Muthukrishna Pillai and Others vs Alagammal

Natesan, J.—The Defendants who have failed in both the Courts below are the Appellants. The suit relates to a trust founded by one

Alagappa Pillai (hereinafter referred to as senior Alagappa) by a registered Will (exhibit A-1). In respect of two items of properties endowed,

Section No. 461/1 of an extent of 43 cents and Section No. 462/B1 of an extent of 85 cents, 7 main charitable purposes are mentioned, the third

of the charities at Courtallam having three sub-items. The third item of property, Section No. 532/4, is endowed for a temple, Karpagavinayagar

temple which the founder himself had constructed. The Will provided that even the patta in respect of this property should be taken in the name of

the temple. As regards management the Will provided that, after the testator, his widow (hereinafter referred to as senior Alagammal) should be

the huqdar and perform the charities, and, after her, his two daughters, Gomathi Ammal and Ponnammal, should be huqdars. The Will made no

provision for huqdarship after the lifetime of the two daughters. The testator had only three daughters. Muthammal the eldest, was widowed before

1908. Gomathi Ammal above referred to was the second daughter and was married to one Alagappa Pillai (hereinafter referred to as junior

Alagappa). Ponnammal, the third daughter, was married to one Palvannan Pillai. Ponnammal died in 1910, Gomathi Ammal in 1940, and senior

Alagammal in 1925. The Plaintiff in the suit is Alagammal, the daughter of Ponnammal. Gomathi Ammal who died in 1940, had no issue, and the

first Defendant in the suit is the husband of Gomathi Animal''s foster daughter, Pappammal. This Pappammal died in November 1959. Defendants

2 to 4 are children of Pappammal.

After the death of senior Alagappa in 1909, a transaction was entered into on 1st July 1912, between senior Alagammal, the huqdar under the

Will, her daughters, Muthammal and Gomathi Ammal, son-in-law, junior Alagappa (husband of Gomathi Ammal) and Palvanna Pillai, husband of

Ponnammal for himself and as guardian of the Plaintiff, Alagammal. The transaction is evidenced by the registration copy exhibit B-1. It purports to

be a deed of settlement. At that time the Plaintiff was about 2| years old, and to her was given 22 cents in Section No. 461/1, 43 cents in Section

No. 462/3 and 16 cents in Section No. 532/4, that is, half the endowed properties, and half the charities mentioned in the Will (exhibit A-1) were

allotted to her. Gomathi Ammal and her husband, junior Alagappa got the remaining extents in the three items of the endowed properties and the

other half of the charities. In pursuance of this arrangement, the pattas were transferred, patta 586 being in favour of the Plaintiff. The present plaint

first Schedule consists of the entire endowed properties, and the second Schedule, the properties allotted to Gomathi Ammal and her husband

under exhibit B-1. Gomathi Ammal and her husband executed two Wills (exhibits B-3 and B-21) in favour of their foster daughter, Pappammal,

and her husband, the first Defendant. Since the death of Gomathi Ammal and her husband in 1940, Pappammal and her husband had been in

enjoyment of the second Schedule properties. As already stated, Pappammal died in November 1959, after notice had passed between the

Plaintiff and Pappammal and the first Defendant, and the second Schedule properties are now in the possession of the first Defendant and

Defendants 2 to 4, his minor children.

The suit has been filed on the basis that, after the death of Gomathi Ammal in 1940, the entire huqdarship in the plaint first Schedule properties

had devolved upon the Plaintiff as the granddaughter of the original founder and that therefore, she was entitled to be placed in possession of the

second Schedule properties. The suit has been instituted by the Plaintiff as huqdar of the trust created by senior Alagappa under his Will. It must be

mentioned here that the arrangement evidenced by exhibit B-1 had been in force at the time of the suit for over forty-seven years, and the Plaintiff

was about 49 years old when the suit was instituted. The plaint proceeds not on the basis that there has been any malversation of trust funds by the

Defendants or neglect of duties by the Defendants in respect of the trusts they had assumed in respect of the second Schedule properties. The

basis of the plaint claim is that the arrangement made in 1912, was void and invalid and not binding on the trust, and that the Defendants cannot

claim any rights under the Wills of Gomathi Ammal, and her husband, junior Alagappa. When the transaction of 1912, was entered into, though the

Plaintiff was made a party thereto represented by her father, at that time she was not even heir of the founder, her right to succeed to her maternal

grandfather having been given only by Central Act II of 1929.

In defence there was a plea that the properties were only charged for the trust, and that there was no out and out dedication. There was also a

specific plea that the first Defendant and his wife had, by enjoyment from 1937, acquired rights of trusteeship by adverse possession.

