Jagathambal Anni and Others vs Periathambi Nadar and Others

Varadachariar, J.—The only question for determination in this appeal is a point arising under Article 47, Lim. Act. The suit properties are

said to have been endowed for the Arthajama Kattalai of Sri Nageswaraswami temple in Kumbakonam. Prior to 1918 one Periaswami Mudaliar

seems to have been enjoying these properties and performing the kattalai. It is in dispute between the parties whether the properties have been

wholly dedicated to the trust or are only subject to a charge in favour of the trust. On Periaswami''s insolvency, the Official Receiver sold these

properties as Periaswami''s properties subject to the rights of the kattalai and defendant 1 purchased them in August 1918, though the formal sale

deed was executed by the Official Receiver only in August 1920. For some years prior to 1918 the properties had been in the possession of a

tenant. In 1919 Periaswami filed an application before the Divisional Magistrate, Kumbakonam, setting forth the trust character of these properties

and his management thereof and claiming that on the termination of the lease he had himself resumed possession in March 1919. He complained

that the present defendant 1 was interfering with his possession and asked for an order u/s 144 or Section 145, Criminal P.C. (vide Ex. I-A). The

Magistrate passed his order Ex. I on 17th February 1920 holding that defendant 1 (then 1st counter-petitioner) was in possession and declared

him entitled to possession until evicted in due course of law. The present plaintiff is the mother of Periaswami who died in August 1928.

The plaint refers to certain events that took place in November 1925 and suggests that the plaintiff became entitled to the trusteeship of the

Arthajama Kattalai either from November 1925 or from Periaswami''s death in August 1928. Besides defendant 1 who was declared to be in

possession by the Magistrate, two other defendants were impleaded as parties to this suit, one being the trustee of Nageswaraswami temple and

the other a gentleman who had been associated with the Arthajama Kattalai by some scheme framed by the Endowments Board. It would appear

from their statements that arrangements have latterly been made for the carrying out of the Kattalai by payments to be made by defendant 1 from

out. of the suit properties. It is not therefore so much the question of the interests of the trust that is in dispute in this suit as the question of the

plaintiff''s right to remain in possession and perform the trust. The question whether she is beneficially entitled to the surplus income if any has been

mooted, but as the lower Court has disposed of the ease only on the plea of limitation, it is not at present possible to say anything as to the

beneficial interest, if any, in the surplus.

The plea of limitation was raised under Article 47 on the ground that this suit has admittedly been instituted more than three years after the date

of Ex. 1. The learned Subordinate Judge upheld this -objection. It was contended before him that the plaintiff is not a person bound by the order of

the Magistrate nor one claiming under a person so bound. This argument has been repeated before us though in a slightly modified form. We do

not think there is much force in that argument.

It is too much to contend that Article 47 should never be applied to the trust properties. Section 145, Criminal P.C., relates to the question of

possession of Immovable property and its application does not depend upon whether the claim is made by a private owner or on behalf of a trust.

If there is a bona fide dispute between a trust and a third person and the other conditions of the section are satisfied, there is no reason why it

should not fall within the cognisance of the Magistrate u/s 145; nor is there any reason why to an order passed by a Magistrate in such a case,

Article 47 should not be applied. If this is the correct position, what is the justification for holding that it is only the particular trustee who was a

party to a proceeding u/s 145 that must be held bound by that order or by the limitation prescribed in Article 47. If the trustee purported to act on

behalf of the trust, the proper interpretation of the order will be that the trust itself was a party and must be held bound by that order, and

whichever trustee may subsequently file a suit to set aside that order will really be acting on behalf of the trust. In these circumstances it seems to us

opposed to the very idea underlying possession proceedings and the necessity of having a question of that kind settled promptly, that we should

accede to the appellant''s contention that wherever the interests of a trust are concerned orders u/s 145 can be questioned after an indefinite length

of time by succeeding trustees.

On behalf of the appellant reliance has been placed upon an observation in Mahomed v. Ganapathi (1900) 13 Mad 277 that one dharmakartha

does not derive his title from his predecessor and is therefore not bound by his acts. This statement must be taken with considerable qualifications

be-cause the binding character of transactions entered into by any trustee will have to be judged not on the ground whether one trustee claims

under another, but on the ground whether the transaction was one justifiable under the circumstances in which it was entered into. The statement

that even in a case of hereditary succession, one dharmakartha does not derive his title from his predecessor cannot be regarded as correct after

the decision of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad 271; their Lordships say:

The respondent Velu can only be entitled as heir to his father Nataraja and from and through him.

