1. This is an appeal by the defendant Dharam Narain. The plaintiff Suraj Narain brought a suit for 'possession of the entire wakf property, moveable and immovable, and all the funds of the wakf created under a document dated 14th May 1900 executed by Mt. Bibi Sabitri and of the office of mutwalli and amin of the aforesaid wakf by dispossession of the defendant.' It was also prayed that the defendant may be ordered to render all accounts of the funds and income of the property appertaining to the wakf from 1926 upto the institution of the suit and that a decree for the amount found payable by the defendant for the period of his possession with reasonable interest may be passed in favour of the plaintiff against the person and property of the defendant. The Court below decreed the plaintiff's suit 'for possession over the office of trustee and over the property, moveable and immovable, belonging to the trust.' A preliminary decree for account was also passed in favour of the plaintiff against the defendant directing the latter to render accounts relating to the trust from 1926 onwards upto the date of the judgment (17th September 1938) and the plaintiff was allowed full costs against the defendant. The allegations on which the plaintiff brought the suit may be stated, but in order to appreciate them it would be better to give the following pedigree:
MAHARAJ MOOL CHAND
Asa Ram Salig Ram Kashi Ram Maheshwar
| | | Dayal
Laxmi Narain | Bhajjan Lal (issueless)
= Mt. Gomti | |___________________
| | | |
| |_______ Shiv Narain Dharam
| | Narain
| | (deft.)
Ram Suraj Narain |
Narain (plff.) |
| | |
Mt. Jumma. Jagammath Choty
= Mt. Bibi Savitri. Lal
2. The common ancestor of the parties was Mool Chand and one of his sons, Salig Ram, was possessed of considerable property. His two sons, Jagannath and Chotey Lal, died in his lifetime and Salig Earn on 7th January 1896 gifted his property absolutely to his widowed daughter-in-law Bibi Savitri and the latter on 14th May 1900 created an endowment of some of her properties in favour of three idols, Sri Savitri Swami Ram Chandra Ji, Sri Savitri Swami Janki Ji and Sri Savitri Lachhman Ji by means of a formal deed of gift and constituted herself as the first mutwalli of the waqf property during her own lifetime. She died on 17th April 1917 and then, according to the plaintiff, Lachhmi Narain as the heir of the founder became the mutwalli and remained in possession of the wakf property during his life time, although the endowed estate was managed by one Puttu Lal, the mukhtar-i-am of Bibi Savitri and an employee of Lachhmi Narain. Lachhmi Narain died on 30th September 1921 and then the plaintiff succeeded to the mutwalliship, but he was a minor and his estate was under the superintendence of the Court of Wards. Puttu Lal however continued to manage the endowed property up till 1926 on behalf of the plaintiff and then mutation was effected in favour of Dharam Narain in August 1926, but he had absolutely no title and his possession was the possession of a trespasser. During his time he was guilty of gross mismanagement and waste. The defendant was therefore liable to be dispossessed and was liable to render accounts. The plaintiff was entitled to obtain actual possession of the endowed property.
3. In defence it was pleaded that the plaintiff was not entitled to the mutwalliship and therefore he had no cause of action. The plaintiff's suit was said to be barred under Section 92, Civil P.C. and by the twelve year's rule of limitation. The defendant alleged that Lachhmi Narain never obtained possession over the waqf property, but, on the death of Bibi Savitri, the defendant and his brother Shiv Narain under an oral will became the mutwallis of the waqf property and, according to the same oral will Puttu Lal was authorized to carry on the management during the minority of Shiv Narain and Dharam Narain. The defendant took up the management in his own hands on attaining majority and his management throughout had been satisfactory and honest. The plaintiff was said to have attained his majority more than three years prior to the institution of the suit. The Court below decided every issue in favour of the plaintiff and decreed the suit in its entirety. It is not perhaps quite accurate to say that all the issues were decided in favour of the plaintiff because, although there is no definite finding of the Court below on the pointy the leaning of the Court is undoubtedly in favour of the defendant's contention on the question of the plaintiff's age, but that did not in any way have any effect, in the judgment of the Court below, on the ultimate decision of the case.
