1. As all these Letters Patent Appeals arise out of common judgments rendered by the trial court, appellate court and the second appellate court, they are to be disposed of by a common judgment.
2.The Letters Patent Appeals Nos. 126 of 1976, 57 of 1977 and 58 of 1977, arise out of the same suit 0. S. 13 of 1970 which is one for recovery of possession of one acre and 11 cents comprised in Survey No. 204/1, filed by the Tamil Nadu Wakf Board against one Ponnuthavammal. L. P. A. No. 55 of 1977 arises out of the suit 0. S. 514 of 1970 filed by the Wakf Board against one Kader Badsha Saheb for recovery of possession of one acre and 89 cents comprised in survey No. 188/1. L. P. As.56 and 59 of 1977, arise out of the suit 0. S. 519 of 1970 filed by the Wakf Board against one Sheik Dawood Saheb and two others for reeovery of possession of about 2.03 acres comprised in survey No. 176/2 in Madapuram village, in Siva ganga Taluk. In all the three suits the Wakf Board pleaded as follows:- The Assistant Commissioner of Wakfs ap pointed under S. 4 of the Wakf Act (hereinafter referred to as the Act) made an enquiry under the said section and filed a report Ex. A. Y dated 31-7-1956 to the effect that the suit properties belonged to Agori Pallivasal. Thereupon a publication was made in the Official Gazette, Ex. A. 2 on 22-4-1959. But no 10 suit had been filed by any one questioning the notification within one year from the date of publication of Ex. A. 2. Therefore the Wakf Board is entitled to file the suits under Section 15 (2) (h) of the Act, which enables the Board to recover the lost Properties of any wakf along with the mesne profits both past and future.
3. The defendant in 0. S. 513 of 1970 had purchased the properties involved in the suit from one Pacha Saheb and two others under Ex. B 1 dated 13-3-1952 and from Kadhar Badsha Saheb under Ex. B 2 dated 15-3-1953. The defendant in O. S. 514 of 1970 had Purchased the properties involved in that suit from one Kottutkurai Sahib under Ex. B-9 dated 9-12-1953, and from one Rai Mohamed Sahib under Ex. B. 10 dated 17-12-1953, from one Habib Sahib under Ex. B. 11 dated 7-10-1954 and from one Mohideen Badsha Saheb under Ex. B 12 dated 23-12-1957 respectively. The defendant in 0. S. 519 of 1970 is the assignee of the usufructuary mortgage in respect of the property involved in that suit under Ex B 28 dated 9-8-1948, and the assignment tinder Ex. B 27, dated 13-9-1944, had been executed by one Thaiyar Sultan Saheb and others and in these documents there is reference to the Pallivasal being the owner of the property covered thereby.
4. The common defence taken by all the defendants in all the three suits was that the properties were not Wakf properties, that none connected with Aaari Pallivasal exercised any ownership with reference to those properties at anytime. that the notification Published in the Gazette under Ex. A. 2 was not binding on them and that, in any event, they have acquired title to the suit properties by prescription. They also took out the plea that the suits are barred by limitation and, therefore, the suits filed for recovery of Possession are, in any event, barred by limitation.
5. The trial court found on a consideration of the materials on record that the suit properties were Wakf properties belonging to the Agari Pallivasal, that the alienations in favour of the defendants were void, that the Possession of the predecessors in title of the defendants was as Mutavallis that therefore the defendants had not acquired title to the properties by adverse Possession and that in any event the suits were in time in view of S. 2 of the Public Wakfs (Extension of Limitation) Act, 1'959. On these findings, the trial court decreed all the three suits as prayed for.
6. On appeal, the first appellate Court sustained the decree passed by the trial court in 0. S. 514 of 1970 but set aside the decree passed by the trial court in 0. S. 513 of 1970 and 0. S. 519 of 1970. Both the Wakf Board as well as the defendants in the three suits has filed second appeals so far as the decision of the lower appellate court was against them.
