1. The question for determination on this appeal is whether the plaintiff's suit is barred by limitation.
2. The relevant facts must first be stated. In December 1909, one Rampat Das was the Mahant of a Math situate at Paliganj in Patna district. On December 21, 1909, he executed a mukarrari or permanent lease of some seventy acres of land to Munshi Naurangi Lal under which the latter paid a premium and an annual rent to the Mahant, On February 13, 1911, he executed a sale-deed of the land subject to and with the benefit of the lease to Mussammat Sampat Kuer in consideration of Rs. 900. Each document states that it is executed by the Mahant for the expenses and necessities of the Math, but in view of the findings at the trial these statements may be disregarded, and it must be taken that neither of these documents was executed for legal necessity or was for the benefit of the Math or the deities installed therein.
3. Mahant Rampat Das died in or about July, 1913. On his death one Sant Das took possession of the Math claiming to be Mahant, but on February 20, 1916, by registered deed he surrendered all his rights to the plaintiff, who was and is the Mahant of a Math at Ramdih Baga. The registered deed included the seventy acres. The plaintiff claimed that Rampat Das had died without leaving behind any disciple, and that in those circumstances he, as Mahant of the Ramdih Baga Math, was entitled to take possession of the Paliganj Math (which was subordinate to and a branch of the Ramdih Baga Math) and all properties appertaining to it. Their Lordships, however, are not now concerned with any question of title, because both the Courts below have found that the plaintiff is the person in actual possession of the Paliganj Math and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the Math.
4. The plaintiff instituted the present suit on May 27, 1924, against the lessee, the purchaser and the husband of the purchaser, claiming possession of the seventy acres as property appertaining to the Paliganj Math and mesne profits.
5. A number of contentions were raised by the written statements, the two main ones being (1) that the seventy acres were the personal property of Rampat Das, and (2) that the suit was barred by the Indian Limitation Act. The first contention failed completely. The seventy acres undoubtedly appertained to the Math. The second contention failed at the trial and it is the sole contention which survived before the Board. The Subordinate Judge held that the suit was not barred and gave the plaintiff a decree.
6. On appeal, the High Court decided that the suit was barred. Both Courts agreed (and rightly) that Article 134 of the Indian Limitation Act did not apply. The only Article applicable is Article 144. This Article, which applies to a suit 'for possession of immovable property or any interest therein not hereby otherwise specially provided for,' prescribes as the period of limitation twelve years from the time 'when the possession of the defendant becomes adverse to the plaintiff.
7. The question then resolves itself into this : did the possession of the relevant defendant become adverse to the Math or to the Mahant as representing the Math at the date of the relevant assurance or at the date of the death of Rampat Das ?
8. The Subordinate Judge held the latter date to be the correct date and the suit to be within the twelve years, The High Court held the former date to be correct and the suit to be barred.
9. The Subordinate Judge, It would seem, reached his conclusion upon the footing that the title to the property was in the Mahant and not in the idols. His view was that, had the title been in the idols, the act of alienation would have been a challenge to the title of the idols and the limitation period would begin to ran from the act of alienation ; but since (as he found) the title was in the Mahant, possession only became adverse when a new title came into existence, the owner of which had not approved of the alienation. He came to this conclusion upon the authority of the cases of Vidya Varuthi Thirtha v. Balusami Ayyar and Mahant Ramrup Gir v. Lal Chand Marwari I.L.R. (1923) Pat. 475 on appeal, I.L.R. (1925) . Pat. 312 28 Bom. L.R. 855 distinguishing the case of Damodar Das v. Lakhan Das
10. The Judges of the High Court, in deciding that the period of limitation ran from the date of alienation, delivered a most painstaking and elaborate judgment, in the course of which all available authorities were reviewed and considered. They held that two cases before this Board (Gnanasambanda Pandara 'Sannadhi v. Velu Pandaram and Damodar Das v. Lakhan Das) had affirmed the view that in a suit to recover the property of an idol or a Math the starting point for the period of limitation was the date of the alienation and not the date on which the successor of the alienor aasumed office. They also held that,, the authority of those cases was in no way affected by the later decision of this Board in Vidya Varuthi's case
11. Their Lordships do not think that it is necessary to follow the learned Judges of the High Court in their examination of the older authorities but they must point out that the cases in Gnanasamhandha Pandara Sannadhi v. Velu Pamdaram and Damodar Das v. Lakhan Das were both of them cases in which the assignment or disposition consisted of an assignment or disposition of the Math and its properties. Such an assignment was void and would in law pass no title, with the result that the possession of the assignee was per force adverse from the moment of the attempted assignment. Vidya Varuthi's case, however, was the case (as here) of a disposition by the Mahant of an item of property appertaining to the Math, the disposition being in the form of a grant of a permanent lease. The disposition was one not made for necessity and so was beyond the powers of the Mahant to grant. But in delivering the judgment of the Board, Mr. Ameer Ali used this most relevant and important language (p. 327) :-
In view of the argument it is necessary to discover when, according to the plaintiff, his adverse possession began. Ha was let into possession by mahant No. 1 under a lease which purported to be a permanent lease, but which under the law could endure 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 math property to endure beyond his life. With regard to mahant No. 2, ho was vested with a power similarly limited. He parmitted the plaintiff to continue in possession and received the rent during his life. The receipt of rent 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 the 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.
12. In other words, a Mahant has power (apart from any question of necessity) to create an interest in property appertaining to the Math 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 Math, 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.
13. If this be right, as it must be taken to be, where the disposition by the Mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property ; nor was any logical reason suggested in argument why there should be any difference between the two cases. 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 Math.
14. The same view is apparent in a later judgment of this Board, viz., Subbaiya Pandaram v. Mahamad Mustapha Maracayar The disposition in that case was a sale in 1898 of land devoted to charitable purposes, under an execution decree against the person who was the trustee of the charity. In the year 1913 the person who was then trustee of the charity sued to recover the property from the purchaser at the execution sale, or those claiming under him. It was held, not unnaturally, that the purchaser's possession was adverse from the date of the sale ; but in delivering the judgment of the Board, Lord Buckmaster, after referring to a case in Ishwar Shyam Chand Jiu v. Ram Kanai Ghose (1910) L.R. 38 IndAp 76 13 Bom. L.R. 421 and to Vidya Varuthi's case, said (p. 299):-
In each case they relate to the effect of an attempt on the part of a trustee to dispose of the property by a, permanent mukarrari lease. This he has no power to do, though he is at liberty to dispose of it during the period of his life and a grant made for a longer period is good, but good only to the extent of his own life interest. It follows, therefore, that possession during his life is not adverse...
15. This is a clear statement that a Mahant is at liberty to dispose of the property of a Math during the period of his life and that a grant purporting to be for a longer period is good to the extent of the Mahant's life interest. Here again their Lordships think that the reference to life is upon the footing that the Mahant continues during his life to hold that office.
16. It will be observed that the statement is in no way confined to the grant of a lease, but covers the case of a purported out and out grant of the property. Whatever the intended duration of the attempted grant may be, it is good, but good only for the limited period indicated. In view of these statements by the Board, their Lordships hold that in the present case the lease and the deed of sale of February 13, 1911, were good and effective so long as Rampat Das continued to be Mahant, and that therefore adverse possession only commenced when he died.
17. The result is that the plaintiff's suit is not barred, and the appeal succeeds. The decree of the High Court should be set aside with costs in that Court, and the decree of the Subordinate Judge restored. Their Lordships will humbly advise His Majesty accordingly. The respondents must pay the coats of this appeal.