1. The ancestors of plaintiff' and of second defendant were hereditary trustees of the charity called Nakshathramalai Kattalai attached to a temple of Thirukadaiyur, and were jointly entitled to its management. It was at one time taken under the control of Government, but was redelivered in 1850-57 to Velu Pandaram, plaintiff's grandfather, as hereditary audinakarta, since which time Velu Pandaram and his divided coparcener Kuppa Pandaram-continued in joint management. In 1868 Velu Pandaram had been succeeded by his son (plaintiff's father), and Kuppa Pandaram had also died, leaving a minor son (second defendant) and a widow, Visalakshi. On 17th September 1868 Visalakshi, on behalf of her minor son, executed a registered deed of conveyance of his share in the joint management to first defendant's predecessor, the then Pandara Sannadhi of Dharmapuram mutt (Exhibit A), and in the following year (February 13, 1869) plaintiff's father executed a similar deed in respect to his half share in the management (Exhibit H). Since that time the Pandara Sannadhi for the time being (now first defendant) has managed the charity. Plaintiff's father died in August 1884 and plaintiff brought this suit on 17th August 1892 as the successor of his father in the hereditary trusteeship to recover the properties of the charity and for a declaration of his right to sole management.
2. Various issues were framed in the Court below, almost all the allegations made in the plaint having been disputed. In the result the Subordinate Judge found that plaintiff was entitled to recover his father's half share in the management, but that his claim to the half share, which had belong to second defendant's father, was barred. A decree was, therefore, passed, giving plaintiff joint possession of the management and property with the first defendant.
3. Against this decree both sides have appealed, the plaintiff in Appeal No. 115 of 1894 contending that he is entitled to the whole property and management, while the first defendant in Appeal No. 120 of 1894 contends that plaintiff's claim is barred in respect to his father's half share as well as to the half share of second defendant's father.
4. Before us the original hereditary right of plaintiff's family has not been contested, nor is it denied that the alienations of the trust property in 1868 and 1869 were illegal. The sole points argued have been the questions of limitation.
5. Taking first defendant's appeal (No. 120) first, it is argued time began to run against plaintiff's father in 1869 before plaintiff was born (in 1875) and hence that the right was barred long before plaintiff had any claim, which could only have accrued on the death of his father in 1884. The first defendant's pleader complains that the Subordinate Judge has treated the case as if it resembled one of an alienation made by a widow, which would be valid for the lifetime of the alienor, and in which the successor's right would only be infringed when the succession opened. In support of this contention he referred to Balwant Rao Bishwant Chandra Chor v. Purun Mal Chaube L.R. 10 IndAp 90 and other cases in which that Privy Council decision has been followed--Kannan v. Nitakandan I.L.R. 7 Mad. 337; Karimshah v. Nattan I.L.R. 7 Mad. 417; Giyana Sambandha Pandara Sannadhi v. Kandasami Tambiran I.L.R. 10 Mad. 375; Nilakandan v. Padmanabha I.L.R. 14 Mad. 153 and Sankaran v. Krishna I.L.R. 16 Mad. 456.
6. No doubt the right of plaintiff's father to set aside his own alienation or that of his kinswoman Visalakshi would have been barred long before his death in 1884; but the question is, when did the right to sue as hereditary trustee accrue to plaintiff. It seems to us clear that it did not accrue till his father's death in 1884, and he has brought his suit within eight years of that date. Against plaintiff there could be no adverse possession till his right accrued; the act of his father was a fraud on the trust, but plaintiff was not in a position to question it till 1884; the time will therefore run from the date of his predecessor's death. See Mahomed v. Ganapati I.L.R. 13 Mad. 277; Jamal Saheb v. Murgaya Swami I.L.R. 10 Bom. 34 and Modho Kooery v. Tekait Ram Chunder Singh I.L.R. 9 Cal. 411.
7. Another argument put forward was, that since second defendant had permitted his right to sue to become barred by limitation, the plaintiff is also barred, since plaintiff and second defendant were jointly entitled to sue, and we were referred to the cases reported in Seshan v. Rajagopala I.L.R. 13 Mad. 236; Narayanan Nambudri v. Damodaran Nambudri I.L.R. 17 Mad. 189 and Moidin Kutti v. Beevi Kuttt Ummah I.L.R. 18 Mad. 38. We do not think these cases apply. The personal right of trusteeship is not joint, though the rights of trustees against strangers are joint. Any one of the joint trustees as against a stranger has a right to claim the whole property, and as plaintiff has brought his suit to recover the properties within twelve years of the accrual of his right, he is not barred by the fact that his co-trustee may have suffered his right to become extinct.
8. On these grounds the appeal by first defendant (Appeal No. 120) must be dismissed with costs.
9. Passing to the appeal preferred by plaintiff (Appeal No. 115), the Subordinate Judge held that plaintiff's father had a right of suit in August 1868, as soon as Visalakshi alienated her son's share in the management, that that right of suit became barred in six years, and hence was barred before plaintiff was born, and that, whether the limitation was six years or twelve, time ran against plaintiff's father, and thus the bar against him was equally a bar against his successor.
10. In this view of the case we are not able to agree. It appears to us doubtful, in the first place, whether the widow Visalakshi was able to give possession to the purchaser, though, no doubt, the then Pandara Sannadhi sent his men to reap the crops and set up a claim under colour of the document executed by the widow. The Pandara Sannadhi was a far more influential man than plaintiff's father, and he was consequently able to bring pressure upon the latter and induce him to execute the deed H, which was a fraud upon the trust. But we do not think the evidence establishes that between September 1868 and February 1869 the two were in joint possession. The possession seems to have been with plaintiff's father, though efforts were made forcibly to oust him. Exhibit H states that possession was given under that document.
11. There is then no question of the Pandara Sannadhi having acquired as against plaintiff a right by adverse possession to a joint share in the management, and the cases referred to Kannan v. Nilakandan I.L.R. 7 Mad. 337; Madhava v. Narayana I.L.R. 9 Mad. 244 and Radhabai v. Anantrav Bhagvant Deshpande I.L.R. 9 Bom. 198 do not apply. As no limitation with respect to joint management ran against plaintiff's father, none ran against plaintiff and, as has been pointed out above, his right to follow the property is not barred, since the suit is brought within twelve years of the accrual of the right.
12. The appeal must therefore be allowed and the plaintiff he declared entitled to the sole right of management, and the possession of the properties attached to the kattalai must be delivered to him.
13. The first defendant must pay plaintiff's costs in this appeal.