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Sri La Sri Somasundara Gnana Desiga Swamigal, Madathipathi of Kovilur Mutt, Represented by Power-agent Sivaprakasa Swamigal Vs. Sri Krishnandaswami - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1966)2MLJ551
AppellantSri La Sri Somasundara Gnana Desiga Swamigal, Madathipathi of Kovilur Mutt, Represented by Power-age
RespondentSri Krishnandaswami
Cases ReferredMasilathaswami Temple v. The Governor
Excerpt:
- - learned counsel for the petitioner laid stress on sub-section (3) of section 12. i fail to see anything in the language of the sub-section to help the plaintiff in precluding the defendant from raising the objection at the stage in which the suit now stands. a suit for recovery of trust property by the trustee from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession. 64, whose outstanding knowledge of this subject was coupled with a happy conciseness of phrase 'in a taxing act one has to look at what is clearly said. 13. the principle is well established that if in-giving words of the statute their natural meaning that in their literal construction, a case would not be covered by the statute imposing a fee, the fee.....orderm. natesan, j.1. this revision petition involves the construction of sections 12 and 28 of the madras court-fees and suits valuation act, 1955 (madras act xiv of 1955) the suit was originally instituted in the subordinate judge's court, thanjavur, in 1960 and registered there as o.s. no. 14 of 1961. the suit was laid for recovery of possession of the properties set out in schedules a to d-2 of the plaint and for rendition of accounts by the defendant and future profits, the plaintiff instituting the suit as madathipathi of kovilur mutt. the plaintiff had valued the suit for purpose of court-fee and jurisdiction at rs. 2,34,652 and paid court-fee rs. 200 under section 28 of the act on the relief of possession, the maximum court-fee payable under that section, and a court-fee of rs. 75.....
Judgment:
ORDER

M. Natesan, J.

1. This Revision Petition involves the construction of Sections 12 and 28 of the Madras Court-fees and Suits Valuation Act, 1955 (Madras Act XIV of 1955) The suit was originally instituted in the Subordinate Judge's Court, Thanjavur, in 1960 and registered there as O.S. No. 14 of 1961. The suit was laid for recovery of possession of the properties set out in Schedules A to D-2 of the plaint and for rendition of accounts by the defendant and future profits, the plaintiff instituting the suit as Madathipathi of Kovilur Mutt. The plaintiff had valued the suit for purpose of Court-fee and jurisdiction at Rs. 2,34,652 and paid Court-fee Rs. 200 under Section 28 of the Act on the relief of possession, the maximum Court-fee payable under that section, and a Court-fee of Rs. 75 in respect of relief for accounting under Section 35(1) of the Act. The suit was later transferred to the Subordinate Judge's Court, Kumbakonam, where it became O.S. No. 14 of 1964. Then for the first time the office raised the question of Court-fee payable on the plaint, but later dropped that matter, as the plaint had already been registered. The defendant who did not raise any objection as regards the Court-fee in his written statement filed when the suit was pending on the file of the Subordinate Judge of Thanjavur, in August, 1964 by way of additional written statement, raised the question that the suit has not been properly Valued and the fee paid is not sufficient. It is on this objection by the defendant that the Court considered the question and passed an order on the 19th of April, 1965 holding that the Court-fee paid by the plaintiff was not correct and that he had to re-value the plaint in regard to recovery of possession under Section 30 of the Act and pay Court-fee thereon under Section 30 of the Act.

