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Sri Lakshminarayanaperumalswami by Agent Appayyan Alias Muthukumaran Chettiar Vs. Kasthuri Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1947Mad3; (1946)2MLJ123
AppellantSri Lakshminarayanaperumalswami by Agent Appayyan Alias Muthukumaran Chettiar
RespondentKasthuri Naicker and ors.
Cases ReferredVenkateswara v. Venkatesa
Excerpt:
- - 2. the d1strict munsiff held that the suit was well founded, except as regards the fourth item......to the fourth defendant, again treating the property as belonging to himself and his brothers. the fourth item was sold in a court auction on the 10th january, 1921. it had been attached as the private property of the first defendant, who allowed the sale to proceed on that basis. the auction purchaser was one palani goundan, who purported to sell the property to the father of the seventh defendant on the 24th september, 1925. during the pendency of the present litigation, the seventh defendant purported to sell it to the eighth defendant.2. the d1strict munsiff held that the suit was well founded, except as regards the fourth item. to this extent he dismissed the action. on appeal by the plaintiff, the subordinate judge of coimbatore held that the sale by the court on the 10th january,.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellant is the trustee of the Sri Lakshminarayana Perumalswami temple at Pallapalayam in the Uudmalpet taluq. He was appointed to the office in 1933, displacing the first defendant. He sued in the Court of the D1strict Munsiff of Udumalpet for a declaration that a mortgage created by the first defendant of properties described in the plaint as items 1 and 2, that a sale by the first defendant of item 3 and a sale by the Court of item 4 were not binding on the trust and that he was entitled to recover possession from the alienees. The first and second items were mortgaged by the first defendant to the fourth defendant on the 12 th May, 1928. The first defendant had then been appointed the trustee. The property was mortgaged as belonging to the first defendant and his two brothers, who joined in the mortgage. Two days later the first defendant sold the third item to the fourth defendant, again treating the property as belonging to himself and his brothers. The fourth item was sold in a Court auction on the 10th January, 1921. It had been attached as the private property of the first defendant, who allowed the sale to proceed on that basis. The auction purchaser was one Palani Goundan, who purported to sell the property to the father of the seventh defendant on the 24th September, 1925. During the pendency of the present litigation, the seventh defendant purported to sell it to the eighth defendant.

2. The D1strict Munsiff held that the suit was well founded, except as regards the fourth item. To this extent he dismissed the action. On appeal by the plaintiff, the Subordinate Judge of Coimbatore held that the sale by the Court on the 10th January, 1921 of the fourth item was also not binding on the trust and consequently the plaintiff was entitled to a decree in full. The alienees then appealed to this Court. The appeal was heard by Somayya, J., who considered that the case was governed by the judgments of this Court in Alam Khan Sahib v. Karruppannaswami Goundan : AIR1938Mad415 and Venkatasubramania v. Sivagurunatha : AIR1938Mad60 . Consequently he dismissed the suit as being barred by the law of limitation. The present appeal is from this judgment.

3. The learned Counsel for the appellant contends that the decisions relied upon by Somayya, J., do not apply and the case is governed by Article 134-B of the Limitation Act. That article was inserted in the statute by the amending Act of 1929. Under it the period of limitation for a suit by the manager of a Hindu, Mahomedan or Buddh1st religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for valuable consideration is twelve years from the death, resignation or removal of the transferor. Both the decisions in Alam Khan Sahib v. Karuppannaswami Goundan : AIR1938Mad415 and Venkatasubramania v. Sivagurunatha : AIR1938Mad60 had reference to alienations by trustees of religious endowments which had been made more than twelve years before the insertion of Article 134-B.

4. We do not need to pause to consider the correctness of the principle there applied, because in the present case the alienations were made within twelve years of the amendment, which therefore applies. The plaint was filed on the 31st July 1940, seven years after the plaintiff had taken over the office of trustee from the first defendant.

5. It is clear that in so far as the mortgage of the first and second items is concerned, the governing article is Article 134-A which was also inserted in 1929. That fixes a period of twelve years for the setting aside of an alienation made by the manager of a Hindu, Mahomedan or Buddh1st religious or charitable endowment, the time commencing from the date when the transfer became known to the plaintiff. It is not suggested that the plaintiff had any knowledge of the mortgage until he filed the present suit. It is equally clear that Article 134-B applies to the sale of the third item. The plaintiff had twelve years from 1933 to institute the suit and he instituted it within seven years.

6. The position with regard to the fourth items is different. It is admitted by both sides that in view of the decision of the Privy Council in Vidya Varuthi v. Balu-swami Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : I.L.R. 44 Mad. 831 . Article 134-A, does not apply and that the period of limitation is governed by Article 134-B or Article 144. The learned Counsel for the appellant has to concede that the alienation of item 4 does not fall within the actual wording of Article 134-B, but he says that there is no difference in principle between a direct alienation by a fraudulent manager and a fraudulent manager allowing trust property to be attached and sold as his private property. We find some difficulty in accepting the proposition that this part of the case falls within Article 134-B. In our opinion the more appropriate article is Article 144, but in either case the suit is within time.

7. The decision of the Full Bench in Venkateswara v. Venkatesa : (1941)1MLJ644 Mad is here in point. In that case there had been an alienation by the head of a math. The question for decision was whether Article 134-B or Article 144 applied. The Court considered that on the facts of that case Article 134-B applied, but that if it did not, the article applicable was Article 144 and the period of limitation commenced from the death of the Mahanth who had alienated the property. In Mahanth Ramcharan Das v. Naurangi Lal 64 M.L.J. 505 : I.L.R. 12 Pat. 251 : 60 I.A. 124 , the Privy Council had held that where a Mahanth has alienated math property, the possession of the alienee does not become adverse during the tenure of office of the Mahanth and limitation only begins to run from the time when the Mahanth ceases to hold office. That principle was applied in Venkateswara v. Venkatesa : (1941)1MLJ644 and consequently the Court held that if Article 144 was the governing article, the date of the starting point of adverse possession was the date of the death, resignation or removal of the manager who effected the alienation and not the date of the election of his successor.

8. In accordance with the Full Bench decision we hold that in respect of the fourth item adverse possession did not start from the date of the Court sale, but only from the date when the first defendant ceased to hold the office of trustee.

9. The result is that the appeal is allowed and the decree of the Subordinate Judge is restored with costs here and before Somayya, J.


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