Jagathambal Anni (deceased) represented by Nataraja Manicka Mudaliar and Others vs Periathambi Nadar (deceased) represented by Ratnasami Nadar and Others

Varadachariar, J.—The only question for determination in this appeal is a point arising under Article 47 of the Limitation Act.

The suit properties are said to have been endowed for the Ardhajama Kattalai of Sri Nageswaraswami Temple in Kumbakonam. Prior to 1918

one Periaswami Mudaliar seems I 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 the first defendant 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 first defendant was interfering with his possession and asked for an order u/s 144 or

145 of the Criminal Procedure Code. (Vide Ex. 1-A). The Magistrate passed his order Ex. I on 17th February, 1920, holding that the first

defendant (then first 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 Ardhajama kattalai either from November, 1925, or from

Periaswami''s death in August, 1928. Besides the first defendant 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 Ardhajama 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 the first defendant 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

case 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. I. 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 trust properties. Section 145 of the Criminal Procedure Code, 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 proceedings 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 Mohomad v. Ganapati I.L.R.(1889) 13 Mad. 277 at 280, 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 because 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 4 CWN 329 (Privy Council) . At page 282 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 difference 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 of the 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, Srinivasacharlu v. Subuddhi (1888) 23 M.L.J. 348 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 of the Criminal Procedure Code

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 the first defendant. 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 the first defendant as an assignee from the lessee, the present suit is not one based on that right. Whether a properly

framed suit for redemption treating the first defendant as one entitled to remain in possession as an assignee from the lessee will be bound 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 I.L.R.(1891) 19 Cal. 646 and W. Subbalakshmi Ammal Vs. Narasimiah, , to which our attention was invited in this connection 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 the first defendant. It is difficult to see how that could give any fresh title to Periaswami. The alleged redemption of the lessee by the first

defendant 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 twelve years from the death of the transferor under Article 134(b).