Srinivasa Reddiar & Ors Vs. N.
Ramaswamy Reddiar & ANR  INSC 300 (16 December 1965)
16/12/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 859 1966 SCR (3) 120
E&D 1985 SC 821 (4,5)
Limitation Act (9 of 1908), Art,.
134-B-Alienation by manager of properties of religious endowment as his
own-Suit for declaration of title by alienee--If governed by article--starting
point of limitation.
The lands in dispute had been granted in inam
to a temple.
By about 1929 the then manager of the temple
disposed of all those properties under various sale-deeds, resigned his
position and left the village. He was therefore removed from the management of
the temple and other persons had taken up the position as de facto managers
from 1929. As a result of successive alienations of the properties, the
appellants became entitled to them. In 1951, the respondents were appointed
trustees of The temple and under the Madras Hindu Religious and Charitable
Endowments Act, 1951, they applied, to the Magistrate, for possession of the
properties and the Magistrate ordered delivery of possession. Before the order
could be executed the appellants filed the suit in 1954, for a declaration of
their title to the properties and for an injunction restraining the respondents
from interfering with their possession. The trial Court and the lower appellate
Court decreed the suit. In second appeal, the High Court held that the suit was
governed by Art. 134-B of the Limitation Act,, 1908, which was introduced into
the Act on 1st January 1929; and that the appellants' claim in regard to the
properties covered by the sale-deeds of 1917 and 1926.
should be rejected, because, the alienees had
not acquired title by adverse possession by 1st January, 1929, and is the
alienor was still alive, the plea of adverse possession could not be sustained
under that article.
In appeal to this Court it was contended that
article 134-B would not apply to the present case but that Art. 144 would
apply, because, the transfers were affected by the alienor on the
'representations that the properties belonged to him as his separate property;
and that even if the article applied, the decision of the High Court was
erroneous, because the transferor had been removed from management more than 12
years before the suit was filed.
HELD : Though Art. 134-B applied to the facts
of the case, since the appellants had acquired title to the properties by
prescription, the decree passed by the High Court, in so far as it was against
the appellants, should be set aside.
Column 1 of the article provides for suits
brought,, inter alia, by the Tanager of a Hindu religion; or charitable
endowment to recover possession of immovable property comprised in the
endowment, which has been transferred by a previous manager for valuable
consideration. The period Prescribed for such suits is 12 years, and the time
from which the period begins to run is the death, resignation or removal of the
transferor. The findings recorded by the High Court in the present case show
that all the ingredients prescribed by the first column of the Article namely
121 (i)that the property belonged to the endowment, (ii) that it was
transferred by a previous manager; and (iii) that the transfer was for valuable
Consideration, were satisfied.
The character of the representations made by
the previous manager in regard to his relation with the property which is the
subject-matter of transfer, is irrelevant for the purpose of the Article. But
if a suit had been brought by the respondents on the date when they were
appointed trustees, it would have been barred under the Article, because more
than 12 years had elapsed since the date of the removal of the previous manager
who had transferred the properties; and therefore, the trial Court and the
lower appellate Court were right in decreeing the, appellants' suit in its
entirety. [129 C-D, H; 132 H] Mahant Sudarsan Das v. Mahant Ram Kirpal Das
& Ors. L. R.
77 I.A. 42, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 801 of 1963.
Appeal by special leave from the judgment and
decree dated September 2, 1959 of the Madras High Court in Second Appeal No.
774 of 1957.
T. V. R. Tatachari, for the appellants.
P. Raghaviah and R. Ganapathy Iyer, for the
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The present appeal has been brought to this Court by
special leave and it arises from a suit filed by the appellants against four
respondents. The properties involved in the suit consist of agricultural lands
situated in Eragudi village, Musiri taluk, Tiruchirappalli district.
According to the appellants, the said lands
had been granted in Inam to the ancestor of one Ambalathadum Pachai Kandai
Udayavar by the Carnatic Rulers before the advent of the British power in
India. The original grantdeeds are not available; but at the time of the
settlement of the Inams in the sixties of the last century, Inam title deeds
were issued in favour of the family of Pachai Kandai Udayavar.
