K.K. Narendran, J.
1. A question of court-fee arises for consideration in this Civil revision Petition. The question is how a relief for a declaration that the 1st defendant, the hereditary trustee of a temple of a Swaroopam has no right to continue in management, for a permanent injunction to restrain him from continuing in the management and for the appointment of the 2nd defendant or the 1st plaintiff as trustee in his place is to be valued for the purposes of court-fee.
Is the relief capable of valuation end is the court-fee to be computed on the market value of the properties held under trust or is the relief incapable of valuation and is the court-fee to be levied under Section 25 (d) (ii) of the Kerala Court-Fees and Suits Valuation Act, 1959 for short the Act. The decision of the question depends upon the fact whether the hereditary trustee has only a bare right to manage or has a personal interest of a beneficial character in the properties of the trust. If a bare right to manage cannot be treated as property under Article 19(1) of the Constitution and the custody of the properties will not amount to a beneficial interest in the properties, is the relief prayed for capable of valuation?
2. The plaintiffs in O. S. No. 21 of 1974 on the file of the Subordinate Judge, Ottapalam are the petitioners in this Civil Revision Petition. The averments in the plaint are as follows: The plaintiffs and the defendants are members of a Swaroopam by name Kunnathattu Matampil. Their tarwad was known as Mannarkat Nayar Veedu. They have a temple known as Ubhayarkunnu Bhagavathi temple. Some properties of the tarwad were set apart as a trust for the temple. The seniormost male member, the sthani, used to be in management of the temple and its properties as a trustee. In O. S. No. 65 of 1956, a suit for partition of the sthanam properties, a preliminary decree was passed by the Subordinate Judge, Ottappalam holding that the properties set apart for the maintenance of the temple are not properties of the sthanam liable to be partitioned. Accordingly the movables of the temple were also handed over to the 1st defendant who was managing the temple as trustee. The movable and immovable properties of the temple are included in A and B schedules to the plaint. The 1st defendant is acting against the interest of the Swaroopam. He has entrusted the management to defendants 4 and 7 to 9. This he has no power to do. Defendants 1, 4 and 7 to 9 have sold away valuable gold and silver ornaments of the temple. They have also made collections on behalf of the temple and appropriated the same. On these and other averments contained in the plaint the plaintiffs have prayed for a declaration that the 1st defendant has no right to continue in management of the temple and its properties as trustee and for a permanent injunction restraining him from continuing the management and for appointing the 2nd defendant or the 1st plaintiff as the trustee of the temple and its properties. Other consequential reliefs are also prayed for in the plaint; but they are not relevant for the purposes of this case. In the plaint A relief for the declaration, permanent injunction etc. was valued under Section 28 of the Act and court-fee was paid accordingly. But the defendants raised a contention that the court-fee paid by the plaintiffs was not correct. An issue 'whether Section 28 of the Act is applicable and whether the court-fee paid is correct' was raised and it was heard as a preliminary point. The trial court held that Section 2.8 of the Act was not applicable and hence the court-fee paid was not correct and the plaintiffs were directed to revise the valuation and to pay the court-fee accordingly. Thereupon, I. A. No. 351 of 1975 was filed for the amendment of the plaint. As per the amendment, the valuation of A relief was sought to be changed as Rs. 4,100. The trial court by its order elated 18-7-1975 dismissed that application. The plaintiff challenged the above order of dismissal in C. R. P. No. 1301 of 1975 before this Court. This Court set aside the order of dismissal and directed the trial court to allow the plaintiffs to carry out the amendment and accordingly the plaint was amended and the plaintiffs paid an amount of Rs. 390 as court-fee on A relief under Section 25 of the Act. Again, issue No. 17 regarding the sufficiency of the court-fee paid was heard as a preliminary point. The trial court rejected the contentions of the plaintiffs that A relief is incapable of valuation and held that the court-fee paid was not correct. The above finding of the trial court on issue 17 is challenged in this Civil Revision Petition.
