1. This Regular Second Appeal is directed against the judgment and decree dated 2-4-1998 in R.A. No. 11 of 1997 passed by the learned Principal District Judge, Madikeri, in passing whereof, the learned District Judge while allowing the appeal of the respondent 1 had set aside the judgment and decree dated 22-7-1997 on Issue No. 5 in O.S. No. 58 of 1995 passed by the learned Civil Judge, Madikeri, directing the respondent 1 to value the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act (hereinafter referred to as the 'Court Fees and Suits Valuation Act') and further directed him to pay the deficit Court fee and further answered the Issue No. 5 in favour of the respondents 1 to 3 and also reversed the order dated 22-9-1997 passed by the learned Civil Judge rejecting the plaint under Order 7, Rule 1Kb) of the Civil Procedure Code by remitting the matter to him to dispose of the suit in accordance with law on other issues framed by him.
2. The appellant herein is represented by the learned Counsel, Sri S.K.V. Chalapathy whereas, the contesting respondent 1 is represented by the learned Counsel, Sri Arunponnappa. The respondents 2 and 3 are the private parties and the respondents 4 and 5-Managers of State Bank of India and Canara Bank having been served with notice had remained absent before Court.
3. I heard the learned Counsel for the contending parties and also perused the records of both the Courts below.
4. That the appellant herein was the defendant 1 before the Trial Court i.e., the Civil Judge, Madikeri, whereas the contesting respondent 1 was the plaintiff before the Trial Court. The respondents 2 and 3 were the defendants 2 and 3 and were Trustees along with the appellant and the respondent 1 under a duly registered Trust Deed executed by the father of the appellant-defendant 1 and the respondent 1-plaintiff, one Konganda Muddaiah (since died in the year 1993) and that the respondents 4 and 5 were the defendants 4 and 5 respectively and were the Bankers with whom, the said Konganda Muddaiah had sums in Fixed Deposit bequeathed to the Trust under a duly registered Will executed on 27-3-1993.
5. The parties henceforth are referred to for convenience as they are arrayed before the Trial Court.
6. To know the subject-matter in the instant appeal, it is proper for me to set out the facts relevant for the purpose and the same are as hereunder:
7. That the plaintiff had filed a suit in O.S. No. 58 of 1995 on the file of the learned Civil Judge (Senior Division), Madikeri, for the following reliefs:
'Wherefore the plaintiff prays for a judgment and decree by the Honble Court declaring.-
(a) that the plaintiff's father Muddaiah did not have the requisite capacity or interest in creating the trust of the joint family funds held by him at the time of his death without the plaintiff and the first defendant joining in the trust as co-authors;
(b) that the sums held in financial institutions and Banks etc., are the income/accretions of the property held by father Muddaiah as the 'Kartha' of the joint family, and the plaintiff is entitled to equal one half share in the said deposits held in the Banks and financial institutions;
(c) that the trust in question is inoperable and void in law hit by the rule of perpetuity and want of certitude in terms of the object and directions;
(d) for a permanent injunction restraining the defendants 4 and 5 and such other financial institutions from acting in any manner prejudicial to the interest of the plaintiff in the equal one half of the sums so held by them on his account in law;
(e) for such other relief as the Hon'ble Court deems meet in the circumstances of the case'.
8. That the defendants 1 to 3 opposed the suit and denied the right and interest of the plaintiff in one half of the sums held in Fixed Deposits in defendants 4 and 5-Banks. According to the defendants 1 to 3-Trustees, late Muddaiah, the father of the plaintiff and the defendant 1 created a trust under the name and style 'Konganda Subbaiah Muddaiah Trust' and the registered Trust Deed dated 22-3-1993 came to be executed by him. That the said Konganda Muddaiah had also executed a duly registered Will dated 27-3-1993 and in doing that the said Muddaiah had bequeathed all his funds in the Fixed Deposits Accounts in the defendants 4 and 5-Banks in favour of the registered Trust and thus on his demise in the year 1993, the said funds in the hands of the defendants 4 and 5-Banks came to be vested in the Trust.