4. The defendant in this appeal has raised several contentions and we shall notice them as we proceed with our judgment. The first question that we have got to decide is whether the title to shebaitship vested in Lachhmi Narain or not on the death of Bibi Savitri. At this stage, it will be convenient to discuss the scheme of the endowment created by Bibi Savitri on 14th May 1900. This document, which is styled as a deed of gift, is printed at p. 107 of our record. The lady says that the property given at the foot of the document was owned and possessed by her and she was making a gift of the same in favour of Sri Thakur Savitri Swami Earn Chandra Ji, Sri Savitri Jati Lachhman Ji and Sri Savitreshwari Janki Ji Maharani installed in the temple. The property made a gift of was to remain in her possession as amin and the income of the property was to be spent according to the directions in the deed for the benefit of Sri Thakurji, donee aforesaid, Sanskrit pathshala and daily sadabart. She reserved to herself and to the succeeding amins the right of appointing karindas and servants for realising the income of the property and spending it according to the instructions contained in the deed. She appointed the following residents of Farrukhabad as managing amins : (1) Maharaj Prag Narain, son of Mangala Charan, caste Brahman Bajpai, resident of mohalla Lohai, (2) Maharaj Behari Lal, cashier, adopted son of Chhote Lal caste Brahman, resident of mohalla Bazar Kirana, (5) Maharaj Chandra Sen, son of (torn) of mohalla Lohai, (4) Jhangri Lal, son of Govind Prasad, caste (torn) of mohalla Nazir Chhakka Lal, (5) Pandit Prag Datt son of Pandit Lachman, caste Brahman, resident of mohalla Bolraj, (6) Sita Ram, son of (torn) caste Mahajan, resident of mohalla Manihari, (7) Jwala Prasad, son of (torn), caste Rastogi resident of mohalla Chaudhri Khiali Ram.
5. The document, due to the oversight of the scribe, does not contain para. 5 There is a little mistake in the printed document before us for paras. 5, 6, 7, 8 and 9 therein should be read as para. 6, 7, 8, 9 and 10, In para. 7 she said that after her or in her lifetime when she wanted to give up the work of amin, Maharaj Prag Narain son of Mangala Charan, her son-in-law, was to be appointed amin by means of a document, and in para. 8 she reserved to herself the power to renew, cancel or amend the terms relating to the appointment of an amin by means of a registered deed of amanat, but, after her death her heirs and representatives were not to have the said power. In para. 9 it was said that if the amin acted contrary to the terms and directions, (which were to be given out under a separate document which would be executed) this is clear from para. 3 it would be the duty of the managing amins to force the amin to carry out the said terms and directions, and if the amin adopted any fresh course of action contrary to Dharamshastra, the managing amins shall have power to remove him from the office and to appoint another amin in his place and to execute a deed of amanat and have it registered. It was also provided that if any one out of the managing amins died or wanted to give up the work, another person was to be appointed as managing amin in his place under a document with reference to a majority of opinion of the remaining amins. But it was to be kept in mind that the managing amin appointed was to be a Brahman or Vaish by caste who was a believer in idol worship. In para. 11 it was provided that if the amin acted contrary to the terms or misbehaved or acted dishonestly or did not discharge the duties of an amin properly or wanted to resign the office of amin or died, then it would be the duty of Bibi Savitri herself so long as she lived and after her of the managing amins to appoint, in place of the deceased or unfit amin or the amin who might refuse to work, another person who might be a Hindu, a Kanujiya Brahman, a follower of Hindu Dharamshastra, a firm believer in idol worship and an honest and God-fearing man as amin. It is clear that this last provision contemplated the retirement of Bibi Savitri while she was alive. We have quoted the relevant paragraphs of the endowment. A number of properties were mentioned at the foot of the document as being dedicated to the deities, but by virtue of another deed of wakf by way of tamliknama dated 10th March 1916 several properties were transferred to a pathshala about which also a scheme of management was laid down, and it is of some importance to note that one Puttu Lal son of Raghubar Dayal, caste Khattri, her general attorney was appointed as one of the members of the managing com. mittee. After this diversion of some of the properties to the pathshala the endowment of 1900 was confined to certain shops, houses and malikana allowance of Rs. 1100 in the 10 biswa muafi share situate in mouza Aseha.
