1. The question in controversy between the parties in this case is whether ad valorem court-fees should be paid in view of the nature of the reliefs sought by the plaintiff in Title Suit No. 3 of 1932, in the Court of the Subordinate Judge, 24-Parganas. The prayers made by the plaintiff in the suit, the petitioner in this Rule, are set out in the application to this Court on which this Rule was granted. The plaintiff instituted the suit in the allegation that the opposite party No. 1 has assumed office of the shebait of a private debuttar without any right to do so and has been mismanaging the debuttar estate and misappropriating the income thereof; and has committed acts of malfeasance and misfeasance, so far as this debuttar estate was concerned. The prayers made in the plaint were mainly the following: 1. A decree be passed for the removal of defendants 1 and 2 on a declaration that they have no manner of shebait right to the properties described in the plaint. 2. After declaring that the descendants of the late Mathur Mohan Nandi have no shebaiti right, a decree be passed appointing the plaintiff or any other competent person as shebait. 3. A permanent injunction be issued in order that the defendants in the suit may not waste or possess the debuttar properties 4. A decree may be passed for appointment of the plaintiff as shebait and for framing a scheme for the due performance of the worship etc., and festivals of the deity after removing the defendants from the shebaitship.
2. There were other incidental reliefs prayed for, by the plaintiff; but there was, and there could not be any prayer for the possession of the debuttar properties. The view taken by the learned Subordinate Judge in the Court below is that the real motive of the suit is to get hold of the properties, and that however ingeniously the plaint might have been drawn up the Court should not be deceived so as to allow the plaintiff to evade the stamp law, by nominally omitting a prayer for recovery of possession which is clearly the ultimate aim of the plaintiff as can be well seen through. In the above view of the case the petitioner was directed to supply within ten days, requisite ad valorem court-fees upon the valuation of the properties belonging to the debuttar estate, viz., one and half lacs of rupees, less the amount of court-fees already paid. The court-fees it may be mentioned were paid on Rs. 2,100 the valuation of shebaiti right, and on Rs. 50 the value of the relief for permanent injunction. The petitioner after this, applied for the amendment of the plaint withdrawing his prayers for the declaration of his shebaiti right and for the appointment of the petitioner as the shebait, in the place of defendant 1. The application so made was rejected.
3. In our judgment, on a careful reading of the plaint in the suit it cannot be said that there was a prayer for declaration that he was entitled to possession of the property, and such a prayer could not be made in the case, as the plaintiff was not entitled to possession of the debuttar properties in his personal right. The petitioner was claiming to be the shebait, and even that prayer was eventually sought to be amended. The object of the suit was to exclude defendant 1 from the management of the debuttar properties and interference with the same. The claim originally made was for the declaration of the shebaiti right and by the subsequent application for amendment of the plaint, the scope of the suit was further limited. In the above view of the case, we are unable to agree with the learned Subordinate Judge, in the orders made by him that the petitioner must pay ad valorem court-fees on the valuation of the debuttar properties. There are no materials before the Court upon which it could be said that the reliefs claimed in the suit, regard being specially had to the application for amendment of the plaint, were undervalued. The benefit which might accrue to the petitioner by reason of his success in the litigation, or detriment which is likely to fall on defendants 1 and 2 if they are excluded from the debuttar properties as shebaits, has not been shown to be more than Rs. 2,100. In our opinion therefore the court-fee already paid on the valuation of the suit made by the petitioner has not been established to be improper in any way.
4. The order passed by the learned Subordinate Judge on 31st May and 17th July 1933, against which this Rule is directed, are set aside; and the suit as instituted will now be tried out by the lower Court, keeping in view the amendment sought to be made in the plaint, the prayer of amendment of the plaint being allowed. The Rule is made absolute, the petitioner is entitled to the costs in this Rule. The hearing fee in this Court is assessed at three gold mohurs.