The appellants averred that the properties
covered by the grant bad been granted in Inam to the original grantee burdened
with the obligation of performing certain services in a Matam. The said
properties were alienated from time to time, and as a result of the last
alienation, the appellants became entitled to them. The appellants in the
present litigation claimed a declaration about their title to the properties in
suit and a permanent injunction restraining respondents 1 to 3, who claimed to
be the trustees of an alleged Pachai Kandai Udayavar Temple at Eragudi, from
interfering with their possession of the same. Respondent No. 4 is the Deputy
Commissioner, Hindu Religious and Charitable Endowments, L9Sup. CI/66 9 122 Tiruchirappalli,
and he has been impleaded because he has purported to appoint respondents 1 to
3 as trustees of the said alleged Temple on the 7th March, 1951. This suit (No.
103 of 1954) was instituted on the 13th
September, 1954, under S. 87 of the, Madras Hindu Religious and Charitable
Endowments Act (No. XIX of 1951) (hereinafter called 'the Act'), in the Court
of the District Munsif at Turaiyur.
Respondents 1 to 3 who have been appointed as
trustees of the said temple by respondent No. 4, obtained a certificate from
him that the properties in question belonged to the Temple; and on the basis of
the said certificate, they had filed an application before the Magistrate
having jurisdiction in the area under s. 87 of the Act for possession. Notice
of this application was served on the appellants and they pleaded their own
title to the properties. The Magistrate, however, over-ruled the claim made by
the appellants and directed them to deliver possession of the properties to
respondents 1 to 3. Before this order could be executed and possession
delivered to respondents 1 to 3, the appellants instituted the present suit.
Respondents 1 to 3 resisted this suit and
contended that the properties in suit had not been granted to the predecessor
of Pachai Kandai Udayavar as alleged by the appellants.
Their case was that the said properties had
been granted to the Pachai Kandai Udayavar Temple and formed part of its
properties. As trustees appointed by respondent No. 4, they claimed that they
were entitled to the possession of the properties.
On these pleadings, four substantive issues
were framed by the learned trial Judge; they were : whether the grant of the
Inam was a personal Inam; whether the grant of the Inam was a religious
endowment; whether plaintiffs have title to the suit properties; and whether
plaintiffs have acquired title by prescription ? On the first two issues, oral
and documentary evidence was adduced by the parties. The learned trial Judge
examined the whole evidence and came to the conclusion that the grant of the
Inam was a personal Inam, and that it was not a grant in favour of the
religious endowment within the meaning of the Act. That is how the first two
issues were answered in favour of the appellants.
In consequence, the learned trial Judge also
held that the appellants had proved their title to the suit properties.
The alternative plea made by the appellants
that they had acquired title to the properties by prescription, was also upheld
by the trial Judge. In the result, the appellants' suit was decreed on the 14th
123 Respondents 1 to 3 preferred an appeal
(No. 129 of 1955) in the Court of the Subordinate Judge at Tiruchirappalli,
challenging the correctness of the said decree. The lower appellate Court
considered three main points; they were :
whether the grant was in favour of
Ambalathadum Pachai Kandai Udayavar; whether there is a temple; and whether the
plaintiffs had prescribed their title to the suit properties by adverse
possession. The lower appellate Court made a finding against respondents 1 to 3
on point No. 2. It held that the evidence adduced by the respondents did not
prove the existence of any temple in favour of which the original grant had
been alleged to have been made according to them.
On that view, it thought it unnecessary to
consider the first point. In regard to the third point based on the appellants'
claim that they had acquired title by adverse possession, the lower appellate
Court found that "it was evident that from the very beginning, Pachai Kandai
Udayavar and his family had been claiming beneficial interest in the property
and they were not holding the same as managers of the trust. The alienations
must, therefore, be regarded only as repudiation of the trust." In the
result, the lower appellate Court's finding was that the appellants had
established their claim of prescriptive title. The appeal preferred by
respondents 1 to 3, therefore, failed and was dismissed with costs on March 29,
This decision was challenged by respondents 2
& 3 before the Madras High Court in Second Appeal (No. 774 of 1957).
Subrahmanyam, J., who heard this appeal, held
that the original grant had been made in favour of the Temple. There was
evidence to show that the properties originally granted had been resumed by the
Collector; but the learned Judge took the view that the said resumption was
only of the melwaram or assessment, and that since the lands had been granted
in Inam to the deity and its matam, their title to the lands remained
unaffected by the resumption proceedings.
