Ouseph Ouseph and Others vs Palakadumala Devaswom and Others

Sankaean, J.—These appeals are directed against the decrees in O.S. Nos. 9/1121, 10/1121 and 11/1121 respectively, on the file of the Kottayam District Court. These three suits along with Anr. suit, O.S. No. 12/1121, were, with the consent of the parties in all the four suits, tried together and disposed of by a common judgment. The evidence for all the suits was recorded in O.S. No. 9 of 1121 and the leading judgment was also written in that case.

The properties involved in these four suit are portions of a paddy land known by the name of Kanjirathinadi Mandakam Nilam, 24 paras in extent. This property belonged to the Palakkath Mala Devaswom which was being managed by its Ooralars. Under Ex. A, a deed of settlement executed by them on 2-4-1062, one Bhavithraman Neelakandan Namboothiri was constituted the actual manager of the Devaswom in accordance with the specific powers conferred on him as per that document. Since the affairs of the Devaswom were not being managed properly, the State assumed its management on 23-12-1107, in exercise of the powers conferred by the Hindu Religious Endowment Act, Act III of 1079.

The present suits have been instituted by the State to set aside the kanam deeds executed by the aforesaid Bhavithraman Neelakandan Namboothiri in favour of the predecessors-in-interest of the respective Defendants in respect of the properties involved in each of the different suits and to recover possession of the properties with arrears of pattom on the basis of prior lease deeds of the year 1069. Exhibits D, G, B are the lease deeds executed by Neelakandan Namboothiri 3-9-1069 in favour of the predecessors-in-interest of the Defendant in O.S. Nos. 9, 10 and 11 of 11 respectively. These lease deeds were superseded by kanom deeds, Exs. H, G and F respectively executed by the same Neelakandan Namboothiri as manager of the Devaswom on 12-3-1080 in favour of the holders of the property. On the strength of these documents, the kanam tenants were regularly paying michavaram amounts due to the Devaswom until such dues were computed into Jenmi Karam in the Settlement Proceedings conducted under the provisions contained in the Jenmi and Kudian Act (the Amending Act, Act XII of 1108). After the jenmi karam was thus fixed, the State was regularly collecting the same from the Defendants.

The position taken up by the State in the present suits is that Neelakandan Namboothiri actually misused his authority in executing the aforesaid kanam deeds and he did so by colluding with the tenants who were already in possession of the property under a simple lease. It is therefore contended that the kanam deeds are invalid and are not binding on the Devaswom. It is stated that the State as well as the Devaswom were under the bona fide belief that the kanam deeds executed by Neelakandan Namboothiri were valid documents and that such a belief led to the collection of michavaram and later on the jenmi karam, from the tenants on the basis of these documents. On these allegations all these suits were instituted by the State for a decree to set aside the deeds and for recovery of possession of the properties, after getting a declaration that the Defendants are in possession of the properties only the strength of the lease deeds Exs. D, C and E respectively.

O.S. No. 9/1121 was resisted by the 3rd Defendant in that suit. O.S. No. 10/1121 was resisted by the 5th Defendant in that suit. O.S. No. 11/1121 was resisted by both the Defendants in that suit. The contentions raised by all these Defendants were almost identical. According to them, the entire property covered by all the (SIC) suits were outstanding under Ex. II kanam deed of the year 1034 and that at the time of renewal of this kanam in the year 1069, the documents Exs. D, C, B and E were executed as lease deeds because the original kanam deed could not be traced out. It is also contended that it was agreed even at the time of the execution of Exs. D, C, B and E, that on tracing out the kanam deeds proper renewal kanam deeds would be granted in favour of the respective tenants in possession of the properties. Exhibits H, G and P are stated to have been executed pursuant to such agreement.

It is further contended by them that ever since the execution of the kanam deeds the Devaswom as well as the State have consistently recognised the tenure as a regular kanam tenure, and have been collecting michavaram and jenmi karam from the tenants and as such the State is now estopped from ignoring these kanam deeds or questioning their validity and seeking recovery, of possession of the properties on the basis that the tenants are only lessees under the Devaswom. It is also contended that the suits are barred by limitation and that the proprietary rights of the Devaswom over the suit properties have been lost by efflux of time and that the only right subsisting in favour of the Devaswom is the right to recover the jenmi karam due in respect of the properties.

