1. This is an appeal from an order under Section 16A, Court-fees Act. It arises out of a suit brought by three plaintiffs. Plaintiff No. 1 alleges himself to be thetrustee and manager of the property dedicated infavour of plaintiffs Nos. 2 and 3, who arc the deitiesin whose favour the property is said to have beendedicated under a deed executed by one Smt. Janki.The aforementioned three plaintiffs came to courtseeking the following reliefs:
1. That it be declared that the sale deed executed by Smt. Sunjhari in favour of Sri Ram Janki dated 14-10-49, in respect of the house in suit is void ab initio and does not affect the title and interests of the plaintiffs Nos. 2 and 3;
2. If it be found that the plaintiffs are not In possession of the house in suit, then possession be delivered to the deities who are plaintiffs Nos. 2 and 3 by ejecting the defendants.
2. The trial court held that so far as the first relief is concerned, it involves cancellation of or adjudging void a sale deed executed by Smt. Sunjhari who was a predecessor-in-title of the plaintiffs in favour of Sri Ram Janki; and therefore the court fee on the said relief was payable under Section 7(iv-A)(1) of the Court-Fees Act as amended in Uttar Pradesh. So far as the Second relief is concerned, it held that the plaintiffs being out of possession, they are liable to pay an ad valorem court fee under Section 7(v) of the Court-Fees Act.
3. Aggrieved with the said order, the plaintiffs have filed this appeal in this Court.
4. It has been argued before us that so far as the first relief is concerned the court fee is payable not under Section 7(iv-A)(1) of the Court-Fees Act, but under Section 7(iv-A)(2) of the Court-Fees Act
5. Section 7(iv-A) of the Court Fees Act provides as follows:
'In suits for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:
1. where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject matter, and
2. where he or his predecessor was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter,
6. It is argued before us in the present case that the plaintiff or his predecessor, was not a party to the instrument, and hence the court fee should have been levied on one-fifth of the value of the subject-matter of the suit.
7. Before determining the question of court-fee, it is necessary to narrate briefly the facts averred by the plaintiff in the plaint in so far as they are relevant to this issue. According to the plaintiff's case one Gokulji was the owner of the house in suit. He dedicated it to the deities Shri Radha Krishnaji and Shri Balakrishnaji who are plaintiffs Nos. 2 and 3 in the suit. Gokulji died issueless and left behind a widow named Smt. Janki. The dedication of Gokulji was an oral one. No deed of endowment was executed by him.
Accordingly, after his death, his widow Smt. Janki executed a waqf deed dated 27-8-1902. By this deed, she appointed herself as the Mutwalli and Manager of this waqf for her life-time. In the year 1922 she executed a will in her capacity as a trustee whereby she appointed one Ugra Kishore Dube cousin of plaintiff No. 1 as trustee after her death. She further authorised Ugra Kishore Dube to nominate a trusee and manager after him.
Under this power, Ugra Kishore Dube executed a will dated 27-7-1926, appointing Smt. Sunjhari as manager and trustee for her life-time. He further directed that after her death, Ram Dutt Dube, father of plaintiff No. 1 was to become the manager and trustee and thereafter the office of trustee would devolve upon the descendants of Ram Dutt Dube. Ram Dutt died eleven years ago leaving the plaintiff No. 1 as his heir and descendent. Plaintiff No. 1 claims to be the manager and trustee as a descendant and heir of Ram Dutt Dube,
It is alleged by him that Smt. Sunjhari is an illiterate, old and weak pardanashin lady. The defendants Nos. 2 to 6 taking advantage of her weakness got a sale deed executed by her in favour of Sri Ram Janki defendant No. 1 in respect of the house in suit by exercising undue influence and practising fraud on the said lady. It is further alleged that Sm. Sunjhari was quite incapable of acting as a trustee nor did she even act as such; and, if she had a right, she had forfeited it as a result of the unlawful execution of the said deed.
8. Having heard the learned counsel for the parties, we are of opinion that this appeal should be allowed. The deed which, in the present case, is sought to be adjudged as void, was admittedly not Sunjhari. Further we are of opinion that assuming the plaintiffs' allegation to be correct--as for the purposes of court-fee they should be so assumed--the deed was not executed by the 'predecessor-in-title' of the plaintiff.
In our opinion, the word 'predecessor-in-title' should be construed as meaning a person from or through whom the plaintiff derives his title. Bearing the facts of the present case in mind, it cannot be said that plaintiff No. 1 derives his title from Smt. Sunjhari. No doubt, Smt. Sunjhari can be termed to be a predecessor-in-office of the plaintiff, but she cannot be considered to be predecessor-in-title of the plaintiff. Even the fact of her being the predecessor-in-office of the plaintiff has been denied by the plaintiff in the present case.
According to the plaintiff's claim, Smt. Sunjhari never acted as a trustee. In the alternative, his case is that, even if she did act as a trustee, she forfeited all right to occupy the said office as a result of the unlawful execution of the sale deed. Further it is to be remembered that under the will of Ugra Kishore Dube which provides for the devolution of the office of trustee, Smt. Sunjhari was appointed as a trustee only for her life-time.
Thereafter, Ugra Kishore Dube appointed Ram Dutt Dube, the father of the plaintiff No. 1, to be the trustee, and after the death of Ram Dutt Dube, trusteeship was to devolve on his descendants. The plaintiff No. 1 claims to be the trustee as a descendant and heir of Ram Dutt Dube. He further alleged that Ram Dutt Dube had also nominated him to be the trustee and manager after him. In view of the above allegations, the rights of Smt. Sunjhari and Rani Dutt Dube to managership were created by the same will independently of each other.
9. Even assuming for a moment that Smt. Sunjhari had a right to act as a trustee, the right of Ram Dutt Dube was derived not from Smt. Sunjhari, but from the will of Ugra Kishore Dube. All that can be said is that the rights of Smt. Sunjhari and Ram Dutt Dube are derived from the same source, but the fact that they are derived from the same source docs not mean that the right of the latter is derived from the former. The rights of each are independent, and not inter-dependent. In this view of the matter, Smt. Sunjhari cannot be considered to be the predecessor-in-title of the plaintiff.
10. On behalf of the respondents it is argued that she held the same title as the plaintiffs. We are, however, not inclined to accept this argument. The Court-Fees Act being a, fiscal statute we are of opinion that a strict construction should be placed on the terms used therein.
11. In any case, plaintiffs Nos. 2 and 3 in the present case are the deities themselves Smt. Sunjhari cannot be said to 'be the predecessor-in-title of the deities. The title of the deities is a predominant one. They have a title of a permanent nature. In this view of the matter also, we are of opinion that the court-fee should be levied in the present case not under Sub-clause (1) of Section 7(iv-A) but under Sub-clause (2) of the Court-Fees Act.
12. The result would be that the court-fee should be levied not on the amount of the value of the subject-matter, but on the one-fifth of its value. The value of the subject-matter has been assessed by the court below to be Rs. 10,000/-. The plaintiffs would be liable to pay the court fee on Rs. 2,000/-which is one-fifth of the value of the subject-matter so far as relief No. 1 is concerned. So far as relief No. 2 is concerned, the plaintiffs would be liable to pay a court fee of Rs. 878/2/- under Section 7(v) of the Court-fees Act in respect of the relief for possession as held, by the trial Court.
13. We, accordingly, allow the appeal, set asidethe order of the court below and direct that theplaintiffs shall pay the court fees as directed above.They arc allowed one month's time to make up thedeficiency. In view of the circumstances of the case,we make no orders as to costs.