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N. Muthusami Pillai and ors. Vs. N.S. Manickavasagam Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in169Ind.Cas.819
AppellantN. Muthusami Pillai and ors.
RespondentN.S. Manickavasagam Pillai and ors.
Cases ReferredRamanuja Pillai v. Alagappa Chettiar
Excerpt:
caste - persons setting up title in derogation of rights of members of caste--recovery of possession held necessary before property can be administered--court fees act (vii of 1870), section 7, clause (v)--representative suit--prayer for possession after ejectment of those in possession--court-fee payable. - - the learned subordinate judge passed a decree removing the defendants from possession of the property and calling for a draft scheme as in his opinion 'a scheme for the better management of the trust' was necessary. a caste is well-defined, body of persons associated together for certain purposes and governed by usages of its own and where membership is regulated by birth, property can be owned by such a body and all the members have a beneficial interest therein in that every..........the sanction of the advocate-general for the removal of the defendants from the possession of the suit property, for the appointment of a trustee to manage it, for vesting the said property in the said trustee, for framing a scheme for its management and for other incidental reliefs. a fixed fee of rs. 50 was paid under article 17 (iii) of schedule ii of the madras court fees amending act. the main allegations in the plaint were that the plaintiffs are members of a caste known as siruvaikudi vellalars, that the suit property was acquired and constructed out of caste funds subscribed from time to time by members of the caste for the general purposes of the caste, that the object of the acquisition was to use the property as rest house for such of the members of the community as might.....
Judgment:

Venkataramana Rao, J.

1. This civil revision petition raises a question of court-fee. The suit was originally instituted under Section 92, Civil Procedure Code, with the sanction of the Advocate-General for the removal of the defendants from the possession of the suit property, for the appointment of a trustee to manage it, for vesting the said property in the said trustee, for framing a scheme for its management and for other incidental reliefs. A fixed fee of Rs. 50 was paid under Article 17 (III) of Schedule II of the Madras Court Fees Amending Act. The main allegations in the plaint were that the plaintiffs are members of a caste known as Siruvaikudi Vellalars, that the suit property was acquired and constructed out of caste funds subscribed from time to time by members of the caste for the general purposes of the caste, that the object of the acquisition was to use the property as rest house for such of the members of the community as might visit Thiruvannamalai for rendering worship, whether at festival times or during ordinary periods that the said property was also used for the purpose of affording accommodation and convenience of the members of the community when assembling for caste meetings, which were being held periodically, that the property was thus a specific endowment of a religious and charitable character in which the entire community is interested, that the defendants were in exclusive possession of the property and were denying the rights of the members of the community to use it in the manner they were entitled to do. The learned Subordinate Judge passed a decree removing the defendants from possession of the property and calling for a draft scheme as in his opinion 'a scheme for the better management of the trust' was necessary. On appeal Varadachariar and Burn, JJ., set aside the decree holding that the suit was not maintainable under Section 92, Civil Procedure Code, but they, however, gave leave to amend the plaint as one under Order I, Rule 8, Civil Procedure Code, leaving the question open whether in the circumstances of the case the said rule would be applicable. The condition of the amendment was that the said plaintiffs should pay such additional court-fee as may be payable on the plaint in consequence of the amendment. The learned Subordinate Judge has now directed an additional court-fee of Rs. 1,312-7-0 to be paid. It is against the said order the above revision petition has been preferred.

2. It is contended by Mr. K.V. Krishnaswamy Ayyar for the petitioner that the reliefs claimed in the plaint are incapable of valuation as the plaintiffs are not seeking any personal benefit for themselves and that the nature of the claim as originally laid is not in any way altered by the amendment. Before examining the soundness of that contention, it is necessary to look into the substance of the plaintiff's claim. So far as the nature of the property is concerned, in respect whereof the reliefs are sought, the said judgment of the Bench is binding on the parries and it is not open to me to go behind it. It is thus observed therein:

It may be conceded that the interest of each of such member of the community in caste property is not identical with ordinary co-ownership in property held in common. But it, will necessarily follow from this alone, that the property can be regarded as held in 'trust' and much less that it is property held in 'trust' for a 'charitable purpose.'

