Joseph Maani v. M.I. Philip and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940 OP(C).No. 2901 of 2016** **OS.NO. 30/2016 of SUB COURT, KOYILANDY, DATED 03-10-2016 --------------** ## **PETITIONER(S)** ## **-------------** **JOSEPH MAANI, S/O.MANI MATTATHIL, AGED 47 YEARS, MATTATHIL, PONNURUNNI AMSOM, DESOM, POST VYTTILA, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY SMT.SEEMA** ## **RESPONDENT(S):** **-------------** **1. M.I.PHILIP, S/O.ITTYKUNJU, AGED 60 YEARS, CHAMMACHEL HOUSE, ATHIYODI AMSOM, DESOM, P.O.ATHIYODI, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673527.** ## ***2. LEELAMMA,** **W/O.M.I.PHILIP, AGED 52 YEARS, CHAMMACHEL HOUSE, ATHIYODI AMSOM, DESOM, P.O.ATHIYODI, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673527 (CORRECTED)** *** THE NAME OF RESPONDENT 2 IS CORRECTED AS “LALAMMA” INSTEAD OF “LEELAMMA” AS PER ORDER DATED 06.2.2017 IN IA.NO.161/2017.** ## **3. LEO PHILIP,** **S/O.M.I.PHILIP, AGED 31 YEARS, CHAMMACHEL HOUSE, ATHIYODI AMSOM, DESOM, P.O.ATHIYODI, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673527.** **TS** ## **OP(C).No. 2901 of 2016 (O)** ## **--------------------------** ## **4. GEO PHILIP,** **S/O.M.I.PHILIP, AGED 27 YEARS, CHAMMACHEL HOUSE, ATHIYODI AMSOM, DESOM, P.O.ATHIYODI, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673527.** **5. THOMAS CHAMMACHEL, S/O.ITTYKUNJU, AGED 58 YEARS, CHAMMACHEL HOUSE, ATHIYODI AMSOM, DESOM, P.O.ATHIYODI, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN 673527.** - **ADDL.R6 SUO MOTU IMPLEADED** **6. THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **ADDL.R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 06.4.2018** **R1,R3 & R5. BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA** **SRI.P.T.ABHILASH** **R6 BY SENIOR GOVERNMENT PLEADER SRI.SAIJI JACOB PALATTY** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** **OP(C).No. 2901 of 2016 (O)** ## **--------------------------** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS.NO. 30/2016 FILED BEFORE THE SUBORDINATE JUDGE'S COURT, KOYILANDY DATED 26.09.2016** **EXHIBIT P2 TRUE COPY OF THE ORDER IN OS.NO. 30/2016 PASSED BY THE SUBORDINATE JUDGE'S COURT, KOYILANDY DATED 03.10.2016.** ## **RESPONDENT(S)'EXHIBITS - NIL** **-----------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 24.07.2018** ## **(C.R.)** **ALEXANDER THOMAS, J.** ================== O.P(C).No. 2901 of 2016 ================== Dated this the 6[th] day of April, 2018 **J U D G M E N T** The petitioner herein has filed Ext.P-1 plaint in O.S.No. 30/2016 before the Court of the Subordinate Judge, Koyilandy, seeking recovery of possession of plaint schedule properties on the allegation that the said property is trust property. The petitioner/plaintiff is the brother of the 2[nd] respondent herein/2[nd] defendant. The 1[st] respondent herein/1[st] defendant in the O.S. is the husband of the 2[nd] respondent. Respondents 3 and 4/D-3 and D-4 are the children of R-1 and R-2/D1 and D2. The 5[th] respondent is the brother of the 1[st] respondent/D-1. 2. The case set up by the petitioner in the plaint is that, while he was working abroad, he had entrusted monies with the 1[st] respondent herein/D-1 for acquisition of immovable property by R-1/D-1 for the petitioner/plaintiff, etc. But that contrary to that, by utilizing the monies disbursed by the petitioner/plaintiff, R-1/D-1 had actually purchased the property in his name and in the names of defendants 2 to 4, who are his wife and children. That utilizing the said monies of the petitioner, R-1/D-1 had also purchased some property in the name of R-5/D-5, who happens to be the brother of R-1/ D-1. It is the case of the petitioner/plaintiff that the 1[st] defendant is fiduciarily bound to the plaintiff inasmuch as he had O.P(C).2901/2016 - : 2 :- received monies from the petitioner for the purpose of purchasing immovable property for the plaintiff. That the 1[st] respondent was in management of the property after its acquisition based on the funds made available by the plaintiff. It is thus contended that the defendants can only be treated as trustees holding the property in trust for the plaintiff, etc. It is on this basis that the petitioner has filed Ext.P-1 plaint seeking decree for possession of the plaint schedule property and for rendition of accounts from the 1[st] defendant of the properties so acquired in the names of the defendants with the funds of the plaintiff and with liberty to upgrade the claim, etc. 3. The trial court has now rendered the impugned Ext.P-2 order dated 3.10.2016 in the said Ext.P-1 O.S.No. 30/2016 holding that the court fee paid by the petitioner by claiming the benefit of the provisions contained in Sec. 28 of the Kerala Court Fees & Suits Valuation Act, 1959, is not correct and the petitioner/plaintiff has thus been directed by the trial court to pay court fee under Sec.30 of the said Act, 1959 and was also directed to make necessary amendments to the plaint in that regard within seven days, etc. The impugned Ext.P-2 order dated 3.10.2016 rendered by the trial court (Court of Subordinate Judge, Koyilandy) in O.S.No. 30/2016, reads as follows: _“O R D E R_ _Heard the counsel for plaintiff. Plaintiff's Counsel contends that as it is a property purchased by the defendant, spending plaintiff's money, it can be treated as a trust property. So, according to him court fee is to be paid u/s 28 of the Kerala Court Fee and Suit Valuation act. The contention raised by the_ O.P(C).2901/2016 - : 3 :- _counsel for plaintiff cannot be accepted as property can not be treated as “trust” property as plaintiff is claiming possession of the property as his own, and not a trust property, for and on the behalf of any beneficiaries. So it cannot be said that it is suit for possession of trust property between trustees or rival claimants or between a trustee and a person ceased to be trustee so as to attract S.28 of Kerala Court Fee and Suit Valuation act. Hence plaintiff is directed to pay court fee u/s 30 of Kerala Court Fee and Suit Valuation act and is directed to make necessary amendments in the plaint in this regard with in 7 days. Office is directed to number the suit and call on 13-10-2016.”_ The abovesaid order at Ext.P-2 has been rendered by the trial court by invoking the provisions contained in Sec. 12(1) of the Kerala Court Fees & Suits Valuation Act, 1959. 4. The petitioner would impugn Ext.P-2 order by branding it as legally wrong and illegal. The petitioner would specifically contend that, in view of the legal principles laid down by the decisions of the Apex Court as in _**P.V.Sankarakurup v. Leelavathy Nambiar**_ , reported in AIR 1994 SC 2694, _**C.Gangacharan v. C.Narayanan**_ , reported in AIR 2000 SC 589, etc. that when the purchase is made by the defendant by the monies sent by the plaintiff, then the defendant acts in trust and that in such a case the defendant is a mere trustee. On this premise, the petitioner would contend that the suit being one for recovery of possession against the trustee, the provisions contained in Sec. 28 of the Kerala Court Fees & Suits Valuation Act, 1959, are attracted and that in view of the provisions contained in Sec. 9 of the Act, the special provisions contained in Sec. 28 of the Act will override over the general provisions contained in Sec. 30 of the Act and that therefore the court fee already paid by the petitioner as computed on the basis of Sec. 28 of the Act is legally in order. That the trial court has thus clearly went wrong in holding that Sec. 28 is not attracted O.P(C).2901/2016 - : 4 :- and that the petitioner should pay a higher court fee as envisaged in Sec. 30 of the Kerala Court Fees & Suits Valuation Act, 1959. In view of the court fee implications in this case, the State of Kerala was suo motu impleaded as additional respondent No.6 in this case. 5. Heard Sri.B.Krishnan, learned counsel appearing for the petitioner/plaintiff, Sri.Babu Joseph Kuruvathazha, learned counsel for R-1 to 3 & 5 and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for additional respondent No.6 State of Kerala. 6. The case of the plaintiff is that Ext.P-1 suit has been filed as envisaged in enabling provisions contained in Sec.5 of the Specific Relief Act, 1963. 