9. According to the plaintiff there was neither donation, allotment nor grant, either prior or subsequent to the instrument of Trust and the amounts in the Fixed Deposits in the defendants 4 and 5-Banks continued in his father's name during his lifetime and thereafter and no fluids came to be vested in the Trust. It was also contended in the plaint that the Trust Deed in question was inoperative and void in law inasmuch as the same was hit by rule of perpetuity and certitude in terms of the object and directions in the deed of Trust.
10. The defendants 4 and 5-Banks while filing their written statements before the Trial Court contended that they would pay the sum in Fixed Deposits in the name of Konganda Subbaiah as per the direction of the Court.
11. On the basis of the pleadings of the respective parties, the Trial Court had framed in all 8 issues and among them Issue No. 5 was with regard to the valuation of Court fee. Issue No. 5 framed by the Trial Court reads as hereunaer:
'Whether the suit has been properly valued and whether the Court fee paid is correct?'
12. That, the above issue was taken up as preliminary issue by the Trial Court and the Trial Court by its order dated 22-7-1997 directed the plaintiff to value the suit under Section 35(1) of the Court Fees and Suits Valuation Act and further directed the plaintiff to disclose the details of the deposits in the respondents 4 and 5-Banks and further to pay the Court fee on one half of the deposits held in the Banks within one month.
13. That, therefore, the plaint came to be rejected by the Trial Court as per its order dated 22-9-1997 since the plaintiff failed to comply with the direction of the Trial Court in the matter of non-payment of deficit Court fee. Being aggrieved by the said order, the plaintiff preferred the appeal before the learned District Judge. The learned District Judge having secured the records and having perused the same, had formulated the question on the point of the payment of Court fee as hereunder:
'Whether the Court fee paid by the plaintiff under Section 24(d) of the Act is sufficient or whether plaintiff is liable to pay Court fee under Section 35(1) of the Act as per the impugned order dated 22-7-1997'.
14. In passing the impugned order in regular appeal, the learned District Judge held that the suit in question for declaration that the Trust Deed dated 22-3-1993 is inoperative and that the plaintiff has right and interest in one half of the sums held in Fixed Deposit in the defendants 4 and 5-Banks and that those funds have not been in the possession of the Trust and that the accounts continued in the name of the deceased father, Muddaiah, during his lifetime and even after his death since, the defendants 4 and 5-Banks contended that they would pay the sum as per the direction of the Trial Court and that therefore there was no need for the suit to be valued under Section 35(1) of the Court Fees and Suits Valuation Act. More importantly he further observed therein that the defendants 1 to 3 were not in possession of the sums claimed by the plaintiff.
15. Further reasoning by the learned District Judge in passing the impugned judgment and decree is to the effect that the 'other relief per proviso to Section 34 of the Specific Relief Act in the context must be against the defendants 1 to 3 and that admittedly in the case the defendants 1 to 3 were only the Trustees under Trust Deed and that they were not in possession of any moneys as the same were deposited by way of Fixed Deposits in the respondents 4 and 5-Banks.
16. The learned Counsel for the appellant before this Court, Sri Chalapathy vehemently argued that late Konganda Muddaiah, the father of the appellant-plaintiff as well as the defendant 1 had not only executed a registered deed of Trust dated 22-3-1993, but also bequeathed the sums under the registered gift deed dated 27-3-1993 all the sums in his Fixed Deposit in the respondents 4 and 5-Banks to the registered Trust.
17. It was also argued by him that on the demise of Konganda Muddaiah in the year 1993, all the sums in Fixed Deposits in the respondents 4 and 5-Banks had vested in the Trust and according to him, though the sums were in the respondents 4 and 5-Banks, the same in law had vested in the Trust and that therefore, it was a legal necessity for the defendant 1 to seek partition of the said sums by paying the requisite Court fee under Section 35(1) of the Court Fees and Suits Valuation Act. To clarify the position he further submitted that in filing the suit, the plaintiff had sought for recovery of the sum in the Fixed Deposit in the respondents 4 and 5-Banks since vested in the Trust represented by its Trustees as he claimed succession to the same along with the defendant 1, they being the brothers. Therefore, he submitted that the Trial Court was justified in passing the judgment at the first instance directing the plaintiff to pay deficit Court fee to prosecute the suit and further in rejecting the plaint of the plaintiff tor non- compliance of its above direction in the matter of payment of the deficit Court fee.