3. The suit, therefore, cannot be viewed as one for Ihe administration of a trust. It is in substance one for the administration of property of a caste wherein all the members of the caste are interested after ejectment of persons who are in exclusive possession thereof and refuse to have the same administered for the common benefit, As Varadachariar J., pointed out in the said judgment it may not be strictly accurate to describe the interest of a member of a caste in the property as one of co-ownership: A caste is not a co-operation or a partnership and it is difficult to describe it under any legal conception. A caste is well-defined, body of persons associated together for certain purposes and governed by usages of its own and where membership is regulated by birth, property can be owned by such a body and all the members have a beneficial interest therein in that every member is entitled to use and enjoy it in accordance with the rules and regulations prescribed by it and it cannot be dealt with or alienated without the consent of the members of the community expressed or declared in accordance with caste usage. This legal relationship of a member of a caste with reference to its property has to be kept in mind in considering the cases cited at the bar with reference to suits under Section 92, Civil Procedure Code. In most of the said cases a view has been taken that suits under Section 92, Civil Procedure Cede, are incapable of valuation and can be valued under Schedule II, Article 17 (xi) of the Court Fees Act and the fact that reliefs are prayed directing a trustee who is sought to be removed to hand over possession of the trust property or to refund moneys misappropriated by him does not matter. The reason assigned is that the plaintiffs do not claim beneficial interest for themselves (vide Thakuri v. Brahma Narain 19 A. 60 : A.W.N. 1896, 187 and Girdhari Lall v. Ram Lal 21 A. 200 : A.W.N. 1899, 32 and it is thus expressed mRamrup Das v. Mohant Sitaram Das, 7 Ind. Cas. 92 12 C.L.J. 211 : 7 Ind. Cas. 92.

The judicial person who is in possession of the only property which can have any value is the idol and if the shebait, who is alleged to have neglected his duty and to have embezzled the idol's property, is sought to be removed and another manager put in his place, it cannot be said that this is a suit involving the value of any portion of the idol's property.

4. This is the view taken by Krishnan, J. in Sudalaimuthu Pilial v. Peria Sundarom Pillai : AIR1925Mad722 . But I must point out a different view was expressed in two early cases of this Court. In Srinivasa v. Venkata 11 M. 148 the suit was for the removal of a manager under the Religious Endowments Act of 1863, and for recovery of damages misappropriated by him. Dealing with the question of court-fee, the learned Judges observed thus:

The contention that the plaint needs only a stamp of Rs. 10, even when damages are claimed, cannot be supported, inasmuch as the compensation claimed would then form part of the subject-matter of the suit, capable of being estimated at a money value within the meaning of the Court Fees Act.

5. In Sonachala v. Manika. 8 M. 516 where with reference to a family charity a suit was filed for the removal of the then manager and for appointment of the plaintiff in his stead and for other appropriate reliefs, Muthusamy Ayyar, J., remarked at page 518: Page of 19 A--[Ed.]

A suit, therefore, for removing a trustee in possession and for appointing the plaintiff in his stead and placing him in possession of the trust property must be treated, for purposes of court-fees, in the absence of a special, provision of law, as a suit falling under Section 7 of the Court Fees Act.

6. It seems to me that this is a correct principle to be followed. Madhava, N. Nair, J. cited the observation of Muthusawmy Ayyar, J., with approval in In re Syed Mohammad Gouse : AIR1925Mad804 and decided the case before him accordingly. He pointed out in that case that the question of the plaintiff having beneficial interests in the property has nothing to do with the question of court-fee. I expressed the same view in Somasundaiam Chetty v. Chidamabaram Chetty (1935) M.W.N. 1241 : 159 Ind. Cas. 636 : 42 L.W. 765 : 8 R.M. 528, and I also see no reason to change it. (Cf. also Parsottamanadgiri v. Mayananadgiri : AIR1932All593 , where King, J., also seems to take the same view). If one examines the cases which have taken the view that a suit under 3. 92, Civil Procedure Code, need not be valued as one for possession, it will be seen that the learned Judges do hot treat the suit as one for possession. In Thakari v. Brahmanarain 19 A. 60 : A.W.N. 1896, the following observations occur:

The plaintiffs nowhere seek possession of the property. Although they ask that they may be appointed Superintendents, they might never be appointed to that office The Judge might see fit to appoint some other person as trustee or Superintendent, and no occasion might arise for the plaintiffs taking possession of the property. It might also not be necessary to eject the defendant. If the declaration sought for be made, the defendants might themselves cease to interfere with the property.