6. On 30th July 1900 she cancelled the appointment of Maharaj Prag Narain as the trustee in succession to herself and as also a member of the managing committee and she further directed that Prag Narain should never be appointed a trustee and manager. It would thus appear that the managing amins now became six instead of seven and Bibi Savitri remained the amin or mutwalli or shebait during her lifetime. It is admitted by Dharam Narain defendant that Behari Lal, Chandra Sen, Pragdat and Jhinguri Lal, four out of the six amins, died in the lifetime of Mt. Savitri and nobody was appointed in their place as they died one after the other. In fact, the managing committee of the six persons did not function at all-these are the very words of Dharam Narain. When, therefore, Bibi Savitri died on 17th April 1917 only two members, namely Sita Ram and Jwala Prasad, of the managing committee were in existence and nobody seems to have taken any trouble whatsoever to fill the vacancies caused by the death of the other four. The principles applicable to a case where the shebait is dead are as follows : (a) If there is a provision in the deed of endowment about the mode in which the office is to be filled up, the next shebait is to be appointed in pursuance of the provision, that is, the devolution of the trust depends upon the terms on which it was created; (b) If there are no such provisions, then it depends on the usage of a particular institution; (c) In the absence of all these, the office of shebait Ireverts to the heirs of the founder. In Gossami Sir Gridhariji v. Romanlalji Gossami ('90) 17 Cal. 3 their Lordships of the Privy Council held that
according to Hindu law, when the worship of a Thakur has been founded, the office of a shebait is held to be vested in the heir or heirs of the founder, in default of evidence that he has disposed o it otherwise, provided that there has not been some usage, course of dealing, or circumstance, showing a different mode of devolution.
7. Again in Jagadindra Nath Roy v. Hemanta Kumari Devi ('05) 32 Cal. 129 they observed that there being no reliable evidence as to the terms or conditions of a religious endowment the legal inference was that the title to the property or to its management or control followed the line of inheritance from the founder. Now in the present case Bibi Savitri did not nominate anybody as the next shebait, although she had reserved that sight in herself, nor did the managing committee to whom she had given such right nominate anybody as the shebait. Indeed the managing committee never took the slightest interest in this endowment and they did not care to fill the vacancies as they occurred and so it is argued that when their number was reduced to two it could not be said, that they retained any such power because it was not the intention of the author of the trust that a committee of two should have the right to nominate a shebait. The appellant argues that either these two could have appointed four more members to act on the managing committee and then could have appointed a shebait by a majority of vote or that these two alone could have appointed a shebait. The respondent, on the other hand, argues that the committee of two had lapsed almost into nothingness and they lost all power in the matter inasmuch as the directions of the author could not be reasonably carried out. The fact, however, remains that even these two did not exert in this direction, and we are of the opinion that the title to the property and its management and control followed the line of inheritance from the founder, and Lachhmi Narain, who was the next heir-at-law of Bibi Savitri became the shebait. Such a vesting could not be prevented by the likelihood of any power if there was any such power left outstanding in the committee of two being exercised. At best, it may be said that the vesting could be defeated when the power was exercised, supposing the power was outstanding. It is not necessary for the purposes of this case to say whether the reasonable exercise of any power was left outstanding in view of the next circumstance, namely the death of Sita Ram on 10th May 1921.
8. There is a death register (p.153) which shows that Sita Ram died on 10th May 1921. Dharam Narain has also admitted the same. Lachmi Narain died on 30th September 1921 and as long as he was alive Sita Ram and Jwala Prasad did nothing in matter and after the death of Sita Ram on 10th May 1921 the matter was not capable of being argued that Jwala Prasad, the solitary member of the managing committee, could have exercised any power reasonably according to the wishes of Bibi Savitri. In any event no such power was ever exercised by any member of the committee. The learned Judge of the Court below has discussed this matter with great thoroughness. The position, therefore, is that Lachhmi Narain did succeed to the shebaitship on the death of Bibi Savitri and remained a shebait till his death on 30th September 1921. This is what took place as a matter of law and we shall have to revert to this aspect later when we shall discuss whether he did succeed as a matter of fact also or whether somebody else usurped that position. We further hold the view that as a matter of law Suraj Narain, his son, succeeded to the shebaitship on the death of Lachhmi Narain. The only remaining member of the managing committee, Jwala Prasad, died on 15th November 1925, as is clear from the copy of the extract of a death register produced in this case (p. 173), and thus all the members of the committee died. Jwala Prasad as the sole surviving member of the committee could not constitute the committee and, Suraj Narain obtained an indefeasible title from the very start and in any event after the death of Jwala Prasad his title became absolutely indefeasible. In Kunjamani Dassi v. Nikunja Bihari Das ('16) 3 A.I.R. 1916 Cal. 312 a Bench of the Calcutta High Court held that when a founder has given valid directions as to the devolution of the shebaitship, upon the death of the last shebait, the office vests in the person who at the time constitutes the heir of the founder; provided the last shebait has not taken it absolutely ; when the office has so vested in him, upon his death it passes by succession to his heir.