18. Sri Chalapathy had also cited before me two decisions in support of his argument, they are.-
1. Mis. Shivaram Bapuchand Shaha and Company v Mis. Hirachand Sakharam Mekata and Company ;
2. Byrappa v Mysore Paper Mills Limited'.
19. Per contra, the learned Counsel, Sri Arunponnappa, appearing for the contesting respondent 1-plaintiff supported the impugned judgment and decree passed by the learned District Judge. He had argued that the Trial Court had not properly appreciated the facts and circumstances of the case and therefore it had passed an erroneous order and that the same had since been corrected by the learned District Judge in the regular appeal preferred by his party. It was his argument that it was nobody's case before the Trial Court that sums in Fixed Deposit in the defendants 4 and 5-Banks had ever transferred to the accounts of the registered Trust as the sums continued to be in the name of Konganda Muddaiah till his death and the said sums were continued in bis accounts even after his death. He further pointed out that it was not a case of his party before the Trial Court that the defendants 1 to 3-Trus-tees were in possession of the subject moneys in whatsoever manner and that being so his party had rightly valued the suit under Section 24(d) of the Court Fees and Suit Valuation Act and it is that position very well endorsed by the learned District Judge in setting aside the order of the Trial Court in allowing the regular appeal of his party. He further prayed that the matter be remitted to the Trial Court for the purpose of trial.
20. Sri Arunponnappa had also cited before the following decisions in support of his contentions.-
1. Nawab Humayun Begam v Nawab Shah Mohammad Khanand Another;
2. Deo Kuer and Another v Sheo Prasad Singh and Others ;
3. H.N. Pallegar v K. Sriniuas and Another ;
4. Basalingappa Ningappa and Others v Deputy Commissioner, Dharwar and Another ;
5. B. Subba Rao u B. Venkata Rao and Another :
6. Haneef Khan H.K. v State of Karnataka and Others .
21. Now the sole point for my consideration in this regular second appeal is whether the impugned judgment and decree passed by the learned District Judge in setting aside the order passed by the Trial Court rejecting the plaint of the plaintiff was just and proper or not.
22. At the threshold, I have to observe here that the plaintiff though challenged the execution of the Trust Deed dated 22-3-1993, he had not at all challenged the duly registered Will executed by Konganda Muddaiah on 27-3-1993 bequeathing to the Trust all the sums in the Fixed Deposits in his name in the defendants 4 and 5-Banks. It is therefore not in dispute before me that in executing the registered Will, the said Konganda Muddaiah had bequeathed all the sums in the Fixed Deposits in question in the name of the registered Trust represented by the defendants 1 to 3. If that is so, it is obvious that on the demise of the said Konganda Muddaiah, in law all the sums had to vest in the Trust represented by the defendants 1 to 3, no matter that the sums in the Fixed Deposits lying in the defendants 4 and 5-Bankers continued to be in the name of Konganda Muddaiah even after his death. If that was the legal consequence, it is obvious that in addition to the declaratory relief sought for by the plaintiff as against the defendants 1 to 3 computing the Court fee for relief of declaration as contemplated under Section 24(d) of the Court Fees and Suits Valuation Act, he had to seek further relief of recovery of the sums from the defendants 1 to 3 as the sums in Fixed Deposits in the defendants 4 and 5-Banks by operation of law came to be vested in them i.e., the defendants 1 to 3. That, in fact, what the Trial Court held in para 2 of its order passed at the first instance. To quote the said para, the same reads as hereunder:
'..... .the father of the plaintiff has already deposited theamount in the Banks and he has executed not only Trust Deed but, also a Wilt wherein he has in a clear and unequivocal terms stated that all the deposits shall be vested with the Trust. Therefore, a mere declaration that the Trust is invalid or the Will is inoperative itself is not sufficient and further relief is also necessary to hold how much the plaintiff is entitled and for a direction to pay so much of amount. Thus there is no substance in the submission of the learned Counsel and the rulings referred by him have no assistance in this case'.
23. In my considered view, the conclusion of the Trial Court in the facts and circumstances of the case was just and proper.
