J.K. Tandon, J.
1. The following short pedigree will be helpful in appreciating the dispute.
(Died in February 1932)
Brahma Prasad Jot Prasad
(Died in July 1935) (Died in March 1936
| =Srimati Bittan Dei
Bhagwati (Defendant No. 2)
(Died in 1932)
Prem Chand Gyan Chand
(Plaintiff No. 1). (Plaintiff No. 2)
(1a) It appeared that Barati Lal was possessed of considerable properties and was also religious minded. He erected a temple and for the up-keep of the same set apart the income of some of the properties held by him. One of these properties, had been the house for the possession of which the suit out of which the present appeal has arisen was instituted. He made two wills, one in 1908 prior to the acquisition of this house, in which he directed some of his properties to be treated as wakf for the maintenance of the temple and Shivala erected by him.
Later after he had acquired the house in dispute he made another will confirming his intention, about the wakf made in the will of 1908 and adding to the list of properties the particular house now in dispute. The plaintiffs-appellants' allegation has been that Barati Lal not only executed the two documents but also acted upon them and as laid down by him in his two wills the wakf in respect of the house in suit and other properties actually came into existence with his death in 1932.
According to them the wakf was acted upon subsequently also by the descendants of Barati Lal including Jot Prasad. In this manner they have contended that the house in dispute was wakf property, that Jot Prasad whom, it is further alleged, the testator had nominated as the next Mutawalli after him entered into possession of the house in his above capacity and also continued to hold it as such.
2. On 17th December, 1934, during the lifetime of Brahma Prasad but after the death of Bhag-wati, Jot Prasad made a gift of the house in suit in favour of Srimati Bittan Dei, defendant No. 2. In this document he in defiance of the trust treated the house as his own property and made a gift thereof to the lady. It has been found by the courts below that as a consequence of the gift made in her favour Srimati Bittan Dei entered into possession also as donee of the house in dispute.
She continued in possession in this manner until she sold it away to respondent No. 1 on 24th January, 1939. Since that date this respondent as a transferee from Srimati Bittan Dei has been in possession of the house. The alienation in favour of Srimati Bittan Dei was gratuitous but the oneby her in favour of respondent No. 1 is admittedly for a valuable consideration. This fact will be relevant when considering the effect of Section 10 of the Indian Limitation At on which the appellants have seriously relied,
3. It was noticed earlier that Bhagwati died in 1932, Brahma Prasad in 1935 and Jot Prasad in 1936. Since Brahma Prasad and Bhagwati were already dead when Jot Prasad died in 1936 the office of Sarbarakar and Mutawalli of the trust devolved, according to the plaintiffs, on them. They were, however, minors at the time under the guardianship of their mother, nevertheless the office belonged to them ever since. The suit giving rise to this appeal was commenced on 19th January, 1951, a few days before the expiry of twelve years since the making of the alienation by Srimati Bittan Dei in favour of Satya Deo, respondent No. 1. The relief claimed in it is a decree for possession of the house and also for recovery of Rs. 400/- as mesne profits.
4. A number of pleas were taken at the instance of the two respondents against the plaintiffs-appellants' claim. They did not admit that any wakf was in fact created or came into existence. They also disputed the allegations, which the plaintiffs made, that the property held by Barati Lal was joint family property as also their allegation that Jot Prasad was incompetent to make a transfer. A plea, with which this appeal will be directly concerned, also was that the suit was barred by limitation.
The lower appellate court has found that the property in suit was the self-acquired property, of Barati Lal. It has, however, agreeing with the trial court, further held that the wakf alleged to have been created by Barati Lal was not acted upon. With these findings and holding that the suit was barred by limitation it confirmed the decree of the trial court dismissing the suit.
5. There is undoubtedly some lacuna in the judgment of the lower appellate court as it has not given any finding on the question which relevantly arose, viz. whether and how Jot Prasad became entitled to the house in suit as his exclusive property qua his brother Brahma Prasad and his descendants. This should, however, not detain us in this appeal as the fate of the suit is sealed on the point of limitation.
6. Sri Iqbal Ahmad who appeared for the appellants, stressed that Section 10 of the Limitation Act applied to the present facts, hence no period of limitation was applicable. This section lays down that a suit against a person for the purpose of following in his or in the hands of his legal representatives or assigns (not being assigns for valuable consideration) any property which became vested in him in trust for any specific purpose shall not be barred by any length of time.
His line of reasoning is that the property i.e. the house in suit, was the wakf property, that Jot Prasad who made the transfer initially in favour of his wife was a trustee in whom the property also vested and that, since it was a gift and not an alienation for valuable consideration, the plaintiffs who are the present trustees of the property, are entitled to follow it in the hands of the assigns also oi Srimati Bittan Dei without any restriction as to limitation.
