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Srinivasa Reddiar and ors. Vs. N. Ramaswamy Reddiar and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtSupreme Court of India
Decided On
Reported inAIR1966SC859; [1966]3SCR120
ActsMadras Hindu Religious and Charitable Endowments Act, 1951 - Sections 87; Indian Limitation Act - Schedule - Article 134-B; Indian Limitation (Amendment) Act, 1929 - Sections 10 - Schedule - Articles 48A, 48B, 124, 134, 134-A, 134-B, 134-C and 144; Hindu Law
AppellantSrinivasa Reddiar and ors.
RespondentN. Ramaswamy Reddiar and anr.
Cases ReferredPrivy Councilin Mahant Sudarsan Das v. Mahant Ram Kripal Das and Others.
trust and societies - alienation - section 87 of madras hindu religious and charitable endowments act, 1951, article 134-b of indian limitation act, section 10 and articles 48a, 48b, 124, 134, 134-a, 134-b, 134-c and 144 of indian limitation (amendment) act, 1929 and hindu law - dispute involving certain agricultural lands - appellants filed suit for declaration about their title to agricultural land on ground that suit properties were alienated from the time to time and as result of last alienation they became entitled to them - respondent's claim that land belonged to temple and they being trustees of temple were entitled to its possession - magistrate overruled claims of appellants - suit filed by respondents - trail court held that appellants had proved their title to the suit.....gajendragadkar, c.j.1. the present appeal has been brought to this court by special leave and itarises from a suit field by the appellants against four respondents. theproperties involved in the suit consist of agricultural lands situated ineragudi village, musiri taluk, tiruchirappalli district. according to theappellants, the said lands had been granted in inam to the ancestor of oneambalathadum pachai kandai udayavar by the carnatic rulers before the advent ofthe british power in india. the original grant deeds are not available; but atthe time of the settlement of the inams in the sixties of the last century,inam title deeds were issued in favour of the family of the pachai kandaiudayavar. the appellants averred that the properties covered by the grant hadbeen granted in inam to the.....

Gajendragadkar, C.J.

1. The present appeal has been brought to this Court by special leave and itarises from a suit field by the appellants against four respondents. Theproperties involved in the suit consist of agricultural lands situated inEragudi village, Musiri taluk, Tiruchirappalli district. According to theappellants, the said lands had been granted in Inam to the ancestor of oneAmbalathadum Pachai Kandai Udayavar by the Carnatic Rulers before the advent ofthe British power in India. The original grant deeds are not available; but atthe time of the settlement of the Inams in the sixties of the last century,Inam title deeds were issued in favour of the family of the Pachai KandaiUdayavar. The appellants averred that the properties covered by the grant hadbeen granted in Inam to the original grantee burdened with the obligations ofperforming certain services in a Matam. The said properties were alienated fromthe time to time, and as a result of the last alienation, the appellants becameentitled to them. The appellants in the present litigation claimed adeclaration about the their title to the properties in suit and a permanentsinjunction restraining respondents 1 to 3, who claimed to be the trustees of analleged Pachai Kandai Udayavar Temple at Eragudi, from the interfering withtheir possession of the same. Respondents No. 4 is the Deputy Commissioner,Hindu Religious and Charitable Endowments, Tiruchirappalli, and he has beenimpleaded because he has purported to appoint respondents 1 to 3 as trustees ofthe said alleged Temple on the 7th March, 1951. This suit (No. 103 of 1954) wasinstituted on the 13th September, 1954, under s. 87 of the Madras HinduReligious and Charitable Endowments Act (No. XIX of 1951) (hereinafter called'the Act'), in the Court of the District Munsif at Turaiyur.

2. Respondents 1 to 3 who have been appointed as trustees of the said templeby respondent No. 4, obtained a certificate from him that the properties inquestions belonged to the Temple; and on the basis of the said certificate,they had filed an applications before the Magistrate having jurisdictions inthe area under s. 87 of the Act for the possession. Notice of this applicationwas served on the appellants and they pleaded their own title to theproperties. The Magistrate, however, over-ruled claim made by the appellantsand directed them to deliver possession of the properties to respondents 1 to3. Before this order could be executed and possession delivered to respondents1 to 3, the appellants instituted the presents suit.

