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Vankamamidi Balakrishnamurthi Vs. Gogineni Sambayya and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 2163 of 1953
Judge
Reported inAIR1959AP186
ActsLimitation Act, 1908 - Sections 10 - Schedule - Article 120; Trusts Act, 1882 - Sections 3; Limitation (Amendment) Act, 1929
AppellantVankamamidi Balakrishnamurthi
RespondentGogineni Sambayya and ors.
Appellant AdvocateK.B. Krishnamurty, Adv.
Respondent AdvocateG. Chandrasekhara Sastry, Adv.
Excerpt:
trust and societies - claim to account - section 10 of limitation act, 1908 and section 3 of trusts act, 1882 - three trustees appointed by endowment board - prior to these three persons some other claiming to be hereditary trustee in possession of property - appointed trustees took possession through court - trustees filed suit for account of profit realized by old trustees - whether suit barred by limitation - defendants unable to specify date on which they denied claim to account - held, defendants failed to prove that plaintiff's claim to account was not within six years therefore suit not barred by limitation. - - koklan, ilr 11 lah 657: (air 1930 pc 270), held that a right to sue accrues only when the defendant has infringed or at least has clearly and unequivocally threatened.....k. subba rao, c.j. 1. i have had the advantage of perusing the instructive judgment prepared by my learned brother, ranganadham chetty j. i do not propose to express my view on the interpretation of the second paragraph of section 10 of the limitation act. i would rather prefer to base my conclusion on the provisions of article 120 of the limitation act. 2. the facts relevant to appreciate the question raised may be briefly stated. the endowments board framed a scheme in the year 1927 for the management of the temple of malleswaraswami situated in balijepalli agraharam of guntur district. under the scheme, three non-hereditary trustees were appointed. prior to the scheme, three persons, claiming to be hereditary trustees, were in possession of the properties belonging to the temple. after.....
Judgment:

K. Subba Rao, C.J.

1. I have had the advantage of perusing the instructive judgment prepared by my learned brother, Ranganadham Chetty J. I do not propose to express my view on the interpretation of the second paragraph of Section 10 of the Limitation Act. I would rather prefer to base my conclusion on the provisions of Article 120 of the Limitation Act.

2. The facts relevant to appreciate the question raised may be briefly stated. The Endowments Board framed a scheme in the year 1927 for the management of the temple of Malleswaraswami situated in Balijepalli Agraharam of Guntur District. Under the scheme, three non-hereditary trustees were appointed. Prior to the scheme, three persons, claiming to be hereditary trustees, were in possession of the properties belonging to the temple.

After the scheme, two of them surrendered possession but one Balakrishniah set up the claims that he prescribed for the right of trusteeship by adverse possession and that he was entitled to continue in management undisturbed so long as he was accounting for the profits of the deity. That plea was not accepted by the trustees and they took possession of the lands through court on 24-12-1942. Thereafter, the trustees filed a suit for an account of the profits realised by Balakrishniah. As he died prior to the decree, it was continued against his legal representatives. The suit was resisted on the ground that it was barred by limitation.

3. A suit for accounts against a 'De facto' trustee is not specially provided for by any of the Articles of the Limitation Act, and, therefore, it is governed by the residuary Article. (See Yerukola v. Yerukola, ILR 45 Mad 648: (AIR 1922 Mad 150) (FB). Under that Article, a suit, for which no period of limitations provided elsewhere in the schedule, should be filed within six years when the right to sue accrues. The Judicial Committee in Mt. Bolo v. Mt. Koklan, ILR 11 Lah 657: (AIR 1930 PC 270), held that a right to sue accrues only when the defendant has infringed or at least has clearly and unequivocally threatened to infringe, the right asserted by the plaintiff in the suit

The Judicial Committee in Annamalai Chettiar v. Mutukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), applied the aforesaid principle to a suit for accounts against a trustee and held that it would not be barred by Article 120 if the defendant was unable to specify any date at which he denied the claim to account. In the present case, the defendants have not established that they had denied the plaintiff's claim to account within six years from the date of the filing of the suit. The suit, therefore, is not barred by limitation.

