1. This is a reference made to this Court by the Court of the District Judge of Ajmere under the provisions of Section 17, of Regulation No. 1 of 1877. The plaintiff aggrieved by the decision of the District Court in appeal confirming the decision of the trial Court on a point of law applied to the District Court of first appeal to draw up a statement of the question of law. Such a statement has been drawn up and submitted to this Court.
2. There were two brothers, Ram Narain and Jai Narain, who owned a house in a street in Ajmere in equal shares. Jai Narain made a gift of his share on 9th January 1903 to the idol of Shri Chatturbhujj Maharaj installed in a temple in Ajmere. Under the deed of endowment he gave directions as to the use to be made of the income derived from the rent of half of the house. The defendant Mt. Bishni is the widow of a son of Ram Narain. On the 17th April 1907, the managers of the temple sold the gifted portion of the house to Mt. Bishni. On the 5th December 1918, plaintiff, son of Jai Narain who was dead at the time, sued for a declaration that the property in suit consisting of half the house formerly owned by his father was trust property; that the transfer of the said property to Mt. Bishni and her adopted son Panchu was null and void, and that the property might be made over to the trustees of the temple of Sari Chaturbhujji after dispossession of the two Defendants 1 and 2.
3. The defendants were Mt. Bishni, her adopted son Panchu and 11 other persons of the Agarwal-Marwari community of Ajmere who are described in the plaint as 'panchas' of the Biradri (brotherhood) of the Agarwal-Marwaris of Ajmare. The allegation in the plaint of transfer to both Mt. Bishni and her adopted son was incorrect. The sale was made in favour of Mt. Bishni alone, the adoption having taken place subsequent to the date of sale.
4. The suit was instituted more than 12 years after the date of sale, so it was pleaded in para. 11 of the plaint that under the provisions of Section 10 of the Limitation Act the bar of limitation was saved. This plea was decided against the plaintiff and the reference to us does not cover that point.
5. The statement submitted by the learned Additional District Judge his referred to us the following questions for decision:
(1) Whether the deed, dated the 17th April, 1905. could constitute an alienation of the dedicated property (waqf) which was under the management of the Marwari faction of the Biradri of Agarwals at Ajmere and thereby give rise to adverse possession.
(2) Whether Respondent No, 1 could acquire any title to the said property.
(3) Whether in the circumstances of the present case Respondent No. 1 could claim the benefit of the law of limitation especially in view of paras. 1 and 2 of he written statement.
We shall take up Issue No. 2 first, according to the sequence in which the case was argued by the plaintiff's learned Counsel, Dr. Sen. He argued that an idol suffered the disability of perpetual minority, so any suit by an idol at any period of time after the date of the transfer would be saved from the bar of limitation under the provisions of Section 7 of the Limitation Act. He based his argument on a tentative opinion put forward by the learned author of a treatise on Hindu Law (Sastri's Hindu Law); at page 726, Chapter 14 of his book, 5th edition, the present editor of the book has made the suggestion in the following words:
As regards limitation it should be considered 'whether S, 7 of the Limitation Act is not applicable to a suit to set aside an improper alienation by a shebait of the property belonging to a Hindu god. As the god is incapable of managing his property he should be deemed a perpetual minor for the purpose of limitation.
