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Narayan Krishnaji Vs. Anjuman E. Islamia - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Limitation
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 15 of 1948-49
Reported inAIR1952Kant14; AIR1952Mys14; ILR1952KAR102
ActsCode of Civil Procedure (CPC), 1908 - Sections 92 - Order 1, Rule 8; Limitation Act, 1908 - Sections 10 - Schedule - Articles 120, 124, 134 and 144
AppellantNarayan Krishnaji
RespondentAnjuman E. Islamia
Appellant AdvocateA.R. Somanath Iyer, Adv.
Respondent AdvocateMirle N. Lakshminaranappa, Adv.
(a) the case discussed whether defendants could deny right of public to ask court to frame scheme against them through a suit for accounts and proper management under section 92 of the civil procedure code, 1908, once they had admitted themselves to be trustees of suit property - the court ruled that once the defendants had admitted that the disputed properties are public trust and that they are merely the managers of the institution, they could not deny the right of the public to ask the court to frame a scheme for a change in that management, or for calling them to account in respect of such management. (b) the case debated whether defendants could plead bar of limitation under section 10 of the limitation act, 1908, wherein they had admitted themselves to be the trustees of this.....vasudevamurthy, j. 1. the suit out of which this appeal arises was filed by the plaintiffs in two capacities--(1) one under section 92, civil p. c., after obtaining the sanction of the deputy commissioner, shimoga district, and (a) in a representative character under order l, rule 8, civil p. c. after the suit was filed, the plaintiffs made an application to the court under order 1, rule 8, civil p. 0. and the court ordered the publication of usual notices inviting the inhabitants of shimoga town to join in the suit either as plaintiffs or as defendants.2. the property involved in this litigation is a large piece of land situated in shimoga town in which there is a gymnasium or talimkhana and some shops on the edge of the open space abutting the road which belonged to the institution of.....

Vasudevamurthy, J.

1. The suit out of which this appeal arises was filed by the plaintiffs in two capacities--(1) one under Section 92, Civil P. C., after obtaining the sanction of the Deputy Commissioner, Shimoga District, and (a) in a representative character under Order l, Rule 8, Civil P. C. After the suit was filed, the plaintiffs made an application to the Court under Order 1, Rule 8, Civil P. 0. and the Court ordered the publication of usual notices inviting the inhabitants of Shimoga town to join in the suit either as plaintiffs or as defendants.

2. The property involved in this litigation is a large piece of land situated in Shimoga Town in which there is a gymnasium or talimkhana and some shops on the edge of the open space abutting the road which belonged to the institution of Talimkhana. The property is apparently of considerable value as the land is situate in a prominent part of the Town of Shimoga and is capable of being largely developed for the benefit of the persons who may be interested in the growth of sports generally and of wrestling in particular. This property has been the subject of a longstanding litigation.

3. Though there are as many as nine defendants in the case the suit was contested practically by defendants l and 9. Defendant 1 is the Anjuman E. Islamia, Shimoga, and is represented by its President and Secretary, defendants 2 and 9. Defendant 9 is said to be the present President of that institution. It has been stated before us that the Anjuman E. Islamia is a registered Association having a membership of some Muslims in Shimoga Town. It may be mentioned here that Plaintiff 6 is a Muslim while defendant 6 is a Hindu to avoid any suggestion that the suit is brought only by the Hindus of Shimoga town as was put forward somewhat weakly during the course of the arguments. In fact, as already stated, the suit has been brought on behalf of the entire public of Shimoga town, both Hindus and Muslims, and the public of Shimoga town were allowed to support either the plaintiffs or the defendants by joining in the suit. The Muslims of Shimoga have not applied to join the suit as such.

