Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1271 (RAJ)

Murti Shri Keshariya Nath Bhagwan Mandir, Udaipur v. Niranjan Lal Sahu

2013-07-15

VINEET KOTHARI

body2013
JUDGMENT 1. - The present writ petition has been filed by the petitioners against the order dated 26.11.2012 of learned Additional District Judge, No.2, Udaipur, in a suit filed by idol of Shri Keshariya Nath Bhagwan, in respect of disputed shop, which according to plaintiffs/ petitioners, was initially mortgaged by one Sh. Ratan Chand ('Yati') Chela Sh. Guru Ramlal in 'Vikram Samvat' year 1958 on '??? ?? ???' for Rs. 351/- to one Sh. Nandlal S/o Chaturbhuj Joshi, the predecessor in title of present defendants No.2 to 5, seeking declaration in the suit that the sale-deed executed by the defendants No. 2, 3 and 5, namely, Manehdra Nath Purohit S/o Ajay Nath Purohit and others, in favour of defendant No.1, namely, Niranjan Lal Sahu S/o Kishan Lal Sahu, be declared illegal and void since the aforesaid 'Yati' (Sh. Ratan Chand) in the capacity of trustee of the idol, could not mortgage the said property, which in the course of time, was claimed to be a joint family property of the private defendants No.2 to 5, and upon a partition suit filed in respect of said suit property also, the shop in question, situated at Mandi, Udaipur, came to be sold by the defendants No. 2 to 5 in favour of defendant No.1. 2. The petitioners/plaintiffs (Trust), claimed that the court fees in respect of suit shop filed by them vide para 16 of the plaint, would be ⅕th of the market value of the suit property in question, which according to the plaint, was fixed at Rs. 21 lacs and ⅕th thereof will Rs. 4,20,000/-, the plaintiffs, however, paid the fixed court fees of Rs. 200/- as stipulated in Section 27 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (for brevity, hereinafter referred to as 'Act of 1961') along with Rs. 400/- court fees for injunction against the defendants. 3. The learned trial court has, however, vide the impugned order dated 26.11.2012 held that Section 27 of the Act of 1961 would not be applicable in the facts and circumstances of the present case since none of the defendants shown in the plaint, is admittedly a trustee of the Trust and, therefore, Section 27 of the Act of 1961 would not be applicable and hence, the plaintiff-Trust has to pay full court fees at the market value of suit shop of Rs. 21 lacs. 4. 21 lacs. 4. Being aggrieved by the said order dated 26.11.2012, the plaintiffs/petitioners have approached this Court by way of present writ petition under Article 227 of the Constitution of India. 5. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the petitioner-Trust submitted that as per Section 27 of the Act of 1961 in case of any dispute between the trustees or the rival claimants to the office of Trust or between the trustees and persons, who have ceased to be trustees, court fees shall computed on ⅕th of the market-value of the property, subject to a maximum even to Rs. 200/-. He further drew the attention of the Court towards Explanation of the said Section 27 of the Act of 1961 and submitted that in case of Hindu, Muslim or other religious or charitable endowments, it shall be deemed to be trust property and the manager of any such property shall also be deemed to be the trustee thereof. He, therefore, submitted that even for arguments sake, the said Yati, Ratan Chand, was only manager of the said trust, he will be deemed to be trustee, since the very initial transaction of mortgage made by him in 'Vikram Samvat' year 1958 is under challenge, the subsequent transactions assuming the property to be of joint family property of predecessor of defendants No. 2 to 5, such a dispute will fall within the four corners of Section 27 of the Act of 1961 and, hence, the court fees was rightly paid by the plaintiff-Trust as per the value fixed by them at ⅕th of the market value, subject to maximum of Rs. 200/- and, therefore, the learned trial court without taking any evidence deciding the preliminary issue in this respect, has erred in directing the plaintiffs/petitioners to pay the full court fees on the full market value of the suit property, namely, the shop in question. 6. On the other hand, Mr. Deelip Kawadia, learned counsel appearing on behalf of respondents urged that since the defendants arrayed in the plaint are not the trustees of the Trust, therefore, benefit of Section 27 of the Act of 1961 cannot be availed by the plaintiff- Trust. 7. 6. On the other hand, Mr. Deelip Kawadia, learned counsel appearing on behalf of respondents urged that since the defendants arrayed in the plaint are not the trustees of the Trust, therefore, benefit of Section 27 of the Act of 1961 cannot be availed by the plaintiff- Trust. 7. Having heard the learned counsel for the parties, this Court is of the opinion that the learned trial court has erred in misconstruing the provisions of Section 27 of the Act and ignoring the sequence of the facts mentioned in the plaint, wherein the plaintiff- Trust has clearly stipulated that sale in question made in the year 2008 deserves to be declared void and set aside because it emanates from the transaction of mortgage made by then manager/trustee of the said idol of Shri Keshariya Nathji. Merely because the said trustee no longer exists, and therefore, not impleaded as defendant, the transaction made by him, which according to plaintiff-Trust he had no authority to enter into such agreement, however, these facts of course, required to be proved by the plaintiffs during the course of trial by leading evidence in this respect; but it cannot be said that the said foundational and factual basis of the present declaration sought by the plaintiff- Trust requires payment of court fees ignoring the provisions of Section 27 of the Act, which clearly intends to give a benefit of payment of concessional court fees in the case of dispute pertaining to Trust, and trust property, where the dispute is between inter-se trustees or between the Trustee and third party arising on account of such dispute. Therefore, even if a person, who has ceased to be a trustee, the dispute is still covered by the provisions of Section 27 of the Act of 1961 as admittedly the property in question was originally of the plaintiff- Trust. 8. The contention of the learned counsel for the petitioners/plaintiffs, Mr. Therefore, even if a person, who has ceased to be a trustee, the dispute is still covered by the provisions of Section 27 of the Act of 1961 as admittedly the property in question was originally of the plaintiff- Trust. 8. The contention of the learned counsel for the petitioners/plaintiffs, Mr. Thanvi, has considerable force and merely because the over course of a long period of about 100 or little more years was there, the trustees or the manager at that time (Ratan Chand) who does not exists now, and therefore, obviously could not be impleaded as defendants in the plaint, the plaint averments made in this regard cannot be ignored while deciding the issue as to court fees and the plaintiffs' averments as such made in the plaint, have to be seen and there is no reason to disbelieve the same unless contrary is shown with cogent evidence led by the parties. In the present case, the said preliminary issue has been decided even without taking any evidence in this regard and the conclusion drawn by the learned trial court is as if the trial court has concluded that the dispute does not pertain to trust property and is between the private litigants only. This, in the opinion of this Court, has resulted in miscarriage of justice and the payment of court fees cannot be demanded and it goes without mention that even if ultimately trial court comes to the conclusion that at the time of passing of decree after trial is concluded, the deficit court fees, if any, can be recovered from the plaintiffs as per Section 11 of the Act of 1961. Therefore, at this stage, ignoring the applicability of Section 27 of the Act of 1961, in the present case cannot be sustained. 9. Consequently, the impugned order dated 26.11.2012 passed by learned Additional District Judge, No.2, Udaipur deserves to be set aside. The writ petition filed by the petitioners/plaintiffs is, accordingly, allowed and the impugned order dated 26.11.2012 is quashed and set aside. The learned trial court is directed to proceed with the trial including the issue of court fees for which both the parties shall have right to make their respective submissions after leading evidence in this regard. No costs. A copy of this order be sent to the concerned parties and the learned trial court below forthwith.Petition Allowed. *******