1. This is a Second Appeal on behalf of the defendants against the judgment and decree of the Subordinate Judge, Gudivada confirming the preliminary decree passed' by the Dt. Munsif, Gudivada in a suit for rendition of accounts.
2. The brief facts of the case are : The village of Vadali in Kaikalur Taluk was granted as inam as far back as in the year 1760 A-D. by the Nizam to the deity Sri Jagannadhaswamy varu. One half of this inam was given in possession to the temple and the other half in the possession of twelve agraharamdars who had to render Swastivachakam service to the temple. The inam was confirmed in 1860. A separate title deed was issued in favour of the twelve agraharamdars by the Inam Commissioner for one half of the inam village.
The agraharamdars by virtue of the grant possessed hereditary rights to enjoy the inam lands granted for their service. It was open for them to render their due service in the Devasthanam either personally or by proxy. Their right of enjoyment was to endure for ever, until the object of the grant ceases to exist. It did not lie in the power of the Dharma-karthas to disinherit any of the agraharamdars and put strangers in their place even if they neglected to do the work and absented themselves for a long time.
In case of defaults in the performance of service, opportunity was to be given to his next heir to resume the service. This is the legal position under the terms of the grant as confirmed by the Inam Commission in 1860. It so happened that one of the trustees of the temple in the year 1939 made a petition to the Deputy Collector under Section 44-B of the Hindu Religious Endowments Act for resumption of the inam with the allegation that the agraharamdar Kandarpa Krishnamurthy, who is the husband of the present respondent alienated the inam and had also committed default in performing the service.
The Deputy Collector by his order dated 13-5-1940 ordered resumption of the inam so far as that Vrittidar was concerned with the direction that the trustee might select the nearest heir of that vrittidar under the terms of the grant. The trustee was not satisfied with this order as it did not direct a regrant in favour of the temple as a result of resumption. He went in appeal to the Dt. Collector who confirmed the order holding that the right of performing service or enjoyment of the property should devolve on the next heir in succession. The respondent, the wife of the defaulter, then made an application to the Managing Trustee of the Devasthanam on 8-10-1941 to appoint her as the heir of her husband and stated that she would perform the service by proxy.
This application was followed by another application on 12-11-1941. The trustee in evasion of these persistent demands instituted a suit O. S. No. 60/1943 on the file of the Sub Court challenging the legality of the orders of the Revenue Divisional Officer and Dt. Collector on the ground that the direction in relation to the selection from among the heirs of the Vrittidars was ultra vires as the resumption of the inam should invariably result in regrant in favour, of the temple.
He succeeded in the trial court but in appeal the High Court reversed the decision of the lower court and confirmed the decision of the Revenue Divisional Officer and Dt. Collector. The result was that the trustee had no other choice than to select the nearest heir for performing service. On an application by the plaintiff-respondent after due enquiry into the succession to tne defaulter, the Revenue Divisional Officer passed his order D/- 12-6-1951 that Sundaramma i.e.. plaintiff-respondent as the nearest heir to her husband is entitled to succeed to the inam in question and render service by proxy and that she be put in charge of the inam in question and the Executive Officer should account for and pay the past profits realised after meeting the expenses for the same.
In pursuance of this order possession was delivered to the respondent but not the profits. The trustee on the other hand took the matter in appeal but the Dt. Collector affirmed the said order on 21-11-1951. The profits still remained unpaid, and the accounts thereof were not rendered. The plaintiff thereafter filed a suit for rendition of accounts of the profits realised, from the lands and for recovery of the same after deducting the expenses incurred in getting the service done by the Devasthanam from July 1943 till the date of delivery of possession to the plaintiff on 30-6-1951,
3. Several pleas were raised in the written statement including the question of limitation. It is not necessary for me to refer to all the grounds raised for though they are stated in the memorandum of appeal, the arguments have been confined to the question of limitation alone in relation to the claim for a period beyond 3 years preceding the date of the suit. The argument advanced is that Article 109 of the Indian Limitation Act applies to the case and no decree for mesne profits for more than 3 years prior to the date of filing the suit could be passed as it id barred by limitation.