4. In this view, I agree with my learned brother's conclusion that the suit was not barred by limitation and that the appeal and the memorandum of cross-objections should be dismissed with costs.

Ranganadham Chetty, J.

5. This is a second appeal arising out of the decision in O. S. 31 of 1945 on the file of the District MunsiFs Court, Rcpalle. The suit was for an account for profits which one Balakrishnaiah, the deceased, had received in respect of a trust which he was managing. The suit was decreed for Rs. 1,476 against the said Balakrishnaiah's legal representatives, namely, defendants 1 to 3 and for another sura of Rs. 464-4-0 against not only the legal representatives but a lessee (4th defendant) as well. In the appeal before the Subordinate Judge, Tenali, there was a slight modification of the decree reducing the latter figure to Rs. 122.

6. The facts in brief are : The suit trust relates to Malleswaraswami Temple situated in Balijipalli Agraharam of Guntur District. The temple is the owner of 5.80 cents of land in the said village. It was in the possession of three persons Balakrishnaiah, Bhanumurthi and Suryauarayana claiming to be the hereditary trustees of the temple. The Endowments Board framed a scheme for the management of the temple in 1927 and appointed three non-hereditary trustees to manage the property,

Bhanumurthi and Suryanarayana surrendered possession of their share in the land, viz., 2/3, but Balakrishnaiah refuses to surrender the 1/3 in his possession. He put forward a plea that he prescribed for the right of trusteeship through adverse possession & was entitled to continue in management undisturbed so long as he was accounting for the profits to the deity. The trustees appointed by the Board rejected the plea and filed O. P. No. 119 of 1938 in the District Court, Guntur, for possession of this property. An order was made in their favour and they took actual possession through court on 24-12-1942.

7. Balakrishnaiah and his lessee (the present 4th defendant) aggrieved by the order in the aforesaid O. P. filed O. S. 8 of 1943 in the District Munsifs Court questioning the correctness of the order in the O. P. and maintaining that they continued to be in possession despite the order. They asked for a permanent injunction restraining the trustee's entry on the suit land. They obtained an interim injunction and retained possession of the lands on which they had trespassed subsequent to the court delivery till 29-1-1944 when the very suit was dismissed and the temporary injunction dissolved. The trustees recovered possession on 4-2-1944.

8. The trustee's have now filed this suit for an account of the profits realised by Balkrishnaiah. He died before the suit and hence his widow (1st defendant) and grandsons (defendants 2 and 3) were impleaded as parties. A lessee has been added as defendant No. 4.

9. The suit claim was resisted by the defendants primarily on the ground of limitation. The quantum of profits too was disputed.

10. The question of limitation was found against the defendants by both the courts. The plea in regard to the quantum of profits was upheld by the Sub Court only in part. Hence this second appeal.

11. The points for consideration are:

(1) Is the suit claim saved from the bar of limitation by reason of Section 10 of the Limitation Act? And

2. What is the amount of mesne profits which is recoverable and from which of the defendants?

12. Point 1: The question of limitation turns on the wording of Section 10 which states,

'Suits against express trustees and their representatives.

Notwithstanding anything herein before contained, 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 assign for valuable consideration), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

For the purposes of this section any property comprised in a Hindu, Muhamrnacian or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property snail be deemed to be the trustee thereof.'

The contention of the defendants in the lower courts as well as before us, is that Section 10 saved only suits against an express trustee and not a trustee 'De Son Tort* or constructive trustee; Balakrishnaiah was never an express trustee; His possession was that of a mere trustee 'De Son Tort' or constructive trustee and hence this special provision of the Limitation Act has no application. Plaintiffs' learned advocate endeavoured to meet this plea by reference to some decisions which make no distinction between the two categories of trustees and hold that Section 10 is equally applicable to all trustees whether express or constructive,

13. We are now dealing with a public trust. The India Trusts Act, 1882, does not apply to public trusts. Nevertheless, the expression 'trust' in Section 10 has been construed in Chidambara Vinayagar Devasthanam v. Chidambaram Chettiar, (1943) 2 Mad LJ 339: (AIR 1943 Mad 691), as carrying the same meaning as the Trusts Act.