The lower Court repelled these contentions and passed a decree in favour of the State for recovery of possession of the properties with arrears of pattom based on the lease deeds of 1069 and directed the improvements claimed by the Defendants to be ascertained and provided for in execution. Hence, these appeals by the Defendants. A.S. No. 189 of 1124 is by the 3rd Defendant in O.S. No. 9 of 1121, A.S. No. 268 of 1124 is by the 5th Defendant in O.S. No. 10 of 1121 and A.S. No. 267 of 1124 is by both the Defendants in O.S. No. 11 of 1121.

The Plaintiff''s claim for recovery of possession of the properties can succeed only after avoiding the (SIC)nam deeds Exs. H, G and P under which the Defendants are holding these properties. These deeds are of the year 1080 and the normal period within which a suit to avoid such documents had to be filed under the Travancore Limitation Act was 12 years from the date of the document. Admittedly no attempt to avoid these documents was made by the Ooralars of the Devaswom until the year 1107 when the State assumed management of the Devaswom. Even after the State assumed such management, it is seen that these tenants were accepted as kanam tenants hoIding the property on the strength of Exs. H, and P for a period of 14 years, and the present its were instituted only in the year 1121.

Exhibits P, Y, XIV and XV are copies of the Settlement Proceedings relating to the properties covered by Exs. H, G, F and J. The proceedings under Exs. P, Y and XV were conducted in the year 1083 and the proceedings under Ex. XIV were conducted in the year 1092. The kanam deeds (SIC) accepted in these proceedings and pattah (SIC) the properties were issued in favour of the respective kanamdars. Exhibits XXIV to XXIV(i) (SIC) the series of receipts granted by the Devaswom authorities in favour of the kanam tenants (SIC) the amount of michavaram received from them (SIC)ring the period from 1092 to 1096. The kanam (SIC) Ex. G is seen to have been renewed under (SIC) IX of the year 1102. After the State assumed management of the Devaswom, proceedings were (SIC)tiated for a settlement of the jenmikaram due under the aforesaid kanam deeds. Exhibits Q to (SIC) were copies of such proceedings conducted in (SIC) year 1111 and 1112.

After the amount of jenmikaram was thus settled, the State collected such jenmikaram from the tenants in possession of the properties and Exs. XVII to XXIII are the receipts granted to these tenants in the years 1116, 1114, 1119 and 1120. Under the notice Ex. XVI dated 2-11-1114 a demand appears to have been made for the payment of the renewal fees which fell due in the years 1092 and 1104. It is also seen that the claim for arrears of michavaram was enforced against the kanam tenants and portions of the properties were sold for the realisation of such dues. Exhibits X and XI are sale certificates issued in that connection. In the face of these documents, it is idle for the Plaintiff to contend that the Plaintiff was labouring under a bona fide misapprehension as to the nature of the tenure under which these Defendants were holding the properties. In paragraph 10 of the plaint in O.S. 9 of 1121 it is stated that it was only in the month of Vrischigom 1114 that the Plaintiff cam(r) to know that there was an outstanding simple lease in favour of these Defendants. But the notice Ex. XVI demanding renewal fees due under the kanam deed is seen to have been issued even subsequent to this date. Still later the State authorities realised the jenmi karam due in respect of the suit properties from the tenants and issued the receipts Exs. XIX to XXIII in their favour in the years 1119 and 1120. In view of such reciprocal dealings between those in management of the Devaswom and the kanam tenants for such a long period of time commencing from the date of the kanam deeds of the year 1080 right up to the year 1120, the Devaswom authorities are clearly estopped from questioning the validity or the kanam documents and from seeking recovery of possession of the properties on the strength of an earlier lease arrangement.