7. Sec.5 of the Specific Reliefs Act, 1963, provides as follows: _“_ _**Sec. 5: Recovery of specific immovable property.** - A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).”_ Sec. 6 of the Specific Relief Act, 1963 (which corresponds to the old provisions in Sec. 9 of the Specific Relief Act, 1877) provides as follows: _“_ _**Sec. 6: Suit by person dispossessed of immovable property.** - (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit._ _(2) No suit under this section shall be brought-_ _(a) after the expiry of six months from the date of dispossession; or_ _(b) against the Government._ _(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed._ _(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”_ O.P(C).2901/2016 - : 5 :- Sec.29 of the Kerala Court Fees & Suits Valuation Act, 1959 stipulates as follows: _“_ _**Sec.29: Suits for possession under the Specific Relief Act, 1877** .- In a suit for possession of immovable property under Section 9 of the Specific Relief Act, 1877 (Central Act 1 of 1877), fee shall be computed on one-third of the market value of the property or on rupees one hundred and fifty, whichever is higher.”_ 8. It is not in dispute that the suit filed by the petitioner as per Ext.P-1 is not as envisaged in terms of the summary suit proceedings as per Sec. 6 of the Specific Relief Act, 1963 and therefore Sec.29 of the Kerala Court Fees & Suits Valuation Act, 1959 does not come into play in the facts and circumstances of this case. ## 9. Sec. 28 of the Court Fees Act, provides as follows: _“_ _**Sec. 28: Suits relating to trust property.** - In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value on rupees one thousand:_ _Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint._ _Explanation.-- For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manager of any such property shall be deemed to be the trustee thereof.”_ ## Sec. 30 of the Court Fees Act, provides as follows: “ _**Sec. 30: Suits for possession not otherwise provided for** .- In a suit for possession of immovable property not otherwise provided for, fee shall be computed, on the market value of the property or on rupees one thousand, whichever is higher.”_ ## Sec. 9 of the above Act, 1959 reads as follows: _“_ _**Sec.9: Documents falling under two or more descriptions.** - Subject to the provisions of the last preceding section, a document falling within two or more descriptions in this Act shall, where the fees chargeable thereunder are_ O.P(C).2901/2016 - : 6 :- _different, be chargeable only with the highest of such fees:_ _Provided that, where one of such descriptions is special and another general, the fee chargeable shall be the fee appropriate to the special description.”_ 10. It is the case of the petitioner that since the plaint averments are to the effect that the immovable properties concerned have been purchased by the defendants on the basis of monies entrusted by the plaintiff to the 1[st] defendant for purchase of those properties for the petitioner/plaintiff, the said properties are held in trust by the defendants and that since an obligation in the nature of the trust has been so created within the meaning of Chapter IX of the Indian Trusts Act, 1882, it would satisfy the requirement of a “ _trust_ ” as defined in Sec.2(c) of the Specific Relief Act, 1963. Consequently, it is contended by the petitioner that the subject matter of such a trust which fulfills the definition of Sec. 2(c) of the Specific Relief Act, 1963 would be “ _trust property_ ” even if it does not satisfy the narrow definition of “ _trust_ ” and “ _trust property_ ” as envisaged in Sec.3 of the Indian Trust Act. It is on this basis that it is contended by the petitioner that the suit, which is filed for recovery of possession is in respect of a trust property and, therefore the scenario is covered by Sec. 28 of the Kerala Court Fees Act, 1959 and court fee payable is only in the light of the requirement of that provision. That since the case is covered by the special provisions contained in Sec.28 of the said Act, 1959, the general provision contained in Sec.30 of the said Act will stand overridden in view of the specific provision engrafted in Sec. 9 of the said Act. O.P(C).2901/2016 - : 7 :- 11. Per contra, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the State would contend that the matter in issue is fully covered against the petitioner/plaintiff by virtue of the dictum laid down by the Madras High Court in the judgments as in _**Sri La Sri Somasundara Gnana Desiga Swamigal v. Sri Krishnandaswami,**_ reported in (1966)2 MLJ 551, _**Kandaswami Thambiran v. Vagheesam Pillai**_ , reported in (1941)2 MLJ 463, _**Thirugnanasambandam v. A.Gopalakrishnan**_ , reported in 2008(8) Laws (Mad) 77, etc. That in said judgments reported in (1966)2 MLJ 551 and 2008(8) Laws (Mad) 77, the matter involved was consideration of Sec.28 of the Madras Court Fees & Suits Valuation Act, 1955 (Madras Act 14 of 1955, which is _pari materia_ to the provisions contained in Sec.28 of the Kerala Court Fees & Suits Valuation Act 1959) and that in those judgments, it has been conclusively held that for applicability of Sec.28 of the said Act, the suit must be between trustees or rival claimants to the office of the trustee or between a trustee and person who has ceased to be trustee. That even if the suit is filed by the trustee for recovery of trust property from a stranger to the trust, then such a suit has to be valued like any other suit for possession filed by an owner against stranger in possession and that the law does not make any distinction in that regard and the special treatment for lower court fee as payable in terms of Sec.28 of the said Act would be attracted only if the suit is one between trustees or rival claimants of the office of the trustee or between a trustee and a person, O.P(C).2901/2016 - : 8 :- who has ceased to be trustee, etc. whether the suit is for recovery of possession, irrespective as to whether the suit is for declaratory decree with or without consequential relief or whether it is a suit for possession or joint possession of trust property, etc. 12. So the main issue to be decided by this Court in this petition is as to whether the court fee payable in the instant case is one as envisaged in Sec. 28 of the said Act or under Sec. 30 of the said Act. In that regard this Court has to proceed on the premise that the plaint averments are assumed to be correct and as to which among the two provisions would apply in the matter of payment of court fee in the instant case. 13. The specific contention of the petitioner that based on the plaint averments projected in Ext.P-1 plaint, is that as he was working abroad, he had entrusted monies with his brother-in-law (R-1/D1) for purchase of immovable property for the plaintiff and that later, contrary to the said entrustment of money for that specific purpose, R-1/D-1 had purchased the property in the names of the other defendants. 