Soundaravalli vs Thirunethiranathar Temple

Ramamurti, J.—The first defendant in the suit (hereinafter referred to as the defendant) is the appellant in the Second Appeal (defendants 2

and 3 have no interest in the litigation). The plaintiff is Sri Thirunethiranathar Temple, Thiruppalli Muddudal (hereinafter referred to as the temple)

represented by the Executive Officer of Sri Thyagarajaswami Devasthanam, Thiruvarur. One Venkatachalam Pillai executed a will (Ex. A-1) dated

18th July, 1917 dedicating lands, about 5 acres 32 cents, to the plaintiff temple with specific directions that the ""Kalasandhi and Ardhajama

services should be performed for the temple; there is no dispute that under the will there has been a complete and outright dedication of the

properties to the temple. The will provides that the managers of the temple for the time being should manage the trust properties and perform the

kattalals"" and that the properties dedicated cannot be alienated. At that time, his second wife Ammakutti Ammal was living with her sister away

from the testator and even so, he had made certain provisions further. But as regards the properties dedicated to the temple, the specific provision

is that the manager of the temple for the time being should manage the properties and perform the trust. But later on, the testator executed another

will, Ex. A-2, dated 3rd February, 1920 in which he had stated that he had no confidence that the managers of the temple would perform the trust

properly and efficiently, and that therefore, his second wife Ammakutti Ammal alone should manage the trust properties during her life-time as

provided in Ex. A-1. Ex. A-2 did not contain any provision as to what should happen after the death of the testator''s wife, with regard to the

management of trust properties. After the death of her husband, Ammakutti Ammal acted as the manager of the trust up to the moment of her

death. She had executed a document, Ex. A-27 dated 15th February, 1939, by which she constituted her sister''s son to succeed her in

management. But, he pre-deceased Ammakutti. She, therefore, executed another document, Ex. A-26 dated 16th May, 1941, vesting the

management of the trust properties, after her death, in her sister''s daughter, the defendant, and there is no dispute that, after the death of

Ammakutti some time in 1941, the defendant alone had been in possession and management of the trust properties. The present suit was instituted

by the plaintiff temple on 21st March, 1964 for recovery of possession of the trust properties, mesne profits and ether reliefs. Both the courts have

held that there has been a complete dedication of the properties to the temple, that Ammakutti was only entitled to be in management of the

properties as trustee upto the moment of her death, that thereafter the provision in the will, Ex. A-1 took effect in the sense that the trustees of the

temple alone would have a right to manage the properties, that Ammakutti had no right to nominate any successor and that Ex. A-26 did no confer

any right of management upon the defendant. Both the courts held that the suit for recovery of possession of the properties as against the defendant

was in time by reason of S. 10 of the Indian Limitation Act. The courts below had rejected the further alternative contention that the testator had

not made any provision as to what should happen after the death of Ammakutti, that there has been a hiatus with the result that the right to

nominate the succeeding trustee, after the death of Ammakutti, reverted to the testator and his heirs and that Ammakutti, as the sole heir of the

testator, had the right to nominate her successor and the right of the defendant to function as a trustee cannot therefore be questioned.

The same points were debated before me by learned counsel for both the sides.

Even at the threshold, it may be mentioned that the present suit is clearly barred by limitation and S. 10 of the Limitation Act has no application

whatever to the instant case. That apart, I am also of the view that the appointment of the defendant as the trustee by Ammakutti under Ex. A-26 is

a valid appointment. The lower appellate Court has indulged in a speculative reasoning as to why the testator executed the second will, Ex. A-2

conferring the right of management upon Ammakutti. There is a time interval of about three years between the first and the second will and during

this period, the testator must have gained intimate and personal knowledge about the management by the temple trustees. It is the testator who

founded the trust and if he wanted to change the provision as to the management, he need not give any reason. It is his own choice. But, he has

given a very significant and crucial reason and that cannot be brushed aside as something inconsequential. At this distance of time, the court has to

necessarily proceed upon the footing that the testator had no confidence and he apprehended that the trust created would not be properly and

efficiently managed and administered by the temple authorities and that was the only reason why he changed over the management to his wife. Is is

