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Subramania Gurukkal Vs. Ammakkannu Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1921Mad595; (1921)41MLJ450
AppellantSubramania Gurukkal
RespondentAmmakkannu Ammal and anr.
Cases ReferredIn Gnanasambanda Pandara Sannadhi v. Velu Pandaram
Excerpt:
- - i do not think it necessary in this case to express any opinion as to the zamindar's rights as grantor to recover the property attached as emoluments to a religious trust that has failed......right to succeed thereto on his father's ceasing to hold it). the next question is whether the suit is barred by limitation. both the lower courts held that it was barred. the alienation, as i said before, was in 1883 made by the plaintiff's father and the plaintiff's grandfather together. as the plaintiff's grandfather was the person then solely entitled to the office', and the plaintiff's fafher had no right either to the office or to the appurtenant lands at that time, his joining in the alienation was of no legal effect and the sale must be taken as one rna&e; by the plaintiff's grandfather alone for all legal purposes.4. the subsidiary question now arises whether that sale was wholly void as the sale of lands attached as emoluments to a religious office. in c.m.s.a. no. 21 of.....
Judgment:

Sadasiva Ayer, J.

1. Plaintiff is the appellant. He brought a suit for a declaration that the alienation made on the 11th June 1883 of the pLalnt properties by the plaintiff's father and grand-father in favour of the 1st defendant (the alienation having been by sale of the kudivaram interest in certain lands) was invalid in law. The lands were service inam granted by the Karvetnagaram Zamindar as emoluments for doing puja in a temple.

2. One of the questions raised in the case was whether the kudivaram and the melvaram both constituted the maniyam or only the melvaram. In Muthu Goundan v. Perumal Aiyan : (1921)40MLJ429 the Full Bench decided in January of this year that there is a presumption in the case of grants of even inam lands (whether granted by the former ruling power or by a Zamjndar) that the grarjt was of both varams, I think that that opinion is binding upon us and I would therefore differing from the Lower Courts hold on this point that the grant was of both varams.

3. Another question was raised that the plaintiff was not the legal holder of the office of pujari on the date of suit as his father was alive (and is even now alive). The Lower Appellate Court held that on the true construction of the plaintiff's father's letter to the guardian of the Zemindar (that letter being Ex. Q.) and of the order of that guardian (Ex. A.) the father had not ceased to be the holder of the office, that the plaintiff was appointed by Ex. Q. merely to do the duties of the office as his father's proxy and that therefore the plaintiff's suit was unsustainable. Having however heard the two documents read and commented upon and seeing also that the plaintiff's father as plaintiff's 2nd witness deposed that he resigned the Devas-tanam service owing to illness, I think that on the true construction of these two documents the conclusion should be that the plaintiff's father did resign the office, that his resignation was accepted by the Zemindar's guardian and that the plaintiff was recognised as the holder of the office after sifch acceptance of the father's resignation. (I do not however agree with the appellant's learned vakil that it was the appointment by the guardian of the Zaroindar that entitled the plaintiff to claim the office and not his hereditary right to succeed thereto on his father's ceasing to hold it). The next question is whether the suit is barred by limitation. Both the Lower Courts held that it was barred. The alienation, as I said before, was in 1883 made by the plaintiff's father and the plaintiff's grandfather together. As the plaintiff's grandfather was the person then solely entitled to the office', and the plaintiff's fafher had no right either to the office or to the appurtenant lands at that time, his joining in the alienation was of no legal effect and the sale must be taken as one rna&e; by the plaintiff's grandfather alone for all legal purposes.

4. The subsidiary question now arises whether that sale was wholly void as the sale of lands attached as emoluments to a religious office. In C.M.S.A. No. 21 of 1920 I held (differing from Abdur Rahim, J.) that lands attached as emoluments to a religious office are inalienable in the same manner.as the office itself and that the sale of such lands is a void transaction.

5. I do not wish to repeat the reasons which I gave in that case. That case however is pending in this Court in Letters Patent Appeal No. 19 of 1920. Even assuming that the alienation was valid till the death and for the life-time of the plaintiff's grand-father which occurred in 1886, the plaintiff's father could have set aside the alienation within 12 years of his succeeding to the office in 1886. He resigned his office only in 1915, that is, 29 years after he so succeeded to it. His resignation was probably made in order to set up his son to bring this suit as he evidently thought or was advised that he would himself be barred or estopped if he brought the suit to recover the lands. Now the question is whether when the successor of the original alienor is barred, the successor of that successor has got 12 years again from when he succeeded to the office to recover the immovable properties forming the emoluments of the service. The question is by no means free from difficulty. But I think that the decision of a Bench of this Court in Dhanushkotirayudu v. Venkayala Venkatrathnam : (1920)38MLJ320 (which distinguished the Privy Council decision in Jalandhur Thakur v. Jharula Das I.L.R. 42 Cal. 244 and which has not been overruled or dissented from to my knowledge in any subsequent decision of this Court) is binding upon me and I would therefore hold that where lands constituting the emoluments of an office have been held by a person not entitled to the office for more than 12 years as an owner (and not as a mere mortgagee or lessee) he gets an absolute and indefeasible right thereto against all the succeeding office holders also.

6. In the result I would dismiss the second appeal with costs.

Spencer, J.

7. I agree. It was conceded by the learned Vakil for the appellants that this was not a case falling under Section 10 of 'the Indian Limitation Act, (IX of 1908) which exempts from any Limitation suits brought against persons in whom trust property has vested for recovery of such property on behalf of the trust. He did not refer us to any article of the Limitation Act which would give a longer period than 12 years for a suit to recover property that has been attached to an office in a temple ; and I have no doubt that Article 144 applies to the facts of this case. I am unable to accept the suggestion that each successive holder of the office gets on appointment a fresh right to sue to recover the emoluments. I think that Section 28 of the Limitation AcJ will operate to extinguish not only s his right but also the right of all who claim to succeed him by virtue of an hereditary line of succession. I would follow, the decision Gnanasambanda PandaraSannadhi v. Vein Pandaram 10 M.L.J. 29 and Dhanushkotirayudu v. Venkayala Venkataratnam : (1920)38MLJ320 . In Gnanasambanda Pandara Sannadhi v. Velu Pandaram 10 M.L.J. 29 the Privy Council Laid down the principle that there was no distinction between the limitation periods applicable to suits for an office and suits to recover the endowments of such offices.

8. The learned Subordinate Judge has unnecessarily expressed an opinion in his judgment that the Zamindar's right of resumption became barred owing to the lapse of more than 12 years since he became awate of the alienation-Vide his letter Ex. O. He further expressed an opinion that it would not be in the Zamindar's power to make any new appointments to the office if the Zamindar's right of resumption had became barred. I do not think it necessary in this case to express any opinion as to the Zamindar's rights as grantor to recover the property attached as emoluments to a religious trust that has failed. This suit is brought by a holder of the office, and we have only to consider his title. I agreee wifli my learned brother that the plaintiff's suit was barred by 12 year's adverse possession against him and his predecessor in office, his father, and that the second appeal should therefore be dismissed with costs.


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