9. If this is a correct exposition of law, as we think it is, Suraj Narain, the plaintiff, succeeded to the shebaitship on the death of Lachhmi Narain. It will of course be a question of fact whether he did, as a matter of fact, so succeed because if somebody else took possession the plaintiff's suit might be held to be barred by time. Learned Counsel for the respondent strenuously contended that even if Lachhmi Narain be deemed to have succeeded to the shebaitship, on his death we have to go back to the founder and see who her heirs would be, treating Lachhmi Narain as non-existent, and if that be so, Suraj Narain, Shiv Narain and Dharam Narain succeeded jointly to the shebaitship for, they are all removed in the same degree from Bibi Savitri, and then in no circumstances could the plaintiff sue for dispossession of the defendant and at best he would be entitled to joint possession. We do not feel inclined to agree with this contention because this will mean that on the death of Bibi Savitri the shebait who took an absolute estate would not form a fresh stock of descent, but the reversion would open as from the death of the original founder and this process would lead to endless complications. No authority has been cited by learned Counsel for the respondent in support of his proposition of law and his proposition would be contrary to the dictum of Willes J., who in delivering the judgment in the Tagore case Ganendro Mohan Tagore v. Juttendro Mohan Tagore ('72) IA Sup. Vol. 47 at p. 66 observed that:
If an estate were given to a man simply without express words of inheritance, it would, in the absence of a conflicting context, carry by Hindu law an estate of inheritance.
10. In the present case the estate vested in Lachhmi Narain, (we are assuming that an estate does vest in a Hindu shebait in this way for it is only the managership that really vests, the ownership of the property being vested in idol) and in the absence of everything else it carried an estate of inheritance. We have now got to see as to what were the state of affairs on the death of Bibi Savitri. The definite case set up by the defendant was that in her last illness Bibi Savitri orally gave directions that the defendant and Shiv Narain, brother of the defendant, should be managers of the wakf and that during their minority Puttu Lal should remain the manager, but Shiv Narain did not like to be the manager and during the minority of the defendant, Puttu Lal carried on the management of the wakf property on behalf of the defendant according to the oral directions of Bibi Savitri. (Their Lordships discussed the evidence and concluded that Lachhmi Narain was the de facto and de jure shebait after the death of Mt. Savitri and remained so till his death on 30th September 1921 and then proceeded.) The account books that have been filed in this case and are printed from pp. 271 to 297 on our printed record have come in for some adverse criticism at the hands of the counsel for the defendant and at the hands of the learned Judge of the Court below. These books of the firm Bibi Savitri passed into the custody of Purshottam Narain after the death of Lachhmi Narain, and the plaintiff, as is admitted by him, got them from Purshottam Narain before suit. The argument is that something has been interpolated in these books, more particularly the entries relating to the salary of Puttu Lal. We have considered these criticisms and we have looked at the books for ourselves and we are not particularly impressed by the argument of the learned Counsel for the defendant or by what has been said by the learned Judge of the Court below, who has written an excellent judgment and from whom we differ only with some hesitation when occasion arises. There can however be no doubt that the accounts of the expenses and income were entered in those books, for, this is conceded by Dharam Narain himself, and it is for this reason that we have arrived at the conclusion that Puttu Lal was acting all along on behalf of the rightful owners, namely on behalf of Lachhmi Narain up till his death and on behalf of Suraj Narain up till 2nd August 1926.