simply idle to speculate that the testator''s fears or apprehensions were only upto the moment of the death of his wife and that the testator hoped

that thereafter the trust would be properly and efficiently administered and managed, as though the existence of his wife was the real obstacle for

the temple trustees to manage the trust properties efficiently. In other words, the fears and apprehensions entertained by the testator were real and

well-grounded apprehensions and, in the nature of things, these apprehensions cannot be for a limited period, but they were something permanent

and for ever. There is neither meaning nor logic in interpreting the will. Ex. A-2 to the effect hat the fears and apprehensions of the testator about

the proper and efficient management of the trust should be delimited to the life-time of hit wife. If the lack of confidence and the apprehensions

pertained to the proper and efficient management of the trust as such and not for any particular period, Ex A-1 and A-2 should be read in a

harmonious manner and if so done, it has to be held that as a result of Ex. A-2 and by necessary implication, appointment of the temple trustees to

manage the trust had been cancelled or revoked by Ex. A-2 the subsequent document. Ex. A-2 necessarily implies and involves the cancellation of

the provision with regard to the management set out in Ex. A-1. It is true that no express provision has been made in Ex. A-2, as to what should

happen after the life-time of the widow, but the absence of such a provision alone cannot be taken in isolation, but it should be considered in the

light of the important statement in the will, Ex. A-2, that the testator had he confidence that the temple trustees would manage the trust efficiently

and properly. One is inseparably connected with the other, leading to the clear inference that the provision regarding the management contained in

the earlier will has been cancelled and revoked by necessary implication. It has therefore to be held that the founder has not made any provision

beyond the life-time of his second wife and the right to nominate the successor had reverted back to the founder and his heirs. It is in this context

that Mr. T.R. Srinivasan, learned counsel for the appellant, relied upon the Bench decision of this Court (consisting of myself and Somasundaram,

J.) in M. Thiagarajan and another v. M. Ganesan Appeal No. 437 of 1966. Judgment dated 28th August 1972 dealing with a similar problem. In

that case, one Jambuga Ramalingam founded certain charities and executed a will that, on his death, his son Subbu Pillai should manage the trust

properties. Of the several points which arose for decision in that case, the two points that are relevant to the instant case are: (1) whether a

hereditary absolute trusteeship was confered upon Subbu Pillai and (2) what would be the legal position if the testator had conferred a limited

trusteeship upon Subbu Pillai for the duration of his life-time. On the second aspect it was held that, on Subbu Pillai''s death, the right devolved

upon his widow Thayyamuthu as the heir of Subbu Pillai in the view that the right to nominate a trustee after Subbu Pillai''s time reverted back to

the founder Jambuga Ramalingam, that, on his death, that right also devolved upon Subbu Pillai himself and, on Subbu Pillai''s death, his widow

Thayyamuthu would be entitled to function as trustee with absolute rights. In that case, the right of reverter to Subbu Pillai was contested by the

lineal descendants of the founder''s brother. We may now refer to the relevant discussion in the Bench decision referred to above:

Let us now consider the various alternative constructions or interpretations of the will. Ramalinga, while appointing Subbu Pillai as trustee,

conferred an absolute and heritable right of trusteeship upon Subbu Pillai, there was a total divestiture of all rights of Ramalinga as founder and

there was no question of any reverter of any right from the trustee on his death so far as Ramalinga was concerned and the appointment of trustees

in future or laying down the rule of devolution was the exclusive right of Subbu Pillai. When once the will took effect, Subbu Pillai became the

trustee and it is his exclusive privilege or right to constitute a trustee to succeed him or to lay down the rule of devolution. The result was, that, as

soon as Subbu Pillai died, Thayyamuthu became entitled to be the trustee, functioned as such trustee and she had also the right to nominate a

trustee to succeed her and/or to lay down the rule of devolution of trusteeship. Subbu Pillai, during his life-time had two fights: (1) the right to be

the trustee; (where there is no beneficial interest in any of the trust properties, it is really a trust solely burdened with duties and obligations) and (2)

the sole right or the privilege to appoint his successor and/or to lay down the rule of devolution of the trusteeship. On Subbu Pillai''s death both the

