1. This appeal has arisen out of a suit brought by Sri Thakur Sitaramji Maharaj and Seth Lakhmi Kunwar who claims that he is the duly appointed sarbarahkar of plaintiff 1. The defendant to the suit was one Raghunath Das who had been working as the sarbarahkar. The plaintiff's case was that his grandfather Sita Ram has founded the temple of Sri Thakur Sitaramji at Bindraban but had not appointed any sebaits. He had a wife Raj-bai and an adopted son Sri Niwas Das. They managed the temple in their lifetimes and on the death of Sri Niwas Das his widow Rafbai became the manager. Lakhmi Kunwar, plaintiff 2, alleges that he is the adopted son of Sri Niwas Das and is thus entitled to the management. During the plaintiff's minority it is said that Mt. Rajbai appointed the defendant her general attorney and authorized him to make realizations and manage the temple. Raghunath Das got his name wrongly entered in the village papers as sarbarahkar. The defendant had applied for insolvency and was in other ways incompetent to manage the temple. The reliefs claimed by the plaintiff in the plaint were as follows:
(1) That the defendant be removed from the management of the temple of plaintiff 1 and the charge of the temple and moveables therein be handed over to plaintiff 2 as manager on behalf of plaintiff 1.
(2) That the defendant be removed from the management of village Kakrari in the district of Agra which is the property of plaintiff 1 and possession as manager be given to plaintiff 2 over khewat No. 1 and khewat No. 2 in village Kakrari, district Agra.
(3) That the entry of the name of the defendantin the village papers be removed from the said khewats and the name of plaintiff 2 be entered as the sarbarahkar and manager of plaintiff 1.
(4) That accounts of the period when the defendant was the manager be taken and whatever sum is found due from him a decree for the said sum may be awarded as against him.
(5) Costs of the suit maybe awarded to the plaintiff.
The plaintiff valued his suit at Rs. 6800 and paid a court-fee of Rs. 67-8-0 as follows:
(1) The temple building in relief (1) had no market value and possession was being claimed from an agent and therefore its valuation for purposes of jurisdiction was fixed at Rs. 5000 and court-fees were being paid under Schedule 2, Rule 17, Clause (vi) at the fixed rate of Rs. 15.
(2) As regards relief (2) possession was being claimed against an agent for which no value could be fixed and it was therefore being valued for purposes of jurisdiction at Rs. 1000 and the fixed court-fee of Rs. 15 was being paid under Schedule 2, B. 17, Clause (vi).
(3) Relief (3) was valued at Rs. 200 and the fixed court-fee of Rs. 15 was paid under Schedule 2, Rule 17, Clause (vi).
(4) Relief (4) for accounts was valued at RS. 200 and court-fee of Rs. 7-8-0 was paid on that. It will be noticed that the total of the above figures comes to only RS. 6400 but we have checked the figures from the original plaint and the total given there is Rs. 6800. The defendant bad alleged that the suit has been undervalued and the court-fee paid was insufficient. The trial Court had framed an issue on this point which was numbered as issue 10 and tried it as a preliminary issue. As regards relief (1) the parties appointed one Mr. Jai Behari Lal as a referee on the question of the market value of the temple and the referee made a statement that the temple building was worth Rs. 10,000. Relying on a decision reported in Pasotama Nand v. Mayanand : AIR1932All593 the lower Court held that the temple itself should be left out of account and therefore the plaintiff was entitled to value it at any figure he liked and the court-fee paid on relief (1) was sufficient. No party has contested that finding before us and so it is not necessary to consider this point further.
2. As regards relief (2), the lower Court held that the zamindari in village Kakrari consisted of khewat khata No. 1 and one-eighth share of khata khewat No. 2. It was urged on behalf of the defendant, that the suit must be deemed to be a suit for possession and it must be valued at thirty times the amount of land revenue for purposes of jurisdiction and court-fee should be paid ad valorem at ten times the amount of the land revenue of the two khatas. The lower Court agreed with this contention of the defendant and held that ten times the land revenue of plaintiff 1's share in the two khatas came to Rs. 21,305-6-0, the court-fee on which should be Rs. 1212-8.0. The plaintiff had paid only Rs. 15 and so there was a deficiency of Rs. 1197-8-0. As regards the other two reliefs there was no dispute between the parties in the Court below and the lower Court held that the court-fee paid was sufficient. Against the order demanding a further court-fee of Rs. 1197-8-0 mentioned above the plaintiff has filed this appeal under Section 6A, Court-fees Act. Notice of this appeal was served on the Chief Inspector of Stamps as required by the rules and the learned Advocate-General has appeared to oppose the appeal.