It is also contended that the plea of pending of proceedings for the establishment of right can be no defence for not bringing the suit earlier nor can on that account a claim for more than 3 years become sustainable. Reference is made in this behalf to Gundappa v. Official Receiver, Bellary, AIR 1946 Mad 207. On the other hand, the arguments advanced on behalf of the plaintiff is that as the respondent was prevented from filing her suit from the date of the decree in O. S. 60/1943 till the reversing of the same in appeal by the High Court of Madras in 1949, the period from the date ot decree in O. S. 60/1943 and the date of its reversal must be excluded by reason of Section 15(1) of the Limitation Act.
In support of this argument reliance has been placed on Lakshminarayana v. Lakshmipati, AIR 1927 Mad 997 but this case has been ovemiled by a Full Bench case in Sundaramma v Abdul Khader, ILR 56, Mad 490 : (AIR 1933 Mad 418). The point for consideration is which is the proper article applicable in the particular circumstances of the case. In ascertaining the relevant article, it is necessary to look to the claim of the plaintiff as set up in the plaint. Paras 8 and 7 are the relevant paragraphs.
The plaintiff contends in paragraph 8 that the plaint schedule inam lands are an hereditary Swastivachakam service grant as per the conditions of the Inam Fair Register and that as she is the next heir of her husband she had a right to enjoy the said land on rendering service after her husband's removal for default of service and that though she had applied expressing her willingness to render service by proxy, the defendant did not recognise but on the other hand denied the plaintiffs right to possession of the lands and went on appropriating the income derived from the said lands,
The plaintiff states her case clearly thus ; that since it is now declared that the plaintiff is the rightful owner of the said lands and according to law the profits collected by the defendant from the scheduled lands shall be deemed to have been collected as trustee for the plaintiff who is the rightful owner of the lands, the defendant Devasthanam is bound to render account of the mesne profits which were illegally realised by it from the year 1943 to 30-6-1951. In paragraph 7 she however gave the details of the period of possession and the services rendered.
She stated that the defendant Devasthanam took possession of the schedule mentioned land during the month of July 1943. realised the income from the said land from that time onwards till 30-6-51, got rendered the Swasthivachakam service on behalf of the vrittidar who should bo deemed to be no other than plaintiff, Further, as per the orders of the Deputy Collector passed on 12-6-1951 the possession of the schedule mentioned land was no doubt delivered on 80-6-1951 but the account for the mesne profits realised from the scheduled land for the previous years i.e., from July 1943 to 30-6-1951 was not rendered.
The plaintiff's claim in short is for actual profits after deducting the expenses for Swasthivachakam service during the period the defendant was in possession of the inam lands. She claims she is the agraharamdar after her husband died and has been declared so in 1951 by the clear orders of the Deputy Collector. She did not bring the suit earlier because the lands were resumed for default of service and she was declared heir of her husband after due inquiry on terms of the grant only in 1951.
No doubt she has used the terms illegal possession and mesne profits but obviously they have not been used in their technical sense. They are loose expressions to convey the sense that the defendant who was in possession and had appropriated the profits was a trustee for the plaintiff and could not appropriate the profits to himself. Thus, having regard to the averments in the plaint it is a suit for rendition of accounts and recovery of profits of the lands reserved and held by the defendant for the benefit of the Vrittidar who was to be selected on the terms of the grant.
That exactly is the nature of the suit. Though it is not necessary to consider the averments in the written statement for this purpose, yet the perusal of the same makes it clear that everything therein virtually points to the same thing. In paragraph 5 (a) of the written statement it was stated that the lands of the defaulter were put in possession of the temple by the tenants of the party during the resumption proceedings in 1943. In paragraph 6-A it was stated that the plaintiff had no vested right to be appointed to the office and her right, if any, to possession of the resumed lands starts with her actual selection and not before.