3. Learned counsel on both sides addressed elaborate arguments and, in support of their contentions, have referred to a number of decisions. In K.A. Samajam v. Commissioner, H. R. & C. E. (AIR 1971 SC 891) the Supreme Court has said in para. 10:
'It was common ground before the High Court and has not been disputed before us that the hereditary trustees of the institutions with which we are concerned have only claimed a bare right to manage and administer the secular estate of the institution or the endowment and in no case any hereditary trustee has claimed proprietary or beneficial interest either in the corpus or in the usufruct of the estate. The position of a hereditary trustee does not appear to be in any way different from that of a Dharamkartha or a mere manager or custodian of an institution or endowment. There is one exception only. The hereditary trustee succeeds to the office as of right and in accordance with the rules governing succession. But in all other respects his duties and obligations are the same as that of Dharamkartha, nO one has ever suggested that a hereditary trustee can be equated to a Shebait of a religious institution or Mathadhipati or the Mahant. The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant as also a Shebait and a Mathadhipati. The position of Dharamkartha, on the other hand, is not that of a Shebait of a religious institution or of the head of a math. These functionaries have a much higher right with large power of disposal and administration and they have a personal interest of beneficial character: (See Srinivasa Chariar v. Evalappa Mudaliar). There would thus be no justification for holding that since the office of the aforesaid functionaries has been consistently held by this Court to be property the office of a hereditary trustee is also property within Article 19 (1)(f).' In the above case, the Supreme Court has referred to A number of decisions including Govindalji v. State of Rajas-than (AIR 1963 SC 1638). In the above case, in para. 43 the Supreme Court has observed:
'There can be no doubt that the right to have the custody of the property such as the Custodian has, or the right to manage the property such as the Manager possesses, or the right to administer the trust property for the benefit of the beneficiary which the Trustee can do, cannot be regarded as a right to property under Article 19(1)(f) and for the same reason, it does not constitute property under Article 31 (2). If it is held that the Tilkayat was no more than a Custodian, Manager and Trustee properly so-called, there can be no doubt that he is not entitled to rely either on Art, 19 (1) (f) or on Article 31 (2).' In Kandaswami v. Vagheesam (AIR 1941 Mad 822) Lionel Leach C. J., speaking for the Full Bench, has observed:
'The office of a mahant cannot be separated from the properties which form the endowments of the office.'
In the above case, the Full Bench further held that the plaintiff who is asking for a declaration of his title to the office of a mahant and who is not in possession of its properties must by reason of Section 42 of the Specific Relief Act, 1877 ask for possession and his failure to do so vitiates his suit. In Gnanasambanda Pandara Sannadhi v. Velu Pandaram, (1899) ILR 23 Mad 271 (PC) the Privy Council had to deal with an alienation effected by a hereditary Manager of his right of management and right in part of the lands which formed the endowment. The question that arose for consideration in that case was one of limitation and the Privy Council held that there was no distinction between the claim to the office and the claim for the property in regard to the application of Article 124 of Schedule II of the Limitation Act, 1877. As a matter of fact, the question of court-fee as such did not arise in that case. In Sambudamurthi Mudaliar v State of Madras, (1969) 2 SCWR 630 : (AIR 1971 SC 2363) the Supreme Court has said that the office of a hereditary trustee is in the nature of 'property' and this is so whether the trustee has a beneficial interest of some sort or not. But, in K.A. Samajam v. Commr., H. R. & C. E. (AIR 1971 SC 891) the Supreme Court had occasion to consider the above decision. Referring to the observation in Sambudamurthi Mudaliar v. State of Madras, (1969) 2 SCWR 630 : (AIR 1971 SC 2363) that the office of a hereditary trustee is in the nature of property, the Supreme Court has said (at p. 897):
'This observation, we apprehend, was not necessary for a decision of that case. There the question was whether the appellant was a hereditary trustee within the meaning of Section 6 (9) of the Madras Act 1961 and there was no discussion or determination of the point that the office of the hereditary trustee was property within Article 19(1)(f) or any other Article. Nor do we consider that the various pronouncements of the Privy Council that the rule in the Tagore case, (1872) 9 Beng LR 377 (PC) applies to succession of hereditary trustees can afford much assistance in deciding whether an office holder who has a bare right of management can claim to have any right or interest in the nature of property within the meaning of Article 19(1)(f). Following the principles laid down in the Tilkayat, (1964) 1 SCR 561 : (AIR 1963 SC 1638) and Raja Birakishore (1964) 7 SCR 32 : (AIR 1964 SC 1486) cases we are unable to endorse the view that the office of hereditary trusteeship is property within Article 19(1)(f) or any other Article of the Constitution.'
In Narayanan Nambudiripad v. State of Madras (AIR 1954 Mad 385) it is said in para. 19:
'On the same principle, the fact that the trustees have no right to participate in the income from the endowment or its emoluments, is not a ground for holding that it is not property for the purpose of Article 19(1)(f). The word 'hold' is wider in its significance than the word 'enjoy' and trustees who are in management of religious endowments can be said to hold office, though they may have no beneficial interest to enjoy. We are accordingly of opinion that hereditary trusteeship is within the protection afforded by Article 19(1)(f), even though there was no emoluments attached to the office. We may add that the allegations in the affidavits in support of these petitions, disclose that the petitioners have also beneficial interests in the endowments, in the result, we must hold that the provisions in the schemes in so far as they encroach upon the rights of the petitioners as hereditary trustees are void under Article 19(1)(f) of the Constitution.'
In A. P. S. Electricity Board v. K.R. Reddy (AIR 1977 Andh Pra 200) it is said in para. 6:
'The court is no doubt entitled to value the relief if it is not satisfied with the valuation put by the plaintiff. But essentially the question of court-fee has to be considered only on the allegations made in the plaint.'
