Arumugam Pillai and Another vs Khazi Mohideen Sheriff Sahib and Another

Madhavan Nair, J.—A.S. Nos. 75 and 76 of 1927.-Both these appeals arise out of O.S. No. 2 of 1924 instituted by the plaintiffs,

described as the mullas or trustees of a Muhammadan mosque at Paramathi. The suit is for the recovery of two items of property said to have been

improperly alienated by the previous trustees. Appeal No. 75, in which the 1st defendant is the appellant, relates to item 1, the alienation of which

was effected in his favour under three sale deeds, Exs. D.D (1) and D (2), dated 17th February, 1901, 19th April, 1901 and 3rd May, 1901,

respectively. Item 2 was alienated in favour of the 2nd defendant, the appellant in A.S. No. 76, under two documents, Exs. E and E (1), dated 7th

October, 1900 and 19th April, 1901, respectively. The present suit was instituted on 9th January, 1924. The main question in these appeals is

whether the suit is barred ''by limitation under Article 134 or Article 144 of the Limitation Act. Article 134 specifies 12 years as the period of

limitation for a suit ""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"" and the limitation period commences from the ""date of the transfer"". Article 144 specifies 12

years as the period of limitation ""for possession of immovable property or any interest therein not hereby otherwise specially provided for"" and the

period commences from the date ""when the possession of the defendant becomes adverse to the plaintiff"". The learned Judge held that the suit is

not barred by limitation and decreed the plaintiffs'' suit. The question of limitation is common to both the appeals. In Appeal No. 76 some

subsidiary points also arise for consideration. We will, therefore, deal with these appeals separately.

A.S. No. 75 of 1927.--In considering which of the two Articles mentioned above applies to suits of this nature, it will be necessary, as may be

seen from decided cases, first"" to consider the essential nature of the trust. But in this appeal the question of limitation may be disposed of on

another consideration, though the nature of the trust will have to be inquired into, in the connected appeal, and what is stated in it on that question

will well apply to this appeal also. Though the sales under Exhibits D and D (1) took place in 1901 according to the documents, it is admitted that

the portions of item 1 dealt with under the documents were under prior encumbrances and possession of the items was obtained by the 1st

defendant only in 1914. It has been held by a Full Bench of this Court in Seeti Kutti v. Kunhi Pathumma ILR (1917) Mad. 1040 : 33 M.L.J. 320

that Article 134 of the Limitation Act does not apply to a transfer from a trustee or mortgagee under which possession is not taken by the

transferee. . '' It follows therefore with respect to these alienations that the suit cannot be said to be barred either under Art 134 or under Article

144 also as ft has been instituted before the expiry of 12 years from 1914. With regard to the alienation under Exhibit D (2), the learned

Advocate-General says that possession was transferred on the date of the deed, 3rd May, 1901. The respondents contend that in the case of this

alienation also possession was not transferred on the date of the sale deed but was transferred only in 1914 as in the case of the other alienations.

The sale of this item was also subject to an encumbrance as may be seen from the document. The sale deed no doubt says that the transferee was

put in possession. Whether the prior encumbrance was a simple mortgage or a usufructuary mortgage, there is, we think, sufficient evidence in the

case to show that possession with regard to this item was not obtained by the alienee before 1914. Exhibit I is the plaint ""in O.S. No. 45 of 1914,

the scheme suit, by the decree in which predecessors of the present plaintiffs were removed and the present plaintiffs appointed. The present 1st

defendant was the 23rd defendant in that suit. In paragraph 10 of the plaint in that suit the following statement occurs:

The 23rd defendant Arumugam Pillai claims to have purchased the suit property in the said case. He has also filed a suit for the recovery of the

said second item of property in the Court of the District Munsif of Namakkal and in O.S. Nos. 347 and 367 of 1914.

The second item of property referred to in this statement is admitted to be the present first item. The 1st defendant did not evidently obtain

possession of this portion of item 1 before 1914 as he instituted a suit to recover possession of item 1 in 1914. The written statement of the 1st

defendant in the present suit also shows that he did not obtain possession of item 1 before 1914. In paragraph 6 he says:

The land mentioned in item 1 was in the possession of a usufructuary mortgagee and this defendant had to institute a suit for redemption in O.S.

Nos. 364 of 1914 and 347 of 1914 on the file of the District Munsif''s Court, Namakkal, and finally obtained possession through Court and has

paid the vendors the other amounts mentioned in the sale deeds and he is therefore by right entitled to be in possession.