rights devolved upon Thayyamuthu and Thayyamuthu therefore, had full competence to appoint her successor and/or to lay down the rule of

devolution of trusteeship to function in future. Under the compromise Ex. B-1. She has nominated her successor or successors and also laid down

the rule of devolution on the death of the trustee for the time being. At the time when Ramalinga executed the will, Subbu Pillai, his only son, was

the sole owner and it will be an unnatural reading of the will to hold that Ramalinga reserved for himself, any right as founder to lay down the rule of

devolution and merely appointed Subbu Pillai as trustee during his life-time. The provision which the founder has made for the management of the

properties during the minority of Subbu Pillai, coupled with the provision that on his attainment of majority the guardian must hand over possession

of the entire properties to Subbu Pillai to function as trustee thereafter, shows that Ramalinga''s intention was to confer an absolute heritable

trusteeship upon Subbu Pillai. In the environment and setup of the family, if Ramalinga intended to delimit the trusteeship upto the life-time of Subbu

Pillai, Ramalinga would certainly have laid down the provision with regard to further devolution. There is the further important fact that the will itself

does not delimit the duration of the trusteeship upto Subbu Pillai''s life-time, in which case some problem may arise as to the right of the founder or

his heirs to nominate successors to enter into arrangements altering the rule. Under the will Subbu Pillai has been appointed trustee and there is no

other or further provision. If the intention of the founder was that it is merely an appointment delimited to the life-time of Subbu Pillai the founder

would have made some provision after that contingency. Nothing of the kind was done, but, on the other hand, Subbu Pillai was appointed trustee,

which, in law, amounts to conferring an absolute heritable trusteeship upon Subbu Pillai. As observed already, the circumstances of the family, the

fact that Ramalinga was very old at the time of the will and Subbu Pillai was his only son and was deeply attached to him lends considerable

support to this view that Ramalinga did not think of any other aspect concerning the devolution of trusteeship and he was content to confer an

absolute heritable trusteeship upon Subbu Pillai. In other words, we are clearly of the view that there is absolutely nothing in the surrounding

circumstances of the case and in the language of the will to warrant an interpretation that Ramalinga merely appointed Subbu Pillai delimiting the

trusteeship to his life-time and not making any provision, as to reserve the power for himself to lay down the further rule of devolution. At that time

he was very old and it will be unnatural in the extreme if we introduce the notion that Ramalinga reserved and retained for himself any further power

to lay down the rule of devolution.

We may refer to the decision of the privy Council reported in Tripurari Pal v. Jagat Tarini Basi 40 Cal. 274 P.C. In that case, the founder, the

grandfather founded a trust and executed a will that his son will be shebait for the performance of certain ceremonies. The will also contained a

provision that if the testator died during the minority of the son, the second wife of the testator was to be the shebait as guardian of the minor son

and that on the son''s attaining majority, the son would personally conduct the work of the sheba. The will contained the further provision that if,

during the life-time or after the death of the testator the son died, then the testator''s widow would be the shebait and after her, her daughters. The

Privy Council held that, on a true construction of the will, there was absolute gift of the shebaitship to the son on his attaining majority and was not

cut down by anything that followed in the will. The High Court took the view that under the will the son had only a right to the shebaitship for his

life. But the Privy Council, on appeal, did not agree with this view. In other words, the clause in the will, ''my present begotten son Mukunda

Murari will be shebait for the performance of those ceremonies'', was held by the Privy Council as conferring an absolute gift of shebaitship on

Mukunda Murari. The problem that if the shebait appointed by the founder died without exercising the power of appointing a successor the right

would revert back to the founder, would arise only if the founder had reserved such a right of reverter. The normal rule, that if for any reason, the

term of the office of the shebait appointed by the testator comes to an end, the rule of Hindu law gives the choice of shebait to the heirs of the

founder would apply only in the absence of a context to the contrary in the terms of the will and the surrounding circumstances of the particular

case.

