Sundar Dass and Others vs Gurpartap Dass

This is a plaintiff''s petition for revision of the order of Shri H. R. Nohria, Subordinate Judge First Class, Amritsar, dated Oct. 16, 1976, deciding the preliminary issue about the valuation of the suit for purposes of court--fee. The plaintiff originally filed a suit for a declaration to the effect that he is the Mahant Gaddi Nashin Akhara Ghamanda Dass alias Beriwala, and is as such entitled to manage its affairs and release rents and profits of the immovable property with permanent injunction restraining the defendant from interfering in the management of the Akhara and realising rent from the tenants of the Akhara in the shops (the underlined portions were later omitted from the amended plaint).

The plaintiff had valued the original suit for purposes of court--fee and jurisdiction at Rs. 130/-. The defendant joined issue with the plaintiff about the said valuation. Shri S. K. Chopra, Subordinate Judge First Class, Amritsar, by his order, dated April 18, 1975, deciding that issue, held that the suit is governed by S. 7(iv)(c) of the Court--fees Act, 1870(hereinafter called the Act) and that by virtue of the second proviso added thereto by the Punjab amendment, the valuation of the suit for purposes of court-fee is to be worked out under clause (v) of S. 7. Not satisfied with the order of the trial Court, the plaintiff came up to this Court for revision thereof in Civil Revision No. 765 of 1975. The revision petition was dismissed by this Court (Verma, J.) on Feb. 10, 1976. While dismissing the petition, the learned Judge made it clear that whatever had been said in his order was limited to the disposal of the revision petition, but would not affect the situation which may arise by any amendment of the plaint that may be made by the plaintiff thereafter.

With the leave of the trial Court the plaintiff thereafter amended his plaint so as to delete from the heading thereof as well as from the prayer clause the words which I have underlined while quoting the prayer made in the originally unamended plaint. Once again, the defendant claimed that proper court--fee has not been paid even on the amended plaint. A preliminary issue was again framed was to whether the suit is properly valued for purposes of court--fee. That issue has been decided against the plaintiff in the order under revision. The claim of the plaintiff is that the suit is governed by Art. 17(iii) of the second Schedule to the Act. The case of the respondent is that the suit is governed by S. 7(iv)(c) of the Act. The relevant part of Art. 17(iii) of the second Schedule reads as follows:--

"Plaint or memorandum of appeal in each of the following suits:--

(i)------- (ii)------- (iii) to obtain a declaratory decree where no consequential relief is prayed Nineteen rupees fifty Naye Paise."

On the other hand S. 7(iv)(c) of the Act deals with suits to obtain declaratory decree or order where consequential relief is prayed. The relief prayed for by the plaintiff even in the present suit is for a declaration and for a permanent injunction. The permanent injunction is clearly claimed by way of consequential relief. This is not a suit for a declaration simpliciter and the question of application of Art. 17(iii) of the second Schedule does not arise.

Good deal of arguments have been addressed by Mr. R. S. Bindra, the learned Senior Advocate for the plaintiff--petitioner, but all those arguments are based on the assumption that the suit is governed by S. 7(iv)(c). All those arguments are directed towards showing that notwithstanding the finding that the suit is governed by S. 7(iv)(c) the second proviso thereto has no application to the case as the reliefs claimed in this suit are not "with reference to any property" and further that in fact no "property" is involved in this suit.

The second proviso to S. 7(iv)(c) is in the following terms:--

"Provided further that in suits coming under sub--clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section."

Counsel has relied on the judgment of the Delhi High Court in Ranchhoddas Shamji Khirani and Another Vs. Balwant Kaur Malik, and some other cases to show that the second proviso does not apply to a case in which the valuation of the suit cannot be worked out under cl.(v) of S. 7. There is no quarrel with that proposition of law at all. I agree with Mr. Bindra that if the property to which a plaint refers does not relate to lands, houses and gardens or is such property of which the valuation cannot possibly of which the valuation cannot possibly be worked out under any of the sub--clauses of cl.(v) of S. 7, the proviso in question would have no application at all to that suit, and notwithstanding the second proviso the court--fee payable on the plaint of such a suit shall be under the first proviso to that section.

Mr. Bindra is also correct in submitting that the word "property" in the second proviso to S. 7(iv)(c) does not always mean the value of the corpus of the entire property which may be mentioned in the suit, but relates only to the right in the property to which the claim in the suit refers. It is, therefore, unnecessary to deal with the judgment of Bishan Narain, J. in Ram Kanwar Kidarmal v. Naurang Rai Kundan Lal, AIR 1956 Punj 251, which has been cited only for this purpose.