In his evidence given in this case as D.W. 1 there is nothing to show that he obtained possession of this portion of item 1 or of the other portions

before 1914. Having regard to the 1st defendant''s statement in his own written statement and the other evidence we have referred to, we do not

think it is necessary to call ""upon the Lower Court to take fresh evidence and submit a finding as to when the 1st defendant came into possession

of the property sold under Exhibit D (2). In our opinion it is established by the evidence that he did not obtain possession of the item before 1914.

On this finding the suit is not barred with respect of this item also as in the case of the other portions of item 1 sold under Exs. D and D (1). Even if

possession was obtained on the date of the deed it will be seen from the reasoning of our judgment in the connected Appeal No. 76 of 1927 which

will equally apply to this case also, that the plaintiffs'' suit is not barred. This, appeal is therefore dismissed with costs.

A.S. No. 76 of 1927.--In this appeal the 2nd defendant is the appellant. Item 2 of the suit property had been alienated in his favour under two sale

deeds, Exhibits E and E (1), dated 7th October, 1900 and 19th April, 1901, respectively. It is not disputed that the appellant got possession"" of

the property on these dates. It is argued on his behalf that the institution to which this property belongs is a bare trust, that therefore Article 134

applies to the case and that in any event the suit is barred by Article 144 inasmuch as it has been admittedly instituted beyond 12 years from the

date of the alienation. The respondents argue that having regard to the real nature of the trust, Article 134 does not apply to the case, and that the

suit, having been admittedly brought before the expiry of 12 years from the removal of the previous trustees, i.e., the trustees who made the

alienation, the suit is not barred. In this connection a very large number of cases, amongst which the following seem to be the most important, was

brought to our notice: Vidya Varuthi Thirtha v. Balusami Ayyar , AIR 1923 175 (Privy Council) , Ranga Dasan v. Latchuma Dman (1924) 48

M.L.J. 114, Rama Reddy v. Ranga Dasan (1925) Mad. 543 : 50 M.L.J. 589, Vellachami Naicker v. Alagarsami Naicker (1926) 104 I.C. 355,

Venkatasubba-rayudu v. Haji Silar Sahib (1929) 58 M.L.J. 524, Vadlamudi Sastrulu v. Thalluri Venkataseshayya (1927) 110 I.C. 894, Periyanan

Chetty v. Govinda Rao (1931) 62 M.L.J. 496, Badri Narayan Singh v. Mahanth Kailash Gir ILR (1925) Pat. 341, Debendra Nath Sadhukhan

and Others Vs. Naharmal Jalan and Others, , Naurangi Lal and Others Vs. Ram Charan Das, , Sarabdeo Bharthi v. Ram Bali ILR (1932) All.

909 and Administrator-General of Bengal v. Balkissen Misser ILR (1924) Cal. 953. We have considered each one of these cases, but having

regard to the trend of the decisions of this Court it will not be necessary to examine all of them in detail.

In considering whether Article 134 applies or not, we have to examine whether the Muhammadan mosque to which the suit property belongs is

a bare trust or whether the trustees have a beneficial interest in the trust. This distinction has been emphasized as a result of the decision of the

Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar as understood in some of the subsequent decisions of this Court. In Vidya Varuthi

Thirtha v. Balusami Ayyar it was held that Article 134 of the Indian Limitation Act does not apply where the head of the mutt, having a beneficial

interest in the mutt property, granted a permanent lease, over a part of the mutt property not proved to be subject to a specific trust. It was also

held in that case that except for unavoidable necessity the head of a mutt cannot create any interest in the mutt property to enure beyond his life,

that a lessee however has not adverse possession under Article 144 of the Limitation Act Vidya Varuthi Thirtha v. Balusami Ayyar during the life

of the head who granted the lease, and that if the lessee''s possession is consented to by the succeeding head, that consent can be referable only to

a new tenancy created by him and that there is no adverse possession until his death. On this ground it was held that the suit in that case was not

barred under Article 144 also. It is also clear from this decision that the rules enunciated in it apply to the endowments of Muhammadan religious

institutions and to alienations made by Sajjadanashins or Muttaiwallis. The respondents argue that the case before us falls exactly within the scope

of this decision, while the appellant contends that the present case is one of a bare trust in which the trustees have no beneficial interest, and that

the alienation in the present case being a sale and not a lease as in the Privy Council case that decision is inapplicable and that the suit is barred by

Article 144 of the Limitation Act.