14. In the Trusts Act, Express Trusts are simply called Trusts while all other types are designated 'obligations in the nature of Trusts'.

15. A 'trust' is defined in Section 3 as 'an obligation annexed to the ownership of property, and arising out of confidence reposed in ana accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.'

Section 6 sets out the elements necessary in the creation of a trust thus:

'.....a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (fa) the purpose of the trust, (c) the beneficiary and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.'

Lewin in his work on Trusts says;

'Generally speaking, an express trust may be said to arise from the intention of a person to create-a trust declared directly of indirectly.'

16. The expression of intention is often embodied in conveyances, marriage agreements and settlements, charitable and religious endowments, wills, etc. The trustee in such cases is called an express Trustee or trustee 'De Jure.' The others are constructive trusts and the trustees are sometimes termed trustees 'De Facto Or De Son Tort'.

17. At the hearing before us some discussion turned on the meaning of these expressions. Reference was made to the observation of Abdur Rahim, J., in Vedakannu Nadar v. Ranganatha Mudaliar, (I938) 2 Mad LJ 663: (AIR 1938 Mad 982), that a trustee who is in actual management of a trust without a lawful title can better be designated a trustee 'De Son Tort' than as a 'De Facto trustee. In the Full Bench case Shankaranarayana Ayyar v. Sri Poovanatha Swami Temple, ILR (1950) Mad 191: (AIR 1949 Mad 721), Viswanatha Sastri J., protested against the choice of expression 'De Son Tort' remarking that Abdur Rahman J.,

'paid an exaggerated compliment to the legal cobwebs of an alien system and paid scanty attention to the well-established and well-understood principle of Hindu Law which they had to apply.'

His Lordship, however, recognised that the expression 'De Facto' trustee' is not to be found in the leading English cases and that, instead, the words used are: 'trustee 'De Son Tort' or constructive trustee', the two expressions being interchangeable. He defines a trustee 'De Son Tort' as

'a person who by a mistake or otherwise bona fide assumes the character of trustee, though it does not really belong to him.' I doubt whether the expression has necessarily to be confined to bona fide assumption of the office as a trustee. The question of Bona fides is immaterial, so long as the trustee enters on the management unlawfully,

What distinguishes him from an express trustee is the unlawful nature of his management and not the dishonesty of his impressions. 'De son tort' means 'of bis own wrong'. A wrong does not lose its character as a wrong merely because it is believed by the wrong-doer to be proper. The mental attitude has no significance. It is the objective situation that matters. Raghavarao, J., in the aforesaid case regards the two expressions as synonymous.

18. The learned Chief Justice, while indicating the literal meaning of the two expressions, 'De Facto' as standing for 'by the title of possession' and 'De Jure' by the title of right' expressed that the category would comprise of 'a person other than a manager or the head of an institution who could establish a legal title to his office.'

19. For the purposes of the present case nothing turns, on the difference or identity of meaning and connotation in regard to the two expressions 'trustee de facto' and 'trustee de son tort'. While the former refers to the criterion of actual possession and management as the distinguishing feature, the latter emphasises the unlawful and wrongful nature of the assumption of trusteeship, while the cognate expression 'constructive' referring to such a trustee stresses the mode in which management was taken up, in the absence of an express appointment as a trustee to the office in any document or through other overt expression of intention of the founder of the trust.