In other words, he negatived the appellants'
claim that the original grant was in favour of their predecessors intitle,
though burdened with an obligation to render service to the matam. The learned
Judge reversed the finding of the lower appellate Court that the existence of
the Temple had not been proved.
Having thus held that the properties belonged
to the Temple, the learned Judge proceeded to consider the question of
limitation by reference to the several alienations with which the present
litigation is concerned. In dealing with the question of limitation, the
learned Judge took the view that the present suit would be governed 124 by
Article 134-B of the Indian Limitation Act. This article has been introduced in
the said Act by Amending Act 1 of 1929 and came into force on 1-1-1929. It was
conceded before the lower appellate Court that the new article was not
retrospective in operation and that if the title of the alienees in regard to
'dharmadlayam properties had been acquired by adverse possession prior to
1-1-1929, it would not be affected by the provisions of Art. 134-B. Thus
considered, the alienations in regard to items 1, 2, part of item 3, items 7
& 8, and a portion of the well in item 5 sold under Ext. A-2 in 1914 were held
to be outside the mischief of Art. 134B. The possession of the vendees in
regard to the properties covered by the said sale deed was held to have
conferred title on them. Similarly, item 4 and a part of item 6 which had been
sold in auction in execution of a decree in 1927 (vide Exts. A-7 and A-8), were
also held to be outside the scope of Art. 134-B, because the said article does
not cover auction sales.
That left the alienations covered by Exts.
A-3, A-6 and A- 12 to be considered. These three alienations were effected on
the 7th October, 1917, 2nd July, 1926, and 2nd July, 1926 respectively. The
High Court held that the properties covered by these sale-deeds fell within the
purview of Art.
134-B, and the appellants' title in respect
thereof was open to challenge. In the result, the appellants' claim in regard
to the properties covered by these three sale-deeds was rejected, whereas their
claim in regard to the other ,properties. was upheld. In consequence the appeal
preferred by respondents 2 & 3 was partly allowed and the decree passed by
the lower appellate court in regard to Exts. A-3, A-6 and A-12 was set aside.
This judgment was pronounced on the 2nd September, 1959. It is against this
decision that the appellants have come to this Court by special leave.
Mr. Tatachari for the appellants has raised
before us an interesting question of law. He contends that Art. 134-B would not
apply to the present case, because the alienations evidenced by Exts. A-3, A-6
and A-12 show that the alienors purported to transfer the properties not as
Poojaris or managers of a temple, but in their individual character as owners
of the said properties. The documents recite that the properties belonged to
the alienors as their separate secular properties, though burdened with an
obligation to render service to the Matam; and that shows that the transfer was
effected not by the Poojaris of the temple, but by persons who claimed that the
properties belonged to them.
Such a case falls outside the purview of Art.
134-B and must be governed by Art. 144 of the First Schedule to the Limitation
125 Mr. Tatachari also argues that in
applying Art. 144, we must assume that the possession of the alienees was
adverse to the temple from the respective dates of the alienations when they
were put in possession of the properties covered by the transactions in
question. In support of this argument, Mr. Tatachari has relied on the
statement of the law made by Mr. Justice Mukherjea in his lectures on. the
Hindu Law of Religious and Charitable Trust.(1) Says Mr. Justice Mukherjea,
"if the transfer (of debutter property) is not of' particular items of
property, but of the entire endowment with all its properties, the possession
of the transferee is unlawful from the very beginning. The decisions in
Gnanasambanda Pandara Sannadhi v. Velu Pandanam & Another(2) and Damodar
Das v. A dhikari Lakham Das(3) are illustrations of this type of cases."
He also added that transfer would similarly be void 'and limitation would run
from the date of the transfer, if the manager transfers the property as his own
prop" and not as the property of the deity. The same statement has been
made by the learned author in two other places in the course of his lectures.