4. The plaintiffs' case is that the suit property forms a public charitable trust from time immemorial and was being used by the public of Shimoga, that the object of the institution was to train wrestlers and impart education in physical culture and for advancing the physical well being of all the inhabitants of Shimoga town, that the public of Shimoga town have therefore a right to manage the institution and to see to the proper application of its funds so that the management of the institution and the administration of its funds may be conducted properly. The shops attached to the gymnasium are said to be realising good rents and the plaintiffs complain that the defendants have not been maintaining proper accounts of the rent they collect that they are in fact not accounting to anybody, that they have been assorting rights contrary to the rights of the public institution by claiming an absolute right of management in themselves for and on behalf of only the Muslims of Shimoga, that they have allowed the gymnasium to fall into disrepair so that the buildings have become dilapidated and that they have stood in the way having a modern and upto date gymnasium erected on the spot so that it might be useful to the entire public of Shimoga.

5. The plea of the contesting defendants 1, 3, 4, 5 and 7 to 9 is that the Muslims of Shimoga are the rightful managers of the institution and its properties in pursuance of the wishes of the founder of the institution, that ever since the formation of the Anjuman E. Islamia in 1919 the management of the institution and its property has been with defendant l exclusively and in their right, that the Muslims of Shimoga to start with and the Anjuman E. Islamia since 1910 have been properly managing the institution and its properties keeping regular accounts that no action was called for under Section 92, Civil P. C., and the suit is not competent under that section and is barred by time, that it is the plaintiffs, and their party who prevented the defendants' attempt to have the gymnasium properly cong, trusted in its place, that defendant 1 was always ready and willing to keep the institution open for the use of the public, that it is not true that defendant l prevented such public use of the gymnasium, that in fact it was the plaintiffs, who wanted to restrict its use to the people of Poddapet only in a prior litigation and that they have been in open and exclusive possession and enjoyment of the schedule properties in their own right from long prior to 1919.

6. The District Judge who heard this ease held that it was 'almost an admitted fact' that the institution was a public trust. Ha also held that there was considerable force in the allegations made by the plaintiffs regarding the mismanagement of the institution by defendant 1. He found that defendant l has mixed up the funds of the institution with the funds of the Anjuman E. Islamia which was irregular and unwarranted, that they have not accounted for the rents they have collected or how the sum was appropriated during the course of the management of the institution; that they have not also shown how much they have spent for the construction of the shops and whether the rents were being properly collected. The accounts were not subjected to audit and do not appear to have been placed before the members at a meeting and though the rents of the shops had gone up very high in recent times, the old tenants were being continued on the same old rents and therefore it could not be said that the institution was being managed for its benefit. In brief he held that the management appeared to have forgotten the main purpose of the trust, viz., that it was a gymnasium meant for the physical development of the public of Shimoga and were treating it more as private property rather than as that of a charitable or public institution and were more interested in allowing 'some people of their own ilk to enjoy the properties of the institution' without any check or control. He also found that by a judicious management the income of the institution could have been increased by threefold or fourfold. He, however, thought that the talimkhana appeared to have been started by a Muslim, that the management of the talimkhana happened to be all along with certain Muslims of Shimoga town and that from 1919 defendant l Anjuman E Islamia was in management, though they wore in such possession not in their own private right but as trustees; and though he held that there was no question of adverse possession in the case of trust property and the defendants could not plead such right he came to the conclusion that by reason of such managements for long over 12 years defendant is management could not be disturbed. But curiously enough he added that though they could not claim possession of the properties, they could still ask for accounts and for better management which is obviously unintelligible. In the result he dismissed the suit but directed the parties to bear their own costs as according to him the plaintiffs had successfully proved that the defendants had not properly managed the suit properties and had failed only on the point of limitation. The plaintiffs have appealed to this Court and the respondents, defendants have preferred cross-objections.