Three expressions thus emphasise three different phases of the character of a trustee other than an express trustee and the choice of nomenclature in referring to such a trustee would depend for its appropriateness on the particular facet of the character or status of the trustee which calls for emphasis in the particular case. The Indian Legislature, in passing the Trusts Act, endeavoured to steer clear of the perplexing terminology by adopting the long-winded designation of such trusts as 'Obligations In The Nature Of Trusts'.

20. In the case now under discussion the emphasis is on the aspect whether Balakrishnaiah was an express trustee in whom the property of the trust became vested for a specific purpose or not.

21. Balakrishnaiah was not appointed trustee under any instrument or assigned that office by the founders and therefore could be designated a mere 'constructive trustee'. He commenced functioning as a trustee voluntarily, on his own initiative and without a lawful title and thus merited the description as a 'trustee de son tort'. He was actually in possession and management and could be appropriately characterised as a 'trustee de facto'.

22. According to the plaintiffs who are trustees appointed under the scheme, it is immaterial whether the trusteeship is express or construetive. For the imposition of perpetual liability on a trustee under Section 10 'suits against express trustees and their representatives' carries no significance and is incapable of governing the meaning and connotation of the actual words used in the section itself. But there is nothing in the section itself which conflicts with the marginal note. The learned advocate for the plaintiffs is not able to point out what particular word or words in the section gives countenance to the view that constructive trustee, too, falls within its ambit.

No doubt certain authorities have been cited which make no discrimination between an express trustee and a constructive trustee in the application of the principle under the section but in none of them do we find a discussion of the wording of the section itself. They have read into the section a meaning and intent which is not borne out by the words used and base their decision on principles of English Law or general principles of liability of constructive trustees.

23. The earliest case cited before us is in Moosabhai Mahomed Sajan v. Yacoobbhai Mahomed Sajan, ILR 29 Bom 267, decided in 1904. The Limitation Act then in force was of the year 1871 and Section 10 therein was identical with what we find in the present Act of 1908. The relevant observation at page 274 in this case was to the effect

'that the defendant Yacoob was an express trustee under the will, and therefore under Section 10 of the Limitation Act, no limitation could run in his favour; and secondly, even if he was an express trustee he was trustee 'De Son Tort' and as such was liable to be treated as express trustee and that he could not be allowed to plead limitation.'

So far as the first part of the enunciation is concerned it is clear that Tyabji J., was construing Section 10 as directly subjecting an express trustee to permanent liability but the basis for equating to the position of an express trustee one who held the office as 'De Son Tort', has not been indicated.

24. In Subramania Ayyar v. Subba Naidu, 25 Mad LJ 452, Benson and Sadasiva Ayyar JJ., held that to a suit brought on behalf of a devastanam represented by the proper legal trustee against the former trustee whether his right to office is legally valid or otherwise, the provisions of Section 10 had a clear application and that the defendant could not rely on the bar of limitation. They followed the principle of ILR 29 Bom 267.

25. A similar assumption was made by the learned Judge in Kaliba Mavulvija v. Saran Bivi Saila Ammal, ILR 38 Mad 260 at p. 270; (AIR 1916 Mad 57 at p. 63)

'that a trustee 'De Son Tort' cannot plead limitation against the Cestui Que Trust as Section 10 of the Limitation Act, providing that 'person in whom property has become vested in trust for a specific purpose' cannot plead limitation in a suit by the Cestui Que Trust, is applicable to trustees 'De Son Tort' also.'

relyiug simply on a passage in Mitra on 'Limitation'. Here too, there is no discussion of the question or indication as to the parity of reasoning which nets in both express and constructive trustees within the ambit of Section 10.

26. Further reliance is placed by the plaintiffs on a Bench decision in Dhanpat Singh v. Mohesh Nath, AIR 1920 Cal 558, wherein their Lordships treated the proposition as axiomatic merely observing:

'So there is no doubt that a suit for accounts in respect of the trust property comes under Section 10. A trustee De Son Tort stands in the same position as an express trustee.'