6. We were not referred to any ruling where this opinion may have been followed. With respect, in may be pointed out that in a transfer by a minor the question of a proper or improper alienation would not arise. Under the Contract Act a transfer by a minor would be void and not only voidable. Mohori Bibee v. Dharmodas Ghosh (1902) 30 Cal 539. If the rule were enforced the property of a god would not fetch any money in the market when need arose to transfer it for the benefit of the temple where the idol may be installed. The learned editor himself has quoted in the book a pronouncement of their Lordships of the Privy Council in conflict with this view: Jagadindra v. Hemanta (1304) 31 IA 208. In that case a suit for possession was brought by a shebait of an idol and the High Court of Calcutta held that the idol being a juridical person capable as such of holding property, limitation started running against him from the date of the transfer and so that suit by the shebaiti was time-barred. Their Lordships accepted this view as probably the true legal view when the dedication is of the completest kind known to the law (p. 209, para. 3). They however held that limitation was saved because when the cause of action arose the shebait to whom the possession and management of the dedicated property belonged was a minor. So the right to bring a suit for the protection of the property was at the time vested in a minor and such a suit could be brought within three years of the majority of the shebait in whom the right to sue had been vested. This is clear authority for holding that the idol was not considered by their Lordships to be a minor in perpetuity. In a later ruling this point is made more clear. That ruling is also quoted by the editor of Sastri's Hindu Law with great fairness; Damodar v. Lakhan Das (1910) 37 Cal 885. The senior chela and rightful mahant of a math transferred half the property of the math to another chela. When the senior chela was succeeded by his disciple, the latter brought a suit for recovery of possession against the chela to whom his predecessor had transferred half the property. The suit was brought 12 years after the transfer and was held by their Lordships to be time-barred. They observed:
The learned Judges of the High Court have rightly held that in point of law the property dealt with by the ekrarnama was prior to its date to be regarded as vested not in the Mahant, but in the legal entity, the idol, the Mahant being only his representative and manager, and it follows from this that the learned Judges were further right in holding that from the date of the ekrarnama the possession of the junior chela by virtue of the terms of that ekrarnama was adverse to the right of the idol and of the senior chela as representing that idol, and that therefore the present suit was barred by limitation: (P. 894 )
7. We have clear authority, therefore in refusing to accept the plaintiff's argument.
8. The other two issues were argued jointly by the plaintiff's learned Counsel. What he submitted was that Mt. Bishni was also one of the managers of the temple and as such was one of the persons in possession of the property in suit on he half of the idol. A transfer to her did not change the character of her possession and there was no starting point for any adverse possession. The facts of the case do not support this argument. Mt. Bishni being a female could not be a member of the panchayat in charge of the property. It appears that in order to validate a transfer of property belonging to the temple it has been customary for the managers to consult all the male members of the community. That fact however would not make all the male members of the community managers of the temple. The plaintiff himself picked out nine leading members of the community as panches in charge of the management of the idol's property: see the plaint. Even if all the male members of the brotherhood be considered to be managers, Mt. Bishni, a female, could not be one of them. Stress was laid on the pleadings. In para. 1 of the plaint, the plaintiff alleged that the parties, i.e., the plaintiff and all the 13 defendants were members of the Biradri of Agarwal-Marwaris of Ajmere and in para. 2 that the management of the temple property was in the hands of the Biradri of Agarwal-Marwaris at Ajmere. These two paras, were admitted in the written statement. From this admission it was argued that Mt. Bishni admitted herself to be a manager of the temple property. Having regard to the inaccuracy and vagueness of pleadings in this country, we are not prepared to draw this conclusion from the admission of the defendant, Mr. Bishni, of plaint paras. 1 and 2. The plaintiff never directed the attention of Mt. Bishni to any advantage he desired to draw by making her out to be one of the managers of the temple To save the suit from limitation he claimed the benefit of Section 10 of the Limitation Act and not of the alleged fact of Mt. Bishni being one of the managers of the temple. In his final prayer in the plaint also the plaintiff speaks of the trustees of the temple as parsons chosen out of the brotherhood and not the entire population of the brotherhood. Thus no ground-work of facts is laid on which the plaintiff's claim in law to escape the bar of limitation may be based. For these reasons our answers to the questions put to us by the learned Additional Judge are:
(1) That the transfer of 17th April 1905 was an alienation which started adverse possession in favour of Mt. Bishni.
(2) That Mr. Bishni could acquire title to the property under the deed and by adverse possession.
(3) That by her admission of paras. 1 and 2 the plaint Mt. Bishni was not estopped from putting forward a plea of limitation.
9. A copy of this judgment shall be sent to the Court which made this submission and the costs consequent on the reference here shall be costs in the appeal out of which the reference arose. The costs will be payable by the plaintiff.