Madhavan Nair, J.
1. In S.R. No. 9636 of C.C. 1923 in, Appeal No. 186 of 1923 : This is a reference under Section 5 of the Court Fees Act as regards the proper Court-fee to be paid on the memorandum of appeal filed by the 6th defendant.
2. This suit out of which this appeal arises was instituted by the plaintiff for a declaration that he is the Sajjadanashin of two durgas in the South Arcot District and for the possession of the durgas and their properties. The plaintiff alleged that he was appointed by the last Sajjada as his successor and that he took possession of the durgas and the properties on the last Sajjada's death, but that he was subsequently dispossessed by the first defendant, one of the female heirs of the original family of the founder. The lower Court holding that the plaintiff was not nominated by the last Sajjada and also that he was not the nearest male heir, dismissed the suit. On appeal by the plaintiff, the High Court remanded the Suit to the lower Court to rehear the case after bringing on record the descendants of the original founder and to appoint a trustee from amongst them, since the last Sajjada had failed to nominate his successor. After remand the plaintiff compromised the suit with the first defendant and asked for permission to withdraw it, but the Court refusing such permission transposed some of the defendants as plaintiffs, made the original plaintiff a defendant, and proceeded with the suit. By his decree, dated 27th March, 1923, the Subordinate Judge appointed the 1st and 2nd plaintiff's, according to the revised cause-title, as Muthawallis of the two durgas on probation for a period of three years and directed that they should take possession of the durgas and their respective properties (see Clauses 1, 3, 4 and 6 of the decree). The decree also provided that the surplus income after meeting the expenses of the durgas should be distributed amongst the members of the family. The 6th defendant in his appeal against this decree prays that he should be appointed trustee of both the durgas in the place of plaintiffs 1 and 2.
3. In the lower Court and previously in this Court on appeal, Court-fees were paid ad valorem on the value of the plaint properties. The appellant now seeks to value his appeal under Article 17, Clause (b), Schedule II of the Court Pees Act on the ground that it is not possible to estimate at a money value the subject-matter in dispute; on the other hand, it is contended by Mr. Varadaohariar, on behalf of the Government, that the case is governed by Section 7, Clause (5) of the Court Pees Act and that the appellant should pay ad valorem Court-fee on the value of the suit properties.
4. The main argument of the learned Advocate-General on behalf of the appellant is this : If the suit had been against persons claiming adversely to the trust, ad valorem Court-fee might have to be paid; but in a case like the present, where all the parties to the suit claim the properties for and on behalf of the trust, the only point in dispute is as to who amongst them is entitled to manage the trust properties and as that, viz., the right of management is, incapable of valuation, the proper article applicable is Article 17, Clause (b), Schedule II of the Court Pees Act. This argument appears to me to be untenable, because, though the defendants do not claim the properties adversely to the trust, they do claim the right to hold them adversely to the plaintiff and therefore plaintiff has necessarily to ask for relief by way of possession as against them. In Ramadoss v. Hanumantha Rao (1911) 36 Mad. 364 relied upon for the appellant the lands were in the possession of persons who were willing to pay rent to the plaintiff as soon as he recovered the office of Dharmakartha. In distinguishing the caso before them from the decision in Rathnasabapatki Pillai v. Ramaswami Aiyar (1910) 33 Mad. 452 and the other case brought to their notice the learned Judges indicate their opinion that, if the possession bad boon adverse to the plaintiff, then it would have been necessary for him to sue for the relief of possession, also : see page 366. In Sonachala v. Manika (1885) 8 Mad. 516 where the plaintiffs prayed for a decree for the removal of the defendant from the management of properties endowed for charity and for the appointment of himself as the manager thereof, it was held that the plaintiff was to sue for possession of the properties and that he should pay ad valorem Court-fee under Section 7 of the Court Foes Act.
5. Reference has been made by Mr. Govindaraghava Aiyar, the learned vakil for the appellant in the connected S.R. No. 13123 of 1923 in which also the same question is raised, to the decisions in Thakuri v. Brahma Narain (1896) 19 All. 60 Girdhari Lal v. Ram Lal (1899) 21 All. 200 and Bamrup Das v. Mohunt Sitaram Das (6). These are cases under B. 92 of the Civil Procedure Code and do not really help him. Shortly stated, what was decided in those cases was that in suits coming under Section 92 (Section 539 of the old Code) of the Civil Procedure Code, the mere inclusion in the plaint of a prayer either for account, or for the appointment of plaintiffs themselves as trustees, does not render the plaintiffs liable to pay ad valorem Court-fee on that part of their plaint. The suit which has given rise to this appeal is not one under Section 92 of the Civil Procedure Code, nor does it possess the essential characteristics of such a suit. It cannot also be said that the nature of the suit has in any way been altered subsequent to the remand by the High Court.
6. It has been further urged on behalf of the appellant that since the plaintiff sues for trusteeship only and has no beneficial or personal interest in the properties in his capacity as trustee, no ad valorem Court-fee need be paid. This argument receives a pertain amount of support from the observations of Spencer, J., in his Order of Reference to the Full Bench in Ramamirtha Mudaliar v. Govinda Mudaliar C.R.P. No. 862 of 1917. With all respect, I am unable to see how the question as to whether the plaintiff has or has not any beneficial interest in the properties that he sues for, can make any difference as regards the Court-fee payable by him. A guardian of a minor, for instance, suing on behalf of his ward for recovery of possession of immovable property has no beneficial interest in the property, but I do not think that it can be argued that he need not pay ad valorem Court-fee under Section 7, Clause (5), when he sues for possession of properties of the ward.
7. It seems to me that in determining the Court-fee payable in these oases the sole question to be considered is, what is the 'subject-matter' of the suit. As already pointed out in a case like the present one, the plaintiff is bound to ask for possession and the plaintiff here has, as a matter of fact, prayed for possession of the trust properties. So far as this relief is concerned, the suit, in my opinion, falls under Section 7, Clause (5), Court Fees Act, and the appellant should pay Court-fee under that Section. As in my view the case comes under Section 7, Clause (5), it follows that Article 17, Clause (b) is inapplicable. I give six weeks time for the appellant to pay the necessary Court-fee.
8. In S.R. Nos. 13674 of 1923, 12052 of 1923 and 13423 of 1923. - The same question arises in these stamp reference numbers which deal with the other appeals filed against the lower Court's judgment. The order passed in S.R. No. 9636 of 1923 will apply to them also.