7. The main facts as found by the learned District Judge admits of little doubt and are not even seriously challenged in this Court. The present litigation was preceded by an earlier, one. Certain members of the public residing in Poddapet which is a small part in Shimoga town brought two suits for declaration regarding the shops attached to the gymnasium, for possession of the same and for arrears of rent. In these suits it was claimed that the gymnasium and the shops belonged to the residents of that locality. Those suits were resisted among others by the then Secretary and President of the association though in their personal capacity. Ex H is a written statement filed in O. S. No. 353 of 1954-25 by the supplemental defendants among whom were included the office-bearers of defendant 1 at that time. It was then pleaded that the gymnasium was originally constructed and made a charitable institution for the benefit of the public at large by one Allikhan, that the shops involved in the two suits were constructed on the site belonging to the gymnasium for the benefit of the gymnasium and the public at large, that in conformity with the wishes of the founder the management of the institution was left to the Muslims and had later on, come to be vested in the Anjuman who were described as the original trustees in possession of the property. It was also pleaded that a free reading room was located in the premises for the benefit of the public at large and that the institution was getting a grant of Rs. 15 from the Shimoga Municipality in due recognition of the public utility of the institution. These suits were dismissed by the Munsiff of Shimoga on the ground that the property in suit and the gyamasium did not belong to the people of Doddapet only and that of the plaintiffs who had brought that suit (O.S. 353/24-25) viz. two Hindus and a Muslim, were nob managing them on behalf of the people of Doddapet. He also held that the gymnasium was constructed and made a charitable institution for the benefit of all communities without any restriction of community or locality and that it was not proved to have been in the exclusive possession and enjoyment of the Muslims. That decision was reversed by the Subordinate Judge of Shimoga who was of the opinion that the plaintiffs' suit should be decreed as the same was brought on behalf of the persons of Doddapet though, as a matter of fact, the suit shops belonged to the entire public of Shimoga, and he decreed the suit in favour of the public of Shimoga as represented by those plaintiffs. On Second Appeal to this Court it was held by Abdul Ghani and Singaravelu Mudaliar JJ. that though it happened that the people of Doddapet formed a portion of the inhabitants of Shimoga it did not justify a decree in favour of the people of Shimoga who are not the plaintiffs and that the could not represent the people of Shimoga. They therefore Bet aside the decree of the Subordinate Judge and restored that of the learned Munsiff. They observed that though they thought it unnecessary in the circumstances to go into the other questions raised by the appellants in that appeal, the Anjuman K. Islamia had not been brought on record as a defendant in spite of having been pleaded that they were in management by the other defendants. The appeal was therefore disposed of on the point that the people of Doddapet alone were not the owners of the institution or the properties thereof and that they were nob entitled to the rights claimed to the exclusion of the other inhabitants of the town. It is after this decision that the present suit was brought and it shows that even in the previous litigation it was not accepted that the Muslims of Shimoga had any exclusive right to manage this institution.

8. Defendant 3 who is examined as D. W. 1 and who is said to be the Secretary of the association for the last 12 years, has deposed that he does not know who actually built the garadi or gymnasium that there are no reference in this matter or as to whom this gymnasium belonged, that the gymnasium is meant for the public, that anybody with the permission of the vested (who apparently is the instructor) may go and take exercises, that there is no such thing that it was entirely for Muslims and that anybody and everybody in Shimoga Town may make use of it and that the maligns belong to the garadi. It has been clearly admitted by the defendants that the public have a right to use this institution. It has also been admitted that defendant I are merely managers though it is not very clear whether it is on behalf of the public or on behalf of the Muslims of Shimoga Town, The Anjuman E. Islamia has not claimed any proprietary or beneficial interest in itself. There is no documentary evidence transferring the right of management and control permanently in favour of the institution. The Islamia is said to be a registered association capable of holding property but it has Hot been shown that it was one of the objects of that association to manage the gymnasium and its proprietary, much less has there been any conveyance in its favour of the properties of the gymnasium by anybody claiming a right to it. If the institution had claimed that the public of Shimoga had no right to make use of the gymnasium that would have been a different matter. The question of adverse possession, or ownership of the suit properties in themselves, might then have arisen. When the defendants have admitted that the gymnasium and its properties are a public trust and that they are merely the managers of the institution, we have not been shown any authority for holding that they can plead adverse possession in respect of such properties or of such management and to deny the right of the public to ask the Court to frame a scheme for a change in that management or for calling them to account in respect of such management. In fact from the stand taken by defendant 1 it appears doubtful it even the Muslims can call them to account though they seem to plead that they have their authority to manage from the Muslim public and this can certainly be not a legally tenable position.

