JUDGMENT Biswas, J. - The only question which arises in this rule is one of court-fees. The petitioners are two in number, and they instituted the suit out of which the rule arises in the Court of the District Judge of Dacca, describing it as a suit under S. 92, Civil P.C., in respect of an alleged public wakf for religious and chartiable purposes, paying a fixed court-fee of Rs. 15 on the plaint under cl. (vi) of Art. 17 of Sch. 2, Court-fees Act. The learned Additional District Judge held that the suit was in substance one for a declaratory decree with a prayer for recovery of possession and in that view, directed payment of ad valorem court-fees under S. 7, cl. (iv), sub-cl. (c) of the Act. It is against this order that the present rule is directed. 2. The wakf is said to have been founded in the days of Moghul rule by Nawab Sayesta Khan, a subedar of Bengal, comprising extensive properties in Dacca. Plaintiff 1 claims to be a direct descendant of the founder in the male line, and plaintiff 2 is his son. It is stated that on 22nd November 1937 the wakf was duly enrolled in the register of wakfs under the Bengal Wakf Act, 1934, and that plaintiff 1 was also appointed mutwalli by the Commissioner of Wakfs under the provisions of S. 40 of the Act. After his appointment, plaintiff 1 applied to the Collector of Dacca for registration of his name as such mutwalli in respect of certain properties alleged to form part of the wakf but found that they had been already recorded in the names of some of the defendants as appertaining to some revenue-paying estates of which they were the properietors. Further enquires disclosed that the names of these defendants had also been recorded in the settlement papers. The plaintiffs state that they were accordingly obliged to bring the present suit, with a view, as they put it, to remove the "cloud" which had thus been cast "upon the true and real wakf nature and character" of the properties. 3. In one part of the plaint (para. The plaintiffs state that they were accordingly obliged to bring the present suit, with a view, as they put it, to remove the "cloud" which had thus been cast "upon the true and real wakf nature and character" of the properties. 3. In one part of the plaint (para. 5), it is expressly stated that on his appointment as mutwalli, plaintiff 1 took possession of the entire wakf estate, including the disputed properties, but the suit was nevertheless not framed on the basis of such possession as one for setting aside the entries in the Collectorate registers or the settlement records, which would perhaps have given the plaintiffs the full measure of relief they needed to ask for. The plaintiffs attempted, on the other hand, to mould the suit as one under S. 92, Civil P.C., alleging that it was necessary to obtain the directions of the Court for the administration of the wakf on behalf of the public. No indication, however, was given in the plaint as to the nature of the directions which were called for. Nor were any definite allegations made of any breach of trust, except to suggest in a vague way that the defendants, if they were not mere trespassers who had come into wrongful possession at a time when there were no mutwallis in office must have acquired title under transfers made by some previous mutwalli or mutwallis in breach of the terms of the endowment. In that case, it was added, the defendants were in the position of "constructive trustees or trustees de son tort or trustees de jure" a description which probably was considered to be necessary to justify their being made parties defendants in a suit under S. 92, ( Abdul Majid and Others Vs. Akhtar Nabi and Another, AIR 1935 Cal 805 . In any view, the plaintiffs maintained that the defendants were liable to eviction. 4. In the plaint, as it originally stood, a number of reliefs were asked for, but it was doubtful if any of them came strictly within the scope of S. 92. Akhtar Nabi and Another, AIR 1935 Cal 805 . In any view, the plaintiffs maintained that the defendants were liable to eviction. 4. In the plaint, as it originally stood, a number of reliefs were asked for, but it was doubtful if any of them came strictly within the scope of S. 92. The prayers were as follows: (a) for a decree deciding that the property in suit appertains to wakf Nawab Sayeshta Khan, and not to any revenue-paying estate of the Dacca Collectorate; (b) for a decree vesting the wakf property in suit in the plaintiff mutawalli; (c) for a decree removing the defendants, if any, from the wakf property in suit; (d) for a permanent injunction against the defendants restraining them from interfering with or obstructing the plaintiff mutawalli in his administration of the wakf property in suit, and also a temporary injunction pendente lite to that effect; (e) for a decree directing the defendants to render accounts of the income of the wakf property in suit that may have come to their hands and to make over the amount due from them to the plaintiff mutawalli; (f) for a decree for full costs of this suit against the defendants, (g) for a decree granting such further or other reliefs under law or equity as the nature of the case may require, including a decree for undisturbed and vacant possession of the property in suit and for demolishing structures on shall portions of the property in suit by the defendants. 