11. This brings us to the question as to whether the plaintiff's suit is barred by time or not, and we have already repelled the contention advanced on behalf of the defendant that he and his predecessor - if Puttu Lal can be called his predecessor - were in adverse possession for more than 12 years. The plaintiff's suit cannot therefore be held to be barred under Article 144, Limitation Act. Learned Counsel for the defendant however argues that as the plaintiff alleges that he was in possession for some time and was dispossessed subsequently, the proper article of the Limitation Act, applicable to the facts of the present case is Article 142. Even if we were to assume that that article is applicable, we have already held that Suraj Narain was in possession through Puttu Lal up to about 2nd August 1920 and the suit instituted on 5th January 1937 would be within 12 years. The proper Article however which is applicable to the present case is Article 124, Limitation Act. That Article deals with possession of an heriditary office and provides a period of 12 years from the time when the defendant takes possession of the office adversely to the plaintiff. The present suit deals with the possession of an heriditary office. The Article is not applicable where the appointment to the office is made by nomination and applies only when the appointment is by succession through inheritance. It is true that in the present case when Bibi Savitri created the endowment she intended the office of amin to go by nomination, but neither she nor the members of the managing committee made any nomination ever and the property, according to the law that we have discussed above, came into the possession of Lachhmi Narain when it became heriditary.
12. We have already repelled the contention of the appellant that after the death of Lachhmi Narain we have again to go back to the original founder and see as to who would be his or her heirs and in that connexion we have referred to the case in Kunjamani Dassi v. Nikunja Bihari Das ('16) 3 A.I.R. 1916 Cal. 312. When the management once reverted to the representatives of the founder on his death and a certain person succeeded as the heir-at-law it would be in contravention of the Hindu law 'of inheritance to say that the endowment should be held in a series of successive life estates by the heritors. The office became, therefore heriditary in the hands of Lachhmi Narain. The decision of their Lordships of the Privy Council in Gnanasambandha Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271, supports the above conclusion. In Jagannath Prasad Gupta v. Ranjit Singh ('98) 25 Cal. 354 their Lordships say:
In the present case the late shebait Rani Ananda Moye, not having appointed her successor as provided in the will of the founder, Rani Annapurna, and there being no other provisions for the appointment of shebait, the management of the endowment must revert to the heirs of the founder and the office of shebait must be heriditary in the founder's family.
13. When the plaintiff instituted the present suit in 1937, the office had already become hereditary, and we hold the view that the proper Article applicable to the facts of the' present case is' Article 124, Limitation Act. There is no distinction as regards limitation between a claim to an office and a claim to the property of endowment. This was held in Gnanasambandha Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 referred to above, and the plaintiff's suit for possession of the office and for possession of the immovable property appertaining to the endowment cannot be said to be barred by time. Learned Counsel for the appellant, however, argues that some distinction must be drawn between immovable property and moveable property, but the expression used in the Privy Council decision referred to just now is 'property' and not 'immovable property' only. Moreover, in principle, there can be no distinction between moveables and immovables in a matter of this kind. Both are the properties of the temple and both are intimately connected with the office. What are the moveables that are after all claimed in the present case? They are gold and silver ornaments, utensils of silver, brass, iron, etc., glassware, gold singhasan and gold chhatra etc., ornaments and articles used for the decoration of the idols and the other things have a direct connexion with the idols.
14. There is only one other matter in connexion with which limitation has been pleaded and it is that portion of the claim which relates to rendition of accounts. We shall deal with it after we have disposed of another point that was raised by the defendant. This point might have been disposed of earlier, but it is not inappropriate even at this stage. The defendant's contention is that the plaintiff ought to have instituted a suit under Section 92, Civil P.C. We have by this time made it clear what our view is regarding the position of the plaintiff and the position of the defendant. We have come to the conclusion that the plaintiff is the trustee of the endowment and the defendant is a trespasser. This was the case of the plaintiff in his plaint and on the averments made therein the defendant could not be considered to be a trustee, and a suit under Section 92 is ordinarily confined to suits against trustees. In Jalandhar v. Jharula ('14) 1 A.I.R. 1914 P.C. 72 their Lordships of the Privy Council observed at page 252 as follows:
By adversely taking and appropriating to his own use a share of the surplus daily income from the offerings Jharula Das acquired no title and no right to a share of that income. On each occasion upon which Jharula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled, Jharula Das committed a fresh actionable wrong in respect of which a suit could be brought against him by the shebait. But it did not constitute him the shebait for the time being or affect in any way the title to the office.