It is unnecessary to go into the question whether the word 'assign' contained in Section 10 also included an assignee from an assignee of the trustee since in either instance respondent No. 1 will not be covered by its provisions, he being an assignee for valuable consideration. The section is applicable to cases of assigns not being assigns for valuable consideration. If, therefore, respondent No. 1 does not fulfil that description the case is outside the purview of Section 10. The property today is in his possession and the mischief of Section 10 cannot be availed of against him.
7. It was next contended by the learned counsel that Article 134 of the Limitation Act was applicable and the period of limitation will commence from the 24th of January, 1939, the date of transfer in favour of respondent No. 1. This article allows a period of twelve years from the date when the transfer becomes known, to the plaintiff. Since the suit had been commenced a few days before the expiry of twelve years from the aforesaid date his contention is that the same is within limitation.
8. The above article has prescribed the period in respect of suits to recover possession of immovable property conveyed or bequeathed in trust or mortgage and afterwards transferred by the trustee or mortgagee for a valuable consideration. Assuming for the purposes of the case that the house in suit was trust property, though the respondents are disputing this fact -- a condition which must be satisfied before its application is attracted, the important fact is that the alienation as a result of which possession passed out from the hands of the trustee was not for a valuable consideration.
Admittedly Jot Prasad never made such an alienation which, on the other hand, was a gift in favour of his wife. Therefore also assuming that he was a trustee of the property the case is not covered by the precise description of the suit referred to in Article 134. The fact too that Srimati Bittan Dei later sold this property for valuable consideration to respondent No. 1 will not alter-that position since Srimati Bittan Dei never held the office of the trustee and the alienation by her could not be said to be by a trustee.
I do not under the circumstances see how Article 134 governed the suit. The provision really applicable is Article 144. While this article too has provided a period of twelve years for a suit for possession, but under it the starting point of limitation is the date from which the defendants' possession becomes adverse to the plaintiffs. The alienation in favour of respondent No. 1 took place on 24th January, 1939. But earlier Jot Prasad had made a gift of the house to Srimati Bittan Dei who further entered upon its possession immediately thereafter as owner.
The respondents concede that the suit will still be within limitation if the adverse possession is held to start from 24th January, 1939, but what they still contend is that the period during whichSrimati Bittan Dei was in possession of the House in pursuance of the gift made in her favour was likewise adverse to the real owner and he is entitledto tack this period to his own possession.
9. It was noticed a little earlier that Jot Prasadmade a gift of the house in favour of the lady. Hedid so in defiance of the alleged trust claiming atthe same time that the house was Ms personal property which he was entitled to gift away to thelady. It is noteworthy that the gift was made ata time when Brahma Prasad was still olive. Bymaking a gift in defiance of the trust Jot Prasadclearly set up an adverse title. Srimati Bittan Deiwho thereupon entered upon possession of the housesimilarly held it in adverse title.
There is no allegation that there was any gap between the possession of Srimati Bittan and of respondent No. 1. On the other hand, while this lady was still in possession of the house she sold it for valuable consideration to respondent No. 1 also giving him possession over the same. From that date he is in continuous possession of the house and as admitted by the appellants in the plaint itself his possession was without title and right and therefore adverse. There is no reason, therefore, why respondent No. 1 who is today in occupationof this house cannot tack the period during which Srimati Bittan was in occupation in an adverse title. If the two periods are tacked together thesuit is undoubtedly beyond the period of limitation prescribed by Article 144.
10. Sir Iqbal Abmad also contended that the period during which Srimati Bittan was in possession was unable to be tacked because by permitting such a course the intention underlying Section 10 of the Limitation Act would be undone. Section 10 is applicable to the case of gratuitous assigns but not to assigns for valuable consideration. If, therefore, the section is inapplicable to the present facts I am unable to see how the validity of his argument can be supported by its provisions.
Moreover, this section has not laid down that the possession of the assigns will not be adverse. What it his really said is that notwithstanding anything in other sections of the Act a suit for such property in his hands can be filed at any length of time. It, therefore, does away with the period of limitation alone. But in other respects the merits are left unaffected. I am unable, therefore, to agree with his above objection.
11. These were the only points urged on the question of limitation but in view of what has been stud above the suit giving rise to this appeal was barred by limitation on the date it was instituted.
12. In the result, therefore, the appeal fails and is dismissed with costs.
13. Leave to appeal to a Division Bench is asked but is refused.