9. The learned District Judge has, on the evidence on record, held that the institution is a public trust belonging to all classes of people in Shimoga Town, that it has been in the management of Muslims only all along, that the plaintiffs cannot claim possession of the properties or any right in the management of the institution and that what they can ask for is only for accounts and better management of the institution as beneficiaries; and in the light of this finding he has proceeded to consider the question of limitation. He has held thai the defendants are not express trustees but trustees de son tort that Section 10, Limitation Act, does not apply to save the plaintiff's suit from the bar of limitation and that the suit is, therefore, not in time. He has referred to certain authorities and observed that there is a conflict of decisions on the point of limitation against trustees de son tort and has chosen to follow what he considers is the view of the Allahabad and Bombay High Courts and the Chief Court of Oudh in preference to the views held by the Madras and Calcutta High Courts. But even the cases he has referred to in his judgment do not seem to support the entire dismissal of the suit like the present.

10. Behari Lal v. Shiv Narain : AIR1934All884 , which is a case decided by the Allahabad High Court, has merely applied Article 120 of Schedule I, Limitation Act, for a suit for accounts against a defendant who was held to be a trustee de son tort and observed that Section 10 will not apply as it applies to cases of express trustee only. They have followed' Rajeshwara v. Ponnusami, A. I. E. (8) 1921 Mad. 125 and Krishnan v. Lakshmi, A. I. B. (9) 1922 Mad. 57. They have, however, held in the same case that there is no limitation for suits for the recovery of property from trustees and given the benefit of Section 10 to the plaintiffs though one of the defendants was only a trustee de son tort with reference to a part of the property which was in his possession. They made a distinction between the period of limitation for which he could be called upon to account but did not dismiss the suit with regard to possession of the property; and though they held that the latter was appointed a manager and not a trustee, they did not bold that the suit for possession was barred by time as against him. Ramacharya v. Shrinivasacharya, 46 ind, Cas. 19 (Bom.) wag a case in which the managers of a temple had made a gift of the temple property to the predecessors of the defendants in consideration of that latter performing certain religious service at the temple. The suit was brought half a century after the date of the gift by the donor's successors alleging that they were no longer to accept the services of the defendant in connection with the temple. It was held that the defendants were transferees for valuable consideration, the consideration being the performance of certain services and that, therefore, Section 10, Limitation Act, was not applicable to the case but Article 134 of Schedule I. Bachelor, Ag. C. J. observed is that case that Section 10, Limitation Act, is in the main designed to meet a suit brought for the purpose of valuing misapplied trust funds for the benefit of the trust and does not apply to assigns for valuable consideration from the express trustees. That case does not help the defendants.

11. The next case referred to by the learned District Judge is Moosabhoy v. Yakubbhoy, 29 Bom. 267. It was held in that case that if express trusts are created by a deed or will and some third party takes upon himself the administration of the trust property he becomes a trustee de son tort and as such is bound to account as if he were the rightful trustee and limitation does not run in his favour under Section 10, Limitation Act. At p. 280 of the reports their Lordships refer to Section 10, Limitation Act, and consider the question when a property is said to vest in a person as an express trustee. They observe with reference to the facts of that case :

'It is true the will does not appoint him trustee of the deed but it appoints him executor of the will and directs him to see that the provisions of the trust deed are carried out .... The provisions of the will show that he was to perform certain duties and functions in regard to the trustee estate .... Therefore, he was an express trustee so constituted under the will.' They go on to point out that by taking upon himself the administration of the trust property and taking possession of the trust property, the defendant became an express trustee by his own act. They further point out :

'It seems to be established clearly that if express trusts are created and some outside trespasser who has no business to interfere does interfere then be becomes a trustee de son tort and as such the Court will make him account as if he were the rightful trustee.'