Mt. Khursaidi Begum v. Secy. of State, ILR 5 Pat 539: (AIR 1926 Pat 321), is another authority cited as making no distinction between an express trustee and a constructive trustee. Ross J., delivering the judgment of the Bench observed;

'The argument of the plaintiffs is that as to this part of the property they are protected by Section 10 of the Limitation Act .....The plea therefore is in this form that the property was trust property but not property held in trust for a specific purpose.'

Passages from English decisions relating to trusts were relied on and in particular Lord Macnaghten's view in Lyell v. Kennedy, (1889) 14 AC 437, to the effect:

'Nor do I think it can make any difference whether the duty arises from contract or is connected with some previous request, or whether it is self imposed and undertaken without any authority whatever. If it be established that the duty has in fact been undertaken and that property has been received by a person assuming to act in a fiduciary character, the same consequences must, I think, in every case follow.'

It was held that Section 10 conferred no immunity even on a constructive trustee, just it was denied to an express trustee, hut what was overlooked in that case was the fact that courts of Equity in England never allowed any bar of limitation to be raised in regard to trusts. It is a well known distinction between the administration of trusts by English Courts of equity and courts in India.

27. Reference is also made to Thuppan Nambudripad v. Ittichiri Amma, ILR 37 Mad 373, wherein Lewin's definition of a trust De Son Tort as a person by mistake or otherwise assumes the character of trustees when it really does not belong to him* is adopted and certain English decisions were relied on for the view that

'The result seems to be that there are certain cases of what are, strictly speaking, constructive trusts, in which the statute of Limitation cannot be set up as a defence. Amongst these are the cases where a stranger to the trust has assumed to act and has acted as a trustee.'

28. We have, however, an overwhelming volume of authority to the contrary. The earliest case cited Kherodemoney Dossee v. Doorgamoney Dossee, ILR 4 Cal 455, was also in the words or Section 10 of the Limitation Act of 1871 definitely negatived the plea of immunity on the ground that

'The language of the section is specially framed so as to exclude implied trusts or such trusts as the law would infer merely from the existence of particular facts or fiduciary relations.'

29. In Rajah of Ramnad v. Ponnuswami Thevar, ILR 44 Mad 277: (AIR 1921 Mad 125), Sir John Wallis C. J. and Sadasiva Ayyar J., recognised a distinction in the treatment of the question of limitation by English Courts and Courts in India, and observed:

'The learned Advocate-General cited several English cases to show that the bar of Limitation would not be applied in a similar case in England but in my opinion those decisions have no application in this court. In matters of equitable jurisdiction, such as trusts the English Courts never regarded themselves bound by the statutes of limitation and as regards trusts have refused to allow the limitation to be pleaded as regards breaches of express trust; whilst following the analogy of the statute as regards constructive trusts .....

The learned Lord Justice goes on to show that the English Courts have refused to apply the bar of limitation on the analogy of the statute in certain cases which appear to come within his definition of constructive trusts and this is the class of cases on which the learned Advocate-General relied. That was a matter well within their powers but in this country we are bound by the provisions of Section 10 of the Limitation Act .....

It is, in my opinion, impossible to hold that the payments ..... became vested in the mortgagee on trust ..... section 10 has clearly no application to such a case.'

30. The case followed by another Bench is Krishna Pattar v. Lakshmi, ILR 45 Mad 415: (AIR 1922 Mad 57), with the observation that;

'The case is of a constructive trust or of an obligation in the nature of a trust .....Section 10 of the Limitation Act has never been held to apply to such cases. It is true that in Section 10 the term 'express trustee' is not used in the Section itself but only in the marginal note, but the language of the section referring, as it does, to 'persons in whom property has become vested in trust for any specific purpose' is explicit enough to show that it refers only to express trustees. It is not contended before us that it would cover the case of the constructive trustee.'