The argument is that in cases falling under
Art. 134-B, the transfer made by the manager of a Hindu endowment is challenged
by his successor on the ground that it was beyond the authority of the manager;
and such a challenge necessarily postulates that the transfer was effected by
the manager as manager purporting to deal with the property as belonging to the
religious endowment. Where, however, the transfer is made by the manager not as
manager, but as an individual, and he deals with the property not on the basis
that it belongs to the religious endowment, but on the basis that it belongs to
himself, considerations which would govern the application of limitation are
substantially different; and in such a case, the transfer being void ab initio,
the possession of the transferee is adverse from the date of the transfer. That
is how Mr. Tatachari has attempted to avoid the application of Art. 134-B in
the present case. There can be no doubt that if the assumption made by Mr.
Tatachari is well-founded, the appellants title to the three transactions in
question would have to be upheld.
It is well-known that the law of limitation
in regard to suits instituted to set aside unauthorised alienation of endowed
property by a Shebait or a Mahant or a manager of a Hindu religious endowment
was very uncertain prior to the decision of the Privy Council (1) Mr. Justice
B. K. Mukherjea on 'Hindu Law of Religious and Charitable Trust' II Edn. (1962)
(2) L.R. 27 I.A. 69.
(3) L.R. 37 I.A. 147.
126 in Vidya Varuthi Thirtha v. Balusami
Ayyar & Others.(1) That is why subsequent to the said decision, any
discussion about the question of limitation relating to such suits necessarily
begins with a reference to the principles laid down by the Privy Council in
Vidya Varuthi's case. In that case, the Privy Council held that the endowments
of a Hindu math are not "conveyed in trust", nor is the head of the
math a "trustee" with regard to them, save as to specific property
proved to have been vested in him for a specific object. The question which the
Privy Council had to consider in that case was whether Art. 134 applied to a
suit in which the validity of a permanent lease of part of the math property
granted by the head of a math was challenged.
Article 134 covers suits brought with a view
to recover possession of immovable property conveyed or bequeathed in trust or
mortgaged and afterwards transferred by the trustee or mortgagee for a valuable
consideration. These words used in column 1 of Art. 134 necessarily raise the
question as to whether the head of a math is a trustee within their meaning;
and Mr. Justice Ameer Ali, who spoke for the Privy Council, answered that
question in the negative. In con- sequence, the argument that Art. 134 applied,
was repelled, and it was held that Art. 144 would govern such a case.
In fact, it is substantially because of this
decision that Articles 134-A, 134-B and 134-C and Articles 48A and 48B came to
be inserted in the First Schedule to the Limitation Act by Amending Act 1 of
1929. At the same time, s. 10 of the Limitation Act was amended by addition of
an explanatory clause which provided, inter alia, that for the purposes of s.
10, any property comprised in a Hindu religious or charitable endowment shall
be deemed to be property vested in trust for a specific purpose, and the
manager of any such property shall be deemed to be the trustee thereof. As we
have already noticed, these newly added provisions in the Limitation Act came
into force on the 1st January, 1929.
Reverting then to the question as to whether
a transfer effected by the manager of a temple in regard to properties
belonging to the temple falls outside the purview of Art.
134-B if it is shown to have been made on the
basis that the transferor treated the properties as his own, it does appear
that the two earlier Privy Council decisions in Gnanasambanda's(2) and Damodar
Das's(3) cases lend some support to the contention. In Gnanasambanda's case, it
was held by the Privy Council that where hereditary trustees of a re ligious
endowment sold their hereditary right of management (1) L.R. 48 I.A. 3 2. (2)
L.R. 27 I.A.
(3) L.R. 37 I.A. 147.
127 and transferred the endowed property, the
sales were null and void, in the absence of a custom allowing them; and that
the possession taken by the purchaser was adverse to the vendors and those
claiming under them. In appreciating the effect of this decision, it is
necessary to bear in mind that the plea of limitation with which the Privy
Council was concerned in that case was based on Art. 124 of the Limitation Act.
Article 124 relates to suits filed for possession of a hereditary office, and
the limitation prescribed for such suits starts when the defendant takes
possession of the office adversely to the plaintiff. It is clear that in that
case, what had been sold was the hereditary office, as well as the properties
belonging to the endowment; and so, it was plain that limitation began as soon
as the purchaser took possession of the office under Art. 124. It is true that
immovable properties belonging to the temple had also been sold; but the Privy
Council expressly ruled that there was no distinction between the office and
the property of the endowment. The one is attached to the other; but if there
is, Art. 144 of the same Schedule is applicable to the property; and that bars
the suit after 12 years' adverse possession. It may be permissible to state
that this latter observation was made in 1899 long before the Privy Council
enunciated the true legal position in regard to the status of the managers of
Hindu religious endowments in Vidya Varuthi's case(1).
