Pandurangi Bhimacharya vs Divadhina Charya

The plaintiff-appellant is the head of the Uttaradhi Mutt. The suit out of which this appeal arises was filed by the plaintiff for the recovery of

possession of the inam village of Tirumalapuram. This village was granted originally by the Nawab of Mysore in 1784 to Sri Sathya Bodha Swami

Garu, the then head of the mutt, for purposes of worshipping Srirama Devaru. The village was in the possession and management of Sathya Bodha

Swami and his successors till 1797. In that year Sathya Dharma Swami, a successor of Sathya Bodha Swami, gifted it to Kothandapani

Rangacharlu (an ancestor of the defendant) and his successors ""from son to grandson and so on in succession for the diligent study of the Vedas

(See Ex. G). From that time onwards, that is for about 130 years, the inam has been in the occupation of the defendant and his predecessors.

The grant by the swami was recognised by the Muhammadan sovereigns first and afterwards by the British Government. At the time of the Inam

Inquiry in 1861 it was recognised as a personal inam and confirmed as rent-free and hereditary in the name of the paternal grandfather of the

defendant. These facts are not disputed.

The plaintiff became the head of the mutt in 1912. His case is that the suit village forms an endowment of the mutt, that its alienation by Sathya

Dharma Swami is invalid and that he is therefore entitled to recover possession of the same from the defendant as the property of the mutt. The

defendant denies that the village is trust property or an endowment of the mutt, his case being that it was the absolute property of the Swami who

alienated it and that the gift by that Swami is valid. He further contended that the suit is barred by limitation. His other contention need not be

referred to for purposes of this appeal.

Issue No. 1 (a) comprehensively worded, ""was the grant by Sathya Dharma Swami to defendant''s ancestor invalid and is the plaint property

still trust property?"" covers both the above contentions, and on it the learned Subordinate Judge recorded the following findings: (1) the plaintiff has

not made out his case that the suit village is an endowment of the mutt and (2) the plaintiff''s suit is barred by adverse possession. In the result the

plaintiffs suit was dismissed.

In appeal Mr. Sitarama Rao on behalf of the appellant canvassed the correctness of the learned Judge''s finding on both the points. In the view

that we take of the question of adverse possession assuming that the property belongs to the mutt and not to the mahant personally, we did not

think it necessary to trouble the learned Counsel for the respondent to argue the question regarding the character of the gift, though we heard the

appellant on that point also.

It was not seriously contended before us that the gift was made for necessity. It will be observed that the gift was made by the head of a mutt. In

P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, the following propositions of law were laid down by the

Privy Council: Except for unavoidable necessity, the head of a mutt cannot create any interest in the mutt property to enure beyond his life. A

lessee, however, has not adverse possession under Article 144 of the Limitation Act during the life of the head who granted the lease. If the

lessee''s possession is consented to by the succeeding head, that consent can be referable only to a new tenancy created by him, and there is no

adverse possession until his death, (See the head-note.) According to this decision, Article 144 of the Limitation Act, which declares that for a suit

for possession of immovable property or any interest therein not hereby (that is, by the schedule) otherwise specially provided for"" the period of

limitation is 12 years from the date when the possession of the defendant became adverse to the plaintiff, would govern the question of adverse

possession when raised by an alienee with respect to the mutt property aliented by the head of a mutt. In the present case the alienation purports to

be an absolute grant of the property, whereas] in Privy Council case the alienation purported to be a grant of a permanent lease. For some time in

this Court as well as in the other Courts in India it was argued that in applying the principle of the Privy Council decision with respect to the

question of adverse possession a distinction should be made between leases and sales or absolute grants. This Court in Ranga Dasan Vs.

Latchuma Dasan and Others, and recently in Arumugam Pillai and Another Vs. Khazi Mohideen Sheriff Sahib and Another, refused to accept this

contention and very recently their Lordships oi the Privy Council have also come to the same conclusion. Their Lordships state ""in each case the

operation of the purported grant is effective and endures only for the period during which the mahant had power to create an interest in the

property of the mutt. The result is that adverse possession of the particular property will commence when the mahant who had disposed of it

ceases to be a mahant by death or otherwise. This conclusion is based on the following passage appearing in the judgment of their Lordships of the

Privy Council in P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, :

In view of the argument it is necessary to discover when, according to the plaintiff, his adverse possession began. He was let into possession by

mahant No. 1 under a lease which purported to be a permanent lease, but which under the law could enure only for the grantor''s lifetime.

According to the well settled law of India (apart from the question of necessity, which does not here arise; a mahant is incompetent to create any

interest in respect of the mutt property to enure beyond his life With regard to mahant No, 2, he was vested with a power similarly limited. He

permitted the plaintiff to continue in possession and received the rent during his life. Such receipt was with the knowledge which must be imputed

to him that the tenancy created by his predecessor ended with his predecessor''s life, and can, therefore, only be properly referable to a new

tenancy created by himself. It was within his power to continue such tenancy during his life, and in these circumstances the proper inference is that

it was so continued, and consequently the possession never became adverse until his death.