Though the trustees were bound to make the selection themselves they delegated their duty to the Deputy Collector and the latter in his order dated 12-6-1951 selected her on the sole consideration that she was the nearest heir though the rival claimants were also parties to the proceedings before him. It is further stated that she might be deemed to have been selected by the trustees by implication and not expressly on 30-6-1951. Thus on the case as stated in the plaint, the claim to profits is based on her right which was formally secured on her declaration as the rightful vrittidar in succession to the previous defaulter, her husband.
Now, as already mentioned, the inam lands were resumed under the orders of the Deputy Collector as-there was a default in performance of service. This resumption could not have the effect of forfeiture in favour of the Government for under the terms of the grant the inam could not revert to the Government so long as the object of the grant continued to exist. It could not have the effect of regrant to the temple as the grant was hereditary and had to go to the successor of the defaulter by selection.
The choice was left to the Devasthanam which after a protracted litigation eventually was exercised through the Deputy Collector by the order D/- 12-6-1951. It follows therefore that the resumption of inam being according to law and so also the taking of possession of lands, the possession during the pendency of selection of the vrittidar cannot be held to be unlawful. Though there might have been some delay in selection and some difficulties created owing to certain pleas raised the profits received cannot be said to have been received by the defendant unlawfully. So, then, the question is which is the Article applicable to the case. As already said, the appellants contend that Article 109 applies to the case. Article 109 reads thus :
'Forthe profits of Immovable property belonging to the plaintiff which have beenwrongfully received by the defendant.
3 yearsWhen theprofits are received.'
It is necessary for the application of Article 109 that the profits must have been wrongfully received by the defendant I.e., in any manner other than lawful. Wrongful means wrongful in law. It cannot be said that the defendant's possession originated in a wrongful act for it is a necessary consequence of the resumption of the inam. Till the selection of the vrittidar the possession would be lawful but of course, for the benefit of the heir who will be ultimately appointed vrittidar.
The argument therefore that 3 years rule is applicable to the claim of profits is not tenable. That seems to be also the reason why the plaintiff did not choose to state in the plaint how the suit is protected from the statute of limitation. Such a statement would have been necessary under Order 7, Rule 6, C.P.G. if the suit was apparently barred by limitation. When Article 109 did not apply there was no occasion to raise any such ground as under Order 7, Rule 6, C.P.C. Since the plaintiff could not have brought her suit before she was actually declared the heir in terms of the grant the suit was brought only after such order and within 3 years therefrom. Suits of this kind are governed by the general residuary Article 120 as no specific article in all its bearing is applicable thereto. Article 120 reads thus :
'Suits for which no periodof limitation is provided elsewhere in this schedule.6 yearsWhen the right to sueaccrues.'
The right to sue accrues only when the cause of action arises. When the right accrues depends upon the facts and circumstances of each case. So long as the plaintiff was not declared vrittidar nor her claim as such had been virtually denied by a competent authority, but, in view of the several claimants who are parties to the Deputy Collector's proceedings, this question was in fact left for determination by the Deputy Collector. The decision of the Deputy Collector could have effectively provided for her a cause of action, in case the defendant denied her right to possession or profits. The defendant has given away possession but not the profits which claim is categorically denied.
A suit brought within six years from that time is within limitation. When the suit as within time, there can be no question of limitation with regard to accounts and recovery of profits for all the previous years. In these circumstances, it is not necessary to deal with the rulings cited by the parties as they are wholly inapplicable to the facts and were cited on the assumption that the right to sue had accrued when the application of the plaintiff to be recognised as heir and to be permitted to render service by proxy was disregarded by the defendant when he instituted a suit in 1943. This assumption as discussed above is not correct in law.
4. It may be noticed in the courts below the defendant had challenged the order of the Deputy Collector passed in favour of the plaintiff in connection with accounting of profits for the previous years. The Courts below have found that this order of selecting the plaintiff as the heir of the defaulter and directing the Executive Officer to account for and pay the past profits on the resumed land was not without jurisdiction or ultra vires the powers of the Deputy Collector. No arguments have been advanced in this behalf in this Court. In other words, the appellant did not choose to challenge the correctness of this finding. The only argument in relation to limitation, as discussed above, is not tenable. There is no force in this Second Appeal. It is therefore dismissed with costs. No leave.