We have thence forward an unvarying catena of decisions reaffirming the principle that the ambit of the main provision of the first paragraph of Section 10 of the Limitation Act confined to express trusts and trustees. See Kishan Dei v. Ramchand, AIR 1927 Lah 773 2); Chandrika Baksh Singh v. Bhola Singh, ILR 13 Luck 344: (AIR 1937 Oudh 373); Chandra Kasavulu Chetty v. Perumal Chettiar, (1939) 1 Mad LJ 820: (AIR 1939 Mad 722); Hussain Ali v. Baquir Ali, ILR (1946) Mad 423: (AIR 1946 Mad 116); Soonderdas Thakersey v. Bai Lakshmibai, AIR 1948 Bom 131; Biharilal v. Shiva Narain, ILR 47 All 17: (AIR 1924 All 884). Thus we may take the law as well-settled that Section 10 covers only cases of express trusts and excludes all other categories.

31. (B) Section 10 of the Limitation Act contains two paragraphs. The discussion so far turned on the construction of the first paragraph. In this appeal what we are directly concerned with is the 2nd paragraph which stands thus:

'For the purposes of this section any property comprised in a Hindu, Muhammadan or Buddhist religious or charitable endowments shall be deemed to be property vested in trust for a specific purpose and the manager of any such property shall be deemed to be the trustee thereof.'

The amendment was necessitated by the two decisions referred to in the statement of objects and reasons :

'The (Civil Justice) Committee's recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Balusami Ayyar, ILR 44 Mad 831: (AIR 1922 PC 123) and Abdur Rahim v. Narayan Das Aurora, ILR 50 Cal 329: (AIR 1923 PC 44 (2)), which lay down that a dharmakartha, mahant or manager of a Hindu religious property of the mutwalli or Sajjadanashin in whom the management of Muhamdaman religious endowments is vested are not trustees within the meaning of the word as used in Section 10 of the Limitation Act, for the reason that the property does not vest in them.

The result is that when a suit is brought against a person, not being an assign for valuable ccnsideration endowments of this nature are not protected. The committee's recommendations is that Section 10 of the Act should be amended so as to put Hindu and Muhammadan religious endowments on the same footing as other trust funds which definitely vest in a trustee. After consulting the local Governments, the Government of India have come to the conclusion that Hindu, Muhammadan and Buddhist religious as well as charitable endowments should he included within the scope of Section 10 of the Act. The bill gives effect to this conclusion.'

32. It may be remembered that the two indices of an express trust set out in the main provision of Section 10 are (1) a vesting of the property in the trustee and (2) a 'Specification of the purpose.' In the case of a Hindu temple, the property becomes vested in the idol and not the manager. This position was clarified by the Judicial Committee in ILR 44 Mad 831: (AIR 1922 PC 123) thus:

'Neither under Hindu Law nor in the Muhammadan system is any property 'conveyed' to a she-bait or Mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property be holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom or usage.'

Vesting of property in the trustee is the first condition insisted on in the main provision of Section 10. 'Vesting' means the inhering of title or ownership. In the case of a Hindu temple there can never be a vesting of the trust property in the manager. The reason is obvious. The Hindu idol being a juristic person capable of holding property and, in fact, the owner thereof there cannot be another owner at the same time in the form of a manager. Prior to the amendment, all managers could, therefore, escape from the operation of Section 10 on this ground alone.

Now, as a result of the amendment, managers, despite the absence of vesting of title or ownership, are constructively deemed by a fiction to be express trustees as referred to in the main provision. The amendment has not enlarged the title or rights of the manager. (See Section 94 of the Religious Endowments Act of 1951). The fiction is expressly limited to the purpose of Section 10.

33. As regards the 'specification of purpose', the second condition set down in the amendment, it is perhaps a redundancy so far as a Hindu temple is concerned because the purposes of a temple are in themselves sufficiently specific. In (1943) 2 Mad LJ 339: (AIR 1943 Mad 691), Wadsworth and Horwill JJ., observed:

'It does not seem to us that because the purpose for which the property was dedicated was a wide one, it need be any the less specific. It has never been held, ..... that Section 10 did not apply to the property of a temple because it was dedicated generally to the temple and not for any limited purpose ..... The conducting of poojas, ceremonies and the upkeep of the temple seem to us sufficiently specific to satisfy the requirements of Section 10 of the Limitation Act.'