3. Respondents 1 to 3 resisted this suit and contended that the propertiesin suit had not been granted to the predecessor of Pachai Kandai Udayavar asalleged by the appellants. Their case was that the said properties had beengranted to the Pachai Kandai Udayavar Temple and formed part of its properties.As trustees appointed by respondents No. 4, they claimed that they wereentitled to the possession of the properties.

4. On these pleadings, four substantive issues were framed by the learnedtrial judge; they were : whether the grant of the Inam was personal Inam;whether the grant of the Inam was religious endowment; whether plaintiffs havetitle to the suit properties; and whether plaintiffs have acquired title byprescription On the first two issues, oral and documentary evidence wasadduced by the parties. The learned trial Judge examined the whole evidence andcame to the conclusion that the grant of the Inam was a personal Inam, and thatit was not a grant in favour of the religious endowment within the meaning ofthe Act. That is how the first two issues were answered in favour of theappellants. In consequences, the learned trial Judges also held that theappellants had proved their title to the suit properties. The alternative pleamade by the appellants that they had acquired title to the properties byprescription, was also upheld by the trial Judge. In the result, theappellants' suit was decreed on the 14th February, 1955.

5. Respondents 1 to 3 preferred an appeal (No. 129 of 1955) in the Court ofthe Subordinate Judge at Tiruchirappalli, Challenging the correctness of thesaid decree. The lower appellate Court considered three main points; they were: whether the grant was in favour of Ambalathadum Pachai Kandai Udayavar;whether there is a temple; and whether the plaintiffs had prescribed theirtitle to the suit properties by adverse possession. The lower appellate Courtmade a finding against respondents 1 to 3 on point No. 2. It had that theevidence adduced by the respondents did not prove the existence of any templein favour of which the original grant had been alleged alleged to have beenmade according to them. On that view, it thought it unnecessary to consider thefirst point. In regards to the third points based in the appellants' claim thatthey had acquired title by adverse possession, the lower appellate Court foundthat 'it was evidence that from the very beginning, Pachai Kandai Udayavarand his family had been claiming beneficial interest in the property and theywere not holding the same as managers of the trust. The alienations must,therefore, be regarded only as repudiation of the trust.' In the result,the lower appellate Court's finding was that the appellants had establishedtheir claim of the prescribed title. The appeal preferred by respondents 1 to3, therefore, failed and was dismissed with costs on March 29, 1957.

6. This decision was challenged by respondents 2 & 3 before the MadrasHigh Court in Second Appeal (No. 774 of 1957). Subrahmanyam, J., who heard thisappeal, held that the original grant had been made in favour of the Temple. Therewas evidenced to show that the properties originally granted had been resumedby the Collectors; but the learned Judge took the view that the said resumptionwas only of the melwaram or assessment, and that since the lands had beengranted in Inam to the deity and its matam, their title to the lands remainedunaffected by the resumptions proceedings. In other words, he negatived theappellants claim that the original grant was in favour of theirpredecessors-in-tile, though burdened with an obligation to render services tothe matam. The learned Judge reversed the finding of the lower appellate Courtthat the existence of the Temple had not been proved.

7. Having thus held that the properties belonged to the Temple, the learnedJudge proceeded to consider the question of limitation by reference to theseveral alienations with which the present litigation is concerned. In dealingwith the question of limitation, the learned Judge took the view that thepresent suit would be governed by Article 134-B of the Indian Limitation Act.This article has been introduced in the said Act by Amending Act I of 1929 andcame into force on 1-1-1929. It was conceded before the lower appellate Courtthat the new article was not retrospective in operation and that if the titleof the alienees in regard to ' dharmadayam' properties had been acquired byadverse possession prior to 1-1-1929, it would not be affected by theprovisions of Art. 134-B. Thus considered, the alienations in regard to items1, 2, part of item 3, items 7 & 8, and a portion of he well in item 5 soldunder Ext. A-2 in 1914 were held to be outside the mischief of Art. 134-B. Thepossession of the vendees in regard to the properties covered by the said saledeed was held to have conferred title on them. Similarly, item 4 and a part ofitem 6 which had been sold in auction in execution of a decree in 1927 (videExts. A-7 and A-8), were also held to be outside the scope of Art. 134-B,because the said article does not cover auction sales.