This passage is relied on by both parties in support of their respective contention. In P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss

Krishna Doss Varu and Another, the permanent lease under which the plaintiffs claimed the suit property was granted by one Srinivasan, the then

Matadhipathi, in the year 1891. Shortly after the grant of the lease Srinivasa died and was succeeded by one Samudra who held the office until

1906. On his death the 26th defendant became the head of the mutt and in 1913 a suit was instituted against him for a declaration of title and for

possession of the lands. In the present case there has been a succession of mahants since the gift and not merely two mahants as in the Privy

Council case. Mr. Sitarama Rao argues that the true principle to be extracted from the passage above quoted is that so long as there has been no

repudiation of the lease or the grant of property whichever the case may be, the adverse possession of the alienee does not commence and that

until repudiation the original title continues; but when once there is repudiation, possession becomes adverse from that time, and if no suit is brought

within 12 years, the title of the mahant to institute a suit becomes barred by adverse possession. Having stated the principle in this way, he argues

that having regard to the facts of this case there has been no repudiation of the grant at'' any time and therefore, the possession of Rongacharlu and

his successors has never been adverse to the mutt and that the suit is not barred by limitation. We find that the principle enunciated does not follow

from the passage relied on by the learned Counsel and is not supported by any of the authorities to which he drew our attention. If the passage

relied on does not support the principle,''then he stated candidly that no decision directly supports his argument. The question then is whether the

principle enunciated follows from the passage above quoted. In our opinion it does not. Their Lordships of the Privy Council in AIR 1933 75

(Privy Council) have explained its true purport in the following words. After quoting the above passage they say.

In other words, a mahant has power (apart from any question of necessity) to create an interest in property appertaining to the mutt which will

continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the mutt, with the

result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by

death or otherwise.

This means a mahant can create an interest in the mutt property which will be valid only during his lifetime, that after his death adverse

possession of the particular property will commence and if nothing is done by the succeeding mahant or his successors to put an end to that

adverse possession before the statutory period is completed, then the title of the mutt is barred by adverse possession. In P.M.A.R.M. Muthiah

Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, case mahant No. 2 permitted the plaintiff to continue in possession and receive

the rent during his life. (The italics are ours). From this fact their Lordships drew the inference that a new tenancy was created by Mahant No. 2

and then they said,

It was within his power to continue the tenancy during his life and in these circumstances the proper inference is that it was continued and

consequently possession never became adverse until his death.

Adverse possession having started in 1905 when the first mahant died, it was put an end to by the creation of a new tenancy by the acceptance

of rent by mahant No. 2 and so possession of the alienee could not become adverse till his death. We have no doubt that this is the true principle

underlying the passage quoted from P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, There has been no

payment of rent in this case or the doing of anything either by the mahants or by the alienees before the adverse possession was perfected to show

that possession which became adverse to the mutt when the original grantor died was kept permissive by subsequent conduct. That the passage

quoted above from P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, should be understood in the manner

indicated by us appears to be clear from the decision of the Calcutta High Court in Raja Manindra Narayan Roy v. Sarat Chandra Bhandopadhya

95 Ind. Cas. 644 : 30 CWN 740 : 43 CLJ 394 : AIR 1926 Cal. 913 though that decision cannot be regarded as an authority having regard to

AIR 1933 75 (Privy Council) , when the learned Judges say that there is a radical difference between a sale and even a permanent lease with

regard to the application of the principle. After referring to P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and

Another, the learned Judges say that:

the reason given by their Lordships as to why the possession cannot be adverse until the death of the 2nd defendant is that it is within his power to

continue the tenancy during his life and if there is a receipt of rent by him the proper inference is that the tenancy has been so continued and

consequently the possession of the lessee never becomes adverse till his death. Possession of the lessee cannot be adverse so long as the tenancy

continues and it is only if the tenancy comes to an end that the possession of the lessee becomes adverse

Another decision quoted by the learned Counsel for the respondent, Shri Satya-dhyana v. Bhujang Chintman 144 Ind. Cas. 277 : AIR 1933

Bom. 253 : 35 Bom. LR 368 : Ind. Rul. (1933) Bom. 298 a direct case in support of his present contention. That was also a suit by the Uttaradhi

mutt. Judging from the names the plaintiff in the present case he seems to have been the plaintiff in that case also. He sued the defendants to

recover possession of the property alleged to belong to the mutt said to have been gifted about 40 or 50 years ago by the then Swami of the mutt

to one Krishnamachariar, the ancestor of defendants Nos. 8 and 9, the remaining defendants being transferees and tenants. There seems to have

been a succession of mahanls in that case since the alienation as in the present one before the institution of the suit. One of the questions raised was

whether the suit was barred by limitation under Art. 144. Referring to the passage already quoted from P.M.A.R.M. Muthiah Chettiar Vs. Lodd

Govinda Doss Krishna Doss Varu and Another, the learned Judges say

These observations with regard to the receipt of rent and the creation thereby of a new tenancy will have no application to the present case where

the property was gifted absolutely about 50 years ago and from that date the succeeding mahants of the mutt have received nothing from the

defendants, nor has their title been acknowledged by them. There can be no question, therefore, of a creation of any new interest by the

succeeding mahants hat is, those who succeeded the mahant who made the alienation, and ordinarily speaking, a mahant having power only to

alinate the property of a religious institution during his lifetime, adverse possession will commence from his death This is ''clear from the judgment of

the Privy Council in P.M.A.R.M. Muthiah Chettiar Vs. Lodd Govinda Doss Krishna Doss Varu and Another, .

These observations of the learned Judges may be applied word fcr word to the present case also. The alienation in the present case was as

long ago as 1797 and from that date succeeding mahants of the mutt have received, nothing from the defendants, nor has their title been

acknowledged by them,

We have no doubt that the suit is barred by limitation under Act. 144 of the Limitation Act. In this view it is not necessary to consider the other

alternative grounds on which also the respondent was prepared to argue that the suit was barred by limitation. Nor is it necessary to consider, as

already mentioned, whether the suit property is mutt property or the personal property of the mahant who alienated it. The appeal is dismissed with

costs.