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Sarabdeo Bharthi Vs. Ram Bali and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Reported inAIR1933All19
AppellantSarabdeo Bharthi
RespondentRam Bali and anr.
Excerpt:
- - 1922 pc 123 their lordships of the privy council distinctly laid down that a mahant cannot be treated as a trustee to whom property had been conveyed in trust within the meaning of that article, and that therefore article 134 would not be applicable. ramrup gir air 1926 pc 9 do not think that the point was clearly covered by vidya varuthi thirtha's case air......the appellant however relies on the concluding portion of that judgment for the pro- position that adverse possession can never become adverse during the life-time of the trustee who made the transfer. that case however was a special case, in which the plaintiffs were claiming rights as permanent lessees and they had been allowed to remain in possession by the succeeding mahant. their lordships came to the conclusion that the proper inference to be drawn from the circumstances of that case was that the new trustee who had power to continue the tenancy had continued it, and consequently the possession of the lessee never become adverse until his death. where a personal claiming as a permanent lessee and is allowed to remain in possession by a succeeding trustee as lessee, he need not.....
Judgment:

Sulaiman, C.J.

1. This is 'a plaintiff's appeal arising out of a suit brought by the plaintiff alleging himself to be the duly installed mahant, for possession of certain properties transferred by the former mahant. In the connected appeals we have held that the plaintiff has established his claim as the chela of the last mahant, that it is proved that that mahant abdicated and resigned his mahant ship and that he could validly do so, and that the present plaintiff was duly installed as his successor by election. It follows that the plaintiff was entitled to maintain the suit for recovery of possession of property transferred by the last mahant provided there was no legal necessity for the transfer and provided his claim was within time. This appeal relates exclusively to a sale deed dated 18th November 1912 executed by the former mahant, Ram Prasad, for Rupees 3,499-15-0 in favour of Mt. Ureha predecessor of defendants 3 and 4 in respect of village Batelpur. The Court below has held that there is no legal necessity for this sale deed also, but has dismissed the claim on the ground of limitation.

2. In appeal it is urged that the view taken by; the Court below on the question of limitation is wrong. Before 1929 there was at one time some authority for the view that a suit brought by a succeeding mahant to recover possession of property transferred by his predecessor was governed by Article 134, Limitation Act, but in the case of Vidya Varuthl v. Balusami Ayyar AIR. 1922 PC 123 their Lordships of the Privy Council distinctly laid down that a mahant cannot be treated as a trustee to whom property had been conveyed in trust within the meaning of that article, and that therefore Article 134 would not be applicable. Their Lordships applied Article 144, which is the general article for suits for recovery of possession of immovable property.

3. The learned advocate for the appellant however relies on the concluding portion of that judgment for the pro- position that adverse possession can never become adverse during the life-time of the trustee who made the transfer. That case however was a special case, in which the plaintiffs were claiming rights as permanent lessees and they had been allowed to remain in possession by the succeeding mahant. Their Lordships came to the conclusion that the proper inference to be drawn from the circumstances of that case was that the new trustee who had power to continue the tenancy had continued it, and consequently the possession of the lessee never become adverse until his death. Where a personal claiming as a permanent lessee and is allowed to remain in possession by a succeeding trustee as lessee, he need not necessarily acquire adverse rights so as to become a permament lessee in perpetuity. The case of an out and out transfer obviously stands on a different footing. In such a case the transferee from the very moment of Ms taking over posses-don asserts adverse title and remains in possession as an adverse proprietor.

4. Their Lordships of the Privy Council in the case of Lal Chand Marwari v. Ramrup Gir AIR 1926 PC 9 do not think that the point was clearly covered by Vidya Varuthi Thirtha's case AIR. 1922 PC 123. There has been a slight conflict of opinion in this country as a result of the last-mentioned pronouncement. But a Bench of the Madras High Court in the case of Rama Reddy v. Rangadasan AIR 1926 Mad 769, came to the conclusion that adverse possession could only begin to run after the death or retirement of the last trustee who had made the transfer. On the other hand, the contrary view has been accepted by another Bench of the Madras High Court in the case of Vadlamudi Sastrulu v. Venkataseshayya : AIR1928Mad614 , by the Patna High Court in the case of Badri Narain Singh v. Kailash Gir AIR 1926 Pat 239, and the Lucknow Chief Court in the case of Parkas Das v. Janki Ballabh Saran AIR 1926 Oudh 444, and also by the Calcutta High Court in Debendra Nath Sadhu Khan v. Nahrmal Jalan : AIR1930Cal673 .

5. It seems to us that, when the property does not vest in the mahant, but vests in the idol and the mahant purports to transfer it in his capacity as the manager of the idol, adverse possession against the idol commences from the very moment possession is taken under the sale deed, and it cannot be deemed to have been postponed till the mahant died. So far as the vendee is concerned, his possession certainly becomes adverse from the very moment of the sale. We, therefore, think that there is no justification for holding that adverse possession would not commence to run in the case of an out and out transfer until the mahant is dead.

6. This view finds support from the rules laid down by their Lordships of the Privy Council in the cases of Subbaiya Pandaram v. Md. Mustapha Maracayar AIR 1923 PC 175, and Damodar Das v. Adhikari Lakhan Das 1910 37 Cal 885, in both of which their Lordships held that adverse possession commenced from the date of the transfer. We may also point out that the legislature itself realised the difficulty and hardship that might in some cases arise, and has accordingly intervened. Act I of 1929 adds Article 134(b) in the schedule, under which the suit by a new trustee can be brought within 12 years from the date of death, resignation or retirement of the transferor. We are accordingly of opinion that the view taken by the Court below on the question of limitation was correct. The appeal fails, and it is hereby dismissed with costs.


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