In Commissioner, H. R. E. v. L. T. Swamiar (AIR 1954 SC 282) the Supreme Court has said in para II:
'Thus in the conception of Mahant-ship, as in Shebaitsbip, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right'.
In the above decision the Supreme Court has further said in para. 12:
'The word 'property' as used in Article 19(1)(f) of the Constitution, should be given a liberal and wide connotation and so interpreted, should be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right Thus, Article 19(1)(f) applies equally to concrete as well as abstract rights of property. The ingredients of both office and property, of duties and personal interest are blended together in the rights of Mahant. The Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties will be to destroy his character as a Mahant altogether.' In Bhabatarini Devi v. Ashalata Debt (AIR 1943 PC 89) it is said:
'The sebaiti is property. It is not a catena of successive life estates but is heritable -- heritable property which in the first instance is vested in the founder.'
In Raja of Kozhikode v. Commr. H. R. & C. E. (AIR 1961 Ker 87) (FB) a Full Bench of this Court has said in para. 5:
'...... the rights of the trustees under instruments for religious purposes, can-not be treated differently. In other words, the trustee of a secular trust would be entitled to all the rights of the owner against the rest of the world, and the position of the trustee for the religious purpose, is not different.
It follows, the rights of both would be covered by the word 'property'. We further think that the word 'property' in the written Constitution of the people, accustomed to cherish things other than monetary benefits, cannot be so narrowly construed.'
The Full Bench has relied on certain Supreme Court decisions for corning to the above conclusion. But in view of the later decision of the Supreme Court in K.A. Samajam's case (AIR 1971 SC 891) taking a different view, the decisions of the Supreme Court relied on by the Full Bench cannot hold the field. The earlier decisions have been referred to and discussed by the Supreme Court in K.A. Samajam's case, in view of the subtle distinction the Supreme Court has drawn between the nature of the rights of a hereditary trustee who has only a bare right to manage the property of the endowment and that at a Shebait, Mathadhipati or a Mahant who has got a beneficial right of enjoyment of the property, the earlier decisions of the Supreme Court and the High Court in cases involving the rights of a Shebait, Mathadhipati or a Mahant cannot in any way be relevant here.
4. Section 25 of the Kerala Court-Fees and Suits Valuation Act, 1959 reads
'25. Suits for declaration.-- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26--
(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher;
(c) where the prayer relates to the plaintiff's exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher;
(d) in other cases--
(i) where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and
(ii) where the subject-matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees three hundred, whichever is higher.'
The question is whether the relief has to be valued under Section 25 (d) (i) or (ii). This question further depends upon the fact whether the subject-matter of the suit in respect of which the relief is claimed is capable of valuation. The 1st defendant is the hereditary trustee and as hereditary trustee he is in possession of the movable and immovable properties of the temple. It is true that when he ceases to be in management he will also cease to be in possession of the properties. The person who succeeds him will have to be in possession of the properties also, because without the possession of the properties the new trustee cannot continue in management. Then the question is whether the possession of the properties follows automatically on the assumption of office as trustee. It is here where the nature of the rights of the trustee over the properties comes up for consideration. If the trustee has only a bare right to manage and has no beneficial interest in the property, he cannot cling on to the properties when he ceases to be the trustee. In that case, why should one sue for the dispossession of the properties as such. This is all the more so since the Supreme Court has held in K.A. Samajam's case (AIR 1971 SC 891) that a bare right of a hereditary trustee to administer the secular estate of the institution or endowment cannot be treated as property under Article 19(1)(f) of the Constitution. A hereditary trustee who has only a bare right of management of the properties of the endowment ceases to be in possession of the properties the moment another succeeds to the office by removing him from office and the possession of the properties automatically passes on to the successor. So, in a suit for a declaration that a hereditary trustee who has only a bare right of management has ceased to have any right to continue in office and for the appointment of another as trustee in his place the market value of the properties of the endowment cannot at all be a relevant factor for the valuation of the suit for the purposes of court-fee. The right involved in the suit is only a bare right of management and not any right in the properties of the trust. So, the relief is not one which is to be valued under Section 25 (d) (i) of the Act as the same is not capable of valuation. On the other hand the relief is one which is to be valued under Section 25 (d) (ii) and the plaintiff is free to put his own valuation. The Court cannot interfere with that valuation. Going by the allegations in the plaint the 1st defendant-trustee has only a bare right of management. It goes without saying that the question of court-fee has to be determined on the basis of the allegations in the plaint. The mere possession of the properties and the fact that the granting of the relief will result in dispossession cannot by themselves be a reason for valuing the relief on the market value of the properties. The court below has gone wrong because it did not advert to the relevant aspects of the matter.
5. In the result, I hold that the court-fee paid by the plaintiff is the correct court-fee leviable, issue No. 17 in the case is found accordingly. The order impugned is set aside and the Civil Revision Petition is allowed. No costs.