The plea of limitation urged on behalf of the Defendants may now be examined. When the present suits were instituted the parties were governed by the provisions of the Travancore Limitation Act (Act VI of 1100) and hence the question of limitation raised in these appeals has to be decided in the light of the provisions contained in that Act. On behalf of the Respondent-Plaintiff an argument was advanced that the present suits come u/s 10 of the Limitation Act and that as such no question of limitation can arise in respect of these suits. Only such suits which satisfy the essential conditions specified in Section 10 can get the benefit of that section. The suit must be against express trustees or against their legal representatives or assignees who have taken assignment for no valuable consideration and the properties in respect of which the suit is brought must be properties which had vested in the trustees for any specific purpose. The present suits do not satisfy any of these tests. Neelakandan Namboothiri, who executed the impugned kanam deeds in favour of the predecessors-in-interest of the Defendants in these suits, was only managing the plaint Devaswom for the time being on behalf of the Ooralars. The transfer under the kanam deeds was for consideration received by way of kanam amounts from the tenants. Under these circumstances it is clear that the present suits cannot be brought u/s 10 of the Limitation Act.

Article 122 of the Travancore Limitation Act is the Article applicable to the present suits. That Article prescribes a period of 12 years for the institution of a suit.

to recover possession of Immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustees or mortgage for valuable consideration,

the said period being computed from the date of the transfer. This Article corresponds to Article 134 of the Indian Limitation Act with one notable difference. Under Article 134 of the Indian Act the period of limitation runs only from the date when the transfer becomes known to the Plaintiff, while under the Travancore Act the period of limitation begins to run from the date of the transfer itself. It may also be mentioned that the Travancore Limitation Act does not contain any Articles corresponding to Arts. 134(a), 134(b) and 134(c) of the Indian Act, which were inserted in that Act by the Indian Limitation Amendment Act (Act I of 1929). Naturally, therefore, the extended-period of limitation available under these special Articles could not be claimed in respect of the present suits to which the provisions of the Travancore Limitation Act alone could be made applicable.

Under Article 122 of the Travancore Limitation Act, the cause of action for avoiding the impugned kanam deeds and for seeking recovery of possession of the properties from the tenants in possession on the strength of such documents, arose on the dates when such deeds were executed. The Ooralars of the Devaswom were bound to institute suits for reliefs in such directions, within 12 years from the dates of transfer under these documents. It cannot be said that these Ooralars were unaware of the execution of these kanam deeds by Neelakandan Namboothiri. Even under the udampadi Ex. A executed by these Ooralars authorising Neelakandan Namboothiri to manage the affairs of the Devaswom, provision had been made for all transactions entered into by Neelakandan Namboothiri being scrutinised by these Ooralars at the commencement of each year.

There is also the fact that shortly after the execution of the kanam deeds Exs. H, G, P and J, settlement proceedings evidenced by Exs. P, Y, XIV and XV were conducted in respect of the properties covered by these documents. The kanamdars had put forward the documents in their favour before the Settlement Authorities and had claimed Pattah in their own names. Such a claim was not resisted by the Ooralars and the result was that Pattah was granted in favour of the kanamdars. There is the further fact that the Ooralars continued to receive michavaram from these tenants as is evidenced by the receipts Exs. XXIV to XXIV(i). Thus it is clear that the failure of the Ooralars to institute suits to avoid the kanam deeds and to recover possession of the properties within the period available to them could not have been for the reason that they were unaware of the existence of these documents. The result of the non-exercise of such a right within the period of 12 years prescribed by Article 122 of the Limitation Act was that the Devaswom lost that right for ever by virtue of Section 29 of the Travancore Limitation Act which corresponds to Section 28, Limitation Act. That section states that

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

The ordinary rule is that the expiry of the period prescribed for the commencement of an action results in the contemplated remedy being barred though not in an extinguishment of the right or title. The provision contained in the above section is an exception to this general rule. The application of the section is confined to cases where the party has a right to sue for possession of property and has failed to institute such a suit within the time prescribed by law.

On behalf of the Respondent-Plaintiff it is contended that the Article applicable to the present suits is Article 137 of the Travancore Limitation Act and that the suits having been brought within the period of 50 years prescribed under that Article, it cannot be said that the suits are barred by limitation. Article 137 applies to any suit by Government and the fifty years'' period prescribed under it is to be computed from the date from which the period of limitation for such a suit would run as against a private person. The corresponding article in the Indian Limitation Act is Article 149 and the period prescribed under it, is 60 years. If the management of the plaint Devaswom had not been assumed by Government the reliefs claimed in the present suits could have been claimed only by the Ooralars of the Devasworn and the suits brought by them would have been governed by Article 122 of the Travancore Limitation Act. The period of limitation for suit brought by them would have run from 12-3-1080 the date on which the transfer of the properties on kanam under Exs. H, G and F was effected. The present suits having been brought by Government within the period of 50 years from that date, it is contended that they are within the time allowed by law, and that the failure of the Ooralars of the Devaswom to institute suits within the period prescribed by Article 122 is of no consequence.