In the instant case, even assuming that the founder had appointed his son, Subbu Pillai, as trustee only for the duration of his life-time and there was

a consequent reverter to the founder or his heirs or his nominees, the situation would not make any difference. This well settled right of reverter

could accrue at the time when a vacancy occurred by the death, removal or otherwise of the trustee for the time being. Even if we construe the will

as constituting an appointment of Subbu Pillai as trustee only for his life-time, the power to appoint the successor throughout inhered and vested in

Jambuga Ramalinga, the founder, on his death in 1880, that power to nominate the successor would devolve upon his heirs, and in the instant case,

upon Subbu Pillai himself. The result is, Subbu Pillai is the trustee for his life-time in one capacity and he is also the inheritor of the right to appoint

or nominate a successor or lay down the rule of devolution as the heir and the only son of the founder. When both the rights coalesce in the same

person, the result will be that from the moment of the death of Jambuga Ramalinga, Subbu Pillai has become entitled to an absolute trusteeship, in

the sense that he can appoint or nominate his successor and or also to lay down the rule of devolution. We may refer to the following statement of

the law in N.R. Raghavachariar''s Hindu Law (sixth (1970) Edition at page 677:)

if, on the other hand, the founder has parted with his right only in a partial manner for the life-time of the grantee, the residue still remains in him and

his heirs, and on the death of the grantee the heir of the founder living at the time is entitled to shebaitship. If the grantee in such cases happens to

be the sole heir of the founder upon whom the residuary right devolves on the death of the founder and he becomes the shebait under law as well,

then, his position is that of an absolute shebait whose right devolves upon his heir at his death and not upon the then heirs of the founder. If there

was no grant in his favour he would have been entitled to an estate of inheritance under law as regards the shebaiti and the fact that there is a grant

in his favour of a limited right cannot make his position worse, and take away from him the higher rights which he had irrespective of the grant.

Hence where a Hindu who had established certain family idols and dedicated considerable properties directed by his deed of dedication that after

him, his son should be the shebait in his stead and the further provisions in that deed regarding succession to the son in the shebait were of no effect

in law, it was held that on the death of the son, who had survived the founder, the shebaitship should go to the son''s heirs, and not to the heirs of

the father.

Vide : also the statement of the law to the same effect in Mayne''s Hindu Law (Eleventh Edition) at pages 946 and 947. The law is stared in these

terms in Mukherjea''s Hindu Law of Religious and Charitable Trusts, Latest (Third) Edition, 1970) at page 162:

It must be taken to be settled by the decision of the Privy Council that when the founder makes only a limited grant of shebaitship, the residue still

remains in him and his heirs as an estate of inheritance. When the limited shebaitship ends, the next shebait would be the person in whom this

residuary estate of the founder was vested at the termination of the limited shebaitship.

At this stage, we may refer to the decision of the Privy Council in AIR 1943 89 (Privy Council) on which the above statement of the law in the

leading text books rests. In that case, the founder S, appointed his only son, P, as the trustee and made other provisions on the death of S, but

those provisions became illegal and ineffective and the Privy Council held chat the interest given to P, the son, did not defeat his heritable right and

did not exclude his heirs. The following head-note brings out the principle underlying this decision, i.e. so far as the bare right to trustee hip is

concerned, the law of succession that is applied is the ordinary law of inheritance:

The shebait is property. It is not a catena of successive life estates, but is heritable - heritable property which, in the first instance, is vested in the

founder. The founder may direct that 3 designated person should hold the office during that person''s life either immediately or on the death of a

previous holder. Such direction�subject to the relevant conditions as to perpetuity, whatever these may be�will be good although it carries no

right to the heirs of the grantee and does not amount to a complete disposal of the shebaiti On the death of the grantee the shebaiti goes to the

founder or his heirs because the right of founder is heritable and he has not completely disposed of the interest which he has therein. It is impossible

to represent this as a spes successionis. It is a right in the founder and his heirs. It is the same estate of inheritance as the founder held at the date of

the grant. The grant did not exhaust it or terminate the founder''s interest. On the death of the grantee the shebaiti reverts, because the heritable

interest of the founder has ceased to be qualified by the grant. The fact that the shebait in office completely represents the idol and its property,

does not prevent the recognition of any other person as having a vested interest in remainder; and thus preventing any interest in the shebaiti from

being carried along the straight line of inheritance from the founder during the time that the office is held by any person to whom the founder has

granted the shebaiti but not absolutely or so as to devolve upon his heirs. Applying the principle of this decision to this case, it is clear that the

moment the founder Jambuga Ramalinga died, the right to appoint or nominate the successor or the right to lay down the rule of devolution

devolved and became vested in Subbu Pillai as an absolute heritable right and thereafter, there is no question of the reverter of the right to Jambuga

Ramalinga.