14. It has been held by the Apex Court in the judgment in _**P.V.Sankara Kurup v. Leelavathy Nambiar**_ , reported in AIR 1994 SC 2694, para 3, that when an agent was employed to purchase property on behalf of his principal and does so in his own name, then upon conveyance or transfer of the property to the agent, he stands as a trustee for the principal and the property in the hands of the agent is for the principal and the agent stands in the fiduciary capacity for the beneficial interest he had O.P(C).2901/2016 - : 9 :- in the property as a trustee. It has also been held by the Apex Court in _**C.Gangacharan v. C.Narayanan**_ , reported in AIR 2000 SC 589, para 5, that where the plaintiff sends money to the defendant from abroad to purchase property for plaintiff and the defendant purchases property in his own name, then the defendant is a mere trustee and such a suit which is against a trustee, then the execution of the decree rendered by the civil court in the suit filed for recovery of possession of the property against the trustee, would not be barred by the provisions contained in Benami Prohibition Ordinance passed during the execution stage, etc. In that view of the matter, the impugned judgment of this Court as reported in AIR 1989 Ker. 256 was reversed by the Supreme Court. The petitioner would also place reliance on the judgment of the Division Bench of this Court in _**Pailoth v. Kunjuvareed**_ , reported in 1986 KLT 1390, wherein it has been held that no formal instrument is required for creation of a trust. In the above circumstances, the petitioner would contend that in the facts of this case, a “ _trust_ ” as defined in the wider definition of “ _trust_ ” as envisaged in Sec.2(c) of the Specific Relief Act, is attracted inasmuch as it pertains to an obligation in the name of trust within the meaning Chapter IX of Indian Trusts Act, even though it may not satisfy the narrow definition of “ _trust_ ” and “trust property” as envisaged in Sec.3 of the Indian Trusts Act, 1882. On this basis, it is contended by the petitioner that the plaint schedule property involved in this case is the subject matter of the trust, as envisaged in Sec.2(c) of the Specific Relief Act, 1953 and therefore, it would satisfy the O.P(C).2901/2016 - : 10 :- requirement of a “ _trust property_ ” as envisaged in the Specific Relief Act, 1963, and therefore the provisions contained in Sec. 28 of the Kerala Court Fees & Suits Valuation Act, 1959 are also consequently attracted. 15. Sec. 2(c) of the Specific Relief Act, 1963 provides as follows: _**“Sec.2: Definitions** .- In this Act, unless the context otherwise requires,-_ _(a) …...._ _xxx xxx xxx_ _(c) "trust" has the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;_ ## Sec. 2(d) of the Specific Relief Act, 1963 provides as follows: _**“Sec.2: Definitions** .- In this Act, unless the context otherwise requires,-_ _(a) …...._ _xxx xxx_ _(d) "trustee" includes every person holding property in trust;”_ Sec.3 of the Indian Trusts Act, 1882, to the extent it deals with “ _trust_ ” and “ _trust property_ ” stipulates as follows: _“Sec.3: Interpretation-clause._ _**"trust".-** A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner., …....._ _**"trust property".....** the subject-matter of the trust is called "trust property" or "trust money"._ 16. The definition section of Kerala Court Fees & Suits Valuation Act, 1959 contained in Sec.3 thereof, which provides definition only for expressions, “appeal”, “court” and “prescribed” and in clause (iv) of Sec.3 thereof, it is provided that the expressions used and not defined in the said Act or in the Interpretation and General Clauses Act, 1125 (Act VII of 1125 ME) but defined in the Code of Civil Procedure, 1908 (Central V of 1908) O.P(C).2901/2016 - : 11 :- shall have the same meanings respectively assigned to them in the said Code. It is not in dispute that the Interpretation and General Clauses Act 1125 ME, (State Act VII of 1125 ME), General Clauses Act, 1897 (Central Act 10 of 1897) as well as the Code of Civil Procedure 1908 do not provide for any definition of the expressions, “ _trust_ ” or “ _trust property_ ” therein. It is candidly stated by Sri.B.Krishnan, learned counsel appearing of the petitioner/plaintiff that the plaintiff has no case whatsoever that the narrow definition of “ _trust_ ” and “ _trust property_ ” as envisaged in Sec.3 of the Indian Trusts Act 1882, are attracted in the facts and circumstances of this case, inasmuch as there is no author of the trust, trustees or beneficiary of the trust as envisaged in the enactment. But that the specific case of the petitioner is that notwithstanding the fact that the narrow definition in Sec.3 of the Indian Trusts Act, 1882 is not fulfilled, the wider definition of “ _trust_ ” as envisaged in Sec. 2(c) of the Specific Relief Act, 1963 is certainly fulfilled in the facts of this case inasmuch as the second limb of Sec. 2(c) of the said Act clearly and explicitly mandates that the expression “ _trust_ ” therein would include also an obligation in the nature of the trust within the meaning of Chapter IX of the Indian Trust Act. It is not seriously in dispute that going by the facts of the case as averred in Ext.P-1 plaint, the wider definition of “ _trust_ ” as stipulated in Sec.2(c) of the Specific Relief Act, 1963 appears to be attracted more so, in view of the legal principles laid down by the Apex Court in the aforecited judgments in _**P.V.Sankara Kurup v. Leelavathy Nambiar**_ , reported in AIR 1994 SC 2694, O.P(C).2901/2016 - : 12 :- _**C.Gangacharan v. C.Narayanan**_ , reported in AIR 2000 SC 589, etc. 17. It is also urged by the petitioner's counsel that, in the nature of the factual controversy that has arisen in this case, two reasonable views are possible on the question as to whether the litigative proceedings is one based on the narrow definition of “trust and trust property” as envisaged in Sec. 3 of the Indian Trusts Act, 1882 or one based on the wider definition of “ _trust”_ and _“trust property_ ” as envisaged in Sec. 2(c) of the Specific Relief Act, 1963, and in such a situation, the wider definition based on the provision contained in the Specific Relief Act, 1963 would certainly be imported, more so particularly for the applicability for Sec. 28 of the Kerala Court Fees & Suits Valuation Act, 1959, more particularly, when the said law relating to court fee is intimately connected to the litigative proceedings. That this is all the more so, when the present litigative proceedings at Ext.P-1 is one as envisaged in Sec.5 of the Specific Relief Act, 1963, inasmuch as the suit is for recovery of possession and therefore, the colour, context and contours of the expression of “trust property” as appearing in Sec.28 of the Court Fees Act should be understood in the light of the wider definition of “ _trust_ ” and “ _trust property_ ” as envisaged in Sec. 2(c) of the Specific Relief Act, 1963. In that context, the petitioner would also place serious reliance on certain judgments, which are dealt with hereinafter. 18. It has been held in para 25 of the judgment of the Allahabad High Court in _**Panzy Fernandas v. M.F.Queoros & Ors.**_ reported in O.P(C).2901/2016 - : 13 :- ## AIR 1963 ALL 153, as follows: _“25. It may also be noted in this connection that before an order actually entitling the petitioner to the grant of probate or letters of administration is passed, he has further to pay an ad valorem court fee according to the value of his assets find liabilities as prescribed in Section 19-I of the Act. The amount of ad valorem court-fee payable at this stage is specified in Schedule I Article n of the Act. Further, in case the holder of the letters of administration wants to recover the property comprised within the estate of the deceased, be will again have to pay ad valorem court-fee on the plaint in the suit filed for the recovery of the said property. The application of these provisions of law would, therefore, result in double or even triple payment, of court-fee. This appears to be obviously harsh and could not have been the intention of the Legislature. In this connection the Court should also bear in mind three well-known canons of interpretation of fiscal statutes, namely, first such statutes are to be construed strictly; secondly the subject should not be made liable for payment of enhanced court-fee unless such a step is warranted by the clear provisions of the statute; and thirdly, where there is doubt in the matter, an interpretation favourable to the subject should be preferred. Reference in this connection might be made to two Supreme Court cases A.V.Fernandez v. State of Kerala, (S) AIR 1957 SC 657 and Central India Spinning and Weaving And Manufacturing Co. Ltd. v. Municipal Committee, Wardha, AIR 1958 SC 341.”_ ## 19. In para 29 of the judgment of the 5-Judge Bench (Constitution ## Bench) of the Apex Court in _**A.V.Fernandez v. State of Kerala**_ , ## reported in AIR 1957 SC 657, it has been held as follows: _**“29** . It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the, substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the Sales Tax Authorities.”