Similarly in Damodar Das's case(2), while
dealing with the validity of an 'ikrarnama' of a debuttar property executed by
the manager of the property, the Privy Council observed that from the date of
the ikranama, the possession of the transferee was adverse to the right of the
idol and that led to the conclusion that the suit instituted against the
transferee was barred by limitation. There is no discussion about the status
and character of the Chela who made the transfer nor about the right of the
succeeding Chela to challenge the validity of the transfer effected by his
predecessor which was subsequently recognised by the Privy Council in Vidya
These two judgments have, no doubt been
incidentally referred to by the Privy Council in Mahant Ram Charan Das v. Naurangi
Lal and Others(3), and in Mahadeo Prasad Singh and Others v. Karia Bharti(4)
though the decision in the said two cases proceeded in the light of the legal
position enunciated by the Privy Council in Vidya Varuthi's case(4).
(1) L.R. 48 I.A. 302. (2) L.R. 37 I.A. 147.
(3) L.R. 60 I.A. 124. (4) L.R. 62 I.A. 47.
128 It would thus be seen that the
observations made by Mr. Justice Mukhejea on which Mr. Tatachari relies, really
purport to extend the principle which has apparently been mentioned by the
Privy Council in Gnanasambanda's case(1).
It does appear that Mr. Justice Mukhejea had
expressed this view as a Judge of the Calcutta High Court in the case of
Hemanta Kumari Basu v. Sree Ishwar Sridhar Jiu, (2) and had relied on the two
Privy Council's decisions in Gnanasambanda's(1) and Damodar Das's cases In the
case of Hemanta Kumari Basa(2), the attention of Mukherjea J. was drawn to the
fact that in an earlier decision of the Calcutta High Court in Ronald Duncan
Cromartic and Francis Arthur Shephard Sutherland, v. Sri Iswar Radha Damodar
few and Others, (4) D. N. Mitter, J., had made observations which were
inconsistent with the view which Mukhejea, J. was disposed to take; but the
learned Judge commented on the said observations by saying that they were open
Thus, on the question raised by Mr. Tatachari
before us, there does appear to be some divergence of opinion in the Calcutta
High Court itself No other decision has been cited before us which has accepted
the proposition that if any part of the property belonging to a Hindu religious
endowment is transferred by its manager, the transfer is void and the
possession of the transferee becomes adverse to the endowment from the very
beginning. In fact, as we have already indicated, in the case of
Gnanasambanda(1) what had been transferred unauthorisedly, was the religious
office itself and all the properties appertaining thereto. It is open to doubt
whether the said decision could lead to the inference that if a part of the
property is transferred by the manager of a religious endowment on the basis
that it belongs to him and not to the religious endowment, the transfer is void
ab initio, with the result that the possession of the transferee is adverse to
the religious endowment from the very beginning, and the succeeding manager's
right to challenge the said transfer would be lost if his predecessor who made
the transfer lives for more than 12 years after effecting the transfer.
In the words of Sir John Edge, who spoke for
the Privy Council in Nainapillai Marakayar and of hers v. Ramanathan Chettiar
and Others(5), " in the case of a Shebait a grant by him (1) L.R. 27 I.A.
69. (2) I.L.R. (1946) 11 Cal. 38.
(3) L.R. 37 I.A. 147. (4) (1935) 62 C.L.J. 10.
(5) L.R. 51 I.A. 83 at p. 97.
129 in violation of his duty of an interest
in endowed lands which he has no authority as Shebait to make may possibly
under some circumstances be good as against himself by way of estoppel, but is
not binding upon his successors." It is not easy to see why the
successor's right to Challenge an unauthorised alienation made by his
predecessor should be affected adversely if the alienation is made by his
predecessor on the basis that the property belonged to him and not to the
However, we do not think it necessary to
decide this point in the present case, because, in our opinion, the plain words
of Art. 134-B do not permit such a plea to be raised.
