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Thakurji Shriji Laxmanji and ors. Vs. Shyama Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular first Appeal No. 42 of 1962
Judge
Reported in1970WLN473
AppellantThakurji Shriji Laxmanji and ors.
RespondentShyama Devi and ors.
Cases ReferredRajagopala v. Ramasubramania (supra). The
Excerpt:
.....act. both these conditions are not satisfied in this case. the subject-matter of the suit has a market value and can be valued as for the other condition, the suit clearly falls within section 7(iv)(c) which applies to cases where consequential relief is prayed along with the prayer for declaration. the plaintiff has itself valued the property for the purpose of jurisdiction at rs. 12000/-and the same would be the valuation for the purpose of court-fee. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant..........instituted the present suit for a neclaration that the sale-deed dated 16.5.35 in regard to the suit property is ineffectual against the plaintiff and for recovery of its possession. it is alleged that defendants nos.3 and 4 were the trustees of the temple and the wrongfully alienatad the suit properties in favour of shrimati chand bai through her guardian ramgopal agrawal. however smt. chandbai was not impleaded as a party to the suit and it is not clear from the plaint why defendants nos. 1 and 2 were abded as defendants. the suit was valued at rs. 12000/--for the purpose of jurisdiction but a fixed court-fee of rs. 10/--was paid on the ground that the plaintiff was not personally interested in the suit property and it could not be valued. on behalf of the defendants, objection was.....
Judgment:

C.B. Bhargava, J.

1. This is plaintiff's appeal against rejection of his plaint under Order VII Rule 11 C.P.C. as the plaint was insuffioientlo stamped.

2. Plaintiff Thakurji Shriji Laxmanji's devotees Radbey Shyam and other instituted the present suit for a neclaration that the sale-deed dated 16.5.35 in regard to the suit property is ineffectual against the plaintiff and for recovery of its possession. It is alleged that defendants Nos.3 and 4 were the trustees of the temple and the wrongfully alienatad the suit properties in favour of Shrimati Chand Bai through her guardian Ramgopal Agrawal. However Smt. Chandbai was not impleaded as a party to the suit and it is not clear from the plaint why defendants Nos. 1 and 2 were abded as defendants. The suit was valued at Rs. 12000/--for the purpose of jurisdiction but a fixed court-fee of Rs. 10/--was paid on the ground that the plaintiff was not personally interested in the suit property and it could not be valued. On behalf of the defendants, objection was raised that the plaint was insufficiently stamped and an ad valorem court-fee ought to have been paid according to the market value of the suit property. The learned Senior Civil Judge Jaipur City No 1 framed an issue and after hearing the parties held that ad valorem court-fee ought to have been paid according to the market value of the property which the plaintiff itself had fixed at Rs. 1200/- 15 days' time was allowed to the plaintiff to make up the deficiency but the plaintiff failed to do so and so the plaint was rejected.

3. In this appeal, the contention of learned Counsel for the appellant is that because the suit property belongs to a temple, its market value cannot be estimated and therefore the case falls under Article 17 cl. (vi) of the second Schedule of the Court-fee Act which was then applicable. In support of this contention, learned Counsel has relied on Vishwanath v Sakal Alya Panch AIR 1953 MB 40. Rajagopala v. Ramasubramania AIR 1924 Mad. 19 (FB) Motilal v. Shambhoolal AIR 1938 Nag 481 Shirupatheiah v. Mangapathi Rao AIR 1948 Mad.345, K. Meethyan v. K. Marackar AIR1954TC51(FB) and M. M. Kathanar v. K.E. Kathanar AIR 1954 TC 178(FB) (F B). None of these decisions support the contention of learned Counsel for the appellant.

4. In the first case, the subject matter of the suit was a temple and it was held that even as a house it has no market value within the purview of Section 7(v)(e) of the Court-fees Act and the suit for recovery of possession of it for the purpose of managing it and conducting its worship falls under Article 17 (VI) of Schedule 2.

5. In the Madras case (2), the plaintiffs claimed exclusive right to manage Devasthanams. In that case also the learned Chief Justice came to the conclusion that there is no marked value of the temple as such and therefore a suit for recovery of its possession falls under Schedule II Article 17. It will be noticed that even in that case the court-fee was paid on the value of the subject-matter so far as it related to lands. Court-fee was not, however, paid on the market value of the temple and it was with regard to the temple that the above observations were made by the learned Chief Justice.

6. In the Nagpur case (3) also the subject-matter of the suit was a temple and the learned Judge followed the full bench decision of the Madras High Court in Rajagopala v. Ramasubramania (supra) and held that the temple of which possession was sought by the plainiff was incapable of being valued.