5. The plaint was subsequently amended, evidently to bring it nearer to the terms of S. 92, if possible. The prayers for injunction and possession were struck out by deleting cl. (d) and the latter portion of cl. (g), and a new prayer was inserted under cl. (d) "for appointing plaintiff 1 as permanent mutawalli of the wakf." 6. Quite a large number of defendants were impleaded in the suit, and an order was also obtained under O. 1, R. 8, Civil P.C., to give the defence a representative character. A common point taken in the written statements which were filed was that the suit could not proceed on a fixed court-fee of Rs. 15, and this formed the subject-matter of issue 5. 7. A common point taken in the written statements which were filed was that the suit could not proceed on a fixed court-fee of Rs. 15, and this formed the subject-matter of issue 5. 7. At the instance of the parties this issue was taken up first for decision as a preliminary issue in bar, and in dealing with it, the learned Judge also incidentally touched upon the other issue (issue 6) which had been raised regarding the maintainability of the suit under S. 92 of the Code. 8. In para. 15 of the plaint it was stated that the suit being one under S. 92, a fixed court-fee of Rs. 15 was paid. The plaintiffs evidently proceeded on the view that if the suit was or could be said to be a suit under that section, Art. 17, Cl. (vi) of Sch. 2, Court-fees Act would ipso facto apply, and a fixed fee as therein provided was all that was payable. That was also the basis, if we are not mistaken, of the elaborate argument which Mr. Nuruddin Ahmed addressed to us on behalf of the petitioners. 9. We may state at once that in our opinion that is not a correct way of looking at the matter. It will be observed that the Court-fees Act as it stands in Bengal contains no specific provision for a suit under S. 92, Civil P.C. such as is to be found, for instance, in Madras. In Madras the principal Act in its application to that Presidency was amended in 1922 by adding the following words in S. 7: except suits for relief under S. 14, Religious Endowments Act, 1863, or under S. 91 or S. 92. Civil P.C., 1908, and adding at the same time an express clause in Art. 17 of Sch. 2 imposing a fixed fee of Rs. 50 for such suits. In Bengal, where there is no such provision, we do not think there can be any warrant for holding that a plaint in a suit under S. 92 will as such be chargeable with a fixed court-fee. As to whether it can be brought with in the purview of Art. 17(vi) will in our judgment depend on the nature of the allegations made and the reliefs claimed in the suit. 10. A number of decisions were cited to us by Mr. As to whether it can be brought with in the purview of Art. 17(vi) will in our judgment depend on the nature of the allegations made and the reliefs claimed in the suit. 10. A number of decisions were cited to us by Mr. Nuruddin Ahmed which appeared to hold that in a suit under S. 92 of the present CPC (or under the corresponding S. 539 of the Code of 1882) a fixed court-fee under Article 17(vi) was proper and sufficient. Some of these cases will be found referred to in the judgment of this Court in Ramrup Das v. Mohunt Sujaram Das, (1910) 14 C.W.N. 932 : (7 I.C. 92), on which in fact strong reliance was placed by the learned advocate. An examination of the cases will, however, show that the ratio decidendi invariably was that having regard to the nature of the reliefs claimed the subject-matter in dispute was incapable of being estimated at a money value : in other words, it was held that Art. 17(vi) would apply only in so far as the suit came within its express terms, and not because it happened to be a suit under a particular section of the Code of Civil Procedure. Thus, in Ramrup Das's case, (14 C.W. N. 932 : 7 I.C. 92) (supra) referring to an Allahabad decision in Ghazaffar Husain Khan v. Yawar Husain, (1905) 28 All. 112 : (2 A.L.J. 591), the learned Judges (Holmwood and Chatterjee JJ.) observed: The whole tenor of this ruling, therefore, is that a suit under S. 539 (of the Code of 1882) (corresponding to S. 92 of the present Code) generally involves a question upon which no pecuniary value can be placed, and they added, "and it is obvious that this is so if we look at the effect of such a suit." The same test was applied by the Lahore High Court in a later ease under the present Code: AIR 1928 113 (Lahore) . 11. As Burkitt J. pointed out in the Allahabad case referred to above, the plaintiff in a suit under S. 539 (now S. 92) was not to be more favourably treated in the matter of court-fees than any other suitor. 11. As Burkitt J. pointed out in the Allahabad case referred to above, the plaintiff in a suit under S. 539 (now S. 92) was not to be more favourably treated in the matter of court-fees than any other suitor. If the suit was so framed that it was not possible to estimate the reliefs at a money value, and the suit was not otherwise provided for in the Court-fees Act, Art. 17(vi) of Sch. 2 would apply: otherwise, there was no reason why the plaintiff should not be required to pay the proper court-fee chargeable on the reliefs claimed. 