Both the Courts below have held that exhibit B-1, the settlement of 1912, was not valid and binding on the trust, and that there was no estoppel

against the trust from claiming the properties. After the decision of the Supreme Court in Lakshminarsimhachari v. Agastheswaraswamivaru (1960)

2 S.C.R. 768 even in the trial Court it was not seriously contended on behalf of the Defendants that there was only a charge and not out and out

dedication. In respect of the plea in defence that the suit was barred by limitation, the Courts below took the view that Section 10 of the Limitation

Act applied, and that, therefore, there could not be any bar of limitation. In the result, the suit was decreed, declaring that the plaint second

Schedule properties are the Plaintiff�s trust properties and providing for recovery of possession of the suit properties from the Defendants.

Now in appeal before me, learned Counsel appearing for the Appellant contends that the Courts below have erred in their view of the applicability

of Section 10 of the Limitation Act. It is also faintly contended that exhibit B-1 would be valid as a family arrangement.

To take up the second contention first, it requires no authority for the proposition that, by terming a transfer a family arrangement, its invalidity in

law could not be got over. At that time the arrangement evidenced by exhibit B-1 was entered into the huqdarship was vested in senior Alagammal

After her, her daughters, Gomathi Ammal and Ponnammal, were to be the huqdars. But Ponnammal was no more. But the settlement evidenced by

exhibit B-1 is the result of an agreement between not only the senior Alagammal and Gomathi Ammal but the sons-in-law of the founder and also

Muthammal and the endowed properties are divided between the present Plaintiff who had no place then in the scheme of succession and Gomathi

Ammal and her husband. In the result one sees the foster daughter of Gomathi Ammal and her husband getting a portion of the endowed

properties with trusts attached under Wills from the daughter and son-in-law of the founder. Exhibit B-1 is not a scheme among members of the

family entitled to the trusteeship, providing for the convenient management of the trust by turns or some settled order and sequence in the

management. In this case when the arrangement was entered into, the line of heirs properly designated by the founder was not exhausted. Even

though senior Alagammal could have relinquished her office in favour of Gomathi Ammal, no interest in the huqdar-ship could be conferred on the

other parties to exhibit B-1. It is well-established that an alienation or release or renunciation of an office of trust to be valid must be in favour of

the immediate heir. Reference was made on behalf of the Appellant to the decision in Gauranga Sahu v. Sudevi Mata ILR (1916) Mad. 612 (F.B.)

where it has been held that it is competent to the heir of the founder of a shrine, in whom the trusteeship has vested owing to the failure of the line

of the original trustees, to create a new line of trutees. But that is not the position in this case. Here, under the garb of a family arrangement, the

trusteeship is given to and divided with strangers and for this there is no sanction in law or custom. The arrangement in question, even if it had been

temporary, would be improper, even as between the original parties to the agreement as improper delegation of the duties of a trustee, particularly

in the case of bare trusteeship. In the present case Gomathi Ammal was not providing for a new line of trustees on the vesting of the trusteeship in

her as heir of the founder. She was a designated heir and by exhibit B-1 she did not profess to provide for a new line of trustees after her, even

assuming she had the right to do so.

Also when the founder intended and constituted a single charitable institution providing for various objects of charity, religious or otherwise, it will

be improper to divide the endowment into two distinct institutions. On the question whether endowed properties and the office could be so

divided, it is sufficient to refer to the following passage at page 331 in The Hindu Law of Religious and Charitable Trust by Bijan Kumar

Mukherjee (second edition):

In regard to the question as to whether a division of the Mutt or of the Office of the Mohunt was permissible in Law, the Judicial Committee made

the following observations Ramcharan Ramanuj Das v. Gobinda Ramanuj Das ILR (1928) Cal. 894 (P.C.).

There is no direct authority as to the power of Mohunt who has a number of separate Asthals, which by usage have all been held by one man, to

provide for their division between his successors or to saddle the property of one or more of the component Asthals with a reservation in favour of

the others. All that can be safely said is that, as the essence of the law governing these maths lies in the following of custom or usage, prima facie

such a separation would be improper, unless there were special circumstances justifying it.

