Walter Salis Schwabe, K.C., C.J.
1. This is a reference to a Full Bench on the question of the court-fee payable on a suit by the Plaintiff claming to be a trustee of a temple against the Defendant who is in possession of the temple, also claiming to be a trustee. The property in question has been valued by the Plaintiff for purposes of court-fee at a certain amount, but the Commissioner has reported that the amount is too small solely on the ground that the temple buildings ought to be-valued at their cost of construction less, presumably, something for depreciation. It is contended by the Plaintiff that the temple buildings as such are not assessable at all for purposes of court-fee. The section of the Court-Fees Act alleged to be applicable is Section 7(V)(e) which provides that, where the subject-matter is a house or garden, it has to be valued 'according to the market value of the house or garden.' It is first argued, and with considerable force, that the temple is not a house at all. I do not think it necessary to go into the question of what is and what is not 'a house' or whether any part of this temple could be properly included within the proper definition of the word 'house.' I think it better to leave that question over until it arises definitely for decision, for we have not in this case the full facts as to the exact nature of the buildings in question and the use to which they are or can be put. But, it is further argued that this temple, even if it can be considered as a house, has no market value. 'Market value' has been defined in England as meaning what it would fetch in the market under the state of things existing at the time, and that definition is to be found repeated with great clearness in Manmatha Nath Miter v. The Secretary of State for India in Council I.L.R. 25 C. 194 . That was a case under the Land Acquisition Act and what was acquired was a road and compensation was claimed in respect of that road based on the value of the land on which the road stood when it ceased to be a road, for agricultural or building purposes or the like; and their Lordships of the Privy Council made it quite clear that, apart from the fact that the Land Acquisition Act itself in terms prohibited such considerations, the principle of compensation based in the 'market value,' which is the wording in that Act as well as in, the Court-Fees Act, is that things have to be taken as they stand at the time.
2. Now, this temple is an ancient temple and its history dates at least thousand years back, and there seems to be no doubt, that the temple is devoted absolutely and in perpetuity to religious purposes. On those facts one has to enquire whether there is a market for such a thing. In my judgment, such enquiry results in the conclusion there is no market and that it can have no market value at all. The principle applied by the Commissioner, when he has taken as the market value, what may be called the hypothetical construction value, is, in my judgment, entirely wrong. He has got to find the market value of the thing as a temple at the time. It is not suggested before us, on behalf of the respondent or on behalf of the Crown, who attended as amicus curiae, that in fact there is any market for such things. I think also that it would be conclusive against such a contention, that the property is inalienable and was devoted in perpetuity to religious purposes.
3. On these grounds, I come to the conclusion, that there is no market value at all for this temple as such. That being so, it does not come under that section of the Act, and has to be, dealt with as a matter 'not otherwise provided for' - under Schedule II(17), - except that, apparently, there is in this case some market value for some part of the property claimed, and in respect of that the plaintiff has put on a valuation. There is no appeal in respect of that valuation by him, and therefore that valuation stands and must be taken as correct.
4. Taking this view of the case it is unnecessary to consider the question specially referred to us by the Referring Bench, namely, whether, on a claim by a trustee for possession of trust properties for the purposes of proper administration of that trust, he will have to pay court-fee on the value of the trust property, or whether in that case he is only bound to pay the nominal amount of Rs. 10 or Rs. 15. This question had been referred on a former occasion to a Full Bench of this Court, but it was not decided then, and, owing to the facts of this case, it shares the same fate now.
5. The answer to the question referred to the Court is, the court-fee, legally payable are the fees already paid.
6. I entirely agree.
7. I agree.