2. It is necessary to set out briefly the averments in the plaint. The plaintiff claims to be the present Madathipathi or Adhinakarathar of Kovilur Mutt in Ramnad District. It is stated that a predecessor of the present plaintiff, the 5th Madathipathi of the Kovilur Mutt, before his death, went to Tirukkalar in or about 1907 for renovating Sri Parijathavaneswarar temple there and for the purposes of his stay, he built a madam there and called it as Ko, a Madalayam. It is stated that as the head of the Kovilur Mutt, with the funds of the Mutt, for the upkeep of the Mutt and for Kattalai started by him in the temple at Tirukkalar, he acquired properties and a Samadhi has been erected for him at Tirukkalar. The present plaintiff states that succeeding head of the Kovilur Mutt added further properties and he also purchased further properties and utilised the income for the Madalayam at Tirukkalar, for the maintenance of the Samadhi Pooja and worship there. The plaint proceeds to aver that an establishment was maintained at Tirukkalar to look after the lands purchased, to have worship at the Samadhi conducted and to feed devotees and disciples that might resort there, and that the practice of the Adhinakarathars (head) of Kovilur Mutt was to send one or other disciple to Tirukkalar as agent to supervise and look after the Madalayam, the buildings and lands, all detailed in the schedule to the plaint. It is stated that the defendant as a disciple has been similarly sent to Tirukkalar to supervise and attend to the affairs by the Adhinakarathar Mahadeva Gnana Desiga Swamigal, a predecessor of the present plaintiff. The position of the defendant in relation to the suit properties is thus set out in paragraph 6 of the plaint:

The defendant came over to Tirukkalar and supervised and attended to the said affairs as a disciple and agent of Mahadeva Swamigal. He Was sometimes called karwar....After the demise of the said Mahadeva Swamigal, plaintiff in turn orally appointed and required defendant to supervise and manage the properties on his behalf and as his agent and he Was doing so and sending accounts of such management as before to plaintiff.

3. In paragraph 7 it is stated that the plaintiff learnt that out of the funds and income of the properties ' entrusted' to his management, the defendant had purchased some items of properties in his own name. The defendant is charged with changing the name of the Madalayam without the knowledge of the 'plaintiff from Ko, a Matam to Ko, a Veera Madalayam. It is stated that thereupon the plaintiff asked the defendant to explain the matter and also called upon him to render accounts and deliver possession of the mutt and other properties set out in the plaint schedules. In paragraph 8 it is stated that the plaintiff is not willing to allow the defendant to be in possession or management of the Madam and the properties or to look after the same as his agent. The plaintiff, therefore, as head of the mutt, it is stated, is entitled to recover the suit properties from the defendant and entitled further to call upon the defendant to render accounts for the past years.

4. In the additional written statement the defendant filed questioning the propriety of valuation of the suit the defendant states that the suit was not one where the properties admittedly belonged to the plaint madam, and that the dispute did not relate to claims by rival trustees of the same madam. It is stated, that this is a case where the defendant denied the title of the plaintiff to the suit, proper ties and where the defendant claims title to the same on behalf of another mutt. The defendant's case in his written statement is that he was not sent to Tirukkaiar as Karvar and is not a subordinate of the Kovilur Mutt. He claims to have been installed as madathipathi of the suit mutt and to be functioning as such. As the basis for determination of Court-fee is the suit as laid in the plaint, it is not necessary to refer to the contentions in the defendant's written statement or the claims put forward by him.

5. Before taking up the question as to the proper valuation of the plaint in the case, I shall dispose of what may be regarded as a preliminary objection raised by the plaintiff to the consideration of the question of Court-fee at the instance of the defendant after the registration of the suit. It is pointed out that the defendant has taken objection to the valuation more than three years after the registration of the suit and after the plaintiff had taken out an application under Order 26 of the Code of Civil Procedure for the issue of a commission for examination of the plaintiff as witness at Kovilur, Ramnad District. The application had been filed when the suit was pending in the Sub-Court at Thanjavur on the 16th of July, 1962 and the suit was transferred to the Sub-Court, Kumbakonam, by an order dated 29th February, 1964. The application was taken up for hearing on 12th August, 1964, and an order was passed directing the issue of a commission, on the 21st August, 1964. The additional written statement raising objection to the valuation is dated 24th August, 1964. The defendant filed a Civil Revision Petition against the order allowing the application for examination of the plaintiff on commission and that was disposed of in favour of the plaintiff on the 5th of March, 1965. The order in question now under challenge in the present revision petition was passed on the 19th of April, 1965 on the plea raised by the defendant in his additional statement. Learned Counsel for the plaintiff-petitioner relies upon the provisions of Section 12 of the Court-fees Act. The material portion of the section is set out.

12. (1) In every suit instituted in any Court other than the High Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under Section 10 the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding Sub-sections.

(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding Sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All question arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim....

