Pius C. Kuriakose, J.

1. In this Writ Petition under Art.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.P1 is a copy of the plaint. As rightly found by the learned Munsiff, the suit is liable to be valued under S.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. S.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 determining 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 plaint 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 reflected in the averments in the plaint the learned Munsiff found the valuation and court fee to he 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 S.28 of the Act and its proviso and also to the averments in Ext.P1, 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 S. 28 but S.25 of the Act and invite my attention to the judgment of this court in Kunhanunni v. Kunhanunni Moopil Nayar (1978 KLT 285) and also to the judgment of the Supreme court in KA. Samajam v. Commissioner H.R. & C.E. (AIR 1971 SC 891). 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 has valued the suit under S.28 of the Act. He resisted the contention of the petitioner that the proper provision to be invoked was S.25 of the Act maintaining that S.28 is the apposite Section.

S. 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 this 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 Courts shall be the market value or wher