_ 20. It has also been held by yet another Constitution Bench (5- Judge Bench) of the Apex Court in _**Central India Spinning &**_ _**Weaving & Manufacturing Co. Ltd. v. The Municipal**_ _**Committee, Wardha**_ , reported in AIR 1958 SC 341, para 5 thereof, that if in construing a taxing statute, there are two interpretations possible, then O.P(C).2901/2016 - : 14 :- effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. ## 21. In a 3-Judge Bench, the Apex Court in the case in _**Commissioner of Income Tax, West Bengal I, Calcutta, v. M/s. Vegetables Products Ltd.**_ reported in AIR 1973 SC 927, has held in para 6 thereof as follows: _**“6** . There is no doubt that the acceptance of one or the other interpretation sought to be placed on Section 271 (1) (a) (i) by the parties would lead to some inconvenient result, but the duty of the Court is to read the section, understand its language and give effect to the same. If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision. It is for the legislature to step in and removel the absurdity. On the other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. This is a well-accepted rule of construction recognised by this Court in several of its decisions. Hence all that we have to see is what is the true effect of the language employed in S. 271 (1) (a) (i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty.”_ ## 22. It has also been held by a Constitution Bench (5-Judge Bench) of the Apex Court in the case in _**State of Maharashtra v. Mishrilal**_ _**Tarachand Lodha & other**_ reported in AIR 1964 SC 457, in para 9 thereof, as follows: _**“9** . We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council. The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant. The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court, the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction.”_ 23. Per contra, Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the State would place reliance on paras 29 and 32 of the decision of the 2-Judge Bench of Apex Court in _**Periyar & Pareekanni Rubbers Ltd. v. State of Kerala**_ , reported in (2008) 14 O.P(C).2901/2016 - : 15 :- ## SCC 704, which read as follows: _**“29.** We have referred to the doctrine of Crown debt not for its applicability directly but to emphasise its importance in common law. A statute, particularly a fiscal one, must be construed in such a manner so as to give effect thereto. Evasion of tax is looked down upon under our constitutional and statutory schemes._ _xxx xxx xxx_ _**32.** Tax liability of the business concern is not in dispute. Correctness of the orders of assessment is also not under challenge. The Tribunal or for that matter the High Court were, therefore, not concerned with the liability fastened upon the dealer. The only question was as to what extent the appellant was liable therefor. It is impossible for the legislature to envisage all situations. Recourse to statutory interpretations therefor should be done in such a manner so as to give effect to the object and purport thereof. Doctrine of purposive construction should, for the said purpose, be taken recourse to. (See New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279].”_ 24. Sri.B.Krishnan, learned counsel appearing for the petitioner/ plaintiff would also invite this Court's attention to the judgment of this Court in _**Karthikeyan v. Dayaseelan**_ , reported in 2007 (4) KLT 960, wherein it has been held that, in a case covered by Sec.28 of the Kerala Court Fees & Suits Valuation Act, 1959, the court fee stipulated is fixed fee irrespective as to the market value of the property, but that the market value is relevant for the purpose of suit valuation in determining the pecuniary jurisdiction of the court. It is pointed out by the petitioner/ plaintiff that the petitioner/plaintiff has paid court fee on the basis of the stipulations in Sec. 28 of the Act, whereas the suit has been valued for the purpose of pecuniary jurisdiction on the basis of the market value of the property, which can be seen from para 13 of the Ext.P-1 plaint. 25. As stated herein above, the main contention urged by Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the State is on the basis of the decisions rendered by the Madras High Court in the aforecited O.P(C).2901/2016 - : 16 :- judgments regarding the conditions required for applicability of Sec. 28 of the Madras Court Fees & Suit Valuation Act, 1956, which is in _pari materia_ with the provisions contained in Sec. 28 of the Kerala Act, 1959. 26. Sri.B.Krishnan, learned counsel appearing for the petitioner/ plaintiff would strongly urge that the expressions, “ _between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee_ ” appearing in Sec.28 can qualify only the second limb of that provision, which deals with suit for a declaratory decree, with or without consequential relief in respect of trustee property. So it is contended that the requirement in that section for management dispute between the trustees, etc. will not qualify the first limb of Sec. 28, which deals with suit for possession and joint possession of trust property. The petitioner has also further referred to the provisions contained in Explanation I appended to Sec. 9 of the C.P.C. (which deals with “ _courts to try all suits, unless barred_ ”). Explanation I thereto, provides as follows:“ _A suit in which the right to property or to an office is contested in a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.”_ On the basis of the provisions in Explanation I above, Shri.B.Krishnan, learned counsel would contend that “ _right to property_ ” and “ _right to office_ ” are segregable and that the 1st limb of Sec.28 of the C.F Act deals exclusively with “ _right to trust property_ ” and the 2nd limb of Sec. 28 relating to declaratory decree would deal with “ _right to office_ ”. On this basis, he would argue that the scenario of management O.P(C).2901/2016 - : 17 :- disputes between trustees envisaged in Sec.28 would be applicable only in the latter suits dealing with contested right to office and would not be relevant for the former suits of contested right to property, etc. For dealing with these contentions, reference to the following aspects and case laws would be relevant. 27. The Full Bench of Madras High Court in _**Kandaswami Thambiran v. Vagheesam Pillai**_ , reported in 1941 (2) MLJ 463, after approving the dictum earlier held by the D.B. of that High Court in _**Ratnasabapathi Pillai Ramaswasmi Aiyer**_ [1910 (20) MLJ 301], has held that, as the defendants therein were in possession of the trust properties, it was not open to the court to grant the injunction to the plaintiff when he was not asking for possession against those actually in possession and further categorically held that it is not possible to separate the office of the trust from the properties of the trust, which formed the endowments of the office. The contra views in that regard of a D.B. of the Madras High Court in _**Swaminatha Aiyer v. Ramier**_ , (AIR 1925 Mad.421) and that of the D.B. of the Bombay High Court in _**Kunj Bihari, v. Keshvlal Hiran Lal**_ [1904 ILR 28 Bom.567], where held in that Full Bench decision, not to be good law. 28. The position in that regard has been so held by the Privy Council in _**Gnanasambanda Pandarasannadhi v. Velu Pandarani**_ [1899 (10) M.L.J. 29] **=** L.R. 27 I.A. 69 = I.L.R. 23 Mad. 271 (P.C.) **,** dealt with the right to the office of trustee of a certain temple, wherein Sir O.P(C).2901/2016 - : 18 :- Richard Couch while speaking on behalf of the Board of the Privy Council held as follows: _“Their Lordships are of opinion that there is no distinction between the office and the property of the endowment.”_ 29. The above position was also emphasised by Lord Shaw in delivering the judgment of the Board of the Privy Council in _**Ram Parkash Das v. Anand Das**_ reported in 1916 (31) M.L.J. 1 = L.R. 43 I.A. 73 = I.L.R. 43 Cal. 707 (P.C.)]