It is observed that no man should assume the administration and function of a trustee and when called upon to account for his administration say that he acted wrongfully and that he would be always treated as if his acts were lawful and not unlawful. In support of that position they refer to a passage in Lewin on Trusts. This case fully supports the plaintiffs' contention that either as express trustees or as trustees de son tort the defendants are liable to account and cannot set up the bar of limitation.

12. In Peary Mohan v. Manokar : AIR1924Cal160 Mukerjea and Rankin JJ. held that if a person by mistake or otherwise assumes the character of a trustee when it really does net belong to him and so becomes a trustee de son tort, he may be called to account by the cestui que trust for the monies he received under the colour of trust and such a person cannot be heard to say for his own benefit that he had no right to act as a trustee. Chandrika Bakhsh v. Bhola Singh, 168 Ind. Cas. 593 : (A. I. E. (24) 1937 oudh 373) was a case of a suit for possession of properties from a she bait who had been appointed by the founder of a religious endowment to manage the property in trust for such endowment. The suit was brought by the heirs of the founder on the death of the latter for possession of the trust property against the heirs of the shebait then in possession. It was held that the suit was governed by Article 144, Limitation Act, or Article 134, and not by Article 120, and was, therefore, in time and the application of Section 10, Limitation Act, to assist the plaintiffs to get a decree for possession was not required. It is only in connection with the period during which the defendants wore liable to account Section 10 was considered and it was observed that Section 10 applies only to express trustees and their representatives and not to trustees de son tort. Their Lordships did not choose to follow the case in Dhanpat v. Mohesh, A. I. R. (7) 1920 cal. 558 in which the opinion was expressed that a trustee de son tort stands in the same position as an express trustee but preferred to follow the contrary opinion expressed in 47 ALL. 17. That case is no authority for the position that the suit of the plaintiffs ought to be dismissed as barred by time.

13. As against those cases Gopu Nataraja. v. Rajammal, A. I. R. (9) 1922 Mad. 394 is clearly in favour of the plaintiffs. It has been held in that case that whore the plaintiffs bring a suit not to assert their own individual rights but on behalf of the general public who are interested in the institution for the settlement of a proper scheme for the management of the charities and other reliefs there is no limitation against such a suit. In that case there was a plea that the defend ant was a hereditary trustee and that was found against by the Courts. The suit was under Section 93, Civil P. C. and their Lordships observed that it was a representative suit and the interest of the plaintiffs to enable them to bring such a suit 19 that interest which will enable them to be benefited if so minded by the proper maintenance of the charities. In Belt Ram and Brothers v. Mahomed Afzal, A. I. B. (35) 1949 P. o. 163 their Lordships observe while dealing with a wakf that time never rung in favour of a trustee so as to enable him to claim the trust property for him. self. Even if they purport to deal with such property as owners, they say, the trustees are committing breaches of trust and not setting up title adverse to the trust.

14. It was contended before us for the respondents that there was no registered document by which defendant 1 was appointed as a trustee and that being one of the modes by which a trust could be created defendant I could not be said to be a trustee within the meaning of the Indian Trusts Act. The Indian Trusts Act was not in force in Mysore till the year 1949 and there was no specific statutory way in which a trust could be created. (Even otherwise we do not think that is a very germane consideration. Section 10, Limitation Act, merely requires for ita application that a property should have been vested in the defendant in trust for an express purpose. As pointed out already the defendants have admitted that they are trustees and have claimed no beneficial ownership of this institution. It was also contend, ed that a mere manager is not a trustee within the meaning of Section 10, Mysore Limitation Act, prior to its amendment in 1933 when the provisions of the Indian Limitation Act in this matter were introduced here. It was urged that the Anjuman had acquired the right to exclusive possession and management under the 12 year rule before the amendment. In the first place the association has at no time put forward their own private rights to the property. They have always been claiming merely as trustees or managers on behalf of the Muslim section of the public. The Muslim section of the public has at no time claimed that they are solely entitled to possession and management. There has been no rival claims to the management of the Association put forward by or on behalf of the public of Shimoga oven to start adverse possession in respect of such management even if it could happen.