34. Balakrishnaiah was undoubtedly the manager of a Hindu Religious Endowments, and he was not an express trustee within the meaning of the main provision. Nor was he a manager expressly constituted as such by any founder or other competent authority. He was the De facto manager and if the foreign terminology applicable to trustees and executors can, for convenience, be extended to persons in the position of Balakrishnaiah, he would be a manager De Son Tort. It is argued for the defendants that managers De facto are not covered by the amendment.

The ground on which a restricted meaning is sought to be given to the word 'manager' in the amendment is that in the unamended provision only an express trustee--as defined in Section 3 of the Trusts Act -- was subjected to a permanent liability; the amendment merely enlarged the definition of a 'trustee' as including a 'manager' as well, but has left the limit and qualification 'express unaffected and should therefore be deemed to pertain to the managers who are newly brought into the fold. I have given my careful consideration to this question and feel that the argument is unsustainable. The fallacy, to my mind, lies in overlooking the fundamental distinction so well brought out in ILR 44 Mad 831: (AIR 1922 PC 123), regarding the vesting of property.

35. For an express trust, two tests are prescribed in paragraph 1 of Section 10 vesting and specification of purpose. We may ignore for the present the latter, as a temple's purposes have been held to he sufficiently specific in themselves. The primary feature distinguishing express or 'De jure' trustees from all other categories lies in the vesting of property. The lawful or unlawful nature of the tenure of the trustee which makes him De Jure or De Facto has a relevancy only from the stand-point of ownership.

While a lawful origin of the office is a causative factor in investing the trustee with ownership, it has no bearing on a manager's interest in the property and there is no reason why a distinction should be made in the categories of managers when the Legislature has annexed no limit and qualification to the word 'manager' in the amendment.

The use of identical terminology of 'De facto' and 'De jure' in regard to trustees and managers ought hot to make us oblivious to the difference in the legal incidents implied.

When, by a legal fiction, a manager is deemed to be an owner of the endowment, it is immaterial whether he is lawfully in management or unlawfully. Further, there is nothing ambiguous about the expression 'manager' and it has to be given its ordinary and natural meaning. Halsbury's Laws of England, Volume 31, Page 498, para 636 sets out the general rule that

'if there is nothing to modify, nothing to alter, nothing to qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning. If the result of the interpretation of a statute by this rule is not what the Legislature intended, it is for the Legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the Legislature must have intended.'

Salmond in his work on Jurisprudence (Tenth Edition at Pages 170-173) gives expression to the same idea in these words;

'..... In all ordinary cases thecourts must be content to accept the 'Litera Legis' as the exclusive and conclusive evidence of the 'Sententia Legis'. They must in general take it absolutely for granted that the Legislature has said what it meant, and meant what it has said. 'Ita-Scriptum Est' is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true 'Sententia Legis' is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable.'

Two exceptions, however, are recognised, i. e.

(1) Where the letter of the law is logocially defective, that is to say, when it fails to express some single, definite, coherent, and complete idea.'; and

(2) Where the wording leads to 'a result so unreasonable that it is self evident that the Legislature could not have meant what it has said. In these cases, an attempt may be made to ascertain the intention of the Legislature.

36. Even if an investigation into the mind of the Legislature were permissible in this case, them is nothing to show that the expression was intended to be restricted to managers 'De Jure'. Thestatement of objects and reasons gives no such indication. The object of the amendment was to raise the immunity which managers of Religious Endowments in general were enjoying from the time of the Judicial Committee's pronouncement in 1921 as the interests of the Endowments were paramount and there was no particular reason why one class of managers alone should be discriminated against.

