1. The plaintiff, who is the Swami of the Uttaradhi Math, sued, the defendants to recover possession of some property alleged to belong to the Math stated to have been gifted about forty or fifty years ago by the then Swami of the Math, one Krishnacharya Garlpad, the ancestor of defendants Nos. 8 and 9, the remaining defendants being transferees and tenants of Garlpad. A preliminary issue was framed as to whether the suit is in time. It was found that it was not in time, and it was dismissed. On appeal, the District Judge of Belgaum framed two issues, (1) Has the plaintiff proved that the property in suit is comprised in a Hindu religious or charitable endowment ?, and (2) if so, can a suit for the purpose of following such property be maintained, notwithstanding the lapse of any length of time ?, and found in the negative on both these issues, and dismissed the suit. The plaintiff makes this second appeal.
2. It is conceded by the learned advocate for the appellant that Act I of 1929, by which limitation with regard to the recovery of property belonging to a religious or charitable endowment was altered, will not apply to the present suit, which is brought in 1924, but he contends that under the rulings of the Madras High Court there is no limitation for a suit of this character, and that Nilmony Singh v. Jagabandhu Roy I.L.R. (1896) Cal. 536 on which the lower Courts have relied, has been overruled by the Privy Council in Vidya Varuthi v. Balusami Ayyar I.L.R. (1921) Mad. 831: 24 Bom. L.R. 629 To this it is replied that there is no necessity to go into the question of limitation, inasmuch as the lower appellate Court has found that it is not proved that this land was part of the property of the Math, which is a finding of fact.
3. Taking the first point first, it is argued by the learned advocate for the appellant that there was no issue in the first Court about the property belonging to the Math, and no evidence was led on it, the suit being decided on a preliminary point of limitation. It appears, however, from the judgment of the lower appellate Court that the point as to whether the property in suit was comprised in a Hindu religious or charitable endowment was raised by the appellant, that is, the present appellant, and was decided against him in the absence of evidence. It is not quite correct to say that there is no evidence on this point, as I find in the judgment a reference to several Exhibits, Nos. 68, 75, 74 and 76. Inasmuch as this point was raised by the appellant himself, I do not think that he can now contend that it should not have been considered by the lower Court.
4. However, putting that aside, I am quite satisfied that the suit must fail on the question of limitation. The case on which the first Court relied, Nilmony Singh v. Jagabandhu Roy, was a suit in which the shebait of an idol sued in 1892 for recovery of property which had been alienated by the preceding shebait in 1857. It was held that the suit was barred by limitation either under Article 134 or Article 144 of Schedule II of the Indian Limitation Act, and that the possession of the defendants, who professed to derive title not from the idol but ignoring its rights, must be taken to have become adverse to the idol from the dates of the two alienations, and each succeeding manager does not get a fresh start as far as the question of limitation is concerned, on the ground of his not deriving title from any previous manager. Now, although that case was disapproved by the Privy Council in Vidya Varuthi v. Balusami Ayyar, it was disapproved on the point that Article 134 does not apply to the case where the head of a Math has granted a permanent lease over a part of the Math property not proved to be a specific trust. It is to be noted that in the Privy Council case, which was one of a permanent lease, it was held that the preceding Mahant having permitted the plaintiffs to continue in possession and received rent (p. 855) :-
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.
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 fifty years ago, and from that date the succeeding Mahants of the Math have received nothing from the defendants, nor has their title been acknowledged by them. There can be no question, therefore, of the creation of any new interest by the succeeding Mahants, that is, those who succeeded the Mahant who made the alienation, and ordinarily speaking, a Mahant having power only to alienate the property of a religious institution during his lifetime, adverse possession will commence from his death. That is clear from the judgment of the Privy Council themselves in Vidya Varuthi v. Balusami Ayyar, where they say (p. 855) :-
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,
5. That seems to me to be a clear authority for holding that on his death the possession became adverse, unless the succeeding Mahant in some way created a new tenancy or acknowledged the title of the alienees, as to which there is no evidence in the present case. The learned advocate for the appellant has relied on a recent Madras case, Rama Reddy v. Rangadasan I.L.R. (1925) Mad. 543. That was also a case of a sale. If that ruling lays down that there can be no adverse possession as against the manager of a Math, with great respect I am unable to follow it. It seems to be not in accordance with the judgment of the Privy Council which is referred to, and I may also refer to p. 548, where the Privy Council case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram I.L.R. (1899) Mad. 271 2 Bom. L.R. 597 is referred to. That is a case in which the hereditary manager of the property with which a religious foundation was endowed had purported to sell and assign the management and lands of the endowment to the representative of another institution. It was held that the possession delivered to the purchaser was adverse to the vendors, and after twelve years the successor of the vendor could not recover possession of the property conveyed. The Privy Council observed (p. 279):-
Their Lordships are of opinion that there is no distinction between the office and the property of the endowment. The one is attached to the other, but if there is, Article 144 of the same schedule is applicable to the property. That bars the suit after twelve years' adverse possession.
Although I have not found any Bombay ruling on the point, there are several rulings of the other High Courts as to adverse possession running against the manager and his successor where property belonging to a religious foundation has been alienated. But I rely on the observation of the Privy Council already referred to in Vidya Varuthi Balusami Ayyar I.L.R. (1921) Mad. 831: 24 Bom. L.R. 629
6. In these circumstances I agree with the lower Court in holding that the suit is barred by limitation, and the appeal, therefore, fails, and is dismissed with costs.