[15] On behalf of the respondents reliance has been placed on cases reported in Balwant Rao v. Puran Mal, 6 ALL, 1 (P. C.), Jadunath v. Girdhar, 27 ALL. 513 and Nilakandan v. Padmanaba, 14 Mad. 153. They were, however, cases where suits were brought not for the purpose of recovering trust property for the benefit of the trust but for the individual plaintiffs own benefit. In fact in 6 ALL. 1 the Privy Council held that a suit in order to fall under Section 10 which save suits against trustees from limitation must be brought for that purpose, and that section meant that when trust property is used for some purpose other than that of the trust, it may be recovered without any bar of time from the hands of those in whom it has been vested in trust and not where the plaintiff sued to enforce his personal rights, to manage an endowment, there being no question whether or not the property was being applied to such purpose by the manager in possession. 27 ALL. 513 which refers to 6 ALL. I also lays down that where a plaintiff claimed possession of certain trust property as manager by right of inheritance from the founders of the trust, there being no allegation of misappropriation of trust property, Section 10 had no application and the suit was governed by Article 124 or 144, Limitation Act. Their Lordships pointed out that Section 10 is inapplicable, inasmuch as the defendant did not deny the endowment but on the contrary asserted their own right as managers of the endowment, and it is not the plaintiff's case that the property has been applied to purposes other than the purpose of the trust or endowment. In that case the decision of both the lower Courts holding that the suit was barred by limitation was, however, set aside and the case was remanded to the lower Court to consider if the suit was not within time even by the application of Article 124 or 144, 14 Mad. 153 was also a case of an individual suing the defendants for a declaration that their family were entitled to exclusive management of the affairs of devasom. It appeared that the plaintiff's and defendants' families had been in joint management since 45 years before suit in accordance with the provisions of a deed of compromise. To such a suit naturally the ordinary 12 years rule of limitation will apply.

16. Sri Silambani Chidambara Vinayagar Devasthanam Devakottai v. Chidambaram Chettiar A. I. R. (30) 1943 Mad. 691 relied on for the respondents was a case of a suit brought by a manager for the recovery of monies collected by various members of a family who were managing the affaire of a temple. It was held in that case that the plaintiff could not avail himself of the provisions of Section 10, Limitation Act to save the suit from the bar of limitation and has no application to the facts of the present case. Moreover, it was conceded in that case that Dharmakarta of a temple is not a trustee of its property. But even that case lends some support to the observations made above that in the absence of the Indian Trusts Act or some statutory provision corresponding to it in Mysore, the rules of equity which hold that a person who received money while in a fiduciary capacity to the person for whom he received it was to be treated as an express trustee may have better scope for application in Mysore than in British India. Moreover, as observed in Kishtappa v. Lakshmi Ammal, A. I. R. (10) 1923 Mad 578 the phrase 'Trust for a specific purpose' under Section 16, Limitation Act is merely an expanded mode of expressing the same idea as 'Express Trusts' in English Law as pointed out in Soar v. Ashwell, (1893) 2 Q. B. 390. Palaniappa v. Nachiappa A. I. R. (28) 1941 Mad. 841 was a case where there was a custom among the Natukoti Chetties to which caste the parties belonged to treat presents given to the bride at the time of her marriage as a fund or property for the benefit of the children of the marriage and to entrust the fund with some solvent man of their community for investment and augmentation in the name of the bridegroom subject to certain modes of ultimate disposal of the amount. It was held, following A. I. B. (10) 1928 Mad. 678 and Bhurabhai v. Bai Ruxmani, 32 Bom. 394, that the defendant, a person with whom such presents had been deposited and who well knew that the purpose of the deposit was that the same should earn interest and be augmented for the benefit of the children of the bride, and the bridegroom, had the control of the fund for a specific purpose and was an express trustee coming within the meaning of Section 10, Limitation Act.