Column 1 of Art. 134-B provides for suits
brought, inter alia, by the manager of a Hindu religious or charitable
endowment to recover possession of immovable property comprised in the
endowment which has been transferred by a previous manager for a valuable
consideration. The period prescribed for such suits is 12 years, and the time
from which the period begins to run is the death, resignation or removal of the
transferor. Confining ourselves to the first column of Art. 134-B at this
stage, the question which we have to decide is : does this article permit any
distinction to be made between transfers effected by a previous manager on the
basis that the property transferred belongs to the religious endowment, and
those made by him on the basis that the said property is his own private
property ? If the property is transferred by the manager on the basis that it
belongs to the endowment, Art. 134-B clearly applies; but does it make any
difference to the application of Art. 134-B if the transfer is made on the
other basis that the property belongs not to the endowment, but to the manager
himself ? In either case, the successor who challenges the alienation, will
have to prove that the property in fact belongs to the religious endowment.
Once that is proved, is it necessary for him also to show that the transfer was
made, on the basis that the property belonged to the religious endowment ? In
our opinion, such a limitation cannot be read in the words used by the said
article. Article 134-B applies to all cases where it is shown that the
immovable property was comprised in the endowment and that it has been
transferred by a previous manager for a valuable consideration. The successor
has to prove three facts : (1) that the property belongs to the religious
endowment; (2) that it was transferred by a previous manager; and (3) that the
transfer was for a valuable consideration. The character of the representations
made by the previous manager in regard to his relation with the property which
is the subject-matter of transfer, is irrelevant for the purpose of Art. 134-B.
130 All transfers made would fall within Art.
134-B if the three essential facts are proved by the successor of the
transferor manager of the Hindu religious endowment.
Therefore, we do not think that Mr. Tatachari
is justified in contending that the transfers with which we are concerned in
the present appeal fall outside the purview of Art. 134-B inasmuch as they are
effected by the alienors, on the representations that the properties
transferred belonged to them as their separate properties. On the findings
recorded by the High Court, it is clear that the properties belonged to the
temple; that they have been transferred by persons who must be deemed to be the
previous managers of the temple; and that they have been transferred for
valuable consideration. The present suit has been brought against respondents 1
to 3 who are appointed trustees of the temple by respondent No. 4; and so, all
the ingredients prescribed by the first column of Art. 134-B are satisfied.
That is why we must reject the ingenious argument urged before us by Mr.
Tatachari that Art. 134-B does not apply to the present case.
We may, in this connection, refer to the
decision of the Privy Council in Mahant Sudarsan Das v. Mahant Ram Kirpal Das,
and Others. (1) In that case, the question which arose for the decision of the
Privy Council was whether Art. 134-B applied to a case where debuttar property
had been sold in an execution sale, and the Privy Council held that it did not.
"To apply Art. 134-B to an execution sale", observed Lord Radcliffe,
"involves a reading of that article which would construe the words
"transferred by a previous manager for a valuable consideration" as
covering an execution sale under court process, and the word
"transferor" as extending to the judgment-debtor whose land is sold.
It is not only that the words themselves do not properly bear that meaning.
Apart from that, what is in all essentials the same question was considered on
several occasions by courts in India before Art. 134A and 134B had been added
134. That Article contains the analogous
phrase "transferred by the trustee or mortgagee for a valuable
consideration", and there was a uniform current of decision to the effect
that these words were incapable of applying to an execution sale." What
was said by the Privy Council about the impropriety of including an execution
sale within the meaning of Art. 134B can, with equal justification, be said
about introducing words of limitation in the said article which alone can
exclude transfers made by the previous manager of the Hindu religious endowment
on the basis that the property transferred belonged to (1) L.R. 77 I.A. 42 at
131 him. Therefore, we must deal with the
present appeal on the basis that Art. 134-B applies to the facts of the present
Mr. Tatachari then contends that even on the
application of Art. 134-B, the decision of the High Court is erroneous, because
on the facts proved in this case, the High Court should have drawn the legal
inference that the transferor had been removed more than 12 years before the
suit was filed. He contends that the question as to whether on facts proved in
the present case, an inference can be drawn that the previous manager or
trustee had been removed, is a mixed question of fact and law, and the High
Court was in error in reversing the decisions of the courts below by holding
that the title of the temple had not been lost by adverse possession before the
suit was filed. For deciding this question, it is necessary to refer to some
The transferor is Pachaikandaswamiar. The
appellants' case before the trial Court was that Pachaikandaswamiar had
resigned his position about 27 years ago, and that even if Art. 134-B applied,
limitation should be held to have commenced from the date when the alienor
either resigned his office or was removed from it. In dealing with this aspect
of the matter, the learned trial Judge has examined the oral evidence led on
behalf of the parties. He assumed that Pachaikandaswamiar and his son were
alive at the date of the suit. Even so, he found that they had left the village
and had taken no part whatever in the management of the worship of the temple.