The first question for us to consider is, what is the nature of the trust in the present case? Is it one in which the property is endowed absolutely

for the mosque or is-it one in which the trustees have some beneficial interest? The evidence on the point is somewhat meagre, but such as it is, we

think, it supports the respondents'' contention that the trustees of the mosque have a beneficial interest in the mosque property. In paragraph 4 of

Exhibit I, the plaint in the scheme suit, it is stated that ""these properties were granted rent-free by one of the former kings of Mysore during the

latter part of the 18th century to one Khazi Muhammad Mohidin Sahib for the performance of the Kazi service and for offering and reciting

prayers five times a day in the musjid etc."". In paragraph 5 it is stated that ""after the death of the original grantee all his sons succeeded to the office

of Kazi of the musjid and were discharging the duties appertaining to the office enjoying, the endowments of the musjid"". It is clear from ""these

statements that the grantee of these properties and his family, after meeting the expenses involved in the performance of their duties, enjoyed the

balance of the income from the properties for themselves. The grant of the property was made in the name of Mohidin Sahib and the property is

held in various shares by the various Muttawallis. The evidence of P. W. 2 throws important light on this question. He says: ""Before the sales the

lands were in the possession of the trustees on behalf of the mosque. They were receiving the rent for themselves and looking after the mosque.

They were getting 10 podies from the first item, 3 podies from the second item and Rs. 25 from the third item. To my knowledge they were getting

that income from the lands for 60 years."" This witness filed the main title deeds and other documents in the prior suit. He conducted the appeal in

the High Court. In his cross-examination he says, ""I have seen the produce divided and the mullas taking their share home. It was the descendants

of Khaji Muhammad Mohidin who were enjoying the produce. They told me in what shares they divided it."" We think the evidence of this witness,

supports the respondents'' contention that the profits accruing from the suit property after meeting the expenses of the services were being enjoyed

by the trustees and that they have therefore a beneficial interest in the property. The plaintiffs alleged that the property belonged to them but

abandoned this contention in the course of the suit. This does not by any means show that they have no beneficial interest in the property, an''

interest which is quite distinct from the absolute ownership claimed by them. The fact that a scheme '' suit u/s 92, Civil Procedure Code, was

brought in connection with this mosque to remove the trustees does not necessarily show that the trust is a bare trust. ''The decision in Nelliappa

Achari v. Punnaivanant Achari ILR (1926) Mad. 567 : 52 M.L.J. 415 shows that suits u/s 92, Civil Procedure Code, tan be instituted against

matadhipathis who admittedly have a beneficial interest in the mutt property. On the evidence before us we think we must accept the respondents''

contention that the trustees of the mosque in this case have a beneficial interest in the endowed property. '' On this conclusion it must be held,

following the Privy Council decision in Vidya Varuthi Thirtha v. Balusami Ayyar , that Article 134 will not apply to this case.

The next question is whether the suit is barred by Article 144 of the Limitation Act. If no distinction is to be drawn between the grant of a lease

and a sale, then the present case will clearly fall within the scope of the decision in Vidya Varuthi Thirtha v. Balusami Ayyar .'' In that case the

alienation was a lease, whereas in the present case the alienations are sales. The learned Advocate-General has drawn our attention to two recent

decisions of this Court, Vadlamudi Sastrulu v. Thalluri Venkataseshayya (1927) 110 I.C. 894 and Periyanan Chetty v. Govinda Rao (1931) 62

M.L.J. 496 where observations occur in support of his contention that if the alienations are sales, then a suit brought after the expiry of 12 years

from the date of the alienations would be barred under Article 144. But these observations can only be treated as mere obiter dicta having regard

to the fact that the alienations in those cases related to leases (and not to sales) and the properties belonged to temples, the dharmakarthas having

no beneficial interest in them. It is also a matter for observation that in those cases the suits were barred even if time is calculated from the death of

the alienor. For instance, in Periyanan Chetty v. Govinda Rao''s case (1931) 62 M.L.J. 496, the lease was in 1865 and after the alienation, three

or four Pandarasannadhis accepted rent and the suit was therefore clearly barred. The following observation of the learned Judges makes this point

clear:

Whether the proper date from which adverse possession generally runs in cases of permanent lease by dharmakarthas be taken as the date of the

alienation or some subsequent date as the death of dharmakartha or his resignation or removal from office, we have no doubt that on the facts of

this case adverse possession began from before 1902 and that the suits for possession were therefore barred under Article 144.

