Madras High Court
Damodaran Alias The Kuthiravattath ... vs The Board Of Commissioners For The Hindu ... on 25 October, 1929
Equivalent citations: (1930)58MLJ494, AIR 1930 MADRAS 392
JUDGMENT Kumaraswami Sastri, J.
1. The point referred to us for decision is what is the proper Court-fee payable in respect of an application filed under Section 84 (2) of the Madras Hindu Religious Endowments Act, II of 1927, to modify or set aside a decision of the Hindu Religious Endowments Board under Section 84 (1) of the Act? Under Schedule II of the said Act, the Court-fee payable on such an application is the fee leviable on a plaint under Article 17, Schedule II of the Madras Court-fees Amendment Act of 1922. The Madras Court-fees Amendment Act contains three Articles, namely, 17, 17-A and 17-B. The short point for consideration is whether Articles 17-A and 17-B must be read as parts of Article 17 or as independent Articles.
2. The view taken by Phillips and Odgers, JJ., in Godasankara Valia Rajah v. Board of Commissioners for Hindu Religious Endowments, Madras (1928) 56 M.L.J. 113 is that Articles 17-A and 17-B must be read as parts of Article 17. The learned Judges observe that when the whole Article is referred to, it must include its component parts and it cannot be read as meaning Article 17 alone. The ground of their decision seems to be that Articles 17-A and 17-B, numbered as they are in the Act following Article 17 with various sub-clauses must really be treated as clauses to Article 17, as otherwise none of the clauses of Article 17 will cover a case like the present. Strictly speaking, none of the sub-sections to Section 1/-A or Section 17-B covers a case like the present as the application is to set aside an order of the Religious Endowments Board and not for any declaratory decree. This decision has been dissented from by Ramesam and Venkatasubba Rao, JJ., in Sundara Aiyar v. Board of Commissioners for Hindu Religious Endowments, Madras (1928) I.L.R. 52 M. 388 : 56 M.L.J. 373. The learned judges go into the matter in great detail and give their reasons for coming to the opposite conclusion. Ramesam, J., refers to the practice of numbering sections and sub-sections of enactments and also discusses the way in which new provisions are introduced--where the intention is to add a clause or a sub-clause and where the intention is to introduce a new section without altering the order or the numbers of the existing sections. The learned judge also deals with the nature of the relief sought and the way in which it is described in Schedule II of the Act. He is of opinion that Article 17 stands by itself, that Articles 17-A and 17-B are really separate Articles and that they cannot be read together for the purpose of determining the Court-fee. Venkatasubba Rao, J., also comes to the same conclusion as to the construction of Article 17. We think that, in construing an enactment like the Court-fees Act, it is not for us to see what the legislature intended, if the meaning of the Article is plain. We agree with the view taken by Ramesam and Venkatasubba Rao, JJ., for the reasons given by them in their judgments. We may also add that the application contemplated in Section 84 (2) of the Madras Hindu Religious Endowments Act is one to modify or set aside a decision of the Board regarding the application of the Act to the institution over which jurisdiction is claimed. Similarly in Section 76 (2) of the Act the alienation of immovable trust property is the subject of the decision of the Religious Endowments Committee and the application to the Court to modify or cancel an order of the Board or Committee granting or refusing sanction. These applications are analogous to a regular suit filed by an unsuccessful claimant. They are not really suits for any declaratory decrees. The observations of the Privy Council in Phul Kumari v. Ghanshyam Misra (1907) L.R. 35 I.A. 22 : I.L.R. 35 C. 202 : 17 M.L.J. 618 (P.C.) may be considered in dealing with a matter like the present.
3. We prefer to follow the decision in Sundara Aiyar v. Board of Commissioners for Hindu Religious Endowments, Madras (1928) I.L.R. 52 Mad. 388 : 56 M.L.T. 373 and answer the question referred to us that the Court-fee payable on an application like the present is the Court-fee leviable under Article 17(1), that is Rs. 15.