Kamalathammal vs Krishna Pillai and Another

The suit is by the widow of an archaka to recover the office and the lands which appertained to the office from defendants Nos. 1 and 2. The

office and the lands were alienated by the plaintiff''s husband under Exhibit I in 1893 to the 1st defendant. It is found by the District Judge on

appeal that the lands have been in the 1st defendant''s possession for mote than 12 years. As regards the office he says possession passed at the

same time. He does not, however, find who held possession of the office since 1897.

The Munsif held that since 1897 the 2nd defendant performed the duties of the office. Mr. Ramachendra Iyer argues, applying Article 124,

Schedule II, Indian Limitation Act, that as the 1st defendant enjoyed the emoluments he must be deemed to have held the office as well. This we

are unable to agree to. Article 124 deals with a suit for possession of a hereditary office. That means the suit is against the holder of the office. The

third column says that the time runs from the date when the defendant takes possession adversely. An explanation is attached to the clause in the

third column that the office is possessed when the emoluments are received in cases where emoluments are attached. The explanation is not

attached to the words in the first column. Nor does it say that mere receipt of the emoluments, without reference to any performance of the duties,

will enable the recipient to claim possession of the office if the duties are being performed by another. At all events to apply the article the suit must

be one against the holder of the office. To hold otherwise would mean when two different persons perform the duties of the office for the statutory

period the latter acquires the right to the office, a conclusion which appears to us to be manifestly absurd, nor can the conclusion be avoided, when

the emoluments are taken by several persons in severalty without any of them doing the duties, that they have all acquired a rioyt to the office. We

must then overrule the contention that the 1st defendant by possession of the lands alone has acquired a right to the office.

The next question is whether the 2nd defendant''s possession since 1897 was as the deputy of the 1st. In that case the plaintiff''s right to the

office would be barred and, as a consequence thereof, his right to the lands as well. As regards : the lands the claim would not be barred if the

plaintiff''s family was entitled to the beneficial enjoyment thereof. See Mahomed v. K. Ganapathi ILR (1890) M. 277. This view has not been

overruled by the Privy Council in Gnana Sambanda Pandara Sannadhi v. Velu Pandaram ILR (1900) M. 271 which was the case of a trust. We

are unable to hold that Abhiram Goswami v. Shyama Charan Nand ILR (1909) C. 1003, which was the case of a lease under which rent was

being paid, affects the principle to be applied to the present case. But Mr. Ramachendra Aiyar says that the lands belonged to the temple and were

only burdened with a charge for beneficial enjoyment in favour of the plaintiff''s family. This does not appear to us to affect the right of the plaintiff

to recover the property from the time her right to beneficial enjoyment accrues. But before we dispose of the case it is necessary to have a finding

on the question as to who had possession of the office since 1897 and, in case it was the 2nd defendant, whether he was in possession on behalf of

the 1st.

The finding should be returned within a fortnight after the recess on the evidence on record and seven days will be allowed for filing objections.