. In the judgment of the Privy Council in _**Satish Chandra Gin v. Dharani Dhar Singha Roy**_ reported in 1940 (1) M.L.J. 371] = L.R. 67 I.A. 32] = I.L.R. (1940) 1 Cal. 266], it was held that the two capacities are thus closely intermingled and a proper and efficient discharge of the one depends upon the control of the other and that the mahant must have authority over the funds and income of the institution to be able to discharge his religious duties efficiently, in conformity with the customary and traditional obligations of the office and to the satisfaction of those who claim the benefit of the worship etc. and that any division of the two capacities relating to the office and the property endowment, would not only lower the prestige of the trustee but would also impair the efficiency of the functions to be discharged by the trustee. Accordingly, the Full Bench of the Madras High Court in _Kandaswami Thambiran's case_ [1941 (2) MLJ 463], after placing reliance on the aforestated judgment of the Division Bench of the Madras High Court as well as the judgments of the Privy Council on the point has held that the appellant therein, who O.P(C).2901/2016 - : 19 :- was endeavouring to separate the office from the property of the endowments, cannot do so and as he is asking for a declaration of his title to the office and is not in possession of its properties, he must by reason of the bar under Sec.42 of the Specific Relief Act, 1877, ask for possession and failure to do so would bar the said suit. 30. Incidentally, it is also observed by the Full Bench of the Madras High Court that it may be regrettable that a person, who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into consideration when deciding the effect of the bar under Sec. 42 of the Specific Relief Act, 1877 and that a court-fee fixed by the Court Fees Act is unfair, it is for the Legislature to interfere and the Court cannot do so. It will be profitable to refer to the said observation of the Full Bench of the Madras High Court in paragraph 15 of the judgment in _**Kandaswami Thambiran's case**_ [1941 (2) MLJ 463] which reads as follows: > _“15. Here the appellant is endeavouring to separate the office from its endowments. This he clearly cannot do and as he is asking for a declaration of his title to the office and is not in possession of its properties he must by reason of Section 42 of the Specific Relief Act ask for possession. His failure to do so vitiates his suit. It may be regrettable that a person who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into consideration when deciding the effect of Section 42 of the Specific Relief Act. When a court-fee fixed by the Court Fees Act is unfair, it is for the Legislature to interfere. The Court cannot do so.”_ O.P(C).2901/2016 - : 20 :- 31. Sec.73 of the Madras Court Fees Act, 1870 provided that the appropriate Government may, from time to time, by notification in the aforesaid Gazette, reduce or remit, in the whole or in any part of the territory of the State, all or any of the fees chargeable under the said Act, and may, in like manner, cancel or vary such notification. 32. In pursuant to the above said observations in paragraph 15 of the judgment dated 6.3.1941 of the Full Bench of the Madras High Court in _**Kandaswami Thambiran's case**_ [1941 (2) MLJ 463], the Government of Madras in exercise of the statutory powers confirmed under Sec. 35 of the above said Act, had issued G.O.No.5791, dated 17[th] May, 1943 ordering, whereby the fee in a suit for possession or joint possession between trustees or between a plaintiff, who claims to be a trustee and a defendant, who is alleged to have ceased to be a trustee was reduced to one-third of what it would be if the suit related to a claim in respect of private property, which provided as follows: _“To reduce the fee chargeable only suit for possession or joint possession between trustees, or between a plaintiff who claims to be a trustee and a defendant who is alleged to have ceased to be a trustee, to one-third of what it would be if the suit related to a claim in respect of private property. (See App.D, item No.73 on pages 307 & 308 of “Guide to the law of Court-fees, Madras authored by K.Krishnamurthi and R.Mathrubutham, fourth edition (1955), published by the Madras Law Journal Office)_ .” 33. The above said learned authors (Sri.K.Krishnamurthi and Sri.R.Mathrubutham) in the aforementioned book has observed as follows on pages 93 to 94 thereof, which reads as follows: O.P(C).2901/2016 - : 21 :- _“The application of the notification should not be restricted to cases in which trustees lawfully entitled to the office of trustee sue to recover possession of property from persons who had been lawfully appointed as trustees but whose term of office had expired or who had otherwise ceased to be trustees, as for instance by removal. There is nothing either in the spirit or the letter of the notification which prevents its application to a case where the defendants are persons (in this case archakas) who originally came into possession and continued in possession on behalf of the deities and who had been managing the properties, as if they were trustees though there was no specific legal authority in support of their possession as trustees. Where the archakas got into possession and continued in possession till the date of the passing of Madras Act II of 1927 and there were no other legal trustees, a suit against them for possession on the allegation that since one year after the commencement of that Act the archakas defendants have ceased to be de jure trustees and are continuing only as de facto trustees of the deities, would come within the notification (unreported decision in App.No.535 of 1936 dated 9[th] January, 1950). In the unreported decision in C.R.P.No.237 of 1946, the notification was applied to a suit by a Temple Trustee against Government regarding a property alleged to have been originally granted to the Temple and taken possession of subsequently by the East India Company through the Board of Revenue, when they took over the management of the Temple and entered into possession of its properties including the suit properties on its behalf. The language of this notification makes it applicable only where the status of the defendant as trustee either at the time of the suit or previously is undisputed, and not where the plaintiffs do not concede that the defendant has any right to be trustee. (I.L.R. (1945) Mad. 584 : (1944) 2 M.L.J. 383 : A.I.R.1945 Mad. 102; (1946) 1 M.L.J. (N.R.C.) p.40). Thus where the plaintiff claims that the defendant has at no time any right to the office of trustee or head of a religious institution, and that he alone is entitled to the office, the suit should be charged with full ad valorem courtfee calculated under section 7, cl.(v), with respect to all the properties belonging to the trust or institution. This restrictive language in the notification does not seem to have been designedly used and there was every case for extending the concessional charge to all suits involving a dispute only as to the right of management over the property. This has been now done in S.28 of the new Act but suits instituted prior to 19[th] May, 1955 and appeals arising therefrom cannot have the benefit of the section.”_ ## 34. Later the abovementioned Madras Court Fees Act, 1870 was repelled and replaced by the Madras Court Fees and Suit Valuation Act, 1955 and Sec. 28 of the said Act provided as follows: _“Sec.28.In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value, on rupees one thousand:_ O.P(C).2901/2016 - : 22 :- _Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint._ _Explanation.- For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manager of any such property shall be deemed to be the trustee thereof._ 35. Sec.28 of the Madras Court Fees and Suit Valuation Act, 1955 is broadly in _pari materia_ with to the provisions contained in Sec.28 of the Kerala Court Fees and Suits Valuation Act, 1959. Sec. 28 of the Madras CF and Suit Valuation Act, 1955 provides as follows: ## _**“Sec.28. Suits relating to trust property**_ _In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustee or between a trustee and an person who has ceased to be trustee, fee shall be computed on one-fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value, on rupees one thousand ;_ _Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint._ _Explanation.