17. 'For the appellants reliance has been placed on Mahomed Admji Peerbhoy v. Akbar Ally Abdul Hussain Admit Peerbhoy, A. I. R. (21) 1934 P. C. 63, Mahomed Ismail Ariff v. Ahmed Mulla Dawood, 43 Cal 1085 (p. c.) and Gurunatharudhaswami v. Bhimappa Gangadharappa and a case of our Court in 53 Mys. H. C. R. 133 at p. 137 which lay down very clearly that the primary duty of the Civil Court in cases like the present is to consider the interest of the public for whose benefit the trust is created and that the Courts have got large powers to frame schemes and appoint proper trustees in cases where trust property has been diverted from its proper purpose and the objects of the trust are cot being carried out and the trustees or persona in management are not properly accounting for the realisations from the trust property. In 53 Mys. H. C. R. 167 it was held referring to Sitharam Chetty v. Subramania Aiyar, 39 Mad. 700 and Attorney-General v. Wyggeston Hospital, (1849) 60 E. R. 1003, that even the fact that there is a statutory body or committee which governs a charitable institution does not bar the jurisdiction of a Court to frame a scheme, because the Court is the ultimate protector of the charity and it is the inherent right of the Court always to intervene to safeguard and preserve the charity whenever it is necessary to do so; that the fact that the trustee is not guilty of breach of trust does not preclude the Court, from framing a scheme and that if the affairs of a charity are managed in such a matter which, is not beneficial to the institution, the Court can interfere and frame a scheme by giving direction as to its proper administration. Reliance has also been, placed by the appellants' counsel on a decision in Srinivasamoorthy v. Venkatavarada, 34 Mad. 257 (P. C.), which lays down that, there can be no claim of adverse possession in such cases':

18. We think, therefore, that even without any help from the amendment made to the Limitation. Act in 1937 the plaintiffs are entitled not only to have a scheme made but also an account from defendant 1 from 1919 as the property be-came vested in them for a specific purpose, viz., to look after and administer the gymnasium and its properties within the meaning of that section from, that, time. See Khaw Sim Tek v. Chuah Hooi Gnoh Neoh A. I. R. (9) 1922 P. C. 212 and Annamalai Chettiar v. Muthukaruppan where a specific purpose has been described by the Privy Council as being a purpose which is either actually and specifically defined in the deed of trust or a purpose which from the specified terms (or as admitted in this case) can be certainly affirmed. The decision of the lower Court cannot therefore be supported and must be set aside.

19. There can be absolutely no doubt that this is a proper case in which a scheme should be framed by the Court. The matter in controversy in this litigation can only be set at rest by such a scheme and if it is not so done, may degenerate into a communal quarrel. The Muslims of Shimoga have not at any time adopted the attitude that it is their exclusive property. It is only the association which officiously or otherwise has chosen to question the rights of the public to call for accounts. The Muslims are as much a part of the public as any other community and will enjoy the benefit of the development and better management of the institution. One of the beat ways by which better understanding and concord can he fostered between the members of all communities would be their participation in common games and sports and if an upto date stadium or gymnasium can be erected on the spot and if it could be managed by an impartial, honest and non-partisan committee of trustees under the Presidentship of either the President of the Municipality who is already helping the institution, or the Superintendent of Police or the District Magistrate, it could be made a very desirable addition to the amenities of an important and growing town like Shimoga. Unless it is absolutely as a matter of law legally impossible there is no reason why the management of this institution should not be entrusted to such a committee fox the benefit of everybody concerned and why the association in which a few Muslims and not even the entire muslim public of Shimoga should be allowed to continue in management without any check or control. In such a scheme provision could bo made for due representation even of the Muslim section of the public if the Court considers the same necessary for some time and the Court could always give directions from time to time With regard to the administration of the trust.

20. In the result, this appeal is allowed the judgment and decree of the learned District Judge are set aside and there will be a decree in favour of the plaintiffs as prayed for with costs both here and in the Court below (Advocate's fee in this Court Rs. 100.) The records will now go back to the District Judge and he will frame a scheme in consultation with both the parties and their counsel, call for accounts and proceed further with the suit in accordance with law. In the light of the above decision the memorandum of cross-objections is also dismissed but without costs.

21. Appeal allowed.

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