(3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim...

6. It will be seen that under the present Court-fees Act a statutory right has been given to the defendant to raise objection to the adequacy of the Court-fee paid on the plaint. But under the guise of raising objection to the valuation, the defendant cannot question the correctness of the allegations in the plaint or seek to go behind the same for the purpose of valuation. The field of investigation at the stage is limited. The pleas open to the defendant are two : one that the subject-matter of the suit has not been properly valued and two that the fee paid is not sufficient. A defendant evidently has been statutorily given a right to raise the question of valuation of the subject-matter of the suit and Court-fee paid, as he is interested in the taxation of costs of the suit. Also the question of valuation may affect the jurisdiction of the Court in some cases. But the category into which the suit falls or the classification for the purpose of Court-fee must be decided only on the allegations in the plaint irrespective of the defence set up in the written statement. I am unable to appreciate how the issue of commission can preclude the Court from deciding whether a proper fee has been paid on objection raised by the defendant. Sub-section (2) of Section 12 entitles the defendant to plead that the subject-matter of the suit has not been properly valued or the fee paid is not sufficient either in his written statement or before evidence is recorded on the merits of the claim. It cannot be said in this case that any evidence has been recorded on the merits of the claim. Only a commission has been issued under Order 26 for examination of the plaintiff himself as witness. Under Order 26, Rule 7 after a commission has been duly executed it shall be returned to the Court together with the evidence taken under it and the commission and the return thereto then form part of the record of the suit. Order 26, Rule 8 set out when evidence taken under a commission shall be read as evidence in the suit. Learned Counsel for the petitioner laid stress on Sub-section (3) of Section 12. I fail to see anything in the language of the Sub-section to help the plaintiff in precluding the defendant from raising the objection at the stage in which the suit now stands. It is pointed out in Raju Gramani v. Srinivasa Gramani (1958) 71 L.W. 116 that the term 'plead' in the section has to be understood in a comprehensive manner and the defendant, after the written statement has been filed and before evidence is recorded, may either apply to the Court for permission to amend the written statement, or, if that is not done, he may approach the Court with a petition raising the question of inadequacy of Court-fee. Here the defendant has been permitted to raise the question of Court-fee by way of additional written statement and I see no bar to the Court entertaining the objection, as no evidence has been recorded in that matter. The fact that the defendant is proceeding mala fide and wants to deter recording of evidence of the plaintiff who is stated to be old and infirm is neither here nor there.

7. I shall now take up for consideration the question whether the plaint in the present case falls under Section 28 of the Act. Section 28 runs thus:

In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustees or between a trustee and a person Who has ceased to be trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value, on rupees one thousand:

Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint.

Explanation.--For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manager of any such property shall be deemed to be the trustee thereof.

8. Section 30 of the Act, the section relied upon by the defendant and now accepted by the trial Court as the section applicable, is a general provision relating to suits for possession of immovable property and runs thus:

In a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property or on rupees four hundred, Whichever is higher.