- For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manager of any such property shall be deemed to be the trustee thereof.”_ 36. The scope and ambit of the applicability of Sec. 28 of the Madras Court Fees and Suit Valuation Act, 1955 was considered by the Madras High Court in the judgment in _**Gnana Desiga Swamigal v.**_ _**Krsihnandaswami**_ reported in [1966 (2) MLJ 551] . The case set up in the plaint in that suit was to the effect that suit properties inclusive of a Madalayam at Tirukkalar described in schedules A to D-2 in the plaint were properties belonging to the Kovilur Mutt of which the plaintiff is the O.P(C).2901/2016 - : 23 :- present Adhinakarthar or Madathipathi. The defendant had been sent out as the agent of the Kovilur Mutt to look after and supervise the suit properties and placed in management of the suit properties. In pursuance of this arrangement, the defendant had been managing the properties and sending accounts of management to the plaintiff, and for the reasons set out in the plaint, the plaintiff was not willing to allow the defendant to continue in management of the Madalayam and its properties or look after the same as his agent. Accordingly, the plaintiff therein therefore sought recovery of possession of the properties from the defendant. The plaintiff also sought to relieve the defendant of his management of the suit properties and assume management of the same. It was clear from the plaint averments that the said suit was not possession or joint possession of trust properties between trustees or rival claimants to the office of trustee. Section 9 provides that when a plaint falls under two categories and one such categories is special and another general, the fee chargeable shall be the fee appropriate to the special description. 37. The Madras High Court in paragraph 9 of _**Gnana Desiga Swamigal v. Krsihnandaswami**_ reported in 1966 (2) MLJ 551 has held categorically that a reading of Sec. 28 of the said Madras Act makes one thing abundantly clear that it contemplates suits where the right of O.P(C).2901/2016 - : 24 :- management alone is in dispute and in fact there is no dispute that the property in question in the said suit is trust property. The suit was also for possession of trust property. But it was held that for the applicability of Sec. 28, that alone will not be sufficient. It was held therein that a suit for recovery of trust property by a trustee from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession and that the law does not make any distinction in that regard. For the applicability of Sec.28, the suit must be necessarily between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee. It is also observed therein that Sec. 28 contemplates trust institutions in respect of which there may be several trustees and possession, and more properly joint possession, is sought by one or more trustees against the other or others, or there may be disputes as to possession between rival persons claiming to be trustees of the selfsame trust. It was also held thereunder that if the cause of action as adumbrated in the plaint itself is between different trusts represented by their respective trustees, it becomes merely a claim to the property and not a claim to property as annexed to a trusteeship about which there is dispute. It will be profitable to refer para 9 of the judgment of the Madras High Court in _**Gnana Desiga Swamigal v. Krsihnandaswami**_ reported in [1966 (2) MLJ 551] , which reads as follows: > _“9. By reason of Section 9 of the Act, when a plaint falls under two categories and one such category is special and another general, the fee chargeable shall be the fee appropriate to the special description. In the present case if the suit can fall under Section 28, the fact that Section 30 can_ O.P(C).2901/2016 - : 25 :- _also be applied will not take away the right of the plaintiff to value the suit under Section 28 pay the Court-fee accordingly. A reading of Section 28 Section 28 makes one thing clear that it contemplates Suits where the right of management is alone in dispute. There can be no dispute and in fact there is no dispute that the property in question in the present suit is trust property. The suit is also for possession of trust property. But for the applicability of Section 28 will not be sufficient. A suit for recovery of trust property by the trustee from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession. The law does not make any distinction in that regard. For the applicability of Section 28 suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee. Mr. Gopalaswami Iyengar for the petitioner contends that the suit can be viewed as one between trustees or rival claimants to the office of trustee. He refers to the contention of the defendant that he himself is the Madathipathi of Tirukkalar Mutt. On this it is contended that the defendant claims to hold office as a Madathipathi. He is therefore a trustee holding trust property. The plaintiff claims the property also as Madathipathi as property belonging to the Kovilur Mutt. His claim also is therefore as a trustee. Therefore, it is contended that the suit is between trustees. The contention is wholly untenable. To start with such is not the plaintiff's case. Secondly, the liability for Court-fee is determined on the allegations in the plaint and the defendant's pleas cannot affect it. Further as I understand the section, the suit contemplated under Section 28 is not a suit between rival trusts. Any ambiguity in the first part of the section is cleared up in including suits between rival claimants to trusteeship and suits between a new trustee and an ex-trustee within the scope of the section. The latter categories can properly comprise only suits where the plaint proceeds not merely on the basis that the property belongs to the trust of which the plaintiff is the trustee but that the defendant's connection with the property is also as belonging to the same trust. The fact that the plaint may set out the defendant's repudiation of such claim cannot alter the position, the averments that determine the character of the claim being the averments on which the plaintiff's claim to relief is rested. Equally, the fact that on the pleadings issues are raised as to the title of the plaint trust to the suit property is immaterial. Section 28 contemplates trust institutions in respect of which there may be several trustees and possession, more properly joint possession, is sought by one or more trustees against the other or others, or there may be disputes as to possession between rival persons claiming to be trustees of the self-same trust. The person impleaded as defendant may deny the plaintiffs title, but when the suit is framed as one for possession between trustees or between rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee in respect of a trust institution, then the only matter really raised in issue by the plaintiff is the right of management of the property. If the cause of action as adumberated in the plaint itself is between different trusts represented by their respective trustees, it becomes just a claim to the property and not a claim to property as annexed to a trusteeship about which there is dispute.”_ 38. It will also be profitable to refer to the above said book on law of Court-fees, Madras authored by K.Krishnamurthi and R.Mathrubutham O.P(C).2901/2016 - : 26 :- (fourth edition, 1955, page 52), published by the Madras Law Journal), wherein it is stated as follows: _“Trust Properties and Properties of Religious Endowments.