JUDGMENT
Pius C. Kuriakose, J.
1. In this writ petition under Article 227 of the Constitution the defendant challenges Ext.P2 findings of the learned Munsiff on issue “No. 2” regarding the propriety of the valuation of the suit and sufficiency of the court fees paid. Ext.Pl is a copy of the plaint. As rightly found by the learned Munsiff, the suit is liable to be valued under Section 28 of the Kerala Court Fees And suits Valuation Act (hereinafter referred to as the ‘Act’). The suit is for a declaratory decree and the same is between trustees or rival claimants to the office of the trustee or between persons who has ceased to be trustees. Section 28 of the act is given below:
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 determing the jurisdiction of Courts shall be such amount as the plaintiff shall state in the plaint;
2. The learned Munsiff under the impugned order did notice that there is an averment in the plain to the effect that the trust property has a market value of more than 7 Lakhs Rupees. However on the reason that the maximum court fees payable on similar suits is only Rs. 200/- irrespective of the market value rejected in the averments in the plaint the learned Munsiff found the valuation and court fee to be correct.
3. I have heard the submissions of Sri. G. Sreekumar, the learned Counsel for the petitioner and Sri. M.K. Dilip Kumar the learned Counsel for the respondent. Drawing my attention to Section 28 of the Act and its proviso and also to the averments in Ext.Pl, Mr. Sreekumar submitted that though it may be true that the maximum court fees payable on like suits has already been paid by the respondent the learned Munsiff was bound to return the suit for presentation before the sub court, since the market value of the property was beyond the limits of the Munsiff’s Court’s pecuniary jurisdiction.
4. Sri. M.K. Dilip Kumar would submit that the contention of the petitioner was that the proper provision to value the suit was not Section 28 but Section 25 of the Act and invite my attention to the judgment of this Court in Kunhanunni v. Kunhanunni Moopil Nayar 1978 KIT 285 and also to the judgment of the Supreme Court in K.A. Samajam v. Commissioner H.R. C.E. . The office of the trustee was an office which enables the trustee to have management of the suit properties and therefore the market value of the properties is totally relevant. That being the position there was no reason as to why the value of Rs. 4,000/- shown by the respondent should not have been accepted by the learned Munsiff even for the purpose of jurisdiction.
5. The attractiveness of the submissions of Sri. Dilip Kumar, notwithstanding, I am of the view that it is too late for the respondent to raise such a contentions. The respondent had valued the suit under Section 28 of the Act. He resisted the contention of the petitioner that the proper provision to be invoked was Section 25 of the Act maintaining that Section 28 is the apposite Section.
Section 53 of the Act provides as follows:
Suits not otherwise provided for: (1) In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in the Act or in any other law, value for that purpose and value for the purpose of computing the fee payable under this Act shall be the same.
(2) In a suit where fee is payable under this Act at a fixed rate, the value for the purpose of determining the jurisdiction of Court shall be the market value or where it is not possible to estimate it at a money value such amount as the plaint shall state in the plaint.
Rs. 250/- is the maximum court fee fixed for suits governed by Section 28 of the Act whatever be the market value of the property. Nevertheless value for the purpose of jurisdiction will be the market value of the property in this case where the property is capable of valuation and had a value of beyond the limits of the Munsiff’s Courts pecuniary jurisdiction.
6. Going by the averments in the plaint the market value of the property is Rs. 7 Lakhs. The suit will not lie before die Munsiff Court in view of the limits of its pecuniary jurisdiction. The suit can lie only before the Subordinate Judge’s Court which has unlimited pecuniary jurisdiction.
7. I set aside the impugned order and hold that though the court fee paid is sufficient, the suit is liable to be entertained, tried and disposed of only by the sub court. The learned Munsiff will return the plaint to the respondent for presentation before the Sub Court Thrissur. The Sub Court Thrissur, will continue the proceedings in the suit from the stage at which the suit was stayed by this court.