The decision in - Jewan Doss Sahoo v. Kabeerood-deen 6 WE PC 3 (A), is relied on in support of this position. The question that arose for consideration in that case was whether the suit brought by a mutawallee in respect of a wakf property within 12 years from the date of his appointment as mutawallee was barred by limitation. The suit was instituted at a time when Act, 19 of 1810, under which the, duty of superintendence and management of the wakf, had been vested in Government, was in force. The decision in that case rested on a consideration of such a situation and the question of limitation was answered by the Privy Council in the following terms:

the endowment in this case was a perpe(SIC) wakf endowment, and the duty of the Government to preserve its application to the right use was a public and perpetual duty. By Regulation II of 1805, Section 2, it is provided that the limitation of 12 years for the commencement of civil suits shall not be considered applicable to the commencement of any suits for the recovery of the public revenue, or for any public rights or claims whatever which may be instituted by or on behalf of the Government with the sanction of the Governor-General in Council, or by direction of any public officer or officers who may be duly authorised to prosecute the same on the part of Government. The Plaintiff, who has neither heir nor personal representative of his father in respect of wakf property, had no right of action against the Defendant till his appointment in 1819 and the Defendant could acquire no right against the Government, whose procurator the Plaintiff was, at least until twelve years had elapsed from his appointment.

This decision is of no help in determining the question of limitation raised in the present suits where the situation is entirely different. The scope of that decision was explained in (SIC) Mahomed v. Brij Kishore 17 WR 430 (B), where it was pointed out that subsequent to the passing of Act 20 of 1063, under which the Government divested itself of religious endowments,

a mutawallee cannot be considered to hold the position he was taken to have in the judgment of the Privy Council case in - ''6 WR PC 3 (A)''."

The real question for decision is whether Article 137 of the Travancore Limitation Act could be invoked in respect of claims which had become barred by limitation prior to the date on which the Government acquired the right to institute suits for the enforcement of the same. It is obvious that the different periods of limitation prescribed under the several Articles of the Limitation Act governing suits are intended to apply to suits for the enforcement of claims which are alive. It cannot be said that the Limitation Act is intended to revive or to give new life to claims which are already dead or have become non-existent. Even though Article 137 prescribes a longer period for a suit instituted by Government than for a similar suit instituted by a private person, the reasonable construction to be put upon this Article is that the benefit of this Article can be claimed by Government only when the claim was alive on the date when the Government acquired the right to commence an action in respect of the same. To construe the Article otherwise will have the effect of reviving barred claims by the mere fact of the Government acquiring a right in respect of such claims.

There is no warrant for holding that such a, dangerous consequence was intended by the Legislature in enacting this Article. It has to be so construed as not to defeat or be in conflict with Article 122 or Section 20. As far as possible the several provisions of the Limitation Act have to be construed in such a way as to give full effect to all of them. This view gains considerable support from the ruling in - King v. Morrall (1818) 146 ER 730 (C). In that case the Crown had acquired the rights under a claim which its debtor had against the Defendant in the action and had sought to enforce the same. But as between the Crown''s debtor and the Defendant, the claim had already become barred under the Statute of Limitation, which, however, could not be pleaded against the Crown. In upholding the defence plea that the Crown''s privilege of exemption from the statute of limitation cannot be extended to rights derived from third parties, Richards, Lord Chief Baron, observed as follows:

I admit, that as between the Crown and its immediate debtor, this statute has no application. But in a case like this, where the question is what debt was due from the Defendant to the Crown''s debtor, the rule is very different; for the Crown is only entitled to its debtor''s right, land cannot create or revive any right in the person of its debtor, if none ever existed, or it has become extinct. In this case nothing could have been recovered by the debtor of the Crown against this Defendant if the statute had been pleaded; I therefore consider that it is also a good bar to the suit of the Crown, who stands precisely in the same situation as its debtor, and that this is an honest plea which, therefore, the law allows. If the Crown could thus put its debtor in a better situation than he was in before, by such a proceeding as this, the consequence would be monstrous before the passing of the late statute, and the mischief would have been incalculable.