In fact, almost all the properties belonging to the temple had in course of
time, been a alienated and the alienors were no longer interested either in the
temple or in staying in the village itself. Raju lyer, who was examined as a
witness by the appellants, stated that he and Amirthalinga lyer had been
performing the worship of the temple for the past 27 years, and he added that
the alienor and his son had left the village more than 25 years ago, and but
for very casual visits to the village, they had never taken any interest in the
temple or in the management of its affairs. In fact, Ranga Raju Raddiar, whom the
respondents examined, admitted in reply to the questions put by the Court that
since 25 years or so neither Pachaikandaswamiar nor Chinnaswami lyer had
performed any pooja in the temple.
He substantially corroborated the statement
of Raju lyer that Raju lyer and Amirthalinga lyer` had been performing the
worship of the temple. Another witness, Chandrasekara lyer by name, whom the
respondents examined, also admitted that Pachaikanda had sold away all his
properties and had left the village. Besides, when respondents 1 to 3 were
appointed as trustees of the temple, a notice was issued by the 132 office of
Assistant Commissioner for Hindu Religious Endowments, Tiruchirappalli, on the
19th June, 1948, in which it was specifically averred that there were no legally
constituted trustees for Sri Pachaikantha Udayavar Temple, Eragudi, and it was
mismanaged; and so, it was proposed to appoint legally constituted trustees for
the said temple.
This notice was served on witness Raju lyer
and Amrithalinga lyer, Chinnasamy Iyer, and Rangaraja Reddiar, who were
performing the worship and acting as de facto managers of the temple. It is
remarkable that this notice describes Amirthalinga Iyer and Chinnasamy lyer as
de facto trustees of the temple.
It is on these facts that the learned trial
Judge held that the alienor must be deemed to have resigned his office or left
it. The lower appellate Court does not appear to have considered or made any
specific or clear finding on this aspect of the matter. It, however, held that the
transferor and his family had been claiming beneficial interest in the
properties all along and that they were not holding the same as managers of the
trust. That is why he confirmed the finding of the trial Judge on the question
of adverse possession, though on a somewhat different ground.
The High Court has relied on the fact that
the alienor is still alive, and so, it thought that the plea of adverse
possession could not be sustained. Unfortunately, the question as to whether
the facts proved in this case did not show that the alienor had been removed
from office by other persons who were in management of the temple de facto, has
not been discussed by the High Court. In our opinion, all the facts which have
been brought on the record in relation to this aspect of the matter, clearly
show not only that the alienor disposed of all the property and left the
village' but also that for the last 25 years or so, the management has been
taken over by other persons who are acting as de facto managers of the temple.
This evidence appears to us to show that the alienors had been removed from
management of the temple, and other persons have taken up the position as de
facto managers, and this position has lasted for more than 25 years. If that be
so, there is no escape from the conclusion that more than 12 years have elapsed
since the date of the removal of the previous manager who transferred the
properties in question; and so, if a suit were brought by respondents 1 to 3 on
the date when they were appointed trustees by respondent No. 4, it would be
barred under Art.
134-B. On that view of the matter, we must
hold that the trial Judge and 133 the lower appellate Court were right in
decreeing the appellants' suit in its entirety. We must accordingly set aside
the decree passed by the High Court in regard to the transfers covered by Exts.
A-3, A-6 and A-12, and restore that of the lower appellate Court. In the
circumstances of this case, we direct that parties should bear their own costs.