8. That left the alienations covered by Exits. A-3, A-6 and A-12 to beconsidered. These three alienations were effected on the 7th October, 1917, 2ndJuly, 1926, and 2nd July, 1926 respectively. The High Court held that theproperties covered by these sales deeds fell within the purview of Art. 134-B,and the appellants' title in respect thereof was open to challenge. In theresult, the appellants' claim in regard to the properties covered by thesethree sale-deeds was rejected, whereas their claim in regard to the other propertieswas upheld. In consequence the appeal preferred by the respondents 2 & 3was partly allowed and the decree passed by the lower appellate court in regardto Exits. A-3, A-6 and A-12 was set aside. This judgment was pronounced on the2nd September, 1959. It is against this decision that the appellants have cometo this Court by special leave.

9. Mr. Tatachari for the appellants has raised before us an interestingquestion of law. He contends that Art. 134-B would not apply to the presentcase, because the alienations evidenced by Exits. A-3, A-6 and A-12 show thatthe alienors purported to transfer the properties to not as Poojaries ormanagers of the temple, but in their individual character as owners of the saidproperties. The documents recite that the properties belonged to the alienorsas their separate secular properties, though burdened with an obligation torender service to the Matam; and that show that the transfer was effected notby the Poojaris of the temple, but by persons who claimed that the propertiesbelonged to them. Such a case falls outside the purview of Art. 134-B and mustbe governed by Art. 144 of the First Schedule to the Limitations Act.

10. Mr. Tatachari argues that in applying Art. 144, we must assume that thepossession of the alienees was adverse to the temple from the respective datesof the alienations when they were put in possession of the properties coveredby the transactions in question. In support of this argument, Mr. Tatachari hasrelied on the statement of the law made by Mr. Justice Mukherjea in hislectures on the Hindu Law of Religious and Charitable Trust. (Mr. Justice B. K.Mukherjea on 'Hindu Law of Religious and Charitable Trust' II Edn. (1962) P.282.) Says Mr. Justice Mukherjea, 'if the transfer (of debutter property)is not of the particular items of property, but of the entire endowment withall its properties, the possession of the transferee is unlawful from the verybeginning. The decisions in Gnanasmbanda Pandara Sannadhi v. Velu Pandanam& Another L.R. 27 IndAp 69. and Damodar Das v. Adhikari Lakham Das (L.R.7 I.A. 147.are illustrations of this type of cases.' He also added thattransfer would similarly be void and limitation would run from the date of thetransfer, if the manager transfers the property as his own property and not asthe property of the deity. The same statement has been made by the learnedauthor in two other places in the course of his lectures.

11. The argument is that in cases falling under Art. 134-B, the transfermade by the manager of a Hindu endowment is challenged by his successor on theground that it was beyond the authority of the manager; and such a challengenecessarily postulates that the transfer was effected by the mangers as managerpurporting to deal with the property as belonging to the religious endowment.Where, however, the transfer is made by the manager not as manager, but as anindividual, and he deals with the property not on the basis that it belongs tothe religious endowment, but on the basis that it belongs to himself,considerations which would govern the application of limitation aresubstantially different; and in such a case, the transfer being void ab initio,the possession of the transferee is adverse from the date of the transfer. Thatis how Mr. Tatachari has attempted to avoid the application of Art. 134-B inthe present case. There can be no doubt that is the assumption made by Mr.Tatachari is well-founded, the appellants' the title to the three transactionsin question would have to be upheld.