7. The second Appellate Court (Varadarajan, J. as he then was), held that though the not1fication under Ex. A, 2 was not binding on the defendants as they had no notice of the enquiry by the Assistant Commissioner of Wakfs: under' S. 4 of the Act and as such the defendants are not bound to file a suit challenging the notification within one year there from, the Wakf Board has established in those suits that those suit Properties belong to Agari Pallivasal. that the Inam fair register extracts Exs. A. 3 to A. 5 and the Inam B register extracts Exs. A. 12 and A. 13 and Ex. A. 14 dated 1-10-1967 and A. 15 dated 1-5-1967 granting pattas in favour of the Agari Pallivasal clearly showed that the suit properties belong to Agari Pallivasal and therefore, the finding of the courts below that the Aaari Pallivasal has got title to the suit properties cannot be interfered with.
8. On the question of limitation, the Wakf Board at the stage of the second appeal had raised a new plea that Art. 96 of the Limitation Act, 1963 will enable the Wakf Board to file the suit within 12 years from the date of constitution of the Wakf Board which was in the year 1958 and. therefore, the said suits filed by the Wakf for recovery ok possession of the properties should be taken to be in time. They had already taken the plea in the plaint that the suits are saved from the bar of limitation by S. 3 of the Public Wakfs (Extension of Limitation) Act, 1959. The second appellate Judge held that Art. 96 of the Limitation Act cannot be invoked on the facts and circumstances of this case and that the benefit of S. 3 of the Public Wakfs (Extension of Limitation) Act, 1959 also cannot be claimed for two suits. In that view, the Second Appellate Judge held that the suits 0. S. 514 and 519 of 1970 were barred by limitation. In O. S. 513 of 1970 the learned second appellate Judge found that 41 cents out of one acre and fl cents comprised in that suit had been alienated in 1947 and therefore the Public Wakfs Extension of Limitation) Act, 1959 will apply to that extent, and, therefore, the said suit was decreed to the extent of 41 cents and dismissed in other respect Aggrieved against the said judgment of the second appellate Judge, both the plaintiff and the defendants have filed before this court the above Letters Patent appeals.
9. Before us, the learned counsel for the Wakf Board contends that the second appellate Judge is in error in holding that Art. 96 of the Limitation Act will not apply. It is pointed out by the learned counsel that since the alienations in these cases have been made either by the original Muthavallis or their legal representatives, the properties could be recovered by the Wakf Board which is the authority constituted under the statute, and the suits having been filed within 12 years from the date of constitution of the Wakf Board, they are to be held as not being barred by limitation, Reliance is placed in support of the said legal plea on the decision in Machi Reddy v. Wakf Board : AIR1973AP73 and the decision of Natarajan J. in Saraswathiammal v. Tamil Nadu State Wakf Board, S.A. 400 of 1972 and in Thangiah Velar v. Tamil Nadu State Wakf Board, S. A. 456 of 1972 and another judgment of the Andhra Pradesh High Court in C. J. Mutt Tirupati v. C. V. Purushotharn, : AIR1974AP175 and the Division Bench decision in Tamil Nadu Wakf Board v. Kaveriammal, A. S. 382 of 1973. In the decisions referred to above and relied on by the appellant it has been specifically found that the alienations were by the previous trustee and therefore it is for that specific reason, Art. 96 of the Limitation Act, 1963 have been applied. It is however seen that in this case there is no concrete and acceptable evidence that the alienations, on the basis of which the defendants claim title to their respective properties were by the previous Muthavallies and that the vendors under the documents on the basis of which the defendants claim title and possession to the properties were in fact the trustees or Mutavallis of Aaari Pallivasal. Unless that fact is established, it cannot be said that the defendants are holding the properties on the basis of the alienations made by the -previous trustees or mutavallies of the Agari Pallivasal. Though the second appellate court referred to the evidence of DW 2 which is to the effect that the original alienation had been made by the legal representatives of the original mutavallies, it has proceeded on the basis that the said evidence is not either sufficient or conclusive. Even if it is shown that the original alienation of the Wakf property was by mutavallies, since the subsequent alienations could not have been made by Persons who are mutavallies, it is not possible to apply S. 96 of the Limitation Act, which provides for a suit by the succeeding trustee for the recovery of the property alienated by the previous trustee. Apart from the so called admission of DW 2, referred to by the trial court in support of its finding that the alienations were by mutavallies or their legal representatives, the plaintiff has not adduced any concrete and sufficient evidence for invoking Art. 96 of the Limitation Act, which can be applied only in cases where the suit is filed by the succeeding trustee to recover the property unauthorisedlv alienated by the previous trustee or mutavalli. Apart from referring to the documents on the basis of which the defendants claim title, no attempt has been made by the plaintiff to prove as to who were the original Mutavallis in respect of the suit property, and how the properties came to be ultimately in the hands of the defendants. Unless, the alienors under whom the defendants claim are shown to be either Mutavallis or their legal representatives, Art. 96 of the Act cannot, in our opinion, be invoked to get over the bar of limitation which will be otherwise applicable in cases where the defendants have been in adverse possession of well over the statutory period of 12 years, Though the second appellate Court has referred to the decision cited above and stated that he is not agree-, able with the said view, the learned Judge has not referred to the distinction between the facts in those cases and the facts in the present case. However. the learned Judge in our view has come to the correct conclusion in holding , that Art. 96 cannot be invoked on the facts of this case.