9. By reason of Section 9 of the Act, when a plaint falls under two categories and one such category is special and another general, the fee chargeable shall be the fee appropriate to the special description. In the present case if the suit can fall under Section 28, the fact that Section 30 can also be applied will not take away the right of the plaintiff to value the suit under Section 28 and pay the Court-fee accordingly. A reading of Section 28 makes one thing clear that it contemplates Suits where the right of management is alone in dispute. There can be no dispute and in fact there is no dispute that the property in question in the present suit is trust property. The suit is also for possession of trust property. But for the applicability of Section 28 that will not be sufficient. A suit for recovery of trust property by the trustee from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession. The law does not make any distinction in that regard. For the applicability of Section 28 the suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee. Mr. Gopalaswami Iyengar for the petitioner contends that the suit can be viewed as one between trustees or rival claimants to the office of trustee. He refers to the contention of the defendant that he himself is the Madathipathi of Tirukkalar Mutt. On this it is contended that the defendant claims to hold office as a Madathipathi. He is therefore a trustee holding trust property. The plaintiff claims the property also as Madathipathi as property belonging to the Kovilur Mutt. His claim also is therefore as a trustee. Therefore, it is contended that the suit is between trustees. The contention is wholly untenable. To start with such is not the plaintiff's case. Secondly, the liability for Court-fee is determined on the allegations in the plaint and the defendant's pleas cannot affect it. Further as I understand the section, the suit contemplated under Section 28 is not a suit between rival trusts. Any ambiguity in the first part of the section is cleared up in including suits between rival claimants to trusteeship and suits between a new trustee and an ex-trustee within the scope of the section. The latter categories can properly comprise only suits where the plaint proceeds not merely on the basis that the property belongs to the trust of which the plaintiff is the trustee but that the defendant's connection with the property is also as belonging to the same trust. The fact that the plaint may set out the defendant's repudiation of such claim cannot alter the position, the averments that determine the character of the claim being the averments on which the plaintiff's claim to relief is rested. Equally, the fact that on the pleadings issues are raised as to the title of the plaint trust to the suit property is immaterial. Section 28 contemplates trust institutions in respect of which there may be several trustees and possession, more properly joint possession, is sought by one or more trustees against the other or others, or there may be disputes as to possession between rival persons claiming to be trustees of the self-same trust. The person impleaded as defendant may deny the plaintiffs title, but when the suit is framed as one for possession between trustees or between rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee in respect of a trust institution, then the only matter really raised in issue by the plaintiff is the right of management of the property. If the cause of action as adumberated in the plaint itself is between different trusts represented by their respective trustees, it becomes just a claim to the property and not a claim to property as annexed to a trusteeship about which there is dispute.

10. The plaint in this case does not proceed on the basis that the defendant is also at present a trustee; nor is it alleged that the defendant wrongfully claims to be a trustee of the plaint trust. The case in the plaint may be concisely placed thus : The suit properties inclusive of a Madalayam at Tirukkalar described in schedules A to D-2 in the plaint are properties belonging to the Kovilur Mutt of which the plaintiff is the present Adhinakarthar or Madathipathi. The defendant had been sent out as the agent of the Kovilur Mutt to look after and supervise the suit properties and placed in management of the suit properties. In pursuance of this arrangement he had been managing the properties and sending accounts of management to the plaintiff, and for the reasons set out in the plaint the plaintiff is not willing to allow the defendant to continue in management of the Madalayam and its properties or look after the same as his agent. The plaintiff therefore seeks recovery of possession of the properties from the defendant. In subsistence the plaintiff seeks to relieve the defendant of his management of the suit properties and assume management of the same. One thing is clear that this is not a suit for possession or joint possession of trust properties between trustees or rival claimants to the office of trustee.

11. The question for consideration Is whether the suit could be considered to be one between a trustee and a person who has ceased to be a trustee, the Explanation to Section 28 providing that a manager of the property of religious or charitable endowment shall be deemed to be a trustee thereof. On behalf of the State, the learned Government Pleader contends that the word 'manager' in the Explanation to Section 28 is used in a special sense and Is a legislative recognition of the position of the head or Mahant or Madathipathi by whatever name he may be called of a religious or charitable endowment. It is therefore argued that the defendant in this case could not be considered to be a manager as contemplated in the Explanation, it not being the plaintiff's case that the defendant, was at any time a head or Madathipathi of the plaint institution. The contention on behalf of the plaintiff as against this is, that when we interpret a fiscal enactment we must interpret the provision as it stands and should not limit or otherwise restrict the language of the enactment by reference to any past history. Learned Counsel for the. plaintiff submits that in interpreting taxing provisions one should not import logic or reason and must go by the plain terms of the section, particularly where there is no ambiguity and if the provisions so interpreted, is favourable to the subject. In Partington v. Attn. Gen. (1869) L.R. 4 H.L. 100 Lord Cairns, said:

I am not at all sure that, in a case of this kind--a fiscal case--form is not amply sufficient; because, as T understand the principle of all fiscal legislation, it is this, if the person sought to be taxed cornel Within the letter of the law he must be taxed, however great the hardship may appear to the judicia mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the Law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. In other words, if there be admissible, in any statute, what, called at equitable construction, certainly such a construction is not admissible in a taxing statute where you simply adhere to the words of the statute.