15. The position of Dharam Narain before us is virtually the same as the position of Jharula Das in the case before their Lordships of the Privy Council. In Ganga Charan v. Ram Chandra : AIR1928All33 it was held that
Section 92, Civil P.C., has no application to suits where a plaintiff claims possession of the endowed property on the allegation that he is duly appointed trustee and that the defendant is a trespasser. Section 92 has reference to those cases and to those cases alone where there is an allegation of breach of any express or constructive trust created for public purposes of charitable or of religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust.
16. It is true that in Ram Bilas v. Nityanand ('22) 9 A.I.R. 1922 All. 542 a Bench of this Court held that a suit under Section 92, Civil P.C. was competent against a trustee de son tort, that is, against a person who without any title chooses to take upon himself the character of a trustee; and in Bihari Lal v. Shiv Narain ('24) 11 A.I.R. 1924 All. 884 Dalai J., one of the members constituting the Bench which decided the case also held the same view. But it has not been held in either of the above two cases that if an ordinary suit for ejectment is filed by a plaintiff who calls himself a trustee against a defendant who is alleged to be a trespasser, Section 92, Civil P.C. would be a bar. Indeed it was conceded by learned Counsel for the appellant that if the defendant was a trespasser the present suit was not incompetent. We do not wish to go as far as the learned Judges, who decided Ganga Charan v. Ram Chandra : AIR1928All33 seem to go, but we think that the plaintiff could ignore Section 92, Civil P.C. and bring his suit in the present form. Coming to Section 10, Limitation Act, before we discuss its applicability, it is necessary to decide another issue, namely the question of the plaintiff's age. He alleged that he was born on 3rd July 1913 and as his estate was taken under the Court of Wards he attained his majority on 3rd July 1934, and the present suit instituted on 5th January 1937 within three years of his attaining majority is in time for all purposes. His suit therefore does not in any way offend Section 8, Limitation Act, which provides that
nothing in Section 6 or in Section 7 (sections dealing with disabilities) shall...be deemed to extend, for more than three years from the cessation of the disability the...period within which any suit must be instituted....
17. The defendant's contention however is that the plaintiff was born on 30th June 1912 and thus he attained his majority on 30th June 1933 and by reason of Section 8, Limitation Act, the suit having been instituted more than three years after the cessation of the disability of minority, is barred. It would not be necessary for the plaintiff to invoke the aid o Section 10, Limitation Act, if his contention on the question of age is accepted. The learned Judge of the Court below 'refrained from expressing anything definitely on this point' although he was 'inclined to be more partial towards the defendant on the subject.' We however consider that it is necessary for us to give a definite finding on the point. (Their Lordships discussed the plaintiff's evidence relating to his age and proceeded.) On the whole, after a careful comparison of the evidence tendered by the parties, we have come to the conclusion that the plaintiff has failed to establish that he was born on 3rd July 1930. Section 8, Limitation Act, therefore adversely affects the plaintiff's case. The result therefore is that unless Section 10, Limitation Act, helps the plaintiff, his suit for rendition of accounts could not be decreed for all the period during which the defendant was in possession, that is, from 1920, but for only six years prior to the institution of the suit, as is conceded by learned Counsel for the defendant, the article applicable being the omnibus Article 120.
18. We now come to a consideration of Section 10, Limitation Act. That section prior to its amendment by the Limitation Act (Amendment) Act, 1 of 1929, which came into force on 1st January 1929 read as follows:
Notwithstanding anything hereinbefore 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 assigns 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.
19. There was some divergence of opinion in the Courts in India as to whether a shebait of a Hindu endowment could be said to be a person in whom property was vested in trust, but in the year 1921 their Lordships of the Privy Council in Vidya Viruthi Thirthaswamigal v. Balusami Ayyar ('22) 9 A.I.R. 1922 P.C. 123 made the following observations:
The language of Section 10 gives the clue to the meaning and applicability of Article 134. It clearly shows that the article refers to cases of specific trust; and relates to property 'conveyed in trust.' Neither under the Hindu law nor in the Mahomedan system is any property 'conveyed' to a shebait or a mutwalli, in the case of a dedication. Nor is any property vested in him; whatever property heholds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahomedan law, the moment a wakf is created, all rights of property pass out of the wakf and vest in God Almighty. The curator whether called mutwalli or sajjadanashin or by any other name, is merely a manager, lie is certainly not a 'trustee' as understood in the English system.
