1. The plaintiffs are the appellants in the FirsE Appeal against the judgment and decree passed by Sri B. Misra, Subordinate Judge of Balasore, arising out of a suit for declaration of tide of the deity Govinda Jiew Thakur, plaintiff No. 1 and tor recovery of possession of the disputed properties with an acreage 19,99 acres. Plaintiff No. 1, the deity, is situated in Bhadrak and plaintiffs 2 and 3 are the trustees representing the deity and were appointed as trustees by the Endowment Commissioner.
The : contesting defendants 1 to 18 are the transferees in respect of the disputed properties on the basis of; three sale-deeds and all of them being of 22nd January, 1927. One of the sale deeds was in favour of defendants 1 to 3 that is, Jena transferees; the second one was in favour of the defendants 4 to 8, that is Rout transferees; and the third was in favour of defendants 9 to 18, that is, Misra transferees.
Defendant No. 19 is the Ex-Mahant who has since been removed and plaintiffs 2 and 3 have been appointed as trustees by the Endowment Commissioner. The plaintiffs' case is that the properties in dispute are the endowed properties belonging to the deity, plaintiff No. 1. Defendant No. 10's father Chandra Sekhar executed a mortgage transaction on 6th April, 1908, (Ext. B) in respect of 17 acres and 68 decimals in favour of Bandhu Misra, that is, the ancestor of defendants 9 to 18.
There was also a .second mortgage dated 19th February, 1909, in respect of 20 acres of the endowed properties in favour of the ancestor of defendants 4 to 8. On 22nd January, 1927, Defendant No. 19 Durgacharan being represented by mother guardian Hara Dasi executed these three sale deeds (Exts. A, G and I) as personal properties belonging to Durgacharan. As these transactions are not binding upon the deity, the plaintiffs prayed for declaration of title and recovery of possession.
2. The defence is to the effect that the properties are not debottar properties and further there is no such deity in existence as Govinda Jiew, But the main point taken by the defence was the point of limitation on the assertion that the trans-ferees were in possession of the properties for all times since the year 1927. It is to be noted that the present suit was filed on the 2nd September, 1950. The plaintiffs also came with a case that the three transactions which are sought to be impugned in the present suit are Benami transactions and that no consideration passed and that they were not supported by legal necessity.
3. The learned Court below has found that the properties in dispute are really the absolute debottar properties and the deity is a public deity. The Kabalas clearly show that they were executed by the mother as guardian of defendant No. 19 in personal capacity and not on behalf of the deity. Necessarily the transactions cannot be deemed to be for legal necessity of the deity. The learned Subordinate Judge found that the transactions were for valuable consideration and they were executed for payment of previous debts. The suit has been dismissed mainly on the grounds of limitation.
4. The learned Subordinate Judge found that the case was governed by Article 134 and not by Article 134-B of the Indian Limitation Act. Mr. S. C. Dag appearing on behalf of the plaintiff-appellants, strongly contends that the case is governed by Article 134-B; and if it is found that the case is not governed by Article 134-B, his clients are out of court. I would mention that the learned Subordinate Judge has come to this finding on a discussion of the evidence on record that not only the plaintiffs have failed to prove possession but it. is clear from theentire evidence on record that the defendants (transferees) were in possession of the disputed propertiesever since the date of Kabalas.
Very fairly Mr. Das does not contest the finding of the learned Subordinate Judge, and on a perusal of the records it is clear that this finding could not be challenged. The witnesses relied upon by the plaintiffs are P. Ws. 1 and 2. P. W. 2 is defendant No. 19. The learned Subordinate Judge in very strong terms observed that the evidence of P. W. 2 in this connection may well be said to present neither head nor tail inasmuch as he, in the very first sentence of his cross-examination states that it was only after his release from jail in 1945 that the witness first enquired and learnt how the properties of the deity were being possessed and managed.