In all these cases what was attempted to be argued was that on the death of a trustee a fresh cause of action to institute the suit accrues in favour

of the succeeding trustee. This argument no doubt was rightly disallowed. But what is argued by Mr. Varadachari is not that each succeeding

trustee gets a fresh cause of action to institute the suit to set aside the, alienation at the time of his accession to the office, but that the alienor-trustee

being disabled from questioning the validity of his own alienations, his successor is not so estopped and that he can before the expiry of 12 years

from his accession to the office question the validity of the alienations. This seems to be the basis of the decision in Vidya Varuthi Thirtha v.

Balusami Ayyar which held that the suit was not barred by Article 144 in that case. It is not alleged in this case that the present suit has not been

brought before the expiry of 12 years after the removal of the trustees who alienated the property. It appears to us that the present case both with

regard to the application of Article 134 and Article 144 of the Limitation Act falls within the scope of the decision of the Privy Council in Vidya

Varuthi Thirtha v. Balusami Ayyar . It has been conceded by the learned Advocate-General that if we hold that the Muttawallis have a beneficial

interest in the suit properties, then he cannot distinguish the present case from the decision in Vidya Varuthi Thirtha v. Balusami Ayyar . In the view

that we have indicated above it is clear that no distinction can be made between a lease and a sale with regard to the application of Article 144 to

cases like the present one. The argument that the decision in Vidya Varuthi Thirtha v. Balusami Ayyar should be confined to leases and not be

extended to sales was attempted in Ranga Dasan v. Latchuma Dasan (1924) 48 M.L.J. 114, but that argument was disallowed and this decision

was confirmed in appeal in Rama Reddy v. Ranga Dasan ILR (1925) Mad. 543 : 50 M.L.J. 589. No doubt the latter case has been dissented

from in some respect in Periyanan Chetty v. Govinda Rao (1931) 62 M.L.J. 496, but we have already pointed out that the observations in that

case on the point under consideration are merely obiter. In Venkatasubbarayudu v. Haji Silar Sahib (1929) 58 M.L.J. 524 it was held that a sale

by the Muttawalli of wakf property, where the wakf provides for ''the private benefit of the family of the grantee as well as for the public benefit of

a mosque, is valid during the lifetime of the vendor, and a suit by the succeeding Muttawalli for a declaration that the sale is invalid and for recovery

of possession of the property cold for the mosque is in time, if instituted within 12 years from the date of the death of the Muttawalli who sold the

property. This decision followed the decision in Vidya Varuthi Thirtha v. Balusami Ayyar and specifically '' disallowed the distinction that was

sought to be drawn between a lease and a sale of property by the Muttawalli with reference to Article 144. The case before us, having regard to

our finding that the Muttawallis have a beneficial interest in the endowed property, is on all fours with this case. It is true, that the Courts in other

presidencies have taken a view different from the Madras view and have held that a distinction should be made between leases arid sales in

applying Article 144 of the Limitation Act to alienations made by trustees. As the present case falls within the scope of the Privy Council decision

in Vidya Varuthi Thirtha v. Balusami Ayyar and is covered directly by the decision of this Court in Venkatasubbarayudu v. Haji Silar Sahib (1929)

58 M.L.J. 524 we do not think it. is necessary to discuss any further the contention that Article 144 should be applied to this case as the alienation

we are concerned with is a sale and not a lease. We would, therefore, for the above reasons, hold that the plaintiffs'' suit is not barred under Article

We will state that what we have said in this appeal with regard to Article 144 will apply to the other appeal also even if we assume in that

appeal that the alienees obtained possession of the various items on the dates of sales.

The next question in this appeal relates to the value of improvements. This matter is dealt with by the learned Judge in paragraph 8 ''of his

judgment. The evidence that improvements had been made by the appellant and that the value of the property has been increased thereby is

extremely meagre. The 2nd defendant who says that improvements were effected did not go into the box as a witness and no accounts were filed

to show that improvements were made. We agree with the conclusion arrived at by the learned Judge on this point.

The next point relates to the delivery of possession of the entire extent covered by the second item and the mesne profits decreed, by the Court.

It is said that the 2nd defendant is not in possession of more than three-fourths of an acre of the second item and that therefore the decree for the

whole extent, with the entire mesne profits passed by the learned Judge should not be upheld. This argument cannot be accepted. The 2nd

defendant may say that he is not in possession of more than three-fourths of an acre, but, as the learned Judge says, the plaintiffs'' witnesses said

that each of the defendants is in possession of the item which he purchased. Even his own witness D. W. 2 says that the 2nd defendant is in

possession of about one acre. We accept the learned Judge''s finding on this point, and also his finding as regards the mesne profits.

In the result the appeal is dismissed with costs.