37. Defendants may plausibly argue that the Legislature has been consistently excluding 'De Facto' trustees (and managers) from an everlasting obligation under Section 10 and that no departure could have been intended under the amendment of 1929. But, there is nothing to show that the policy has always been uniform. Under the Limitation Act of 1859, all trustees (and managers) whether 'De Jure or De Facto', were brought within the ambit of Section 2 which stood thus:

'No suit against a trustee in his lifetime, and no suits against his representatives for the purposeof following in their hands the specific property which is the subject of the trust, shall be barred by any length of time.....'

Under the Act of 1871 a change was made in the law & De facto trustee (managers) were excluded, the Act of 1908 made no change. But, under the amendment of 1929 only de facto trustees continued to enjoy an immunity. We have no materials for ascertaining the reason behind the change of policy from time to time in regard to the imposition or exclusion from a perpetual liability of any specified category of fiduciaries, hut we can visualise the need for subjecting the heads of religious and charitable endowments to a permanent liability in or after 1929 in view of the wide-spread abuse of powers and general mismanagement.

The need for tightening the grip over religious endowments more than secular trust seems to nave been felt about that time besides the call of the situation created by the decision in ILR 44 Mad 931: (AIR 1922 PC 123) and that accounts for obliterating the distinction between lawful and unlawful managers. If the Legislature intended to perpetuate the distinction for purposes of limitation, it had only to prefix a word 'lawful' or de jure or express before the expression manager in the amendment. The absence of the qualification carries an undoubted significance.

38. There is one other factor decidedly supporting the construction of the word in the broader sense. It is this. Act 1 of 1929 (Central) was not confined to the amendments of Section 10 above. Articles 48-B, 134-A, 134-B and 134-C were also added to the Limitation Act. In everyone of these provisions the word 'manager' occurs. It is a cardinal principle of construction that where in the same statute a word is used in different sections, it should be understood in the same sense throughout. It is said that the minimum required is that a word keeps the same meaning throughout at least in one Act.

Maxwell on Interpretation of Statutes, 10th Edition at p. 322 puts the proposition tersely thus;

'It has been justly remarked, that when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the same expression in every part of an Act.'

Following this rule, if the word 'manager' in the amendment of Section 10 were to be construed as having an implied prefix of de jure, it should be understood in the same sense even in regard to the other Articles, newly added and this process would lead to anomalies. It may be noticed that the latter set of Articles has not even the ostensible support of an analogy derived from the main provisions. The word 'manager' in these Articles manifestly covers both the categories. We have the authority of ILR (1950) Mad 191: (AIR 1949 Mad 721} that even a de facto trustee can maintain a suit.

39. I am inclined to hold that Section 10, paragraph 2 covers a de facto manager' as well. Balkrishna should be deemed to be an express trustee within the meaning of S, 10 and there is no period of limitation barring the suit claim against him.

40. If the word 'manager' in the second paragraph is regarded as ambiguous and inconclusive, a consideration of the possible intention of the Legislature in making the amendment may be permissible, and as already noticed, it may be plausibly urged that the rationale of distinction, whatever it might be, in the treatment of De jure and de facto trustees, should justify a similar difference in dealing with managers de jure and manager De facto and that the expression 'manager' should be read in a restricted sense.

In such a case, Balkrishnaiah, the de facto manager, would be governed by the residuary Article 120 of the Limitation Act and in view of the defence not making available any materials that the plaintiff's right to sue had accrued More than 6 years before the institution of the suit, the suit is saved from the bar of limitation. Whichever may be the mode of approach, the result is identical. Both sides concede that the data on which the figures are worked out by the lower Appellate court are correct. The decree of the Lower Appellate Court is confirmed and the appeal is dismissed with costs.

41. As regards the cross-objections, we havethe finding of the lower appellate court that the defendants were not in possession during the twoyears in question. We see no reason to interferewith the finding. The cross objections are dismissedwith costs.


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