The plaintiffs' version is that the defendants were possessing the properties as Bhag chasis of the deity. But the learned Subordinate Judge on the own admission of the plaintiffs' witnesses observed that the defendants are well-to-do persons owningextensive landed properties and they cultivate their lands through bhag tenants. It is not therefore possible to accept that the defendants were in possession as bhag tenants of the deity. The learned Subordinate Judge has rightly characterised P. W. 2 as a hopeless liar.
5. Now we will come to the only point arguedby Mr. Das. It would be worthwhile to quote Article 134-B of the Indian Limitation Act whichcame into the statute book in 1929 by the Amending Act of 1929. It runs as follows :
'By the manager of a Hindu, Muhamadan or Budhlst religious or charitable endowment to recover possession of im. movable property com. prised In the endowment which has been transferred by a previous manager for valuable consideration.Twelveyears.The death, resignation or removal of the transferor.
Indeed if this Article governs the case, the suit is within time, because the removal of the last Ma-hant was within 12 years of the suit. It appears clear to us that this Article will apply only to cases where the sales can be avoided by the succeeding Mahant; but if the sales or the transfers are void ab initio, then the transferees' possession since the date of the transfer becomes adverse from the date of the transfer inasmuch as the transferees had no right in respect of the properties at all.
They were mere trespassers; and if by a continuous period of 12 years they have matured their rights, then the rights would be available not only as against the transferor but against the whole world including the deity. The second feature, which according to us, will take out the provisions of Article 134-B from consideration so far as the present case is concerned, is that in all the three ka-balas the clearest recitals are to the effect that the Kabalas were being executed by the vendor in her personal capacity.
It is recited that the properties which are the subject matter of the conveyance were in possessionof Durrgacharan's father Chandrasekhar as theabsolute owner and after the death of Chandrasekhar, defendant No. 19 Durgacharan is the absolute owner in possession who is making the conveyance through his mother guardian. This is adverse to the interest of the deity and in negation of the rights of the deity and in negation of the trust itself.
The transactions cannot be termed anything else than absolutely void ab initio. As such the transferees' possession since the date of the transfers would be that of purely trespassers and on con-tinuous possession for more than 12 years their rights had ripened. Article 134-B will apply to cases where, as we have indicated above, the transfers can be avoided or are voidable, when the transfers are made in excess of the powers of the pre-, vious Mahant or trustee.
The Mahant as Mahant can alienate for legal necessity. If the transfer is by the Mahant on behalf of the deity and not for legal necessity, it is not binding against the deity; when the subsequent Mahant steps in he has got the right to avoid it as it is voidable. But the matter would stand on a different footing if the Mahant has not acted as Mahant but in negation of the rights of the deity and in negation of the trust itself.
6. We are supported in our view by the views of one of the great Judges of India in the case reported in AIR 1946 Cal 473, Hemanta Kumari v. Iswat Sridhar Jiu. The judgment was delivered by B. K. Mukherji, J., and Sharpe, J., concurred. The propositions have been categorically stated in paragraph 7, at p. 476 of the Report :-
'The question now is under what circumstances will a transfer by a manager be void ab initio. The answer is that the alienation is void when the manager acts in negation of the trust. In the first place, if the alienation is not merely of certain items of the endowed property but of the endowment aa a whole, the possession of the transferee is unlawful from the very beginning, and limitation would run from the date of transfer. In the second place even if the subject matter of transfer is only particular item or items of endowed property the question whether the transaction is void or voidable would depend upon the fact whether the shebait or the manager purported to transfer the same in his capacity as manager or in his own individual capacity as the secular owner of the pro-perty. A Shebait or manager has the right to alienate portions of endowed property for purposes of legal necessity. He may exceed his powers, but if the transfer of the deity's property is by the she bait or the manager as such the transferee would acquire an interest which would be valid during the life-time of the transferring mohant, but if the manager transfers the property belonging to the deity as his own property asserting his own personal interest in the same, his act itself is adverse to the trust. The transferee in such cases would acquire no title to the property and his possession would be unlawful from the beginning.'