12. For the purposes of court-fees, we are not at all concerned with the question as to what is the true scope of S. 92, and what reliefs may or may not be legitimately asked for in a suit under this section. Nor need we consider whether a suit is or is not maintainable where some of the reliefs claimed are within, and others are without, the scope of S. 92. It may well be, as was laid down by their Lordships of the Judicial Committee in Abdur Rahim v. Barkat Ali, (1927) 55 I.A. 96 : (A.I.R. 1928 P.C. 16), that a suit under S. 92 must be confined to one or more of the reliefs specifically set out in sub-s. (1) of that section, and it may further be that by virtue of sub-s. (2) a suit claiming any of such reliefs in respect of a trust for public purposes of a charitable or religious nature can be brought only in conformity with the provisions of sub-s. (1). All these considerations, however, appear to be wholly irrelevant to the question of the proper court-fee payable in a suit under, or which purports to be under, S. 92. That must depend upon the allegations and prayers in the plaint, whether they are covered by S. 92 or not, or are covered by it only in part. To hold otherwise would in effect be to permit a fraud on the statute. 13. By a close adherence to the terms of S. 92, it might perhaps be possible in some cases to attract the provisions of Art. 17(vi), but the present case cannot be said to be one of that description. To hold otherwise would in effect be to permit a fraud on the statute. 13. By a close adherence to the terms of S. 92, it might perhaps be possible in some cases to attract the provisions of Art. 17(vi), but the present case cannot be said to be one of that description. The petitioners themselves disclosed the real nature and purpose of their suit in the original prayers which they made asking for injunction and for a decree for "undisturbed and vacant possession," reliefs which were wholly alien to the scope of S. 92. These prayers were no doubt afterwards deleted by an amendment of the plaint, but those that remained could hardly be regarded as coming within the terms of any of the Cls. (a) to (h) of that section. The reliefs which they claimed were not in respect of the wakf as a whole, but only as regards some of the properties belonging to the wakf which were alleged to be in the hands of the defendants, and they were directed against these defendants alone, it being left wholly uncertain whether the defendants were holding as alienees from some previous mutawalli or mutawallis or as mere trespassers. Prayer (g) might be supposed to correspond to Cl. (h) of S. 92, but it was a general prayer and had to be read with the prayers which preceded it. 14. Mr. Nuruddin Ahmed laid considerable stress on the new prayer (d) which was added by way of amendment asking for confirmation of plaintiff 1's appointment as a mutawalli, and contended that this was a relief in terms under cl. (b) of S. 92: "appointing a new trustee," and be went to the length of arguing that for the purposes of court-fees the Court might have regard to this prayer alone, and ignore the others as merely asking for incidental or subsidiary reliefs in respect of which it was not required to pass a decree at all. 15. As for the new prayer, it is sufficient to state that on the facts of the case this was wholly unnecessary, and was nothing but a device to give the plaint somehow the appearance of one under S. 92. 15. As for the new prayer, it is sufficient to state that on the facts of the case this was wholly unnecessary, and was nothing but a device to give the plaint somehow the appearance of one under S. 92. On the petitioners own showing, there was and could be no question of appointing a new trustee, as there was already a trustee duly appointed by the Commissioner of Wakfs in the person of plaintiff 1 himself. The appointment of a mutawalli by the Commissioner of Wakfs under S. 40, Bengal Wakf Act is by the terms of that section "subject to any order of a competent Court," but this does not mean that the appointment needs confirmation in anticipation by a civil Court before it is actually challenged. The addition of this prayer was, therefore, of no significance, and could hardly have the effect of converting the suit into one under S. 92 if the allegations in the plaint were not sufficient to give it that character. 16. As regards the suggestion that the Court might refuse to grant the other reliefs as being outside the scope of S. 92, one fails to see why in that event they should have been asked for at all. It was not Mr. Nuruddin Ahmed's argument that because the reliefs were to be refused, the Court was not to adjudicate on these matters: the contention, on the other hand, was that such adjudication was both proper and necessary, if not for the purposes of a decree in the present suit, but to constitute the foundation for another suit which the mutawalli was to bring later in a Court of ordinary jurisdiction asking for appropriate reliefs against the same defendants. 