The preceding discussion in the judgment where their Lordships negative the theory of a succession of life estates in respect of the office of a

trustee or the right to trust property makes clear what the observation above quoted was intended to signify. Even in the plaint in the present suit it

is on the footing of a hereditary right of trusteeship that the case is stated, though incidentally reference is also made to some orders passed by the

Endowments Board. The light afforded by decisions relating to adverse possession against a trust is also against the recognition of the argument

that one trustee does not claim through his predecessor. There have no doubt been differences of opinion as to when the possession of an alienee

from a trustee may become adverse to the trust. There has not been much difference of opinion as regards the effect of trespass on trust property

or adverse possession of the office. Whatever the differences may have been as to the time when the possession becomes adverse, there has

latterly been no doubt whatever that once adverse possession starts, it operates not merely against the then trustee, but against his successors as

well; and this can only be on the footing that each succeeding trustee claims under his predecessor.

It was suggested by Mr. Balasubramania Ayyar that it may lead to serious consequences if we should hold that by the operation of Article 47 a

trust may be deprived of its properties by reason of Section 28, Limitation Act, on the expiry of three years from a Magistrate''s order. It is

unnecessary for us to say whether the lapse of three years will in every case necessarily extinguish the title or not. If as happened in one of the

cases cited by Mr. Balasubramania Ayyar, namely, Kadambi Srinivasacharlu vs. Durlabha Subuddhi and Others a suit could be brought on behalf

of the trust by somebody of whom it could be said that he is not claiming under the trustee who was a party to the order u/s 145, Criminal P.C. the

title of the trust may be protected. But we do not think that this consideration should prevent us from holding against the plaintiff in this case

because, as already stated, it is not so much the interests of the trust that are sought to be vindicated in this suit as the plaintiff''s right to remain in

possession and herself get the trust performed.

A new point of view was suggested before us by Mr. Balasubramania Ayyar on behalf of the appellant, namely, that at the date of the

Magistrate''s order Periaswami was not entitled to possession because under the terms of the lease which he had granted, the lessee was entitled to

remain in possession till he was repaid an advance of Rs. 500. No reference to this circumstance appears to have been made in the pleadings or in

the issues in the Court below nor have we the lease deed itself before us. This information is only gleaned from a reference to the lease in the

Magistrate''s order as well as in the sale-deed executed by the Official Receiver in favour of defendant 1. There is however the fact that in 1919

Periaswami did apply to the Magistrate as one in actual possession. Assuming that it was a false statement and that his right at that time was only to

redeem the lessee or defendant 1 as an assignee from the lessee, the present suit is not one based on that right. Whether a properly framed suit for

redemption treating defendant 1 as one entitled to remain in possession as an assignee from the lessee will be barred by Article 47 or not, it is not

necessary for us to decide in the present state of the pleadings. The decisions in Bolai Chand Ghosal v. Samiruddin Mandal (1892) 19 Cal 646

and W. Subbalakshmi Ammal Vs. Narasimiah, to which our attention was invited in this connexion are beside the point. In the grounds of appeal

to this Court they were invoked only on the footing that a fresh title accrued to the plaintiff on Periaswami''s death,. It is now argued before us that

a fresh title must be deemed to have accrued to Periaswami when the Official Receiver executed a sale deed to defendant 1. It is difficult to see

how that could give any fresh title to Periaswami. The alleged redemption of the lessee by defendant 1 had taken place before Periaswami filed his

petition before the Magistrate and certainly before the Magistrate''s order. There is accordingly no scope here for the application of the principle

that Article 47 will not bar any claim to relief on foot of a subsequently acquired title. The appeal therefore fails and is dismissed with costs. The

appellant will pay to the Government the court-fee payable on the Memorandum of Appeal.

Stodart, J.

I only wish to add that so far as the interests of the trust are concerned there is always the remedy to set aside the transfer by a former manager

and in that case limitation is 12 years from the death of the transferor under Article 134(b).