12. In Canadian Eagle Oil Co. v. R. L.R. (1946) A.C. 119, 140 Viscount Simon, L.C., said:

In the Words of the late Rowlatt, J. (in Cape Brandy Syndicate v. I.R.C. L.R. (1921) 1 K.B. 64, whose outstanding knowledge of this subject Was coupled with a happy conciseness of phrase 'in a taxing Act one has to look at what is clearly said. There is no room for any intendement. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.

13. The principle is well established that if in-giving words of the statute their natural meaning that in their literal construction, a case would not be covered by the statute imposing a fee, the fee should not be levied. There should be no attempt to construe the statute benevolently in favour of the State on a supposed intendment, as the omission if any could be cured by legislation. But equally it is a well known principle of construction that when in the language used in an Act there is a legal term which has received judicial Interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears. Here I am unable to say that the word 'manager' has received a restricted meaning and with reference to religious or charitable endowments could denote only the head of the institution for the time being. On the contrary, judicial decisions have only given a wider scope and content to the words 'trust' and 'trustee' in relation to Hindu and Muslim religious or charitable endowments for certain purposes, to take in the heads of these institutions who are In reality only managers.

14. The learned Government Pleader drew my attention to the decision of the Judicial Committee In Vidya Varuthi Thirtha v. Balusami Ayyar (1928) L.R. 48 IndAp 302 : 1928 41 M.L.J. 346 : I.L.R. Mad. 831. In. that case the Judicial Committee had to construe the words, conveyed or bequeathed in trust and afterwards transferred by the trustee, found in Article 134 of the Limitation Act of 1908.

Neither under the Hindu Law nor in the Muhammadan system is any property 'conveyed' to a Shebait or a Muta walli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage.

It is observed by the Judicial Committee:

These men (spiritual teachers under Whom were founded Hindu colleges and monasteries under the names of Mutt) had and have ample discretion in the application of the funds of the institutions, but always subject to certain obligations and duties equally governed by custom and usage...called by whatever name, he is only the manager and custodian of the idol or the institution.

15. As in view of the decision of the Judicial Committee in the above case that heads of Hindu and Muhammadan religious or charitable institutions Shebait, Mutawalli Mahant or Madathipathi however described are not trustees in the technical sense of the word, the Limitation Act itself was amended in 1929 by a specific provision under Section 10, in the following words:

For the purposes of this section any property comprised in a Hindu, Muhammadan or Buddhist leligious or charitable endowment shall be deemed to be property vested in trust for specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.

16. The learned Government Pleader referred to this amendment and emphasised that the language is more or less similar to that employed in the Explanation to Section 28. But in the Limitation Act the phraseology used is ' shall be deemed to be property vested in trust for a specific purpose' as against the language in the present Court fees Act 'shall be deemed to be trust property'. Section 10 of the Limitation Act requires for its application that the property should be vested in trust.

17. Reference may also be made to the decision of the Judicial Committee in Ram Parkash Das v. Anand Das where referring to the position of a Mahant, Lord Shaw said:

He sits upon the Gadi; he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites; he manages the property of the institution; he administers its affairs; and the whole assets are vested in him as the owner thereof in trust for the institution itself.

18. These decisions only show that from a legalistic view a mahant or head of the institution only manages the property of the institution and administers its affairs, and that he is not a trustee in the strict sense of the word as defined in the Indian Trust Act or as understood in the English system. Also it followed that the office could not be separated from the properties which form endowment of the office. In Kandaswami Thambiran v. Vagheesam Pillai : AIR1941Mad822 before the present Court-fees Act, after noticing that there was no distinction between the office and property of an endowment and that the plaintiff could not ask for a mere declaration of title to the office when not in possession but must ask for possession and failure to do so would vitiate the suit, it was observed by the Full Bench:

It may be regrettable that a person Who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a Court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into consideration when deciding the effect of Section 42 of the Specific Relief Act. When a Court-fee fixed by the Court-fees Act is unfair, it is for the Legislature to interfere.