From the preceding discussion, it follows that under Ex. A-26 the defendant has been validly constituted trustee to administer and manage the

trust properties.

Let me now examine the legal position even assuming that the appointment of the defendant as trustee is invalid and on the death of Ammakutti,

the trustees of the temple alone would be entitled to manage and administer the trust properties. It is here, the question of the limitation becomes

relevant. There cannot be any dispute whatever that, after the death of Ammakutti, the defendant got into possession and managed the properties

asserting rights under Ex. A-26, she wrongly claimed to be a trustee and asserted a right to manage and administer the trust properties as such,

while, according to the correct legal position, the temple authorities would be the persons who would be entitled to administer and manage the trust

properties. There is no doubt that from 1941 onwards, the defendant has been claiming and asserting these rights. It is obvious that, whoever may

be entitled to be the trustee, his rights would be extinguished and the defendant would have acquired rights by adverse possession. It does not

matter what label we give to the precise nature of the claim and right put forward and asserted by the defendant. In substance the claim on the right

put forward by the defendant is to be in possession and manage the properties and perform and administer the trust founded under the will: Ex A-

Both the courts readily assumed that by reason of S. 10 of the Indian Limitation Act, lapse of time is no bar. S. 10 runs as follows:

S. 10 . Notwithstanding anything contained in the foregoing provisions of this Act, 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 hand such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length

of time.

Explanation: For the purposes of this Section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be

deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.

(Explanation, added by the Amendment I of 1929).

From the very language of S. 10, it will, at once, be noticed that S. 10 would not apply where the subject in dispute is rival and competing claims

to trusteeship. If a person, who is a trustee either by reason of a valid legal appointment or by reason of acquisition of title to such a right by

adverse possession, is in possession of the trust properties and administering the trust, under substantive law, another third person cannot file a suit

to recover possession of the property from the former. If there is no right to institute a suit under the substantive law, S. 10 of the Limitation Act

will not confer any right of suit. S. 10 postulates the person who institutes a suit having a right to recover possession of the property. A succeeding

trustee can file a suit against a trustee who has been dismissed or removed or whose trusteeship has come to an end or even a beneficiary can file a

suit, provided the necessary conditions under the substantive law for a right to maintain such a suit are satisfied. In other words, if the main dispute

between the plaintiff and the defendant, on which the whole suit rests even though there may be other reliefs prayed for, relates to the right to the

trusteeship, S. 10 cannot be invoked, merely because there is no bar, under S. 10, to recover possession of the properties vested in the trustee. It

is settled law that if the plaintiff sues only for his own personal rights to manage, or in some way, to control the management of the trust. S. 10 does

not apply (Vide: U.N. Mitra''s Limitation Act. latest (eighth) edition. Volume I page 181. Foot note 16 and page 182. Foot-notes 22 and 23. It is

again settled law that if the plaintiff right to the office itself has been extinguished by lanes of time, his right to recover possession also would be

extinguished. It may also refer to the statement of the law to the same effect in the same book (Volume II, at pages 1636 and 1637, foot-note. (1)

and at page 1639) Foot-notes 23 and 24 and also Rustomji at page 117.

It shall now refer to the leading decisions of the Privy Council which have been referred to by the learned author. Reference may first be made to

the earliest leading decision of the Privy Council in Balwant Rao v. Puran Mal 6 All. Page 1. In that case, the plaintiff�s ancestors had founded at

Thakur Ganeshji in village named Mandesi and dedicated certain properties to maintain the worship of the temple. The ancestor of the defendant

was first appointed manager to look after the temple and manage the properties but from 1842 onwards, the ancestor of the defendant set up an

independent and hostile attitude towards the family and claimed that he was never the agent of the plaintiff''s family, but that he was managing the

temple and its properties in his own independent right. The attempts of the plaintiff''s family (before the Revenue authority, the Collector) to restore

possession of the proper ties to the plaintiff asserting a right to remove the defendant proved futile and went against him on 1st September 1865.