12. It is well-known that the law of limitation in regard to suitsinstituted to set aside unauthorised alienation of endowed property by aShebait or a Mahant or a manager of a Hindu religious endowment was veryuncertain prior to the decision of the Privy Council in Vidya Varuthi Thirithav. Balusami Ayyer & others. (L.R. 48 I.A. 302.) That is why subsequent tothe said decision, any discussions about the question of limitation relating tosuch suits necessarily beings with a reference to the principles laid down bythe Privy Council in Vidya Varuthi's case. In that case, the Privy Council heldthat the endowments of a Hindu math are not 'conveyed in trust', noris head of the math a 'trustee' with regard to them, save as to specifieproperty proved to have been vested in him for a specific object. The questionwhich the Privy Council had to consider in that case was whether Art. 134applied to a suit in which the validity of a permanent lease of part of themath property granted by the head of a math was challenged. Article 134 coverssuits brought with a view to recover possession of immovable property conveyedor bequeathed in trust or mortgaged and afterwards transferred by the trusteeof mortgagee for a valuable consideration. These words used in column 1 to Art.134 necessarily raise the question as to whether the head of a math is atrustee within their meaning; and Mr. Justice Ameer Ali, who spoke for thePrivy Council, answered that question in the negative. In consequence, theargument that Art. 134 applied, was repelled, and it was held that Art. 144would govern such a case.

13. In fact, it is substantially because of this decision that Articles134-A, 134-B and 134-C and Articles 48A and 48B came to be inserted in theFirst Schedule to the Limitation Act by Amending Act. I of 1929. At the sametime, s. 10 of the Limitation Act was amended by addition of an explanatoryclause which provided, inter alia, that for the purposes of s. 10, any propertycomprised in a Hindu religious or charitable endowment shall be deemed to beproperty vested in trust for a specific purpose, and the manager of any suchproperty shall be deemed to be trustee thereof. As we have already noticed,these newly added provisions in the Limitation Act came into force on the 1stJanuary, 1929.

14. Reverting then to the question as to whether a transfer effected by themanager of a temple in regard to properties belonging to the temple fallsoutside the purview of Art. 134-B of if it is shown to have been made on thebasis that transferor treated the properties as his own, it does appear thatthe two earlier Privy Council decisions in Gnanasambanda's (L.R.27 I.A. 69.)and the Damodar Das's (L.R.37 I.A. 147.) cases lend some support to thecontention. In Gnanasambanda's cases, it was held by the Privy Council thatwhere hereditary trustees of the a religious endowments sold their hereditaryright of management and transferred the endowed property, the sales were nulland void, in the absence of a custom allowing them; and that the possessiontaken by the purchaser was adverse to the vendor and those claiming under them.In appreciating the effect of this decision, it is necessary to bear in mindthat the plea of imitation with which the Privy Council was concerned in thatcase was based on Art. 124 of the Limitation Act. Article 124 relates to suitsfiled for possession of a hereditary office, and the limitation prescribed forsuch suits starts when the defendant takes possession of the office adverselyto the plaintiff. It is clear that in that case, what had been sold was thehereditary office, as well as the properties belonging to the endowment; andso, it was plain that limitation began as soon as the purchaser took possessionof the office under Art. 124. It is true that immovable properties belonging tothe temple had also been sold; but the Privy Council expressly ruled that therewas no distinction between the office and the property of the endowment. Theone is attached to the other; but if there is, Art. 144 of the same Schedule isapplicable to the property; and that bars the suit after 12 year's adversepossession. It may be permissible to state that this latter observation wasmade in 1899 long before the Privy Council enunciated the true legal positionin regard to the status of the managers of Hindu religious endowments is VidyaVaruthi's case (L.R. 48 I.A. 124).

15. Similarly in Damodar Das's case (L.R. 37 I.A. 147.), while dealing withthe validity of an 'ikrarnama' of a debutter property executed by the managerof the property, the Privy Council observed that from the date of theikrarnama, the possession of the transferee was adverse to the right of theidol and that led to the conclusion that the suit instituted against thetransferee was barred by limitation. There is no discussion about the statusand character of the Chela who made the transfer nor about the right of thesucceeding Chela to challenge the validity of the transfer effected by hispredecessor which was subsequently recognised by Privy Council in VidyaVaruthis case (L.R. 48 I.A. 302.).