19. In the suit which was the subject-matter of consideration by the Full Bench the plaintiff sought to establish his title to the office of Pandarasannadhi or Mahant of the Tiruvannamalai Mutt and the first defendant on his part claimed to be the lawful holder of the office. In addition to denying the right claimed by the plaintiff, the defendant set up the bar of Section 42 of the Specific Relief Act. Evidently in view of the observations made by this Court in the aforesaid Full Bench decision, the Government in pursuance of its powers under section .35 of the Court-fees Act (VII of 1870), issued a notification G.O. No. 5791 dated 17th May, 1943 reducing the Court-fee payable in suits by trustees in certain cases. The notification ran thus:

In exercise of the powers conferred by Section 35 of the Court-fees Act, 1870, His Excellancy the Governor of Madras is hereby 'pleased to reduce the fee chargeble in any suit for possession or joint possession between trustees, or between a plaintiff who claims to be a trustee and a defendant Who is alleged to have ceased to be a trustee to one-third of What it would be if the suit related to a claim in respect of private property.

It will be seen that though the notification uses the word ' trustee ' the reduction granted has been understood to be applicable to Hindu and Muslim religious institutions, Mutts, wakfs and other endowments. In an unreported case, P.A. Venkatalakshmi Narasimha Chryalu v. The Deities of Pattabhiramaswami Varu and Kesavaswcmi Varu App. No. 535 of 1946 where the plaintiffs claiming themselves to be trustees alleged that though the archakas in possession had no manner of right or interest in the suit properties nevertheless they and their predecessors in office in the absence of properly constituted or de jure trustees got into possession of the suit properties and had been managing the same, that therefore they should be deemed to be de facto trustee or trustees de son tort, and that they ceased to be trustees after coming into force of Madras Act XI of 1927 being trespassers, it is observed:

In our opinion, the facts alleged in paragraph 9 bring the case within the scope of the provision for reduction. We do not think that the application of the notification should be restricted to cases in which trustees lawfully entitled to the office of trustee sue to recover possession of the property from persons who had been lawfully appointed as trustees but Whose term of office had expired or who had otherwise ceased to be trustees, as for instance by removal. We think that there is nothing either in the spirit or the letter of the notification which prevents its application to a case like the present where the defendants are persons who originally came into possession and continued to be in possession on behalf of the deities and who had been managing the properties as if they Were trustees though there was no specific legal authority in support of their possession as trustees.

In another unreported decision of this Court in Masilathaswami Temple v. The Governor-General in Council C.R.P. No. 237 of 1946 where the aforesaid notification was applied is a case of considerable significance. In that case the plaint alleged that in or about 1817 the East Indian Company through the Board of Revenue at Madras took over the management of the temple and entered into possession of its properties including the suit properties. In or about 1849 the management of the temple and some other properties were handed back to the trustees of the temple. The suit properties had been retained and possession of them was sought by the trustees for the time being on the ground that the defendants the Governor-General in Council and the Province of Madras, were successors of the East Indian Company. Reduction of Court-fee under the aforesaid notification was sought contending that the defendants must be deemed to be trustees. Bell, J., on the allegations in the plaint to the aforesaid effect held that the notification applied.

20. Madras Act XIV of 1955 which replaced the Court-fees Act of 1870 and purports to be an Act amending and consolidating the law relating to Court-fee and valuation of suits in the State of Madras, by Section 28 not only gives statutory recognition to the old notification but makes it wider in application. It practically covers cases of trust properties where the subject-matter of the suit relates only to management and not title to the properties though ex necessitate re-possession has to be asked for. It must be noted that though the head of a religious institution, a Mahant, Adhinakarta, Madathipathi or Mutawali may not have been considered to be a trustee in the strict sense of the word, decisions referred to above show that he has been considered to be a trustee in a general way; only he is not a trustee in whom the property is vested in trust in law; see also Mukherjee's Hindu Law of Religious and Charitable Trusts II Edition at page 395. Even though there was no provision like the present Explanation to Section 28, properties comprised in Hindu Religious and Charitable Endowments have been deemed to be trust properties for the application of the notification.