Counsel has next referred to the judgment of Deshpande, J. in Onkar and Nath Vs. Rameshwar Dass and Others, , to show that right of management is an incident of property in the sense that it is one of the components of the various rights which go to form the concept of property, but right to management in property is not the same thing as the property itself. In paragraph 7 of that judgment the learned Judge clearly drew distinction between two sets of cases, namely:--

(i) a case where right of exclusive management for the benefit of the manager alone excluding other persons is claimed;

(ii) and a case where right of management on behalf of other co--owners with accountability to others is claimed.

In the suit from which the proceedings had arisen in the Delhi High Court, a decree had already been passed entitling the plaintiff and the defendant of that suit to jointly manage the properties involved in the suit and the subsequent suit (from which the proceedings arose) was only for apportionment of management, in terms of different periods between the parties to the suit. The Delhi case, therefore, clearly fell within the second category of the two classes of cases referred to in para 7 of the judgment of Deshpande, J. In order to find out whether the present suit does or does not fall within the first category referred to by the learned Judge, it appears to be proper to advert to the contents of the plaint of this suit. Even before doing so it may, however, be made clear that whatever right the plaintiff--petitioner is claiming in the present suit is his exclusive right and not a right to be exercised jointly with the defendant--respondent.

Another thing which is to be borne in mind for deciding the issue before me is that no change whatever has been made in the body of the plaint by its amendment after the previous decision of Verma, J. except the change in the heading of the plaint and in para 15, that is the prayer clause thereof. In the plaint it has been stated that the previous Mahant of the Akhara executed a will in favour of the plaintiff whereby he devised the plaintiff as the Mahant Gaddi Nashin and owner of the properties owned by the Akhara, that after the death of Arjan Dass the appointment of the plaintiff as Mahant was confirmed by the Bhekh, that the defendant has begun declaring himself to be the Mahant and claims to be entitled to manage the affairs of the Akhara and to realise the rent and profits from the tenants, that the plaintiff continues to be the Mahant and the defendant has no right, title or interest in the Akhara nor he is entitled to interfere in the management of the Akhara which is the plaintiff''s sole right and responsibility, and that the defendant has unnecessarily begun to interfere with the affairs of the Akhara and is harassing the tenants of the Akhara and is thereby casting a cloud on the title of the plaintiff which the plaintiff is entitled to get removed. It is on the basis of and in view of the averments mentioned above that the following prayer has ultimately been made by the plaintiff--petitioner in his amended plaint:--

"Plaintiff prays that a decree be passed against the defendant and in favour of the plaintiff declaring that plaintiff is the Mahant Gaddi Nashin of Akhara Ghumanda Dass alias Beriwala and as such is entitled to manage its affairs, a permanent injunction restraining the defendant from interfering in the management of the plaintiff in the affairs of the Akhara."

A bare perusal of the above--quoted averments in the plaint leaves no doubt in my mind that this suit falls within the second category of cases classified by Deshpande, J. in the Delhi case and the plaintiff is expressly claiming rights in respect of the property of the Akhara to the complete exclusion of the defendant. Plaintiff claims to be the successor Mahant, he wants to get the cloud cast by the defendant on the plaintiff''s title to be removed, and expressly states that the defendant has no right, title or interest in the Akhara. Surely he is referring to the immovable property of the Akhara and not to the so--called institution. Mere clever wording of the prayer is not decisive. The pith and substance of the plaint has to be seen for finding out the real scope of the suit. On the face of the case the judgment of the Delhi High Court goes against the plaintiff.

Mr. Bindra also referred to the Division Bench judgment of the Madras High Court in Nariman K. Irani and Another Vs. A. Batcha Sahib, . The declaration which was claimed by the mortgagor and puisne mortgagee was that the sale proposed to be held by the defendant--mortgagees in pursuance of the power of sale vested in them under S. 69 of the Transfer of Property Act without the intervention of the Court would be wrongful, illegal and void on account of the rights to which the plaintiff as an agriculturist would be entitled under debt relief legislation and for an injunction restraining the mortgagees from exercising the rights until such time as the amount that really becomes payable under the mortgage is ascertained. The Division Bench of the Madras High Court held that the suit was governed by S. 7(iv)(c) of the Act, but the proviso added to the said provision by the Madras High Court (in which purposes) was not attracted. The ratio of that judgment on the question of the meaning of the expression "with reference to any property" is contained in the following passage:--