7. Thirupathaiah v. Mangapathi Rao (supra) instead of supporting of the appellant goes against him. In that case the subject-matter of the suit was a plot of land which was claimed to be trust property and a declaration was sought that its alienation by defendant No.2 in favour of defendant No. 1 was void. Further relief by way of injunction was also sought restraining the defendants from interfering with the rightful possession of the plaintiffi. The learned District Judge in appeal in that case found that the proper court-fee to be paid would be for two separate delcarations with any consequential relief by way of injunction. When the matter came before the High Court, it was argued that the suit property had no market value the reliance was placed on Rajagopala v. Ramasubramania (supra). The learned Judge, however, observed.

That argument would not, however, apply to the suit, which certainly has a market valut. As the learned Government Pleader pointed out agricultural land belonging to a temple may be trust property and ordinarily inalienable, and yet may have great market value.

It is, therefore, quite clear from this judgment that even though the suit property may be a trust property belonging to a temple, yet it would have a market value.

8. In 1954 Travancore Cochin 51 (K. Meethyan V. L. Marackar) (supra), the suit was brought by a trustee or a manager to remove the defendant from such office and to recover possession of the trust properties from him. It was held that in such a suit, the right to management being the subject-matter of the suit, court-fees could not be levied ad, valorem' on the market value of the property. In such cases, the removal of the defendant from the management of trust properties would involve his ejectment from the immovable property of which he was in possession in that capacity and as such full court-fee would not be levied on the value of the property. Relief for recovery of possession was regarded as a mere surplusage.

9. The full Bench of the Travancore Cochin High Court in M.M. Kathanar's case (supra) accepted the correctness of the previous judgment that is A.I.R. 1954 Travancore Cochine 51 (supra). However, the following observations of Govinda Pillai J may be usefully quoted:

In the case of a mosque, temple or church (a public trust) Ordinarily the properties appurtenant there to vest in the institution. There is no trustee in the sense that the property vests in him The individual who is in possession is so for purposes of management though he is often designated a trustee Conflicts between persons claiming such trusteeship can, therefore, relate but to the management and not to title to property. The continued possession of trust properties by such a trustee after termination of his office, though wrongful, cannot be characterised as that of a trespasser so it cannot be adverse to the trust. For the rightful trustee to get into possession, the removal of the wrongful one is enough as on that even happening, possession perference goes to him.

A prayer for possession of property added to one for removal of the trustee would and has to be regarded as a surplusage. Even if that prayer be otherwise regarded, the subject, matter would merely be possession for purposes of management sought from one was in possession also for that purpose, that is to say. The subject-matter would be management or right to management of the property and not the property itself. This subject-matter is incapable of valuation. Whether the plaint in such a case be regarded as one for recovery of a trust and or for recovery of management, the court-fee payable is a fixed fee, Court-fee payable ad valorem on the market value of the property where it is sought to be recovered on basis of title to it. This would be the case when property is sought to be recovered by the trust from a stranger to and unconnected with it on fact of title. Should there be any jural relation between the trust and the stranger from whom possession is sought, other appropriate provisions of the Court-fees Act would be attracted.

10. In the present case it has been stated at the bar, though it is not disclosed in the plaint, that defendants Nos. 1 and 2 had purchased the suit property from the previous purchaser. Therefore, in the present suit, there is no question about the right of management of the trust property. It is a suit against a stranger who according to the plaintiff is wrongfully in the possession of the property. In order that a case may fall under Article 17 (VI), two things must be established (i) that it is not possible to estimate at money value the subject-matter in dispute and (2) that it is not otherwise provided for by this Act Both these conditions are not satisfied in this case. The subject matter of the suit has a market value and can be valued. As for the other condition, the suit clearly falls within Section 7(iv)(c) which applies to cases where consequential relief is prayed along with the prayer for declaration. The plaintiff has himself valued the property for the purpose of jurisdiction at Rs. 12000/- and the same could be the valuation for the purpose of payment of court-fee. The lower court was right in holding that the plaint had not been properly stemped and the court-fee paid insufficient. Fifteen days' time was allowed by the lower court to the plaintiff but still court-fee was not paid Learned Counsel for the appellant, however, has made a prayer for granting some more time so that his client may pay the court-fee. Having regard to the fact that the plaintiff is a juristic person, I, therefore, allow time to the appellant to pay balance of court-fee by 20th April, 1970. It may also he mentioned here that during the course of arguments. It was brought to a notice that Smt. Govindi Devi widow of Govind Narain had also died on 19th July. 1969. Smt. Govindi Dovi's name had been substituted on the death of Govind Narayan who had also died during the pendency of this appeal. On Govind Narain's death, his legal representatives that is his widow and his son and daughters were brought on record. Therefore, all the legal representatives of Govindi Devi are already on the record and the name of Govindi Devi only deserves to be struck out from the array of responduents. Office will also strike out Govindi Devi's name from the any of respondents. Put up the appeal for orders on 21st April, 1970.


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