1. This petition is filed by the plaintiff for leave to appeal to His Majesty in Council against the judgment and decree of this Court in A.S. No. 32 of 1938. It is opposed by the respondent who was the first defendant on the ground that the decree of this Court confirmed the decision of the lower Court and that there is no substantial question of law so as to justify the grant of leave under the last paragraph of Section 110, Civil Procedure Code. The properties are admittedly worth over Rs. 10,000, and the only question is whether the other conditions of Section 110 are satisfied.
2. The facts that are necessary for the disposal of this application are these. The petitioner filed the suit for recovery of possession of the suit properties as the trustee of an endowment for certain services in Sri Papavinasa Swami Temple at Vikramasingapuram, Tinnevelly district. The properties in suit were admittedly the inams originally endowed for the performance of this trust. But, during the lifetime of the petitioner's grandfather, the properties were sold in execution of a money decree against him, purchased by one Hem. Singh and transferred thereafter to Ramachandra Nachiar the grandmother of the petitioner. She then created an usufructuary mortgage of the first item of the suit properties to a third party and during the subsistence of that mortgage, she died leaving a will bequeathing the properties to the petitioner's father who was then a minor and appointed some persons to act as his guardians during his minority. The guardians sold the first item to the respondent, which forms the major portion of the suit properties. The petitioner's father died in the year 1931 and the present suit was filed on the 24th September, 1934 claiming recovery of possession of the suit properties from the various defendants.. The suit was dismissed by the trial Court and there was an appeal to this Court. There were a number of respondents in the appeal, but the appeal was pressed only as regards item 1 against the first respondent in the appeal and he is the sole respondent in this application. The defences are that the suit is barred by limitation, that the properties were all resumed by the Government and granted to the respondent on the 3rd June, 1907 on ryotwari tenure and that the resumption freed the properties from the burden of service. It might be mentioned that the sale to the respondent was subject to a condition that a sum of Rs. 300 should be paid every year for the performance of the suit trust. After the resumption and the grant of the lands on ryotwari tenure even this sum was not paid as the lands were no longer trust properties.
3. In this Court it was contended that the suit was filed within 12 years from the death of the petitioner's father in 1923, that as the lands were alienated on his behalf limitation began to run only from the date of his death and that, therefore, the suit was within time. Following two earlier decisions of two Division. Benches of this Court in Venkatasubramania v. Sivagurunatha, : AIR1938Mad60 . a decision of Ramesam and Stone, JJ. and Alam Khan Sahib; v. Karuppannaswami Nadan, : AIR1938Mad415 . a decision of Venkatasubba Rao and Abdur Rahman, JJ., this Court held that where the alienation was not by the manager as such but in his individual capacity as the absolute owner of the property, limitation began to run from the date of the alienation itself and that, therefore, the suit was barred by limitation. It was also held that the resumption by the Government and the subsequent grant of the lands on ryotwari tenure to the respondent who was not the trustee put an end to the character of the properties as trust properties and conferred an absolute right on the grantee. As regards the undertaking in the sale-deed of 1893 to pay a sum of Rs. 300 per year for the performance of the trust, an argument was advanced that at least that sum was payable by the respondent. It was urged in reply that even this claim could not be enforced after the resumption and the grant on ryotwari tenure but the learned Counsel for the respondent offered that he would get his client to pay into Court a sum which would fetch Rs. 300 per year for the benefit of the trust. This was as a matter of concession and it is not a decision of this Court. This Court, therefore directed the respondent to pay a sum of Rs. 12,100 into Court and gave certain directions regarding that sum.
4. In seeking permission to carry this matter on appeal to His Majesty in (Council, the petitioner urges that the decree of this Court did not affirm the decision of the lower Court and that, therefore, he is entitled to the leave asked for. Next he urges that the decree of this Court involves substantial questions of law.
5. On the first question, it is said that as the decree of this Court directed the respondent to pay a sum of Rs. 12,100 into Court, it did not affirm the decision of the lower Court. Any variation in the decree, it is said, is enough to take it out of the last paragraph of Section 110,, Civil Procedure Code. On this question, one of us sitting with Venkatasubba Rao, J., decided that the term 'decree' used in connection with the High Court and the expression 'decision' used in regard to the lower Court in Section 110, Civil Procedure Code did not mean exactly the same thing, that a single decree may comprise several decisions and that each decision may relate to a distinct matter and the prior decisions on the question, were dealt with--see Velayya V. President, H. R. E. Board, Madras : AIR1938Mad631 . Applying it to the facts of this case, as regards the claim for recovery of possession, the decree of this Court affirms the decision of the lower Court.
6. As regards the claim for Rs. 300, it is a distinct matter and with regard to that matter the petitioner's claim was fully satisfied and that is not the subject-matter of the proposed appeal to His Majesty in Council. As regards the subject-matter of the appeal to His Majesty in Council, the decree of this Court is one of affirmance of the decision of the lower Court and hence following the above decision, we must decline to accept the contention that the decree is not one of affirmance of the decision of the lower Court.
7. As regards the next question, it is true that when the alienor does not profess to convey trust property as manager but does so in his professed capacity as an absolute owner, the question whether time would begin to run from the date of the alienation or only from the death of the alienor is a substantial question of law. But as the respondent's counsel urges, the decision of this Court is also based on the finding that the resumption by the Government on the ground that the bulk of the endowment was diverted to purposes not covered by the original grant, and a fresh grant to the respondent who was not the trustee put an end to the character of the suit property as trust property and that this decision does not involve a substantial question of law being a well-established proposition of law. On this question the decisions are uniform in holding that where some properties were granted for the performance of certain services and the properties are alienated or diveried to purposes not covered by the original grant, the Government can resume the lands and grant them to any one and that the resumption puts an end to the character of the trust. Reliance was placed by the petitioner's advocate on the decision of this Court in Mohamed Esuf Sahib v. Moulvi Abdul Sathur Sahib (1918) 36 M.L.J. 262 : I.L.R. 42 Mad. 161. But that was a case where the original trustee himself happened to be the grantee and Section 88 of the Trusts Act was invoked and it was held that the trustee cannot take advantage of his own wrong and that the trust fastens itself to the property in his hands. The same decision recognises that where the grantee is not the trustee the position would be different. On page 178 of the report we find:
If the Government had granted the lands to a stranger without expressly providing for the trust to attach to them, it may be that they would have become the ordinary private ryotwari property of the grantee.
Resumption, as is pointed out in Pimniah v. Kotamma I.L.R. (1916) Mad. 939. is not merely giving up the reversionary interest of the Government, but it is a case of the tenure itself being put an end to. Reference may also be made to the decision of the Judicial Committee in the case of Venkata Jagannadha v. Veerabhadrayya (1921) 41 M.L.J. 1: L.R. 48 IndAp 244 : I.L.R. 44 Mad. 643 (P.C.). where the difference between the enfranchisement of a personal inam and the resumption of a service inam is pointed out. The decision of this Court on the question of resumption and fresh grant would render it unnecessary to go into the other question whether the suit was barred by limitation. We, therefore, dismiss this application with costs.