More than twelve years thereafter, the plaintiff filed the suit against the defendant asserting a right to the management of the temple and its

properties and to remove the defendant from the management and control of the properties of the temple and also for recovery of possession of

the temple properties. One of the points raised was the question of limitation and the trial court overruled the plea and decreed the suit, but in

appeal, the High Court dismissed the suit holding that S. 10 of the Limitation. Act had no application to the case and this decision of the High

Court was affirmed by the Privy Council. Sir A Hobhouse, delivering the judgment of the Board, observed as fellows at pages 9 and 10:

The next ground is that the case must be taken as falling within S. 10 of Act 9 of 1971, which deals with trust property. That section in as follows:

No suit against a person, in whom property has become vested in trust for any specific purpose, or against his representatives, for the purpose of

following in his or their hands such property, shall be barred by any length of time.

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 hands, 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 same way to control the management of the endowment. The consequence is that

the case does not fall within S. 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 fail within Art. 123 or Art. 145 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 tide is stared in the

plaint. But, if it does not fall within either of those Sections, then the case is caught by the general Art. 118, which provides for every case that is

not previously provided for in the Act Therefore, either the suit is barred in six years or in twelve years it matters not which, for the cause of action

arose, at all events, before the year 1865.

This decision of the Privy Council was followed by a Bench of this court in Karimshah v. Nattan Bivi 7 Mad. 417 consisting of Sir C.A. Turner,

C.J., and Muthusami Ayyar, J. In that case, the plaintiff''s family had founded a trust and dedicated certain properties and the plaintiff instituted a

suit in 1880 to remove the defendant from the management of the properties of which he claimed to be a trustee and also for recovery of

possession of the properties. The Bench held that the suit was barred by limitation on the ground that the second defendant obtained possession of

the trust properties and asserted the right to be the trustee thereof for more than twelve years prior to the suit and that the suit was merely a claim

to vindicate the personal right of a trustee to the possession of immovable property against another person claiming that right in the same character

and that S. 10 would not apply to a suit of that character. The next decision to be referred to is the decision of Muthusami Ayyar and Hadley, JJ.,

reported in Sankaran v. Krishna 16 Mad. 456. In that case, a suit was brought by the plaintiff claiming title as the uralan of a Devswom and for

recovery of possession of the properties from the defendant, treating the defendant as the agent of the plaintiff. The defendant''s plea was accepted

that he was never the agent of the plaintiff. In this view, it was held that the suit filed more than twelve years from the time when the defendant

denied the title of the plaintiff and set up hostile title in himself would be barred by limitation. The decision of the Privy Council in Balwant Rao v.

Puran Mal 6 All. 1 (referred to above) was followed, the Bench observing as follows:

It is then argued that Article 124 of the Second Schedule of the Act of Limitation could not apply unless respondent stated who the real uralan

was. But we do not think that that article is applicable ,the suit being one based on the alleged relation of uralan and pattamali between appellant

and respondent. The suit is clearly barred either by Article 120 or 144, and as more than twelve years had elapsed before suit, it is unnecessary to

decide which Article applies. The present case is similar to the one in Balwant Rao Bishwant Chandra Choa Puran Mal Chaube L.R. 10 I.A. 90-

All. 1.

It is sufficient to refer to two decisions of the Privy Council reported in Arunachallam Chetty v. Venkatachalpathi Guruswamigal 43 Mad. 253

(P.C.) and Ambalavana Pandara Sannidhi v. Sundareswarar Devastanam of Madras 45 Mad. 665 (P.C.) in which the Privy Council followed the

earlier decisions in Balwant Rao v. Puran Mal 6 All. 1 in circumstances somewhat similar to the instant case. In Arunachallam Chetty v.

