S.N. Singh, J.
1. The short point involved in this appeal is as to whether Section 10 of the Limitation Act applies to the facts of the present case.
2. One Sri Mangali Prasad was the owner of the house in dispute. He executed a will in favour of his wife Smt. Gomti on 29th June 1936, Through this will be conferred absolute right on Snit. Gomti in respect of his entire property. After the death of Sri Mangali Prasad Smt. Gomti dedicated the entire property left by her husband including the house in dispute in favour of Sri Shivaji Maharaj, Virajman Mandir Shivala, Ahata Deviji, by waqf deed dated 2nd of August 1946. She appointed herself to be the Mutwalli of the deity and further the waqf deed stipulated that after the death of Smt. Gomti the management of the temple would be done by L. Ram Swarup and other trustees. After the dedication by Smt. Gomti in favour of the deity a suit was instituted by one Dwarka Prasad for the cancellation of the waqf deed claiming title to the property in dispute as the adopted son of Sri Mangali Prasad. This was suit No, 3 of 1947. By this suit Sri Dwarka Prasad wanted the cancellation of the waqf deed and declaration of his title to the property left by Sri. Mangali Prasad. The suit was dismissed by the trial court by its judgment dated 15th of April 1948 and in this suit the will executed by Sri Mangali Prasad in favour of his wife as well as the dedication dated the 2nd of August 1946 which had been executed by Smt. Gomti in favour of Sri Shivaji Maharaj were accepted to be valid.
3. Sri Dwarka Prasad preferred an appeal against this judgment which was also dismissed on the ground that Sri Dwarka Prasad was not the adopted son of Sri Mangali Prasad. It appears that during the pendency of the appeal before the first appellate court Smt. Gomti executed a gift deed Ext. A18 on the record in favour of Dwarka Prasad in respect of the house in dispute asserting the property in dispute to be belonging to her. Dwarka Prasad came in possession of the house along with Smt. Gomti and after a short time he died leaving his widow Smt. Chandrawati who continued to live in the house in dispute along with Smt. Gomti. In the year 1959 Smt. Chandrawati turned out Smt. Gomti from the house and thereafter on the 12th of September 1961 Smt. Gomti died. After the death of Smt. Gomti the present suit was instituted by Sri Shivaji Maharaj through L. Ram Swarup the managing trustee of the temple.
4. In the plaint the plaintiff set out the facts as stated above and alleged that the possession of Smt. Chandrawati was permissive till the life time of Smt. Gomti and thereafter in spite of notice Smt. Chandrawati did not vacate the house in dispute, on the contrary asserted title in herself hence the suit.
5. The suit was contested by Smt. Chandrawati who admitted the factum of the death of L. Mangali Prasad and Smt. Gomti. She claimed title to the property by adverse possession. She asserted to be in continuous possession from 1948 the date of the execution of the gift deed in favour of her husband Sri Dwarka Prasad. It was asserted that her husband as well as she remained in adverse proprietary possession for over twelve years and the suit was tune barred. There were other pleas also which are not necessary for the present appeal.
6. Relevant issues were framed on the pleadings of the parties and on a consideration of the evidence on the record the trial court repelled all the pleas raised by the defendant appellant and so far as the question of limitation was concerned held that although the donee Sri Dwarka Prasad entered into possession over the house in dispute soon after the execution of the gift deed dated 25th October 1948 and thereafter on the death of Dwarka Prasad Smt. Chandrawati continued in possession but in view of Section 10 of the Limitation Act the suit was not barred by limitation. It accordingly held that Dwarka Prasad or defendant Smt, Chandrawati did not become owner after the expiry of twelve years from the date of the execution of the gift deed with the result that the suit for the ejectment of Smt. Chandrawati was decreed.
7. An appeal was preferred against this judgment by Smt. Chandrawati and the learned District Judge by a well considered judgment affirmed the judgment of the trial court and held that in view of Section 10 of the Limitation Act the suit was not time barred.
8. The defendant has come up in appeal to this Court and the learned counsel for the appellant has vehemently argued that the decision of the two courts below about the applicability of Section 10 of the Limitation Act was erroneous. His contention is that on the admitted case of the parties the gift dated 21st August 1948 was a void document as such from the date of execution of the gift deed the possession of Dwarka Prasad was adverse to the deity. Dwarka Prasad and thereafter Smt. Chandrawati having completed twelve years the defendant became the owner of the house in suit by adverse possession. According to the learned counsel in the circumstances of this case Article 144 of the Limitation Act 9 of 1908 applied. It was argued that the transaction being void Section 10 of the Limitation Act did not apply. He further argued that in any view of the matter. Section 10 of the Limitation Act did not apply to the case because the present suit was neither against the trustee or his legal representatives or assigns. Reliance was placed by the learned counsel in support of his contention on the following cases :--
1. Prem Chand v. Satya Deo : AIR1961All434 .
2. Govinda Jiew Thakur v. Surendra Jena 0044/1961 : AIR1961Ori102 ,
3. V. Rajaram v. Ramanujam lyengar : AIR1963Mad213 , and
4. Anisur Rahman v. Abdul Hayat : AIR1965Pat390 .
9. I have considered the submissions of the learned counsel but I am unable to accept them. Section 10 of the Limitation Act reads 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.
For the purposes of this section any property comprised in a Hindu, Muham-madan or Budhist 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.'
