Decided on March 18,1948

THAKURJI Appellant


Ray, J. - (1.) This is a plff's appeal agaist an order rejecting the plaint for non-payment of ad valorem Court-fees. The plff. valued the relief in the suit at Rs. 1400/- for the purpose of jurisdiction & paid a fixed fee of Rs. 15/-provided by Schedule 2, Article 17 part 6, Court-fees Act, as the subject-matter of the suit is not capable of being valued in money. The trial Court by its Order No. 52 in title suit No. 14 of 1942 (in the Court of the second Subordinate Judge, Gaya) dated 29-3-44 came to the conclusion that the actual value of the right claimed in the properties can hardly be less than the market value of the lands & any other valuation would be arbitrary. In this view, in consideration of the actual income of the villages in the suit being Rs. 14700/- & odd, he fixed the market value of the properties at Rs. 147550/-. Accordingly the plff. was directed to correct the valuation stated in the plaint & to pay court-fees thereon by a fixed date. As no court-fees were paid, the plaint was rejected.
(2.) In order to determine the question at issue the nature of the reliefs sought or the class to which the present suit belongs has to be scrutinised. The dispute properties are admittedly endowed to Sri. Thakurji (plff. 1) at Ajodhya. There was a dispute as to possession of the said properties as between the plff. 2 & the deft, each claiming to be rightful mutwalli in possession. In a proceeding under Section 145, Criminal P. C., the criminal Court attached the properties under Section 146, of the Code. Thereupon, both the plff. 2 as well as the deft, instituted suits for establishment of their respective title as mutwalli & for possession of the properties. The deft's suit was decreed & the plff's suit was dismissed by virtue of a compromise. Accordingly, the deft, got possession of the properties from the receiver appointed by the criminal Court in pursuance of the order of attachment, already referred to. In the present suit the compromise is impugned as a fraudulent one The plff. claims the following reliefs, namely, (1) declaration that the plff. is the mutwalli of the endowed properties; (2) declaration that the plff. is & the deft, is not entitled to remain in charge of the trust estate & (3) that the deft. be directed to make over charge of the said estate to the plff. 2.
(3.) It is obvious that plff. 2 does not claim any beneficial ownership in respect of the properties in suit. It is further quite plain that plff. 2 is nominally a party in order to meet the objection regarding what can be called a technical defect in it, as neither by virtue of the previous compromise nor under the decree obtained by the deft, in his suit, already referred to, title of the deity (plff. 1,) was at all challenged. The conflicting claims as between the parties are as to their respective rights to hold charge of the endowment, or, in other words, the endowed properties. In determining the nature of the suit for the purpose of fixation of Court-fees, the allegations made & the reliefs sought in the plaint are the only relevant materials. The defence set up by the deft, does not come into the picture at all in ascertaining the nature of the plff's suit. In substance, the plff's suit is for recovery of the office of shebaitship which, according to him, has been usurped by the deft, under a colourable compromise decree. As the scheme of the endowment, according to the plff's allegations in the plaint, does not provide for any emoluments being attached to the office of mut-walliship, the aforesaid reliefs are not capable of valuation. Reliance is placed by the appellants' learned Counsel on the decision in the case of 'Maulavi Sayeed v. Shah Tafazul Hussain', AIR (21) 1934 Patna 647 in which a Division Bench of this Court held : "Where the subject-matter of the suit is the right to mutwalliship & the office does not carry any salary or any other material enjoyment, it is not capable of monetary valuation & therefore the proper Court-fee is the fixed fee of Rs.15/-provided by Schedule 2, Article 17, Para 6".;

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