintiffs had, as a matter of fact, asked for possession and nowhere do they say that in such a case ad valorem Court fee need not be paid. Even as regards the necessity of asking for possession where the plaintiff alleges that some others had illegally taken possession of the temple lands, the learned Officiating Chief Justice states thus when distinguishing the case in Rathnasabapathi Pillai v. Ramaswami Pillai (1910) 33 Mad. 452 - "The maintainability of the suit must depend upon the allegation in the plaint.... In this plaint he the plaintiff in the case in Rathnasabapathi Pillai v. Ramaswami Pillai (1910) 33 Mad. 452 mentioned that the defendants 8 and 9 bad illegally taken possession of the temple lands and leased out the fishery in the tank and collected rent. The plaintiff in that case having, for reasons best known to himself, combined two actions in one, namely, one action against the Temple Committee for the restoration of his trustee's office and for damages, and a second action for the recovery of the trust properties against persons who had wrongfully dispossessed him of such property, was bound to ask for the relief of possession of the temple properties to which he asserted a present right of possession. On the allegations in the plaint in that suit it may have been right to require the plaintiff to add a prayer for possession of the lands, and if he refused to do so, his suit might have been dismissed. But he was not bound to sue for possession of the lands before he was restored to office. If he had chosen to strike out from his plaint his statement as to the part played by defendants 8 and 9, he might have waited, till he was restored to his office of trustee, and he might then have brought a separate suit on behalf of the trust to recover the trust properties which had been wrongfully alienated, The plaintiff in the present case alleges in his plaint that he was dispossessed, by the 1st defendant and asks for possession from him, and I do not think that the remand by the High Court and the subsequent re-arrangement of the parties can in any way alter the nature of the case. It is not necessary for me to decide whether even in this case the plaintiff is bound to ask for possession. But as possession has been asked for and as the decree also directs that the durga should be taken possession of, I think that Court fee should be paid under Article 7, Clause (5) of the Court Fees Act. Time for payment of the Court-fee is extended by six weeks from to-day in all the references.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    In Re: Syed Mahammad Gouse And Ors.
    (Nov 28, 1924)