- There is no distinction for purpose of valuation between suits for possession of private property by beneficial owners and those for possession of trust properties by trustees or other persons interested in the trust. Where trust properties are in unlawful possession of strangers, claiming as alienees from a previous trustee or otherwise, a suit by the present trustee for possession of those properties is on behalf of the trust against strangers claiming adversely to the trust. See A.I.R.1937 Mad.591; 42 L.W. 765; 61 M.L.J.39; (1948) 1 M.L.J. 269:61 L.W.280:1948 M.W.N.257. Where the suit is for possession between trustees or between rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee, both the parties claim on behalf of the trust and the right of management is alone in dispute in such suit. Section 28 of the new Act provides that in such cases fee shall be computed on one fifth of the market value of the property subject to a maximum of Rs.200. Market value for this purpose shall however be computed in the usual way and not on the basis of multiple of revenue as provided in S.7 because S.28 is not one of the provisions mentioned in S.7. The above provision in S.28 is enacted to obviate the hardship in requiring such suits were the parties are not beneficially interested to be charged with the same fee as ordinary suits for possession. The position as regards suits instituted before 19[th] May, 1955, under the old Law is somewhat different as summed up below.”_ 39. Based on the judgments of the Madras High Court in the decision in AIR 1937 Madras 591, 1961 MLJ 1939, 1940 (1) MLJ 269 etc, it is well settled that no distinction is to be made for the purpose of valuation between suits for possession of private property by beneficial owners and those for possession of trust properties by trustees by other persons interested in the trust. Where trust properties are in unlawful possession of strangers as claiming alienees from a previous trustee or otherwise, a suit by the present trustee for possession of those properties is on behalf of the trust against strangers claiming adversely to the trust. That where the suit is for possession between trustees or between rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee, O.P(C).2901/2016 - : 27 :- both parties have claimed on behalf of the trust and the right of management alone is in dispute in such a suit. It is thus opined by the above said authors that Sec. 28 provides that in such cases the lesser court fee shall be computed and that the above provisions of Sec.28 has been enacted mainly to obviate hardship in requiring such suits, where the parties are not beneficially interested to be charged with the same fee as ordinary suits for possession. 40. The above said judgment of the Madras High Court in Gnana Desiga Swamigal's case [1966 (2) MLJ 551] has been subsequently followed in decisions as in the case in _**Thirugnanasambandam v. A.Gopalakrishnan**_ reported in 2008 (8)Laws Madras 77, para 9(e) which reads as follows: _“9 (e). The learned counsel for the appellant would also contend that the Court fee paid by the plaintiffs under Section 28 of the Court Fees Act is not correct. According to the learned counsel for the appellant since there is no material placed before the trial Judge to show that the plaintiffs are the trustees of the family trust, the Court fee paid under Section 28 of the Court Fees and Suits Valuation Act, 1955 is not correct and that the plaintiffs ought to have paid the Court fee under Section 25 (b) of the said Act. The argument of the learned counsel for the appellant has got some force and since the plaintiffs have failed to show that they are the trustees of the family trust, the necessary Court fee, according to the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is to be collected under Section 25 (b) of the said Act after issuing cheque slip by the trial Court. The learned counsel for the appellant relying on 1996 (2) MLJ 551 (Gnana Desiga Swamigal Vs. Krsihnandaswami) would contend that the Court fee paid in the suit under Section 28 of the Court Fees and Suits Valuation Act is not correct. The relevant observation in the said judgment runs as follows:- "a reading of Section 28 of the Madras Court-Fees and Suits Valuation Act makes it clear that it contemplates suits where the right of management is alone is dispute. For the applicability of section 28 to a suit for recovery of trust property the suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee. The suit contemplated under Section 28 is not a suit between rival trusts. Any ambiguity in the first part of the section is cleared up by the inclusion of suits between rival claimants to trusteeship and suits between a new trustee and an ex-trustee within the scope of the section. The latter categories can properly comprise only suits where the plaint proceeds not_ O.P(C).2901/2016 - : 28 :- _merely on the basis that the property belongs to the trust of which the plaintiff is the trustee but that the defendants connection with the property is also as belonging to the same trust._ ” It is also pertinent to note that the then Hon'ble Chief Justice of Madras High Court, Justice P.V.Rajamannar has noted in the preface of the above Book, that the abovesaid learned authors, K.Krishnamurthi and R.Mathrubhutham have given fairly exhaustive summary of the principles laid down in the various judgments, which are considerably useful to the Judges, Advocates, etc. Similar views have also been expressed by Honourable Justice Chandrasekhara Iyer in the first edition of the said book. Thus it can be seen that as per the legal position that was invoked prior to the issuance of the above statutory notification of the Madras Government as per G.O.No.5791, dated 17/5/1943, the suit of the nature Section 28 was treated at par with a suit filed by a private person for a recovery of possession etc. In view of the above quoted observations in paragraph 15 of the judgment dated 6.3.1941 of the Full Bench of Madras High Court _**Kandaswami Thambiran's case**_ [1941 (2) MLJ 463], the Government of Madras had issued the said notification dated 17/5/1943 in exercise of the statutory powers conferred under Sec.35 of the Madras Court Fees Act, 1870, which has been quoted hereinabove. It is later that the Madras Court Fees and Suit Valuation Act, 1955 was enacted, wherein Sec.28 provided for a better treatment than one stipulated in the statutory notification dated 17.5.1943. Even under the scenario covered by Sec. 28, a suit for recovery of trust property by a trustee from a stranger to the trust O.P(C).2901/2016 - : 29 :- must be valued like any other suit for possession, by an owner against a stranger in possession and the law did not make any distinction in that regard. What is provided by Sec. 28 is only in respect of suits which the suit must be between trustees or rival claimants to the office of trustee or between a trustee and a person who had ceased to be a trustee and the right of management alone is dispute in such a suit. It was to obviate the difficulties of such litigating proceedings where right of management of the trust is in dispute as made out in the plaint averments in the suit, that the benefit was provided as per Sec. 28 of the above Act. It was only to obviate such hardships in requiring such suits where the parties are not beneficially interested to be charged with the same fee as ordinary suits for possession that the special provision as per Sec. 28 was enacted by the legislature. These aspects are clear from the above said judgments of the Madaras High Court as well from the materials referred to hereinabove about the scenario which existed prior to the issuance of the statutory notification dated 17.5.1943, etc. The subsequent provision made in Section 28 of the Madras Act, 1955 has been broadly replicated in the Kerala Court Fees and Suit Valuation Act, 1959. 41. The mischief that is sought to be remedied by the initial statutory notification dated 17.5.1943 as well as latter by the enactment of Sec. 28 of Madras Act, 1955 was only to give reduction of court fee in respect of a suit filed by trustee which emanates out of disputes between trustees or rival claimants to the office of trustee, etc. More enlarged O.P(C).2901/2016 - : 30 :- benefit was further made available by the enactment of Sec. 28 of the Madras Act, 1955, compared to the situation that prevailed consequent to the promulgation of the statutory notification dated 17.5.1943. The situation prior to that has been summarised in paragraph 15 of the judgment dated 6.3.1941 of the Full Bench of the Madras High Court in _**Kandaswami Thambiran's case**_ [1941 (2) MLJ 463]. Therefore, the above said contention of the petitioner cannot be accepted, which would militate against the very intention of the legislature in promulgating initially the statutory notification 17.5.1943 and latter to the enactment of Sec. 28 of the Act of 1955. 