16. These two judgments have, no doubt been incidentally referred to by thePrivy Council in Mahant Ram Charan Das v. Nauarangi Lal and Others (L.R. 60I.A. 124.), and in Mahadeo Prasad Singh and others v. Karia Bharti,(L.R. 62I.A. 47.) though the decision in the said two cases proceeded in the light ofthe legal position enunciated by the Privy Council in Vidya Varuthi's case(L.R.48 I.A. 302).

17. It would thus be seen that the observations made by Mr. Justice Mukherjeaon which Mr. Tatachari relies, really purport to extend the principle which hasapparently been mentioned by the Privy Council in. Gnanasambanda's case (L.R.27I.A. 69.). It does appear that Mr. Justice Mukherjea had expressed this view asa Judge of the Calcutta High Court in the case of Hemanta Kumari Basu v. SreeSree Ishwar Sridhar Jiu, (I.L.R. (1946) II Cal. 38.) and had relied on the twoPrivy Council's decisions in Gnanasambanda's (L.R.27 I.A. 69.) and DamodarDas's cases (L.R. 37 I.A. 147.). In the case Hemanta Kumari Basu (I.L.R.(1946)II Cal. 38.) the attention of the Mukherjea J. was drawn to the fact that in anearlier decision of the Calcutta High Court in Ronald Duncan Cromartic andFrancis Arthur Shephard Sutherland, v. Sri Iswar Radha Damodar Jew andOthers,(1935) 62 C.L.J. 10.) D. N. Mitter, J. had made observations which wereinconsistent with the view which Mukherjea, J. was disposed to take; but helearned Judge commented on the said observations by saying that they were opento criticism.

18. Thus, on the question raised by Mr. Tatachari before us, there doesappear to be some divergence of opinion in the Calcutta High Court itself. Noother decision has been cited before us which has accepted the proposition thatif any part of the property belonging to a Hindu religious endowment istransferred by its manager, the transfer is void and the possession of thetransferee becomes adverse to the endowment form the very beginning. In fact,as we have already indicated, in the case of Gnanasambanda (L.R. 27 I.A. 69.)what had been transferred unauthorisedly, was the religious office itself andall the properties appertaining thereto.

19. It is open to doubt whether the said decision could lead to theinference that if a part of the property is transferred by the manager ofreligious endowment on the basis that it belongs to him and not to thereligious endowment, the transfer is void ab initio, with the result that thepossession of the transferee is adverse to the religious endowment from thevery beginning, and the succeeding manager's right to challenge the saidtransfer would be lost if his predecessor who made the transfer lives for morethan 12 years after effecting the transfer.

20. In the words of Sir John Edge, who spoke for the Privy Council inNainapillai Marakayar and Others v. Ramanathan Chettiar and Others (L.R. 51I.A. 83 at P. 97,) 'in the case of a Shebait a grant by him in violationof his duty of an interest in endowed lands which he has no authority asShebait to make may possibly under some circumstances be good as againsthimself by way of the estoppel, but is not binding upon his successors,'It is not easy to see why the successor's right to challenge an unauthorisedalienation made by his predecessor should be affected adversely if thealienation is made by his predecessor on the basis that the property belongedto him and not to the religious endowment.