In Gobinda Ramanuj Das Mohanta v. Mohunta Ramcharan Ramanuj Das ILR (1935) Cal. 326 which is a sequel to the litigation in Ramacharan

Ramanuj Das v. Gobinda Ramanuj Das ILR (1928) Cal. 894 (P.C.) above referred to, a fresh suit was commenced by the Defendant in the earlier

suit on behalf of the deities of the mutt for recovery of possession of the entire mutt with all its properties primarily on the ground that the divisions

and appointments made by the previous Mohunt in his Will of 1918 was invalid as amounting to a transfer and division of the Mohuntship and the

mutt properties, there was no limitation and the contention was upheld. It follows, therefore, that, viewed in whatever form, the transaction

evidenced by exhibit B-1 is void and not binding on the trust. In fact, on the decision above referred to, Ramcharan Ramanuj Das v. Gobinda

Ramanuj Das ILR (1928) Cal. 894 (P.C.), even as a family arrangement between the parties, exhibit B-1 would not constitute a defence if the suit

is brought not by the party to the family arrangement in his individual capacity but on behalf of the trust: Their Lordships observed at page 900:

It might be, however, that owing to the form of the particular suit the agreement would not constitute a defence, because in form the suit is not

brought by Gobinda Ramanuj, but by the two idols acting through him as their alleged Shebait--an idol being a juridical entity in Indian Law. Vidya

Varuthi v. Balusami Ayyar ILR (1929) Mad. 831, 839 (P.C.).

Exhibit B-1 being wholly invalid, the Defendants can get no title under the Wills (exhibits B-3 and B-21) as against the trust. The Plaintiff became

exclusively entitled to the huqdarship in its entirety on the death of Gomathi Ammal in 1940. From 1940 till 1959, she had stood by it and the

arrangement under exhibit B-1 has been adhered to by the Plaintiff and the Defendants. The question for consideration now is whether the present

claim of the Plaintiff is barred by limitation.

The suit has no doubt been instituted by the Plaintiff, as stated at the very beginning as huqdar of the trust under the Will of senior Alagappa. The

Courts below have negatived the plea of limitation on the ground that the Defendants have not claimed adverse possession against the trust, and, as

a matter of fact, have accepted the trust, and that, therefore, Section 10 of the Limitation Act applied.

The position which has obtained since exhibit B-1 is in effect as follows:

The trust founded by senior Alagappa has been partitioned into two distinct entities and placed in the management of independent trustees. The

arrangement was illegal, and could have been set right and ignored by the Plaintiff when the exclusive huqdarship of the trust under the Will of

senior Alagappa devolved on her in 1940, on the demise of the last designated huqdar. But, as already stated, the Plaintiff stood by and nineteen

years elapsed since the cause of action arose and the right to her exclusive trusteeship had been denied by the management of a moiety of the

endowed properties by the Defendants and their predecessors in title as trustees. The partition in this case which was given effect to and had

prevailed all these years is not only partition of the properties of the endowment, but of the office as well. True it is void, as already found; but

there can be no doubt that the hereditary office of trusteeship is also property like house and lands capable of inheritance according to the law of

succession and liable to be lost by adverse possession under the law of limitation.

Taking up the authorities: The case Gnanasambanda Pandara Sannadhi v. Velu Pandaram ILR (1899) Mad. 271 (P.C.) arose out of a suit by one

Velu Pandaram as Plaintiff to establish his right to the management of an endowment connected with a temple and to possession of the lands

forming the endowment. There had been, in that case, a transfer of the office and the properties attached to the office. Observing that there was no

proof of any custom in the case allowing such transfers and consequently the transfers were void and did not give any title to the purchaser, their

Lordships of the Judicial Committee held that there was no distinction between the office and endowment in regard to the application of Article

124 of Schedule II of the Limitation Act (XV of 1877) and of Section 28. Following the aforesaid decision and that of the Supreme Court in

Kalipada Chakraborti and Another Vs. Palani Bala Devi and Others, this Court has held in Lakshmana v. Vaidyanatha ILR (1956) Mad. 1144

that the office alone cannot be recovered without seeking to recover the property and vice versa. At page 1149 it is observed:

The property alone cannot be recovered nothwithstanding the fact that the right to the office is lost. There are observations at page 517 in

Kalipada Chakraborti and Another Vs. Palani Bala Devi and Others, to the effect that when there is a transfer of trusteeship the article is 124 of

the Limitation Act.

There can be no doubt that joint right of management or trusteeship could also be acquired by adverse possession. In Nilakandan v. Padmanabha

ILR (1890) Mad. 153 where the Appellants and the Respondents families had been in joint management, it was observed at page 162:

As regards the last question, viz., of limitation, it has been decided by the Privy Council that the 12 years rule is applicable when there is no

question for recovering any property for the trusts of the institution, and when the Plaintiff sues only for his personal right to manage or to control

the management of the endowment--Balwant Rao v. Puran Mal. ILR (1883) All. 1 (P.C.).

