Authored By : Henry Thoby Princep, O Kinealy

Henry Thoby Princep, J.

1. The matter raised in this appeal relates to theassessment of Court-fees on the plaint. The suit, as we understand it, is asuit for removal of the defendant from the management of certain trust funds onproof of his misconduct. The Subordinate Judge has held that the Court-feespayable should be assessed on the value of the trust property--that being, inhis opinion, the subject-matter of the suit.

2. It appears to us that the subject-matter in this suit isnot the corpus of the trust property, but the right to retain the control overit. Under such circumstances, the suit would ordinarily fall within ScheduleII, Article 17, Clause 6 of the Court-fees Act. But in the present matter wehave the fact that the plaintiff has valued the subject-matter of suit for thepurposes of jurisdiction, as he states, at Rs. 7,000. We regard this value asnot being merely for the purposes of jurisdiction, but also as affording abasis for the assessment of Court-fees. We accept the principle laid down inthe case of Delroos Banoo Begum v. Ashgur Ali Khan 15 B.L.R. 157.

3. But the circumstances of that case are very differentfrom those of the case now before us, so far as we can gather the facts fromthe papers printed in the paper-book. In the case of Delroos Banoo Begum v.Ashgur All Khan 15 B.L.R. 157 it would seem that the mutwali was in receipt ofcertain emoluments derived from a specific share of the income of the waqfproperty; whereas it is not stated in the case before us that the manager is inreceipt of any such emolument. Taking, however, the sum of Rs. 7,000, stated inthe plaint, we think that the Court-fees should be assessed at least on thatamount. The case will be returned to the Court of the Subordinate Judge whowill proceed with the trial, provided that the plaintiff deposits the properamount of Court-fees within fourteen days from this date.

O Kinealy, J.

4. I concur in the decision arrived at by my learnedbrother, for I think the case falls within the principle laid down in the caseof Delroos Banoo Begum v. Ashgur Ali Khan 15 B.L.R. 157. At page 187 of thereport in delivering the judgment of the Court, Glover, J., said: "Theplaintiffs ask for distinct and important consequential relief; they ask notonly that the defendant may be declared to have wasted the endowment andthereby to have betrayed her trust, but also that she may be turned out of hermutwaliship, and they, the plaintiffs, be appointed in her room. The plaintiffssay that what they claim does not admit of being properly estimated by amoney-value; but this is not so. Under the tanliatnama the mutwalis were toreceive six twenty-eighths of the produce of the estate, a very considerablesum, and the plaintiffs claim to this share as an appurtenance to the officeof mutwali was easily to be estimated in money. I am of opinion that the plaintought to have been engrossed on a stamp of proper value." By this Iunderstand the Court was of opinion that the suit should be valued according tothe interest of the plaintiff in the subject-matter of the suit, and in thiscase the plaintiff has valued it at Rs. 7,000.

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Omrao Mirza vs. M.Jones (26.03.1884 - CALHC)