The same principle has been elucidated also by the celebrated author Justice B. K. Mukherji in his lectures on the Hindu Law of Religious and Charitable Trust appearing at page 296 of the Book, which we must quote :-
'Even if the subject matter of the disposition Is only a particular item or items of endowed pro-perty, the endowment should be deemed to be void if the property was sold not as debuttar property, but as the personal property of the Shebait, and taken as such by the purchaser. A Shebait or a manager has the right to alienate portions of endowed property only for the purpose of legal necessity. He may exceed his powers, but if the transfer of the deity's property is by the manager as such, the transferee should, at least, acquire an interest which would be valid during the lifetime of the transferring manager; but if the manager transfers the property belonging to the deity as his own property, asserting his own personal interest in the same, the act itself is adverse to the trust. The transferee in such cases cannot acquire any title to the property.'
In the aforesaid decision, therefore, their Lordships came to the conclusion that the Article 134-B had no application to cases of this nature. The same view was previously taken by a Bench decision of the Madras High Court reported in AIR 1938 Mad 60, Veniratasubramania v. Sivagurutnatha. The judgment was delivered by Ramesam, J., and it was concurred by Stone, J. There also it was held that Article 134-B has no application to cases of this nature where alienation was void ab initio and the possession of the alienee was adverse from the inception.
7. Mr. Das, however, strongly relies upon a subsequent Madras decision of Leach, C. J., sitting with Justice Lakshmana Rao reported in AIR 1947 Mad 3. Lakshminarayana v. Kasthuri Naicker. Leach, C. J., who delivered the judgment, distinguished the previous decisions reported in AIR 11946 Cal 473 and AIR 1938 Mad 60 on the ground that in these case the transfers were more than 12 years prior to Article 134-B came into statute book in 1929. In our view that distinction made by Leach, C. J., is not tenable.
There does not seem to be any distinction in principle inasmuch as if really the transfers were in complete negation of the trust and having completely ignored the deity's rights, the stranger purchaser can have no rights whatsoever from the very beginning, his possession can be adverse and he is entitled to mature his rights by being in adverse possession for the statutory period.
He may therefore, as of right resist the claim of all including the deity. In our view, Article 134-B would exactly cover all these cases in which the previous Miahant was acting as Mahant but in excess of his powers in which case the subsequent Mahant can on behalf of the deity avoid the alienations which are voidable. It is clear therefore that the present suit by the plaintiffs must fail on the ground of limitation.
8. There is another point which has unfortunately been ignored by the learned Subordinate Judge on account of which the plaintiffs' suit must also fail. It transpires that the deity's name never appeared in any of the settlement record-of-rights either of the Revisional Settlement or of the last settlement. The sale-deeds also do not mention the name of the deity. The learned Subordinate Judge takes cognizance of these three documents, but he finds that these properties are really debot-tar properties of the deity on the basis, of Exs. 3. and 4, the Robkari records of the resumption proceedings of 1841 and 1842. Ex. 4 can safely be ignored, because it refers to Bajyapti property while admittedly the properties in. suit are Bahel -- Ex. 3 refers to Bahel property.
Within the four corners- of Ex. 3 itself the deity's name does not appear. The learned Subordinate Judge has been constrained to find that there is nothing on record to show that the properties described in Ex. 3 are the identical properties in dispute in the present suit. On these considerations-the only inevitable conclusion is that the deity. (plaintiff No. 1) has failed to establish its antecedent title, even apart from the question of title : having been extinguished on account of lapse of time. On these considerations, therefore, we are definitely of the view that the plaintiffs' suit must fail and is therefore dismissed.
9. The First Appeal is accordingly dismissed with costs. The learned Subordinate Judge has, however, in the circumstances, observed regarding costs that the costs should be realised from the trustees (plaintiffs 2 and 3) personally. We are in agreement with the learned Subordinate Judge and pass the same order regarding the costs in the First Appeal that the costs should be realised from the trustees (plaintiffs 1 and 2) in their personal capacity and not against the trust property of the deity, plaintiff No. 1.
10. I agree.