24. In passing the impugned judgment and decree, the learned District Judge had observed that the possession of the sums in Fixed Deposits accounts in the defendants 4 and 5-Banks continued in the accounts of Konganda Muddaiah till his death and thereafter and that therefore it is obvious that the defendants 1 to 3-Trustees were not in possession of the said sums in deposits and as such there was no need for the plaintiff to seek relief under Section 35(1) of the Court Fees and Suits Valuation Act and therefore the declaratory relief sought for by the plaintiff under Section 24(d) of the said Act was just and proper. In my considered view, the learned District Judge had failed to appreciate the legal consequence that ensued on the demise of Konganda Muddaiah as he had admittedly executed a duly registered Will in favour of the Trust bequeathing all the sums in the Fixed Deposits in the registered Trust represented by the defendants 1 to 3. If in law therefore it had to be held that the sums in Fixed Deposits in the accounts of the deceased Konganda Muddaiah in the defendants 4 and 5-Banks had vested in the defendants 1 to 3 as the Trustees as the registered Will had come into force or existence. Therefore, it is obvious that the plaintiff had to pay the Court fee as contemplated under Section 35(1) of the Court Fees and Suits Valuation Act as rightly held by the Trial Court.
25. Yet another reason, the learned District Judge in passing the impugned judgment had given is that the defendants 4 and 5-Banks had also agreed to pay the amount to the plaintiff as per the direction of the Court. One should not miss to observe in this context that such a direction by the Trial Court is only on such a prayer is made by the plaintiff by computing the Court fee thereon under Section 35(1) of the Court Fees and Suits Valuation Act. It is that aspect of the case, the learned District Judge appears to have totally overlooked in passing the impugned judgment and decree.
26. The learned Counsel for the appellant, Sri Chalapathy had cited the aforesaid decisions before me set out at para 18, supra. Having gone through the same, I feel that the ratios thereof are totally applicable to the case in hand.
27. In a reported decision of this Court in Byrappa's case, supra, the learned Single Judge of this Court held as hereunder:
'The Trial Court found that the plaintiff deleted the prayer for mandatory injunction directing the defendants to return the accrued/deposited amount of Rs. 2,15,350/-. Prayer was made for recovery of the amount. From the averment made in the plaint as well as the prayer column it is established that it was a simple money suit on which ad valorem Court fee has to be paid. It cannot be considered to be a declaratory suit. The Trial Court has not erred in holding that the Court fee is not payable in accordance with the provisions of Section 47 of the Court Fees and Suits Valuation Act and it is insufficient'.
28. In a reported decision of this Court in Shivaram Bapuchand Shaha's case, supra, yet another learned Single Judge K.A. Swami, as he then was held as hereunder:
'The plaintiffs under the garb of seeking a declaration are virtually seeking the relief of cancellation of the decree obtained against them. The relief of declaration sought for by the plaintiff that the decree passed is null and void, has to be construed as one for cancellation of the decree, inasmuch as, the result of granting such a relief is to cancel the decree itself. It is the substance of the relief that is relevant and material and not the form for the purpose of deciding the question as to whether the suit is properly valued and the Court fee paid is sufficient. The plaintiffs are parties to the decree, therefore they have to seek a relief of cancellation of the decree. When the effect of the declaratory relief sought for by the plaintiff, if granted, is to set aside or cancel the money decree, the relief necessarily falls under Section 38 of the Act.
The Act is a fiscal statute, it has to be construed strictly. If the substance of the relief sought for in a suit falls under a particular provision of the Act, it cannot be brought under the general provision. Section 24(d) of the Act is in the nature of a general provision. It does not deal with any specific relief sought for in the suit'.
29. The learned Counsel for the respondent 1, Sri Arunponnappa, had cited six decisions as stated in para 20 supra, I have also carefully gone through the same. It appears to me that none of the said decisions has got any application to the case in hand.
30. In view of the above conclusion I have reached, in my considered view, the impugned judgment and decree passed by the learned District Judge is liable to be set aside to restore the order dated 22-7-1997 in O.S. No. 58 of 1995 passed by the learned Civil Judge, Madikeri, rejecting the plaint of the defendant 1, I order accordingly.
31. The appeal therefore succeeds and accordingly stands allowed. The Registry to draw the decree in tune with the judgment herein passed.