This decision was affirmed by the Privy Council in Neelakandhen Nambudiripad v. Padmanaba Ravi Varma ILR (1894) Mad. 1 (P.C.).

The facts of Ramcharan Ramanuj Das v. Gobinda Ramanuj Das ILR (1928) Cal. 894. (P.C.) as summarised in the head--note therein are: In

1908 the mohant of a math which included a greater and five lesser asthals, executed a Will, appointing the first Respondent his chief chela and to

succeed him as goddinashin mohant. In 1918 he executed two Wills on the same day. By the first, he named the first Respondent to succeed him

as mohant of one of the lesser Asthals, and bequeathed to him the income thereof, also some land attached to another lesser Asthal. By the second

Will, after stating the effect of the first, he bequeathed to another chela all the rest of the math property, and appointed him to succeed as

goddinashin mohant. The testator died shortly after. The two chelas then compromised disputes by giving effect to the two Wills of 1918. In 1920,

the new Goddinashin mohant died having by his Will appointed the Appellant to succeed him. On these facts the first Respondent sued to establish

his right to be the sole mohant of the whole math. With reference to the question of estoppel raised in the case by reason of the compromise their

Lordships of the Judicial Committee observed at page 900:

If it were necessary to pursue this matter, it would be proper to enquire whether Ramanuj could by claiming to use the name of the idols as

Plaintiffs prejudge and preclude any issue which would bear upon the question of his title to goddinashin Mohant.

This question was considered in details in Gobinda Ramanuj Das Mohunta v. Mohunta Ramcharan Ramanuj Das ILR (1935) Cal. 326 already

referred to and it is observed therein at page 338:

Upon these observations of their Lordships, it seems to us clear that, on the question of the respective offices of the two parties, as created by

Bharat''s two wills of 1918 and as evidenced by the compromise expressed in the ekrarnamas, there was an estoppel created as against Barha

Gobinda on the one hand and Chhoto Gobinda on the other. So far as the office was concerned, there was a privity of estate between Barha

Gobinda and the Plaintiff. It was, therefore, that their Lordships said in the passage quoted above that'' the present Defendant (meaning Ram.

charan) as privy in estate with Barha Gobinda would appear to be equally entitled to take advantage of the agreement''. And their Lordships

further suggested that Chhoto Gobinda by having a suit instituted by the idols through himself as the holder of the office of goddinishin Mohanta,

could not prejudge and preclude any issue which would bear upon the question of his title to be gaddinishin mohanta. In other words, if he was

estopped from claiming that office for himself he could not get over that estoppel and have it assumed that he was gaddinishin mohanta: by having a

suit instituted by the idols through himself as the holder of the office of gaddinishin mohanta they could not prejudge and preclude any issue which

would bear upon the question of his title to be gaddinishin mohanta. In other words, if he was estopped from claiming that office for himself he

could not get over that estoppel and have it assumed that he was gaddinishin mohanta by having a suit instituted by the idols through himself as the

holder of the office of gaddinishin mohanta he could not prejudge and preclude any issue which would bear upon the question of his title to be

gaddinishin mohanta. In other words, if he was estopped from claiming that office for himself he could not get over that estoppel and have it

assumed that he was Gaddinishin mohanta by having a suit instituted by the idols through himself as gaddinishin mohanta.

In the present case no question of estoppel arises. But the Plaintiff is seeking exclusive possession of all the endowed properties by claiming herself

to be the sole huqdar, a claim which is challenged by the Defendants who contend that the Plaintiff has lost that position by their adverse

possession.

Section 10 of the Indian Limitation Act of IX of 1908 relied on by the Plaintiff provides:

Notwithstanding anything herein before contained, no suit against a person in whom property has become vested in trust for any specific purpose,

or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such

property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

But it is well established that Section 10 applies only to suits for recovery of the property for the trust in question, and that this Section can have

no application when the suit is by the Plaintiff for his personal right of management or control of the management of the trust. Where the Defendant

is admittedly functioning as trustee, and there is no allegation that he is not applying the property for the trust in question, Section 10 has no

application. In a case of this kind, as already noticed viewed as a hereditary office, Article 124 will apply. Otherwise, the residuary Article 120 will

apply.