"The view taken by this Court as regards the interpretation of that expression has been that the dispute should relate to title to immovable property or to the possession thereof in the sense that the relief sought for must be directly connected with or should be held to affect the plaintiffs'' rights to possession and ownership of immovable properties. Unless a decision as to the right of either parties to title or possession is necessary for the plaintiff to obtain the relief prayed for, the mere circumstance that the suit has some connection with immovable property, as in the present case, where the sales of immovable properties are sought to be stayed, would not be sufficient to gold that the relief sought for is with reference to immovable property."

After discussing the law on the subject the learned Judges held that the relief sought in the case before them related to the exercise of power of sale vested in the mortgagee--defendant and the mere fact that the reliefs asked for had some connection with immovable properties should not be understood to convey that the relief had reference to immovable properties. That case is clearly distinguishable from the one in hand. The plaintiffs in the Madras suit did not claim any right either in the title or in the possession of the property. In fact they did not claim any right of any kind in themselves in respect of the property. In the case before me the only object of the plaintiff in filing this suit (which is clear from the body of the plaint) is to establish his right to continue in possession of the Akhara properties and to manage them (the affairs of the Akhara) to the exclusion of the defendant who is on the other side claiming the same right as an alleged Mahant. It is a clear suit for a declaration of being the Mahant which automatically contains within its scope the right to be in possession of the properties of the Akhara and to manage them to the exclusion of everyone else. In addition to declaration of being the Mahant, the plaintiff has clearly claimed that ''as such'' he has the right to manage its affairs. The affairs of the Akhara on the material side are nothing except to manage its properties. It cannot, therefore, be said that the plaint of the present suit has no reference to any property. The properties of the Akhara admittedly comprise of lands, houses, etc. That being so, they are capable of being valued in the manner contained in S. 7(v) of the Act.

Mr. Bindra has referred to two judgments of the Calcutta High Court, namely, (i) Jatindra Nath Nandi and Others Vs. Krishnadhan Nandi and Another, and (ii) Hriday Kishore Nandi Vs. Hari Bhusan Dey and Others, . In both cases it was held (on the facts of each one of them) that they were governed by S. 7(iv)(c) of the Act. No proviso like that added by the Punjab High Court or even by the Madras High Court has been added to the section in its application to Calcutta. The question of the application of the proviso or meaning of the expression "with reference to any property" did not, therefore, arise in the Calcutta cases. The dispute in the Calcutta was whether S. 7(iv)(c) or S. 7(v) of the Act would apply to the declaratory suits with which the Court was concerned. Inasmuch as there is no such contest in the present case, the judgments of the Calcutta High Court are not relevant to the issue which is under discussion in this order.

At this stage Mr. Bindra wants to refer to another case. That is the judgment of a Division Bench of the Allahabad High Court in Sri Thakur Sitaramji Maharaj Brijman Mandir and Another Vs. Raghunath Das, . The beneficial ownership of the temple had not been denied in that case. The contest between the parties was to manage as sarbarahkar which is not the same thing as being a Mahant of an institution. Nobody except the Mahant of an institution except of course his delegates, agents or employees, has right to manage the property. The sarbarahkar is at the mercy of the deity of the temple. Moreover the Allahabad case was not that of an Akhara or a Math but of a temple in which the deity is the owner of the entire property thereof, admittedly there is no deity in the Akhara of which the plaintiff claims to be the Mahant. A deity in a temple is in itself a juristic person and is capable of owning, holding and possessing property. An Akhara is not capable of holding or owning property as such. Be that as it may, it is clear that no change for practical purposes having been made in the plaint, the mere omission of the right to realise rent from the tenants of the Akhara in the heading and prayer clause of the amended plaint as compared with the original plaint does not take the case out of the purview of the previous order of this Court (Verma, J.), dated Feb. 10, 1976. Even otherwise, I am unable to find any jurisdictional error in the under revision passed by the trial Court, and the value of the property not having yet been fixed and no order for rejecting the plaint having been passed, I am doubtful if the revision petition is even maintainable. From whatever angle the matter is looked at. I am unable to find any ground to interfere with the decision of the trial Court.

This petition must, therefore, fail, and is accordingly dismissed with costs.

Revision dismissed.