10. Dealing with the scope of Sec. 3 of the Public Wakfs (Extension of Limitation) Act, 1959, the second Appellate Judge has taken the view that since the dispossession of the suit items of properties excepting 41 cents in survey No. 204/1' took place before 1947, See. 3 of that Act cannot come into Play. The Wakf Board has challenged that finding of the second appellate Judge. According to the Wakf Board, the dispossession can take place only In the case of absolute alienation and as sale and that in the case of usufructuary mortgage there is no question of any dispossession. In respect of the properties covered by the suit 0. S. 513 of 1970, the first alienation was under Ex. B. 1 dated 13-3-1952, -in respect of the properties covered by 0. S. 514 of 1970 the first alienation was under Ex. B. 9 dated 9-12-1953, and in the case of the properties covered by 0. S. 519 of 1970, there have been no sales, but only usufructuary mortgages from 1918 to 1958. Having regard to the fact that there has been no absolute alienation by way of conveyance before 14th Aug. 1947, the Public Wakf (Extension of Limitation) Act, 1959 has to be applied, as the dispossession can be said to have taken place only after the relevant date i.e., 14th Aug. 1947. As against this, learned counsel for the defendants contends that the dispossession in this case should be deemed to have taken place when the usufructuary mortgages had been executed under which possession of the Wakf has passed on to the mortgages and as the mortgages had been admittedly executed before the relevant date I.e., 14th August 1947, S. 3 of the Public Wakfs (Extension of Limitation) Act 1959 cannot come into play at all. It is pointed out by the learned counsel for the defendants that in 0. S. 513 of 1970 the first Othi was under Ex. B. 7 dated 10-9-1891, that in respect of the property covered in 0. S. 514 of 1970 the first Othi was under Ex. B.15 dated 13-7-1894, and that in respect of the property covered by 0. S. 519 of 1970 the first Othi was under Ex. B. 30 dated 1-10-1918. There cannot be any dispute that if the date of usufructuary mortgage is taken as the basis of dispossession, S. 3 of the Public Wakfs (Extension of Limitation) Act 1959 cannot apply. But if the date of usufructuary mortgage is not taken as the date of dispossession and if the dispossession is deemed to have taken place only under the sale deeds, then the sales having been executed subsequent to 14-8-1947. S. 3 of the Public Wakfs (Extension of Limitation) Act 1959 will come into play. Thus, the main question to be considered in this context is whether the execution of the usufructuary mortgage by the Mutavallis can be taken to be the date of dispossession of the Wakf. The teamed counsel for the defendants has relied as the following decision. namely. Adinarayana Chetti V. T. T. K. K. Appan Srirangachariar : AIR1941Mad217 ; Rajaram v. Ramanuiam, : AIR1963Mad213 ; Aivisa Bivi Ammal v. Kalandarsa Rowther : AIR1925Mad1020 , and The Board of Muslim Wakfs, Rajashan v. Radhakrishnan, : 2SCR148 , in support of his plea that even in cases where the properties transferred under the usufructuary mortgage by a krustee or Muthavalli, the limitation will run from the date of the mortgage, if the usufructuary mortgage is found to be void and, therefore, the mortgages under such an invalid transfer will acquire title by adverse possession. However, we find that the above decisions Seal with the question as to when alience title become adverse. But the question which we have to consider here is as to when there was dispossession. For deciding that question, the above decisions do not appear to be quite relevant. When the Mutavalli of a Wakf executes a usufructuary mortgage in relation to the wakf properties, the wakf is not dispossessed of the property and the possession of the usufructuary mortgage should be taken to be a constructive possession of the Wakf concerned. When possession is given voluntarily on