1. This appeal arises out of a suit brought by the respondent for recovery of a house in Kumbakonam. His case is that the house was dedicated to a charity known as Chinna Ramanuja Koodam and that as the trustee appointed under a scheme decree passed in 1931, he is entitled to recover it from the appellant who claims title to it under an auction-purchase in execution of a decree obtained against one Malayaperumal Chetty and his son. It was alleged that Malayaperumal held the property as the trustee of the charity prior to the appointment of the respondent and had no beneficial interest therein, and that therefore the appellant did not acquire a valid title under his purchase in Court auction. On the other hand, the appellant denied the alleged dedication of the property and claimed that in any event Malayaperumal and his sons having been in possession and enjoyment of it as beneficial owners they acquired by prescription an absolute title which passed to the appellant under the execution sale. The Courts below negatived the contentions and decreed the suit. In this appeal, however, the appellant has limited his claim to a half share only in the suit property conceding that the property had been dedicated to the trust and that Malayaperumal as the previous trustee could not acquire any interest therein by adverse possession; but he urged that Malayaperumal's son Sitharama Chetty having also been in possession and enjoyment of the property along with Malayaperumal and, unlike his father, being under no disability, acquired a half share therein by prescription which passed to the appellant as auction-purchaser.
2. The facts so far as they are material here may be briefly 'stated. The house in question was constructed for purposes of a Chatram charity by Abhayambal the adoptive mother of Malayaperumal in 1885. The latter sued her in 1887 for the recovery of the house and other properties in her possession and the suit ended in a compromise whereby it was agreed that the house should be set apart as a choultry and that one Krishna-swami Chetty during his life, and thereafter Malayaperumal, should manage the charity as trustee. Krishnaswami Chetty died in 1893, but the property continued in the possession of his sons till 1897, when Malayaperumal took possession of the house on behalf of the trust, and continued to manage the charity till 1903. In that year however, he began to deny the trust and purported to lease the house under Ex. VII as the property of his family. Thereafter the house was enjoyed by Malayaperumal and his sons along with the other properties admittedly belonging to the family, and in 1916 one of Malayaperumal's sons executed a release deed (Ex. XIII) relinquishing his interest in all the properties to his father and brothers and the deed referred to the house as their family property. Malayaperumal and his other two sons mortgaged family properties in 1917 to one Sivagurunatha Chetty and included the house in question in that mortgage. In 1918 another son of Malayaperumal separated himself from the family releasing his interest in the family properties including the house in favour of Malayaperumal and his third son Sitharama Chetty who continued undivided, and in 1920 Malayaperumal and Sitharama Chetty again effected a mortgage of their family properties including the suit house therein. It will thus be clear-and indeed it was not seriously disputed-that from 1903 onwards the house was treated and enjoyed by Malayaperumal and his sons as part of their family properties in derogation of the rights of the trust. The appellant, as already observed, purchased the house when it was brought to sale in execution of a decree obtained against Malayaperumal and Sitharama in 1928 and obtained delivery of possession in due course. Thereupon Abhayambal brought a suit under Section 92 of the Civil Procedure Code alleging that the house was charity property and praying that a scheme should be settled for the management of the property and due performance of the charity. The appellant herein who was impleaded in that suit denied that the property had been dedicated to the charity but the Court found that there had been a valid dedication and passed a decree settling a scheme for the management of the property and the proper conduct of the charity appointing the respondent herein as the trustee for the purpose. As the appellant herein however continued in possession, the respondent has brought the present suit for its recovery on behalf of the trust.
3. Mr. Muthukrishna Aiyar for the appellant contended that although Malayaperumal being himself the trustee of the charity was under a fiduciary disability in the matter of acquiring the property adversely to the trust, his son Sitharama was under no such disability, and as the latter was in enjoyment of the property through Malayaperumal who was in possession on behalf of himself and his sons, he (Sitharama) acquired title by adverse possession. In support of this contention the learned Counsel placed strong reliance upon the decision of the Privy Council in Sri Sri Iswari Bhubaneshwari Thakurani v. Brojo Nath Dey (1937) 2 M.L.J. 527 : L.R. 64 IndAp 203 : I.L.R. (1937) 3 Cal. 447, on appeal from the decision of the Calcutta High Court in Surendrakrishna Ray v. Shree Shree Ishwar Bhubaneshwari Thakurani I.L.R. (1932) Cal. 54. That was also a case, where a person claiming to be a shebait of a family deity sued to recover properties alleged to have been dedicated to the deity and a plea of limitation and adverse possession was raised. It appears that the properties had been originally dedicated but in a partition suit among the members of the 'family a consent decree was passed providing that the dedication should be set aside and the properties were to be divided and enjoyed as ordinary family properties. One of the branches of the family entitled to a half share in the, properties consisted of two brothers who however continued to hold their share without actual division as between themselves. Such enjoyment continued for more than twelve years before the suit was brought and the question arose whether the claim put forward on behalf of the deity was barred by the adverse possession of the brothers. It was common ground that according to the terms of the original dedication, the office of shebait devolved upon the elder brother alone and the younger brother was never a shebait of the idol. On these facts it was decided by the Calcutta High Court, and the decision was upheld by their Lordships on appeal, that so far as the younger brother's share in the properties was concerned, the title of the deity was extinguished by adverse possession although the elder brother being the shebait was under a fiduciary disability in the matter of possessing adversely to the trust. Lord Macmillan who delivered the judgment of the Board observed:
From 1904 onwards for at least 12 years Satya (i.e., the younger brother) openly and without any fraudulent collusion enjoyed continuous possession of his share of the thakurbari and shebait's house on the basis that the consent order of 1904 was effective and that the property was not subject to dedication. * * * True, the possession of Satya for the 12 years from 1904 was jointly with Pulin, but Satya was not affected by any fiduciary disability attaching to Pulin and there was nothing to prevent his possession of his half from being adverse to the appellant idol.
It will be seen that the facts of the case before their Lordships are closely analagous to the facts of the present case and I find it difficult to accept the contention of Mr. Sesha Aiyangar for the respondent that the decision has no application here. He attempted to distinguish that case by pointing out that the brothers held the properties in several shares, whereas here Sitharama Chetty had no defined share in the joint family properties and the house in suit having been enjoyed as part of such properties, he could not be deemed to have acquired any specific share therein by adverse possession when the manager Malayaperumal was disabled by reason of his trusteeship from holding the properties adversely to the trust. But if the possession of the elder brother in the case before their Lordships could be regarded as the possession of the younger to the extent of the latter's share of the properties and as having been held to that extent adversely to the trust notwithstanding that the former was the trustee, it is difficult to see why the same principle should not be applied to the case of a junior member of a joint family who is in enjoyment of property adversely to the trust through the manager trustee. The decision of their Lordships would seem to proceed on the broad principle that where two persons are in joint enjoyment of property belonging to another adversely to the latter but one is disabled by his fiduciary relationship to the owner from acquiring any interest in the property by adverse possession, the other who is under no such disability can acquire title to the property to the extent of his enjoyment, and it seems to me that the fact that the two persons happen to be members of a joint Hindu family owning other properties as a unit with no defined shares therein can make no difference to the application of this principle.
4. In this view, the further point raised on behalf of the appellant does- not call for consideration.
5. The appeal succeeds and the respondent will have a decree for partition and delivery of only a half share in the suit property together with proportionate mesne profits. The appellant will have his costs of this appeal. In the Courts below, the parties will pay and receive proportionate costs. The costs of the respondent will come out of the trust estate.
6. Leave granted.