Venkatachalapathi Guruswamigal 43 Mad. 253 (P.C.) the plaintiff, as the head of a Mutt, instituted a suit to declare that the defendants had no

right to manage the trust properties in the village of Patharakudiand also for recovery of possession of the properties. The defendants resisted the

claim on the ground that for over eighty years they and their predecessors in title were in possession of the trust properties, not for their own

advantage, but, for the benefit of the Mutt and they continued in possession and management of it on behalf of the Mutt and the suit was barred by

limitation. On the facts it was found that there was no proof that the defenders managed the trust on behalf of the plaintiff. Indeed ,the evidence

was that the defendants and their predecessor-in-title managed the properties claiming in their own independent right for over half a century to the

knowledge of the plaintiff and the suit was therefore barred by limitation. Summing up the factual and legal position, the Privy Council observed as

follows at pages 269 and 270:

With regard to the second point mentioned, namely that the possession by the Chetties has not been adverse to the Gurukkal, their Lordships fail

to understand on what the difficulty of the court below rests. Here was possession, not as in right of the gurukkal, but as in the Chetties'' own right,

with all the incidents of possession, namely, the purchase of lands, the borrowing of lands, the erection of buildings, the letting of holdings, the

making payments to the priest for his support and spiritual services, the keeping of the village accounts. The mahant was presumably aware of

these transactions, extending now in his own time for over half a century, yet the first real challenge thereof appears to be the institution of this suit

itself. This is a very ordinary case of possession nec vi nec clam nec precario. The person now claiming to be owner has stood by while others

continued to possess, not by any derivative title, but in practical contravention of his alleged rights. The law does not require that the claimant to

ownership must, in such circumstances, be shown to have protested, and that his rights were being violated, and that the possession went on

adversely to his protests. In short, their Lordships cannot agree with the legal view upon this subject of possession adopted by the court below.

In these circumstances, there seems to the Board no reason why the law of limitation should not apply. In Balwant Rao v. Puran Mal 6 All. 1. P.C.

it was held that limitation applied to cases where the defendant admitted he was a trustee, and the plaintiff, without proving misapplication, brought

a suit more than twelve years after the cause of action arose, the object of the suit being to obtain control of the management. As Lord (then Sir

Arthur) Hobhouse observed, in words which are applicable to the present case:�

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 these trusts if the plaintiff were to succeed in his suit

than it is at 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 present case is still stronger for the application of the rule of limitation, as the assertion is made, not only of the right to management, but of the

right of beneficial ownership. But, while, in their Lordships'' opinion, the suit would be excluded by the twelve years'' limitation, they have, on the

ground already stated, thought it right to deal with the whole breadth of the argument presents.

The next decision of the Privy Council is the one reported in Ambalavana Pandara Sannidhi v. Meenakshi Sundareswarar Devastanam of Madura

43 Mad. 665 P.C. affirming the judgment of the Madras High Court. In the Privy Council case, the Pandar Sannidhi of Thiruvadur Mutt Reported

in 28 M.L.J. 217 filed a suit against the Sri Meenakshi Sundareswarar Devasthanam, Madurai to recover possession of four villages situate in

Madurai district of which an endowment had been made called Thanappa Mudali Kattalai by the Mutt for the performance of certain ceremonies

in the temple at Madurai. On the facts, it was found that for over five decades prior to the institution of the suit, the temple authorities were in

possession and management of the properties claiming to be the trustees or managers thereof, and it was held that S. 10 had no application,

because, the main dispute in the suit related to the right to the management or trusteeship of the endowment. It is sufficient to extract the concluding

portion of the judgment at page 674, which contains the ratio of the decision:

In the year 1849, the Government, which was undoubtedly then in possession of the villages in suit, handed them over to the manager of the temple

of Madurai (the appointment of whom was in their hands), and there is no doubt that from that time they have been in the possession of such

manager and the Temple Committee which is also appointed by Government. The Pandara Sannidhi made no opposition to their being so handed

over. From that time onwards it is beyond question that the plaintiff has been out of possession of these villages. If he has any right to claim

possession in his suit he undoubtedly had the same right in 1849, and therefore, as at the date of the suit, he had been out of possession of those

villages for nearly sixty years, his claim is barred by the Statute of Limitations, and this appeal fails.

(Note: This aspect is discussed in the judgment of the Madras High Court in the same case reported in 28 M.L.J. 217, at page 227 and page

249.)

There is no need for further citation. For all these reasons, the second appeal is allowed and the plaintiff''s suit, dismissed No costs throughout.

Leave refused.