17. In support of his contention the learned advocate relied on some cases of which Lachman Prasad and Another Vs. Munia and Others, AIR 1925 All 759 might be taken as a type. That was a suit asking for bona fide reliefs under several clauses of S. 92, but the defendants denied the existence of a trust and set up their own title to the properties which were said to constitute the trust estate. Munia and Others, AIR 1925 All 759 might be taken as a type. That was a suit asking for bona fide reliefs under several clauses of S. 92, but the defendants denied the existence of a trust and set up their own title to the properties which were said to constitute the trust estate. Some evidence was taken, and as the trial Court held on that evidence that the defendants were mere trespassers and could not be regarded as constructive trustees, it returned the plaint for presentation to the proper Court on the ground that the suit against them under S. 92 was not maintainable. The High Court set aside that order, holding in effect that as most of the reliefs claimed came under S. 92, the suit could not be thrown out merely because the plaintiffs had impleaded as defendants persons who were denying the trust and against whom, therefore, there could be no decree for ejectment in these proceedings. The whole question in the case was whether strangers to the trust were necessary or proper parties to a suit under S. 92, and it was held that they were proper, if not necessary, parties the underlying assumption being that in such a suit it might often be both competent to and incumbent on the Court to determine whether any properties, or what properties, were included in the trust estate, though no decree was to follow thereupon binding on the stranger defendants. 18. Apart from the fact that there is a large body of decisions taking the contrary view, see, for instance, the judgment of Page C.J., in Johnson Po Min v. U Ogh, (1932) 10 Rang. 342 : (A.I.R. 1932 Ran. 132) where most of these cases are collected, it seems to us to be extremely doubtful if in a case where the only relief claimed under S. 92 is mere confirmation of the appointment of a trustee and there is no question of removal of any trustee, the question as to whether any properties are trust properties is at all a legitimate issue. But be that as it may, we do not think that the cases cited by the learned advocate for the petitioners are any authority for the proposition he contended for, namely, that where the plaintiffs in a suit claiming reliefs under S. 92 also ask for reliefs not covered by that section, and those reliefs are allowed to stand, the plaintiffs will still not have to pay the requisite court-fees for the same, on the plea that the Court need not pass any decree in respect thereof. 19. It is not, however, necessary to pursue the matter further, as we hold that on the question of court-fees the petitioners here must fail on the real test which is applicable. Taking the prayers as they stand in the amended plaint there can in our opinion be no doubt that they bring the case clearly within the terms of S. 7, cl. (iv), sub-cl. (c), Court-fees Act, and necessarily, therefore, exclude it from the purview of Art. 17(vi) of the second schedule. Prayer (a) expressly asks for a declaratory decree, and we do not think it is possible to explain it away by saying that it is necessarily involved in the granting of the relief under the new prayer (d), and hence a prayer which need not have been made at all. Prayers (b) and (c) as well prayer (e) obviously ask for consequential relief on which it should be possible to put a money valuation. None of these prayers, if read with the allegations in the plaint, can in fact be regarded as in any sense coming within any of the clauses of S. 92, Civil P.C. In formulating the prayers the petitioners have no doubt attempted to follow the terms of S. 92 as closely as possible, but that hardly conceals the real character of the reliefs sought. Take, for in-stance, prayer (c), which asks for "removing" the defendants from the wakf property in suit, but this is certainly not the same as a prayer for removing a trustee within the meaning of cl. (a) of S. 92. On the case made in the plaint, the removal asked for can only mean removal of the defendants from the lands of which they are alleged to be in physical possession. (a) of S. 92. On the case made in the plaint, the removal asked for can only mean removal of the defendants from the lands of which they are alleged to be in physical possession. A mere statement in the plaint that the "legal position" of the defendants is that of "constructive trustees or trustees de son tort or trustees de jure," in the absence of any definite allegations to support such a case, cannot in our opinion possibly give the prayer any other character and make it a prayer under cl. (a) of S. 92, and hence incapable of pecuniary valuation. A prayer for removal of a trustee, it may be added, would in fact be inconsistent with the new prayer (d) asking for confirmation of the appointment of plaintiff 1 himself as trustee. 20. For the foregoing reasons, we must consequently reject the contentions of the petitioners, and discharge the rule with costs, hearing fee 5 gold mohurs to be divided equally between the two sets of opposite parties. 21. The learned Judge will fix a time for payment of the additional court-fees after the records arrive in the Court below. Khundkar, J. 22. I agree.