21. However, we do not think it necessary to decide this point in thepresent case, because, in our opinion, the plain words of Art. 134-B do notpermit such a plea to be raised. Column 1 of Art. 134-B provides for a suitsbrought, inter alia, by the manager of a Hindu religious or charitableendowment to recover possession of immovable property comprised in theendowment which has been transferred by a previous manager for a valuableconsideration. The period prescribed for such suits is 12 years, and the time fromwhich the period begins to run is death, resignation or removal of thetransferor. Confining ourselves to the first column of Art. 134-B at thisstage, the question which we have to decide is : does this article permit anydistinction to be made between transfers effected by a previous manager on thebasis that the property transferred belongs to the religious endowment, andthose made by him on the basis that the said property is his own privateproperty If the property is transferred by the manager on the basis that itbelongs to the endowment, Art. 134-B clearly applies; but does it make anydifference to the application of Art. 134-B if the transfer if made on theother basis that the property belongs not to the endowment, but to the managerhimself In either case, the successor who challenges the alienation, willhave to prove that the property in fact belongs to the religious endowment.Once that is proved, is it necessary for him also to show that the transfer wasmade on the basis that the property belonged to the religious endowment Inour opinion, such a limitation cannot be read in the words used by the saidarticle. Article 134-B applies to all cases where it is shown that theimmovable property was comprised in the endowment and that it has beentransferred by a previous manager for a valuable consideration. The successorhas to prove three facts : (1) that the property belongs to the religiousendowment; (2) that it was transferred by a previous manager; and (3) that thetransfer was for a valuable consideration. The character of the representationsmade by the previous manager in regard to his relation with property which isthe subject matter of transfer, is irrelevant for the purpose of Art. 134-B.All transfers made would fall within the Art. 134-B if the three essentialfacts are proved by the successor of the transferor manager of the Hindureligious endowment. Therefore, we do not think that Mr. Tatachari is justifiedin contending that the transfers with which we are concerned in the presentappeal fall outside the purview of Art. 134-B inasmuch as they are effected bythe alienors on the representations that the properties transferred belonged tothem as their separate properties. On the findings recorded by the High Court,it is clear that the properties belonged to the temple; that they have beentransferred by persons who must be deemed to be the previous managers of thetemple; and that they have transferred for valuable consideration. The presentsuit has been brought against respondents 1 to 3 who are appointed trustees ofthe temple by a respondent No. 4; and so, all the ingredients prescribed by thefirst column of Art. 134-B are satisfied. That is why we must reject theingenious argument urged before us by Mr. Tatachari that Art. 134-B does notapply to the present case.

22. We may, in this connection, refer to the decision of the Privy Councilin Mahant Sudarsan Das v. Mahant Ram Kripal Das and Others. (L.R. 77I.A. 42 atpp. 49-50.) In that case, the question which arose for the decision of thePrivy Council was whether Art. 134-B applied to a case where debutter propertyhad been sold in an execution sale, and the Privy Council held that it did not.'To apply Art. 134-B to an execution sale,' observed Lord Radcliffe,'involves a reading of that article which would construe the words'transferred by a previous manager for a valuable consideration' ascovering an execution sale under court process, and the word'transferor' as extending to the judgment-debtor whose land is sold.It is not only that the words themselves do not properly bear that meaning.Apart from that, what is in all essentials the same question was considered onseveral occasions by courts in India before Art. 134A and 134B had been addedto Art. 134. That the Article contains the analogous phrases 'transferredby the trustee or mortgagee for a valuable consideration', and there was auniform current of decision to the effect that these words were incapable ofapplying to an execution sale.' What was said by the Privy Council aboutthe impropriety of including an execution sale within the meaning of Art. 134Bcan, with the equal justification, be said about introducing words oflimitation in the said article which alone can exclude transfers made by theprevious manager of the Hindu religious endowment on the basis that theproperty transferred belonged to him. Therefore, we must deal with the presentappeal on the basis that Art. 134-B applies to the facts of the present case.

23. Mr. Tatachari then contends that even on the application of the Art.134-B, the decision of the High Court is erroneous, because on the facts provedin this case, the High Court should have drawn the legal inference that thetransferor had been removed more than 12 years before the suit was filed. Hecontends that the question as to whether on facts proved in the present case,an inference can be drawn that the previous manager or trustee had beenremoved, is a mixed question of fact and law, and the High Court was in errorin reversing the decisions of the Court below by holding that the title of thetemple had not been lost by adverse possession before the suit was filed. Fordeciding this question, it is necessary to refer to some material facts.