21. As already stated, the ambit of Section 28 is wider than that of the notification and the intent manifest on the plain terms of the section being to limit the Court-fees payable when the claim put forward in the plaint for possession relates to competing claims for management I see no reason for restricting the meaning of the word 'manager' of the property of a Hindu, Muslim or other religious or charitable endowment to the head of the endowment. If a person in possession against whom a suit is filed by the trustee of the endowment has been a manager of the property as commonly understood the case would directly fall within the language of the section read with the Explanation. I am not constrained by anything in the Act or by the language of the section to limit the applicability of the section. As pointed out in Maxwell on Interpretation of Statutes, nth edition, at page 278, in construing statutes imposing burden, ' in a case of reasonable doubt the construction most beneficial to the subject is to be adopted.' The Judicial pronouncements relied upon by the learned Government Pleader only point out that the heads of these institutions are only in the position of managers with certain special rights, the ownership being vested in the institutions or deities. The Explanation to Section 28 only states that the manager of the property of these institutions should be deemed to be trustees for the purpose of Section 28. But that does not necessarily limit the concept of the term manager to the heads of institutions like Mahant or Mutawalli, Madathipathi only. When the Explanation on the plain language, of the section includes also an ordinary manager of the property of the endowment who has been placed in possession by the head of the institution, I do not see why the claims against such manager should be excluded from the benefits derived under Section 28 of the Act.

22. The plaint in this case read as a whole sets out a claim by the head of the institution against the manager of the properties belonging to the same institution relieving him of his management. Prima facei, if this is a Hindu, Muslim or other religious or charitable endowment, Section 28 will apply and the Court-fee paid will be sufficient. It is now contended on behalf of the defendant that the institution, the Kovilur Mutt in question is not a Hindu, a Muslim or other religious or charitable endowment to come within the scope of the section. It is stated that it cannot be deemed to be a Hindu religious or charitable endowment at all. Though the plaint proceeds on the basis of the existence of a religious institution with its Madathipathi and endowments, there is no specific averment that the suit institution is a Hindu religious or charitable endowment. But the arguments before me by the learned Government Pleader was on that basis and the matter has been discussed by the trial Court also on that basis. Only at the close of the judgment, learned Counsel for the defendant with leave submitted that the character of this very institution the Kovilur Mutt has been the subject of consideration in decisions of this Court. On behalf of the plaintiff it is submitted that the question that came up for consideration in earlier proceedings was as to whether the Madras Hindu Religious and Charitable Endowments Act would apply to the institution and there was no consideration of the question whether outside the Act, this institution could be considered to be a Hindu, religious or charitable institution. Even if it is found that this institution does not fall under the provisions of the said Act, if in fact it is otherwise a Hindu religious or other charitable institution, there can be no doubt that Section 28 will apply. The plaintiff had no opportunity to meet this aspect of the matter, the defendant in the written statement setting up his own title as the Madathipathi of the Tirukkalar Mutt. At least, if the plaintiff had made specific averments in this regard for the purpose of Court-fee, the Court can proceed on the basis of the averment. True the very claim to apply Section 28 implies that the institution is of the kind contemplated therein. But there is no specific averment to that effect, and learned Counsel for the plaintiff has contented himself with claiming leave to amend the plaint suitably In the circumstances, the proper thing would be to declare the true scope of Section 28 of the Court-fees and Suit Valuation Act and send the matter back to the trial Court for disposal after appropriate steps for amendment of the plaint. Any recognition of the nature of the institution for purposes of Court-fee on the plaintiff's averments even in this regard will not preclude the defendant from questioning the same at the appropriate stage. For the present I leave it open to the plaintiff if he chooses, to apply for amendment of the plaint. The application for amendment will be considered by the trial Court on the merits and Court-fee levied according to law.

23. A commission has been issued for the examination of the plaintiffs, who is said to be old. It is desirable in the circumstances that the evidence be taken by the Commissioner without further delay. But the evidence shall not form part of the record till the question of Court-fee payable on the plaint is adjudicated and decided upon. Learned Counsel for the plaintiff further submits that no objection will be taken by the plaintiff to the defendant pursuing his contention as to the proper Court-fee payable on the ground that evidence had been taken on commission. As the suit is already being old it is necessary that it should be brought up for trial as early as possible.

24. In the result, the Civil Revision Petition is allowed in the above terms. No costs.


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