In Balwant Rao v. Puran Mal ILR (1883) All. 1 (P.C.) relied on in Nilakandan v. Padmanabha ILR (1890) Mad. 153 above referred to, the

Appellant-Plaintiff claimed as the descendant of the founder of an endowment. The Defendant in that suit had, many years before the suit, been

appointed by the Appellant''s ancestor as the manager of the porperty belonging to the temple, and the claim in the suit was for removal of the

Defendant from that office. In substance, he asked in the plaint, inter alia to be appointed as the chief manager and to obtain possession of the

temple property by ejectment of the Defendant. The Defendant did not dispute that the property belonged to an endowment, and there was no

finding in the case of any malversation or misappropriation of the property on the part of the Defendant. On those facts with reference to Section

10 of the Limitation Act (IX of 1871) corresponding to the present Section 10, their Lordships of the Judicial Committee observed at pages 9 and

10:

Their Lordships are of opinion that the expression used by the legislature ''for the purpose of following in his or their hands such property'', means

for the purpose of recovering the property for the trusts in question; that when property is used for some purpose other than the proper purpose of

the trusts in question, it may be recovered, without any bar of time, from the bands of the persons indicated in the section. But here there is no

question of recovering the property for the trusts of the endowment, because the Defendant admits that he is a trustee, and says that he is applying

the property to the trusts of the endowment. There is no evidence that he is not applying the property to the trusts of the endowment, and there is

no reason to conclude that the property would be more applied to those trusts if the Plaintiff were to succeed in his suit than it is at this moment.

The Plaintiff is suing only for his own personal right to manage or in some way to control the management of the endowment. The consequence is

that the case does not fall within Section 10 of the Limitation Act. If it does not then it must be within one of the articles of the Schedule. Their

Lordships do not see any reason to differ from the High Court in thinking that it may fall with Article 123 (corresponding to the present Article

124) or Article 145 (corresponding to present Article 144), but they desire to express no opinion upon that point, and there is some difficulty in

ascertaining the exact nature of the suit, owing to the obscurity with which the Plaintiff�s title is stated in the plaint. But if it does not fall within

either of those sections, then the case is caught by the general Article 118 (corresponding to present Article 120), which provides for every case

that is not previously provided for in this Act. Therefore either the suit is barred in six years or in twelve years,--it matters not which, for the casue

of action arose at all events before the year 1865.

In the lower appellate Court the decision of the Privy Council in Ambalavana Pandara Sannidhi v. Meenakshi Sundareswarar Devasthanam of

Madurai ILR (1920) Mad. 665 (P.C.) was relied on by the Appellants. Here reliance is placed on the decision in Arunachalam Chetty v.

Venkatachalapathi Guruswamigal ILR (1919) Mad. 253. The latter is a case where the suit was brought to declare that the Defendants, Appellants

before the Privy Council, had no right to the village of Patharakudi, and that the Plaintiff as head of the mutt in question was entitled to the

possesssion of the village and to receive the income from the office of the Receiver. The village was part of the property of the mutt, and the

contest as noticed by the Privy Council, was between the head of the mutt on the one hand who claimed by virtue of his office to be entitled to the

management and possession of the entire property of the mutt, and the Appellants on the other who claimed that they were entitled as trustees or

managers of the institution to be continued in possession and management of the property. The form of action as laid was a suit for possession by

the head of the mutt who did not have possession against the trustees or managers who and whose predecessors-in-title were in possession for

many many years. Their Lordships of the Judicial Committee, referring to the decision in Balwant Rao v. Puran Mal ILR (1883) All. 1 (P.C.) held

that the rule of limitation applied.

It may be that, to a suit brought wholly on behalf of the trust founded by the senior Alagappa for restoring to a single management the

administration of the several religious charties by framing a suitable scheme and necessary ancillary relief neither the Plaintiff nor the Defendant

could raise any valid defence, but on that no opinion could be given now. In Ranga Pai v. Baba ILR (1896) Mad. 398, 403. (P.C.) it is observed:

It might possibly be different if the Defendants were not, as well as the Plaintiffs, trustees of the temple but as against the Plaintiffs, their co-trustees,

the Defendants have defences open to them which would not be available against third parties representing the temple. It has been urged in this

case that a trustee is not at liberty to sue his fellow trustee except under special circumstances. This is a defence which is open to the Defendants as

against the Plaintiffs, but would of course not be open to them if they were called to account by strangers suing solely in the interest of the

devasam.

In the light of the principles emerging from the above decisions, I hold that the present suit is barred by limitation. Of course, there can be a

declaration in this suit that the arrangement evidenced by Exhibit B-1 is wholly void and not binding on the trust and endowment created by senior

Alagappa under his Will (Exhibit A-l), dated 17th October 1908. In the result the decrees of the Courts below are set aside, and subject to the

above declaration, the suit shall stand dismissed. In the circumstances of the case, the parties will bear their respective costs throughout. No leave.