20. After this Privy Council decision it became clear that the shebait could not be said to be a person in whom property was 'vested in trust.' In 1929 the following paragraph was added to Section 10:
For the purposes of this section any property comprised in a Hindu, Mahomedan 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 shall be deemed to be the trustee thereof.
21. The Statements of Objects and Reasons are as follows:
The (Civil Justice) Committee's recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Viruthi Thirthaswamigal v. Balusami Ayyar ('22) 9 A.I.R. 1922 P.C. 123 and Abdur Rahim v. Narayan Das ('23) 10 A.I.R. 1923 P.C. 44 which lay down that a dharmakarta, mohant or manager of a Hindu religious property or the mutwalli or sajjadanashin in whom the management of Mahomedan religious endowments is vested are not trustees within the meaning of the word as used in Section 10, 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 consideration, endowments of this nature are not protected. The committee's recommendation is that Section 10 of the Act should be amended so as to put Hindu and Mahomedan 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, Mahomedan and Buddhist religious as well as charitable endowments should be included within the scope of Section 10 of the Act. The bill gives effect to this conclusion.
22. Learned Counsel for the plaintiff says that by reason of Section 10 and more particularly by reason of the amendment the plaintiff's suit for an account of the trust property is not barred 'by any length of time' as against the defendant. In our judgment, the plaintiff's contention is not sound. All that the amendment has done is to do away with the effect of the Privy Council decision in Vidya Varuthi Thirthaswamigal v. Balusami Ayyar ('22) 9 A.I.R. 1922 P.C. 123 and to make a Hindu shebait or a Mahomedan mutwalli a trustee in whom property may be said to have vested. But the plaintiff has to prove, according to the section as amended and unamended, that the property had vested in trust for any specific purpose so far as the defendant was concerned. The question is whether the defendant is an express trustee or only a trustee de son tort. It is the plaintiff's own case that the defendant is a rank trespasser and his position at best can, therefore, be only of a trustee de son tort. Whatever may be the view of the other High Courts as to the applicability of Section 10 so far as trustees de son tort are concerned, this Court has definitely held in Bihari Lal v. Shiv Narain ('24) 11 A.I.R. 1924 All. 884 that in a suit for accounts against the trustee de son tort Section 10, Limitation Act, will not apply, for, it applies to cases of express trust alone. The Oudh Chief Court has followed this decision in Chandrika Baksh Singh v. Bhola Singh ('37) 24 A.I.R. 1927 Oudh 373. Their Lordships of this Court then applied Article 120, Lim. Act and directed that the defendant in that case must render accounts of the profits for the period of six years prior to the suit, and, as we said before, the defendant in the present case would be liable to render accounts only for six years. In this view of the matter, it is not necessary for us to consider whether the defendant has been guilty of mismanagement or waste because under the law the defendant is accountable to the plaintiff whether he is guilty of malpractice or not. Certain actions of the defendant appeared to the Court below to amount to breaches of trust and if we felt constrained to give any finding on the point we would have said that they were justified by the exigencies of circumstances and did not amount to misfeasance. Learned Counsel for the defendant placed all the facts in this connexion and argued that the defendant throughout acted bona fide in the interest of the trust.
23. Learned Counsel for the plaintiff contended himself with the submission that the defendant was an accountable party and did not attempt to meet the arguments advanced by the defendant's counsel. We feel inclined to agree with the case of the defendant and hold that it has not been established that the defendant has been guilty of any grave dereliction of duty. For the reasons given above, we confirm the decree of the Court below so far as it relates to possession over the office of the trustee and over the property moveable and immovable belonging to the trust. We, however, modify it so far as the decree for rendition of accounts is concerned and hold that the defendant is liable to render accounts relating to the trust from 5th January 1931. As the plaintiff has succeeded in both Courts in almost all the points and has failed only so far as rendition of accounts for about five years is concerned, we direct that the plaintiff will get four-fifths of his costs from the defendant in both Courts, and the defendant will bear his own costs throughout.