Banerji and Aikman, JJ.
1. A preliminary objection was raised on behalf of the respondents to the hearing of this appeal, on the ground that the plaint in the Court below and the memorandum of appeal in this Court were not sufficiently stamped. The principal ground of this contention is that the claim embraces a prayer for an account, and that the Court fees ought to have been paid with reference to that prayer under Clause (f) of Sub-section 4 of Section 7 of Act No. VII of 1870.
2. The facts are these: The plaintiffs, who are two in number, brought the suit under Section 539 of the Code of Civil Procedure, on the allegations that one Maharaj Kallu Mai had created a trust for the maintenance of a school and a charitable institution; that the first defendant was appointed superintendent of the trust, and that the other trustees had not performed the duties which lay upon them in connection with the trust. The following reliefs were asked for in the plaint:
(a) that for the purpose of the management of the endowed property and fulfilment of the object of the endowment, new superintendents may be appointed, and the whole of the endowed property, detailed at the foot of the plaint, may be taken out of the possession of the defendants and placed in that of the new superintendents;
(b) that the defendants may be made to render an account of the income and expenditure from Sambat 1940, when Kallu Mal died, up to the present time, and all the money which the defendant No. 1 should fail to prove had been spent for the purposes of the endowment, according to the terms of the deed of endowment, may be awarded against him to the superintendents appointed by the Court, and added to the funds of the endowment;
(c) that proper and necessary instructions and rules regarding the management of the endowment and its income and expenditure may be issued.
3. The plaintiffs paid a Court fee of ten rupees in the Court below, alleging that the subject-matter in dispute was not capable of valuation, and that the case came under Clause (vi) of Article 17 of Schedule ii of Act No. VII of 1870. In this Court a further sum of ten rupees was received on the plaint and also on the memorandum of appeal, on the report of the office, the report being to the effect that ten rupees were payable for each of the two reliefs (a) and (b) claimed in the plaint. It is not stated, and we do not understand, under what provision of the Court Fees Act the second fee of ten rupees was realized in this Court.
4. Are the plaint and the memorandum of appeal insufficiently stamped
5. If it is not possible 'to estimate at a money value the subject-matter in dispute, and if there is no other provision in the Court Fees Act for a suit of this description,' the plaintiffs were right in paying a Court fee of ten rupees under Clause vi of Article 17 of Schedule ii of Act No. VII of 1870. We have therefore to consider what the subject-matter in dispute is. The plaintiffs claim nothing for themselves personally. As persons interested in a trust for charitable purposes, they come into Court asking for the removal of a trustee who, they allege, has committed a breach of trust, and who has in his hands funds belonging to the trust. They also ask for the appointment of new trustees and for the vesting of the trust property in the new trustees. That is the real relief which the plaintiff's seek in this case. Such a relief is not capable of being estimated at a money value. It is true that the value of the property, which is the subject-matter of the trust, is stated in the plaint, but that is not the value of the subject-matter in dispute. We think that this case cannot be distinguished from the principle of the judgment in Thakuri v. Bramha Narain (1896) I.L.R. 19 All. 60. We pointed out in that judgment the difficulties which would arise if it were held that a suit for the removal of a trustee and the appointment of new trustees were to be looked upon as a suit in which Court fees had to be paid with reference to the value of the trust property. Mr. Colvin, on behalf of the respondents, does not contend that this suit should be regarded as a suit for possession of the trust property. He frankly conceded that if the plaintiff had not asked for an account he would be unable to distinguish this ease from the ruling to which we have referred. He argues that the plaintiffs having in their plaint asked for the taking of an account; they were bound to pay Court fees on that portion of their plaint. We are unable to agree with' this contention. The prayer for an account is only ancillary to the substantive prayer in the plaint for the removal of the trustee-defendant, the appointment of new trustees, and the vesting of the trust property, now in the possession of the old trustee, in the trustees to be appointed by the Court. Reading Clause (f) of Sub-section 4 of Section 7 of Act No. VII of 1870 with Section 11 of the same Act and the penultimate paragraph of Section 50 of the Code of Civil Procedure, it is quite clear to what that Clause refers. We therefore overrule the preliminary objection taken on behalf of the respondents.
6. As regards the appeal, we are of opinion that it must prevail. The Court below has dismissed the suit on the ground that it is one for the removal of a trustee, and is not therefore a suit to which Section 539 of the Code of Civil Procedure applies. If this were so the learned Judge erred in dismissing the suit; he ought to have returned the plaint for presentation to the proper Court. We are of opinion, however, that the learned Judge was wrong in the view he took of the case. That view is, it is true, supported by the ruling of the Madras High Court in Rangasami Naickan v. Varadappa Naickan (1894) I.L.R. 17 Mad. 462, but that ruling has been dissented from in this Court in Huseni Begam v. The Collector of Moradabad (1897) I.L.R. 20 All. 46. The High Courts of Calcutta and Bombay have taken the same view of the question as was adopted by this Court, and even the Judges of the Madras High Court have held divergent opinions. We have no hesitation in concurring with the ruling of this Court to which we have referred above. Section 539 of the Code of Civil Procedure provides for cases of an alleged breach of trust for public charitable or religious purposes, and enables two or more persons having an interest in the trust to institute a suit to obtain a decree 'appointing new trustees under the trust.' Those words are, in our opinion, wide enough to include a claim for the removal of an old trustee who has committed a breach of trust, and for the appointment of new trustees. The ruling of the Madras High Court based on decisions of English cases on Lord Romilly's Act does not commend itself to us. That Act provides a summary procedure for obtaining relief by petition and not by suit as provided in Section 539 of the Code of Civil Procedure, and the provisions of the English Statute differ materially from those of Section 539.
7. We allow this appeal, and setting aside the decree of the Court below, remand the case under Section 562 of the Code of Civil Procedure with directions to re-admit it under its original number in the register and to try it on the merits. The appellants will get their costs of this appeal. Other costs hitherto incurred will abide the result.