1. Plaintiffs 1, 2 and 4 of whom are now the petitioners before me brought the suit as beneficiaries under a certain trust, the primary object of which was to provide for the wants of Bhairagis but in which they possessed a beneficiary interest in the surplus income, in order to recover certain properties forming the subject-matter of the trust which had been alienated by the trustees, who are defendants 1 and 2, to the remaining defendants. The alienations were made one by sale, one by mortgage and the remainder by lease. The plaintiffs offered to pay a Court-fee Rs. 100 under Article 17-B, Schedule II, Court Fees Act, on the ground that the subject-matter of the suit was incapable of valuation. This was contested by the defendants in their written statement and the learned Subordinate Judge took up the question of Court-fee as a preliminary issue. He came to the conclusion that it must be paid under Section 7(iv)(c), Court Fees Act, read with the proviso added to it by the Madras Court Fees Amendment Act (V of 1920), on half the market value of the suit properties, that is to say, on Rs. 20,000. It is against this decision that the revision petition has been preferred.
2. The plaintiffs adhere to their contention that the case falls within the terms of Arty 17-B as being a plaint where it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. Two questions arise out of the terms of the article, whether it is possible to estimate the money value of the subject-matter and whether the case is otherwise provided for by the Act. It has been contended that the subject-matter in dispute must here be deemed to be the benefit accruing to the person suing, but I do not think this is at all a tenable proposition. My own view is that it is purely an irrelevant question, and that we must look to the nature of the suit and the nature of the decree to be passed in it. The real question indeed is the second one, whether any other article of Schedule II or whether any other provision in the Court Fees Act can be applied to a suit of the nature in question. I have been referred to rulings relating to suits falling under Section 92, Civil Procedure Code not notably to Sudalaimuthu Pillai v. Peria Sundaram Pillai (1924) 48 M.L.J. 514, which was a case decided under the old Court Fees Act by Krishnan, J. The suit was one to recover the trust moneys said to have been embezzled by the trustees and following Ramrup Das v. Mohunt Sitaram Das the learned Judge held that Article 17 (vi) of the old Act, corresponding to Article 17-B of the new Act, should be applied. He decided the case rather on authority than on any express line of reasoning except that he gave expression to the view that
it would be a hardship to worshippers who bring suits under Section 92 in order to see that the trusts are properly carried out and that the trustees do not misappropriate the moneys belonging to the trust or abuse the trust, to have to pay Court-fees upon such large sums of money.
3. The authority followed Ramrup Das v. Mohunt Sitaram Das (1910) 12 C.L.J. 211 dealt with a suit of the same character. The reliefs prayed for comprised the appointment of a certain person as trustee, the removal of trustees and the rendering of accounts by them. I find it very difficult to follow the line of reasoning adopted on page 215 of the judgment, where it is said that the suit was not one involving the value of any portion of the idol's property and again where, as I understand the learned Judges, they say that the amount of Court-fee payable depends upon whether any part of the reliefs sought is due to the plaintiffs. I do not think it necessary to further examine these cases because my view is that the nature of such suits is different from that of the suit now in question. It has been explained in Ghazaffar Husain Khan v. Yawar Husain I.L.R. (1905) A. 112 what were the limits of a suit under old Section 539, Civil Procedure Code, corresponding to the present Section 92. In such a suit no possession can be given against alienees of the trust property, and from the observations made by the learned Judges I think it is clear that they were of opinion that a suit for such a remedy against alienees would be nothing short of a suit for possession and subject to a Court-fee fixed upon that basis : see the remarks of Stanley, C.J., on pages 117 and 118 and Burkitt, J., on page 120. The latter says:
When such a plaintiff prays to recover possession of immoveable property he must (like any other plaintiff in a similar suit) pay the Court-fee chargeable on that relief.
4. The learned advocate for the respondents has drawn my attention to two cases decided under Article 144, Limitation Act : Chidambaranatha Thambiran v. Nallasiva Mudaliar I.L.R. (1917) M. 124 : 33 M.L.J. 357 and Subramania Aiyar v. Nagarathna Nakker (1909) 20 M.L.J. 151. The question arising in those cases was as to the nature of a suit brought in their representative capacity by the worshippers for possession on behalf of the trust property alienated by the trustees whether it was a suit for possession as contemplated by the article in question. Seshagiri Aiyar, J., says:
The beneficiaries sue only in the right of the trustee. They are only the aliases for the trustees. Under the common law of England, the beneficiaries were compellable to use the name of the trustee as plaintiff. Consequently the beneficiaries derive their right to sue through the trustee. It is his action that they are prosecuting. In this view, what is adverse to the trustee is also adverse to the persons who derive their right to sue through him. Article 144 therefore applies.
5. Similarly in Subramania Aiyar v. Nagarathna Naickier (1909) 20 M.L.J. 151 the view taken as to the nature of a suit of this character was that it was brought to enforce the claims of the temple against persons who held the temple property, that is to say, that the suit was for possession based upon title. If this is the correct view, I think there can be no question that the decision of the Lower Court that the case as regards Court-fee does not fall tinder Article 17-B, but is provided for by Section 7 of the Act is correct.
6. It is then contended that even so the learned Subordinate Judge is wrong in bringing it under Section 7(iv)(c), which relates to a suit for a declaratory decree where consequential relief is prayed. It is said that so far as the property sold is concerned it should fall under Section 7(v), so far as the property mortgaged is concerned under paragraph (ix) and so far as the leases are concerned under paragraph (xi). I am unable to accept these two latter contentions because paragraph (ix) appears to relate to redemption or foreclosure by a party to the mortgage and paragraph (xi) is restricted to suits between landlord and tenant, whereas here the whole basis of the plaint is to upset the lease on the ground that the so-called tenants have no better title than ordinary trespassers. The only alternative, so far as I can see, would be to bring the whole subject-matter under paragraph (v), but inasmuch as this would entail upon the plaintiffs a heavier Court-fee than that already imposed upon them, it is unnecessary to consider this alternative. I think, therefore, that there are no grounds for me to interfere with the Lower Court's order otherwise than upon one point, which is the direction that the Court-fee should be assessed upon half the market value of the property. According to the proviso which applies to this Presidency it should be calculated in the manner provided by paragraph (v) of the section. To the extent therefore that the order requires amendment in this respect, I allow the petition and set aside the order, directing the Lower Court to amend it accordingly. As the petitioner has substantially failed, he must pay the respondents their costs of this petition.