This view was concurred in by the other two Lord justices (SIC) viz., Wood, Baron and Graham, (SIC)ion, who participated in that decision. Wood (SIC)aron, expressed himself in these words:

But in this case, the claim of the Crown is only (SIC) a derivative right, and it must therefore stand in the same situation as its principal. This plea would have been a bar to the creditor''s claim, and so it would to an action by his executor or administrator; and the Crown, can have no better right than the original creditor, or his representative.

Still stronger expressions were used by Graham, Baron, who stated as follows:

and I consider that the privilege now attempted to be established, would be both inconvenient and unjust. This debt was completely '' gone then by a process, said, by a fiction, to- be for the benefit of the Crown, it is attempted lo revive the debt, and place the creditor in a better situation than the law permits. That is too gross an absurdity;

These principles" apply with equal force to the claims sought to be enforced by the State as Plaintiff in the present suits. The kanam deeds- executed by the manager of the plaint Devaswom are sought to be set aside and the properties recovered for and on behalf of the Devaswom. The State comes forward as the Plaintiff solely on account of the fact that it had assumed management of the Devaswom in the year 1107. Long before that date the right of the Devaswom to institute suits of this kind through its Ooralars had become barred by limitation and the kanam tenants had acquired full rights over the properties, subject only to the liability to pay the dues arising out of the kanam tenure. The Devaswom''s right to recover possession of the properties, which had thus become lost, could not revive on account of the assumption of management of the Devaswom by the State, so as to make the extended period of limitation prescribed by Article 137 of the Limitation Act, applicable to the present suits.

The ruling in - Sirkar v. Mathoo 1945 Trav LR 390 (D), was relied on by the lower court as an authority in support of its conclusion that the present suits are not barred by limitation. No doubt it was observed in that case that the State, which had assumed management of the Devaswom involved- in that case, could have sued for the recovery of the amounts due from its tenants at any time before the expiry of 50 years from the respective dates on which such amounts accrued due. But the question whether such a right would be available to the State even in respect of the claims which had become barred by limitation prior to the date of assumption of the management by the State, was not considered and decided in that case. Thus the ruling in that case cannot be accepted as an authority in support of the position contended for by the Respondent-Plaintiff. The scope of Article 137 of the Limitation Act was considered in - Dewan of Travancore v. Subramanian Valia Raja Avergal 21 Trav LJ 972 (E), and there it was ruled that claims which are already barred, will not revive by the acquisition by the State of the right in respect of such claims, so as to attract the extended period of limitation prescribed by Article 137 of the Limitation Act. To that extent the decision in that case can be accepted as correct. It has been further observed in that case that the Sirkar will be entitled to bring the suit within 50 years after the debt has become vested in the Sirkar. With all respect, it has to be stated that this cannot be accepted as a correct proposition of law. In fact, it is even opposed to the very Article itself, which prescribes the period of 50 years for suits by Government. The third column of that Article states that the starting point of limitation, for such a, suit will be the same as the starting point for a similar suit by a private person. Thus it is clear that the vesting of the right in the State is of no consequence in determining the period of 50 years prescribed under the Article, which period has necessarily- to be computed from the date on which the claim became enforceable.

From the foregoing discussion, it follows that the right to avoid the kanam deeds, Exs. H, G and F, and to seek recovery of possession of the property from the Defendants, had become barred by limitation long prior to 23-12-1107, the date on which the State assumed management of the plaint Devaswom, and that this right could not be deemed to have revived by virtue of such assumption of management. A non-existent right could not be put in action and enforced by the State. The Appellants contention in this respect has, therefore, to prevail. In this view of the matter, the other questions involved in the suits, as to the genuineness of Ex. II, an earlier kanam deed of the year 1034, relied on by the Defendant, (SIC) as to the competency of Neelakandan Namboothiri to execute the impugned documents, Exs. H, G and F, do not arise for consideration.

The result is that all these three appeals are allowed, and, in reversal of the lower Court''s decree in O.S. Nos. 9, 10 and 11 of 1121, all the three suits are dismissed with costs throughout.