24. The transferor is Pachaikandaswamiar. The appellants case before thetrial Court was that Pachaikandaswamiar had resigned his position about 27years ago, and that even Art. 134-B applied, limitation should be held to havecommenced from the date when the alienor either resigned his office or wasremoved from it. In dealing with this aspect of the matter, the learned trialJudge has examined the oral evidence led on behalf of the parties. He assumedthat Pachaikandaswamiar and his son were alive at the date of the suit. Evenso, he found that they had left the village and had taken no part whatever inthe management of the worship of the temple. In fact, almost all the propertiesbelonging to the temple had in course of time, been alienated and the alienorswere no longer interested either in the temple or in staying in the villageitself. Raju Iyer, who was examined as a witness by the appellants, stated thathe and Amrithalinga Iyer had been performing the worship of the temple for thepast 27 years, and he added that the alienor and his son had left village morethan 25 years ago, and but for very causal visits to the village, they hadnever taken any interest in the temple or in the management of it affairs. Infact, Ranga Raju Raddiar, whom the respondents examined, admitted in reply tothe questions put by the Court that since 25 years or so neitherPachaikandaswamiar nor Chinnaswami Iyer had performed any pooja in the temple.He substantially corroborated the statement of Raju Iyer that 'Raju Iyerand Amrithlinga Iyer had been performing the worship of the temple. Anotherwitness, Chandrasekara Iyer by name, whom the respondents examined, alsoadmitted that Pachaikanda had sold away all his properties and had left thevillage. Besides, when respondents 1 to 3 were appointed as trustees of thetemple, a notice was issued by the office of Assistance Commissioner for HinduReligious Endowments. Tiruchirappalli, on the 19th June, 1948, in which it wasspecifically averred that there were no legally constituted trustees for SriPachaikantha Udayavar Temple, Eragudi, and it was mismanaged; and so, it wasproposed to appoint legally constituted trustees for the said temple. Thisnotice was served on witness Raju Iyer and Amrithalinga Iyer, Chinnasamy Iyer,and Rangaraja Raddiar, who were performing the worship and acting as de factomanagers of the temple. It is remarkable that this notice describedAmrithalinga Iyer and Chinnasamy Iyer as de facto trustees of the temple.

25. It is on these facts that the learned trial Judge held that the alienorsmust be deemed to have resigned his office or left it. The lower appellateCourt does not appear to have considered or made any specific or clear findingon this aspect of the matter. It, however, held that the transferor and hisfamily had been claiming beneficial interest in the properties all along andthat they were not holding the same as managers of the trust. That is why heconfirmed the finding of the trial Judge on the question of adverse possession,though on a somewhat different ground.

26. The High Court has relied on the fact that the alienor is still alive,and so, it thought that the plea if adverse possession could not be sustained.Unfortunately, the question as to whether the facts proved in this case did notshow that the alienor had been removed from the office by other persons whowere in management of the temple de facto, has not been discussed by the HighCourt. In our opinion, all the facts which have been brought on the record inrelation to this aspect of the matter, clearly show not only that the alienordisposed of all the property and left the village, but also that for the last25 years or so, the management has been taken over by other persons who areacting as de facto managers of the temple. This evidence appears to us to showthat the alienors had been removed from the management of the temple, and otherpersons have take up position as de facto managers; and this position haslasted for more than 25 years. If that be so, there is no escape from theconclusion that more than 12 years have escaped since the date of the removalof previous manager who transferred the properties in question : and so, if asuit were brought by respondents 1 to 3 on the date when they were appointedtrustees by the respondent no.

27. 4, it would be barred under Art. 134-B. On that view of the matter, wemust hold that the trial Judge and the lower appellate Court were right indecreeing the appellants suit in its entirety. We must accordingly set asidethe decree passed by the High Court in regard to the transfers covered by theExts. A-3, A-6 and A-12, and restore that of the lower appellate Court. In thecircumstances of this case, we direct that parties should bear their own costs.

28. Appeal allowed.

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