42. A mere reading of Sec. 3 of the Kerala Court Fees and Suits Valuation Act, 1959 would make it clear that the words and expression in the said enactment have to be understood based on the context. The relevance and necessity for adherence to contextual interpretation in appropriate cases has been underscored by the Apex Court and various High Courts including this Court in a catena of rulings as in _**Vanguard Fire & General Insurance v. Fraser & Ross**_ , reported in AIR 1960 SC 971, _**National Building Construction Corporation v. Pritam Singh**_ , reported in AIR 1972 SC 1579, paras 12 to 16, _**Reserve Bank of India v. Peerless General Finance and Investment Company Ltd**_ ., reported in (1987) 1 SCC 424 para 33, _**K.V.Muthu v. Angamuthu Ammal**_ , reported in (1997) 2 SCC 53, _**Paul Enterprises v. Rajib Chatterjee & Co**_ ., reported in (2009) 3 SCC 709 para 28, _**National**_ O.P(C).2901/2016 - : 31 :- _**Insurance Company v. Kirpal Singh**_ , reported in (2014) 5 SCC 189 paras 12 to 16, and in Division Bench decisions of this Court in cases as in _**Thomas v. Sahitya Pravarthaka Co-operative Society Ltd**_ ., reported in 2014 (3) KLT 761 paras 7-8, etc. 43. It would also be pertinent to refer to the canons of interpretative construction based on the principle of purposive interpretation or purposive construction. It will be relevant in that regard to refer to the views of Aharon Barak, the eminent jurist and former President of the Supreme Court of Israel, who in his illuminating treatise “ _Purposive Interpretation in Law_ ” has pithily put it as follows: _“Purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the (express or implied) semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its (public or private) language.”_ As held by the Apex Court in the judgement in _**Shailesh Dhairyaman v.**_ _**Mohan Balakrishna Lulla**_ , reported in (2016) 3 SCC 619 p.641 para 31, that the principle of “ _purposive interpretation_ ” or “ _purposive construction_ ” is based on the understanding that the court is supposed to attach that meaning to the provisions which serve the “ _purpose_ ” behind such a provision. The basic approach is to ascertain what is it designed to accomplish? And to put it otherwise to interpretative process the court is supposed to realise the goal that the legal text is designed to realise, etc. O.P(C).2901/2016 - : 32 :- 44. Therefore, taking into consideration the context which led to the promulgation of the statutory notification of the year 1943 and the enactment of Sec. 28 of the Act which has been mentioned hereinabove, it is clear that the scope and ambit of Sec. 28, will be confined only to a suit which is between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be trusee. The suit for recovery of trust property by the trustee, from a stranger to the trust must be valued like any other suit for possession, by an owner against a stranger in possession and even after the enactment of Sec. 28 of the Court Fees Act, the law does not make any distinction in that regard. It is only if the the suit is between trustees or rival claimants to the office of trustee or between a trustee and former trustee, etc. as envisaged the said provision, that the applicability of Sec. 28 of the Court Fees Act, comes into play. 45. In view of the various aspects mentioned herein above, this Court is in respectful concurrence with the views of the Madras High Court in _**Gnana Desiga Swamigal's case**_ supra, _**Thirugnanasambandam's case**_ supra, etc. Hence it is only to be held that the operative portion of Sec. 28 of the Act will come into play only if the disputes between the trustees regarding the management of the trust as mentioned hereinabove are in respect of a trust as understood in Sec. 3 of the Indian Trusts Act. O.P(C).2901/2016 - : 33 :- 46. For the creation of a trust as per Indian Trusts Act, three essential aspects are required. Firstly, there must be an author of the trust, beneficiary and trust property. The trust property is the most vital condition for a trust as in the absence of trust property there can be no trust at all, whether the trust is private or public [ _**A.D.Vehvalwala v. M.C.H.Rustomji**_ , reported in ILR 1973 (1) Cal. 90, p.101]. Since the disputation relating to management of the trust is _sine qua non_ for the applicability of Sec.28 of the Act, it flows therefrom that trust should necessarily satisfy the requirement of Sec.3 of Indian Trusts Act. It is trite that such management disputes among the trustees as envisaged in Sec.28 of the Act cannot come into play if it is only an obligation in the nature of trust as envisaged in Chapter IX of the Indian Trusts Act and as envisaged in the second limb of the definition as mentioned in Sec.2(c) of the Specific Relief Act, 1973. In the instant case, the plaintiff is faced with two obstacles in the matter of his claim for getting the benefits of lower court fees as per Kerala Courts Fees and Suits Valuation Act. Firstly, in the instant case, there is no trust as settled by an author of the trust or trustees or beneficiaries of the trust as envisaged in Sec.3 of the Indian Trusts Act. Only if that vital condition is satisfied could there be a factual scenario of management dispute between the trustees as envisaged in Sec.28 of the Act. The second obstacle that is faced by the plaintiff to get the above O.P(C).2901/2016 - : 34 :- benefit is that even going by the plaint averments, there is no management dispute between the trustees in the facts of this case. 47. In the light of the various aspects stated hereinabove, the contention of the petitioner more particularly based on the segregated reading of Sec.28 of the C.F. Act, and that management disputes referred to in that provision will qualify only the second limb of Sec.28 dealing with declaratory decree and not in its first limb dealing with suit for possession or joint possession of trust property, etc. are devoid of any merit. So also the petitioner's contention that the suits conceived in Sec.28 of the C.F. Act could separately deal with “suits for contested right to trust property” and “suits for contested right to office of the trust” based on his attempt to link Explanation I to Sec.9 C.P.C. Vis-a-vis Sec.28 of the C.F. Act, etc. would go against the basic mischief that was sought to be remedied by the Legislature in enacting Sec.28 of the C.F. Act, as dealt with in detail in the various paragraphs hereinabove. 48. Sri.B.Krishnan, learned counsel for the petitioner/plaintiff would submit that in case this Court is not inclined to allow this Original Petition, then the petitioner would plead, without prejudice to his contentions that this Court may grant sufficient time for payment of the court fee as per Ext.P-2 order and amendment of the plaint within 6 weeks from the date notified for receiving a certified copy of this judgment. 49. In the light of these aspects, the view taken by the trial court as per the impugned Ext.P-2 order that the plaintiff is not entitled to the O.P(C).2901/2016 - : 35 :- benefit of lower court fee as per Sec.28 of the Act and that he is liable to pay higher court fee in terms of Sec.20 of the Act is legal, is proper and correct and no interdiction is called for in the present Original Petition filed under Article 227 of the Constitution of India. In view of these aspects, the petition is bereft of any merit and it is liable to be dismissed. 50. Accordingly, it is ordered that time limit for complying with the direction Ext.P-2 order for payment of court fee and amendment of plaint will stand extended by a period of 6 weeks from the date notified for receiving a certified copy of this judgment. Registry will forward a copy of this judgment to the trial court concerned (Sub Court, Koyilandy), which is dealing with O.S.No.30/2016 for necessary information. With these observations and directions the above Original Petition (Civil) will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge sdk+ scl bkn O.P(C).2901/2016 - : 36 :-