3. Learned Counsel for the appellant has urged that there is no dispute as regards title in the ease, it being admitted on all hands that plaintiff 1 is the owner. The only dispute is as to whether plaintiff 2 was entitled to the management of the property as a sarbarahkar or the defendant was entitled to the management as a sarbarahkar. The lower Court relied on a decision of a learned Single Judge of this Court reported in Parsotama Nand v. Mayanand : AIR1932All593 . The learned Judge in that case held that there was no authority for holding that a claim for possession under Section 7, Sub-section (v) of the Act should be confined to a dispute as regards, possession as a beneficial owner only. That ease arose out of a suit filed by a person claiming to be the mahant against another for possession of the math property and this Court held that the plaintiff had to pay court-fees in accordance with Section 7(v), Court-fees Act. As against the case mentioned above, the plaintiff had relied on a bench decision of this Court reported in Ram Raj v. Girnandan Bhagat ('93) 15 All. 63 where a suit for ejectment of a tenant was held not to fall within paras. 5, 6, 9 or 10 of Section 7, Court-fees Act of 1870. It was held in that ease that the value of the subject-matter must be deemed to be the tenant's interest in the land. The learned Judge of the Court below pointed out that there was now a separate clause for payment of court-fees for suits between landlords and tenants and that case was, therefore, distinguishable as he held that he was bound by the decision of this Court in Parsotama Nand v. Mayanand : AIR1932All593 . Certain other cases under the old Section 539, Civil P.C., corresponding to Section 92 of the new Code of 1908 were also cited before him, but they were distinguished on the ground that suits under Section 92, Civil P.C., could not be treated as suits of the same nature as the present suit before him.
4. Learned Counsel for the appellant has relied on a case reported in Omrao Mirza v. M. Jones ('84) 10 Cal. 599. In that case a suit had been filed for accounts and for removal of the defendant from trusteeship and for the plaintiff's own appointment as a trustee. The plaintiff had valued the suit for purposes of jurisdiction at Rs. 7000 but it was held that the plaintiff's interest was not capable of valuation as he was a mere trustee and had, therefore, no beneficial interest in the subject-matter and Schedule 2, Article 17, Clause (vi) was held applicable for purposes of payment of court-fee. In Thakuri v. Brahma Narain ('96) 19 All. 60 a similar suit was filed for a declaration that the property was endowed property, that the plaintiff should be appointed a trustee and the defendant should be removed from trusteeship and an injunction should be issued against the defendant. As regards the first part of the relief the Court held that Schedule 2, Article 17, Clause (vi), Court-fees Act, governed the case and a fixed court-fee of Rs. 10 was payable, but for injunction it was held that the plaintiff had to pay separately under Section 7, Sub-section (iv), Clause (d), Court-fees Act.
5. In In Re Mphammad : AIR1925Mad804 , where the plaintiff was a sajjdanashin of two dargas and had been dispossessed by the defendant he brought a suit for possession of the dargas and a learned Single Judge of the Madras High Court held that a suit of this kind fell under Section 7, Clause (v), Court-fees Act, and ad valorem court-fees were payable and Article 17 of Schedule 2 was not applicable. In Maulvi Sayeed v. Shah Tafazul ('34) 21 A.I.R. 1934 Pat. 647, the Patna High Court in a case exactly similar to the case before us has held that the proper court-fee payable was under Schedule 2, Article 17, para. 6, Court-fees Act. They held that the dispute in the case really was as to the right of mutwalliship and not to the trust property about which there was no dispute. It must be remembered that on the allegations in the case that the property in suit was trust property of which plaintiff 1 was the owner and plaintiff 2 was the manager and the defendant had no right to manage, the question really was between to rival sarbarahkars for their right to manage as sarbarahkar. Sri Thakurji, plaintiff 1, must be deemed to be in possession of the property and no question of possession of land, buildings or gardens as required by Section 7(v) of the Act arises. The possession of an agent must be deemed to be on behalf of the principal and plaintiff 1 being, therefore, deemed to be in possession of the property, to our mind the case does not come under Section 7, Clause (v), Court-fees Act.
6. In some cases it has been held that 'the value of the subject-matter' in Section 7 (v) must be deemed to be the value of the interest in dispute and where therefore the interest in dispute was not the full beneficial ownership the Courts have accepted such valuation as the plaintiff had chosen to give on his so-called interest: see Barkatunnisa Begum v. Mt. Kaniza Fatma ('27) 14 A.I.R. 1927 Pat. 140. The method, however, as to how the subject-matter is to be valued is given in the section itself when it is land and when it is a building or a garden. If a plaintiff has share in such land, building or garden naturally the value of the subject-matter can be easily worked out in accordance with his share, but if the plaintiff is not the beneficial owner it seems to be obvious that the value of the subject-matter should not be the value of the property and it being not possible to estimate at a money value the subject-matter it seems more equitable that Schedule 2, Article 17 should apply. A suit between rival managers for their right to manage can hardly be deemed to, be a suit for possession of the property as both naturally admit that the possession is with the principal. To our mind, therefore, the court-fee paid by the plaintiff on relief (2) was correct. We, therefore, set aside the order of the Court below and allow the appeal with costs against the defendant-respondent.