7. The learned Judges in that case do not say that it is necessary to eject the defendant, the suit need not be valued as one for possession. Burkitt, J., in Ghaz-affir Hussain Khan v. Oawar Hussain 28 A. 112 , seems to think that no relief for possession can be awarded to plaintiffs in such a suit and a separate suit for possession may be necessary, if the trustee removed declined to deliver possession. In most cases the property is in the possession of tenants and vesting was considered enough (Vide Ramdas v. Hanumantha Rao (1911) 2 M.W.N. 387 : 12 Ind. Cas. 449 : 21 M.L.J. 932 : 10 M.L.T. 356 : 36 M. 364, But if it is necessary to recover possession from the defendants-trustees, as Mutmisawmy Ayyar, J. observed, the claim would directly come with in Clause 5 of Section 7 of the Court Fees Act. The question of hardship noticed by Krishaan, J., in Suda-Paimutha Pillai v. Peria Sundaram Pillai : AIR1925Mad722 , and in the Allahabad cases, is hardly a matter for consideration if the language of the statute is plain. It is a matter for legislation and now the Madras Amending Act by enacting Schedule II, Article 17 (III) has obviated the hardship and a fixed court fee of Rs. 50 would be enough in a suit under Section 92, Civil Procedure Code, even if a trustee is asked to refund money Ramanuja Pillai v. Alagappa Chettiar 47 M.L.J. 656 : 85 Ind. Cas 801 : 20 L.W. 716 : 35 M.L.T. 124 : A.I.R. 1924 Mad. 882. But if the suit does not fall under Section 92, Civil Procedure Code, in the absence of a provision of law, Clause (v) of Section 7 of the Court Fees Act, must govern a case where the suit is in substance one for the recovery of possession. In the present case the material allegations in the plaint have no room for doubt that recovery of possession is a substantial relief. I give herein below the necessary allegations:

10. The aforesaid minority which has managed to possess itself of the keys of the premises and other communal properties and; funds have been evincing a desire to hold exclusive possession of the under mentioned premises in the sole interest of the individual composing the faction.

11. The defendants are setting up exclusive right to the possession and management of the under mentioned property; and in the exercise of such right, claim to interfere with the rights of the members of the general1 body of the community to the premises for which they are intended. There was in consequence a Police enquiry on the matter of the possession of the under mentioned premises.

12. Acting on the strength of the one sided report of the Police, the Sub-Divisional Magistrate has passed proceedings on October 18, 1929, prohibiting the members of the general body of the community from using the premises in the member they are entitled to do.

13. The interests of the body of the community peremptorily demand that the suit properties should be placed on a proper footing of administration and it is essential that a scheme should be settled by the Court for ensuring that the premises are put to their proper use.

14. Although the defendants have no manner of right to the possession of the premises yet as they are actually in possession they are liable to be removed from possession and it is essential that they should be so removed.

8. It will thus be seen that the recovery of possession is absolutely necessary from persons who are setting up a title in derogation of the rights of the members of the caste before the property can be administered for the common purposes of the caste, whether by Courts or the caste and I do not express my opinion by whom it should be. And recovery of possession is sought on behalf of all the members of the caste who are virtually plaintiffs in the case and who, as I have already pointed out, do possess an interest in the property and claim to get a benefit therein by having it preserved for their common use. Thus even on the theory of beneficial interest enunciated in the cases relied on, the present suit will come within the purview of Clause (v) of Section 7 of the Court Fees Act. The decision of the lower Court in directing the plaintiff to value the suit as one for possession under Clause (v) is correct. In regard to the valuation of the other reliefs in the plaint, the assessment by the lower Court has not been impeached to the incorrect if the main contention of the petitioners were to fail. The plaintiffs are, however, entitled to get credit for the sum of Rs. 50 already paid by them at the time when they instituted the suit. The plaintiffs will have three months' time from this date to pay the court-fee.

9. Subject to this modification the Civil Revision petition fails and is dismissed with costs.


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