10. This will be seen that in the present case on the findings of fact recorded by the two courts below Sri Dwarka Prasad entered into possession over the house in dispute as donee of Smt. Gomti who was the Mutwalli of the deity and who would be deemed to be the trustee of Sri Thakurji for the purposes of Section 10 of the Limitation Act. Dwarka Prasad was an assign without consideration of Smt. Gomti. Smt. Chandrawati legal heir of Sri Dwarka Prasad would be included in the term assign mentioned in Section 10 of the Limitation Act with the result that there could be no period of limitation for obtaining possession of the dedicated property from the hands of Smt. Gomti or Sri Dwarka Prasad or Smt. Chandrawati. The contention of the learned counsel that Smt. Chandrawati being the legal representative of the assign, i. e. Sri Dwarka Prasad was not included in the term assign does not appeal to me. In my opinion the word 'assign' used in Section 10 of the Limitation Act will include the legal representative of the assigns as well. In this view of the matter Sri Dwarka Prasad and Smt. Chandrawati not being assigns for valuable consideration will be covered by Section 10 of the Limitation Act and the property in their possession could be recovered at any time.
11. It was contended on behalf of the appellant relying on the above mentioned decisions that the transaction being void Section 10 of the Limitation Act would not apply. There being no valid assignment in favour of Sri Dwarka Prasad the section will not apply. If the argument of the learned counsel is accepted Section 10 of the Limitation Act would become nugatory for transfers specially without consideration of trust property by trustee would always be invalid.
12. I have looked into the authorities cited by the learned counsel for the appellant. In my opinion they are not applicable to the facts of the present case. The case of : AIR1963Mad213 has interpreted Articles 134B and 144 of the old Limitation Act It was held in this case that Article 134B does not apply to a case wherein a person purchases property from the manager who transferred the property professing himself to be the owner of that property. According to this authority adverse possession starts from the very date of the alienation and In such a case article 134B does not apply. To the same effect is the case of 0044/1961 : AIR1961Ori102 wherein it was held that Article 134B does not apply to the transfers which are void ab initio.
In the case of : AIR1965Pat390 also it was held that a transfer which is void ab initio in the eye of law is not transfer at all and hence will not come within the scope of Article 134B. Moreover, that Article refers to transfer made by a manager of an endowment If a person transfers property treating it as his own private property, it is difficult to hold that merely because he happens to be the manager of the endowment on the date of the transfer and the property is the property of the endowment such transfer should come within the scope of that Article. Thus the applicability of either Article 144 or Article 134B would depend on whether the transfer which is sought to be set aside is void ab initio or only voidable at the instance of the succeeding manager. In the case of : AIR1961All434 a learned Single Judge of this Court considered Section 10 and Articles 134 and 144 of the Limitation Act and on the fact of that case held Article 144 to be applicable and not Section 10 of the Limitation Act In this Allahabad case a trustee of a house in defiance of trust gifted it away as his own property to 'B', his wife, who occupied the said house in her capacity as donee and subsequently sold it to 'C' a third party for valuable consideration. If was held that Section 10 of the Limitation Act would have been applicable so far as the trustee and donee were concerned and not the transferee for valuable consideration as such since Section 10 was held not to be applicable. Applying Article 144 of the Limitation Act it was held that the suit having been instituted more than twelve years after the execution of the gift was barred by time. This case is distinguishable on fact In the present case the suit is (not?) against any person who is a transferee for valuable consideration, Smt. Chandrawati is an heir of the assign who in my opinion is included in the term assign used in Section 10 of the Limitation Act. The above authority in my opinion does not help the appellant rather certain observations of this case help the respondent
13. In view of what has been said above I am unable to hold that Section 10 of the Limitation Act does not apply to the facts of this case. In my opinion the two courts below have rightly applied Section 10 of the Limitation Act and decreed the suit.
14. On the facts stated above I am further of opinion that till the life time of Smt. Gomti, Smt. Gomti nor her donee Sri Dwarka Prasad nor Smt. Chandrawati could assert adverse possession against the deity, vide Sree Sree Ishwar Sridhar Jew v. Sushila Bala Dasi : 1SCR407 wherein the Supreme Court has approved of the following observations of Rankin C. J. in the case of Surendrakrishna Roy v. Shree Shree Ishwar Bhubaneshwari Thakurani : AIR1933Cal295
'But. in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. The fact of their possession is in accordance with the idol's title and the question is whether the change made by them, in the intention with which they hold, evidenced bv an application of the rents and profits to their own purposes and other acts, extinguishes the idol's right. I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebait's knowledge end the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idol's behalf and. in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and until the shebait is removed or controlled by the court, he alone can act for the idol.'
15. Thus the suit having been instituted well within twelve years of the death of Smt. Gomti could in no case be held to be barred by time.
16. Alter the completion of this judgment learned counsel for the appellant invited my attention to the case of Padma-nabha Pillai Raman Pillai v. Secretary, Travancore Devaswom Board. AIR 1957 Trav-Co. 269 in support of his contention. In this authority paragraphs 7 and 11 are the relevant paragraphs dealing with the point. I have already referred to the observations of Rankin C. J. above. The same observation has been referred to in paragraph 7 and followed. Paragraph 11 of this authority deals with the circumstance under which Article 144 of the Limitation Act applies. To the factsof that case Section 10 of the LimitationAct had no applicability. In my opinionthis case also does not help the appellant.17. The only point argued before mebeing one of limitation in view of whatI have held above the appeal falls andis hereby dismissed with costs.