behalf of the Wakf to the mortgagee, the Wakf cannot be said to be dispossessed of its properties. It is only when the usufructuary mortgagee sets up adverse title to the knowledge of the wakf, if it is possible to do so in spite of the doctrine of estoppel, it is only from that date, the Wakf can be said to have been dispossessed. If the creation of a usufructuary mortgage by the Wakf on behalf of the Agari Pallivasal is taken to be dispossession of the wakf, even a lessee of the wakf can say that he has dispossessed the wakf. That will lead to anomalous situation. Therefore, we are not inclined to accept the contention of the learned counsel for the defendants that by creating usufructuary mortgage in respect of wakf properties, the wakf has been dispossessed of the property transferred by way of usufructuary mortgage. We are not therefore prepared to accept the contention of the learned counsel for the defendants that the dispossession in this case should be taken to have taken place on the date of the creation of the first usufructuary mortgage. In our view, the correct view to be taken 19. It is only on the date of the execution of a sale deed, the wakf is deprived of the properties as a result of the conduct of the Mutavalli in parting away with the properties by way of sale. Admittedly, in these cases, the transfers by way of sales have taken place after 1947. Therefore, S. 3 of the Public Wakfs (Extension of Limitation) Act 1959 will stand attracted in these cases. The two suits, 0. S. 513 and 514 of 1970, where the wakf Properties have been alienated by way of sale, should be taken to have been saved from the bar of limitation by S. 3 of the Public Wakfs (Extension of Limitation) Act 1959. In 0. S. 519 of 1970 there have been no alienation by way of sale. and there-fore, there is no room for the application of S. 3, as we have already held that mere execution of usufructuary mortgages by a Mutavalli will not amount to dispossession of the wakf. However, it has been found by the first appellate court that the defendants in that suit are the legal representatives of the original Mutavallis themselves and that accident - Insurance company knowing they are not strangers to whom the transfer of ownership - Whether there is transfer of certificate of insurance and policy in favour of transferee so as to make Insurance Company liable for compensation. Wakf property had been transferred. In such cases, S. 10 of the Limitation Act will straightway apply as no trustee can set up adverse title to the trust by his possession of the Wakf properties for any length of time. Though the said finding of the lower appellate court has not been referred to by the second Appellate Judge, in so far as the second Appellate Judge has not set aside that finding of the lower appellate court, we cannot ignore that finding. The finding of the lower appellate court is as follows -
'So far as the suit in 0. S. 519 of 1970 is concerned defendants 1 and 2 therein are the descendants of the original musafirs or mutavallis of the Pallivasal. Although they claim the property as ancestral their possession is only in their capacity as the descendants of the original musafirs. They cannot acquire title by prescription inasmuch as their possession is only in fiduciary capacity.'
11. Since this finding of the lower appellate court has been overlooked by the second Appellate Judge and the suit has been held to be barred by limitation, we have to set aside the dismissal of the suit (0. S. No. 519 of 1970) and decree the same on the ground that the said suit is not barred by limitation and the property covered by that suit has been proved to be the wakf property.
12. In the view expressed above we have to hold that the L. P. A. Nos. 55 of 1977, 56 of 1977, 57 of 1977, 58 of 1977, and 59 of ' 1977, will stand allowed and the L. P. A. 126 of 1977 filed by the defendants will stand dismissed. There will however be no order as to costs.
13. Order accordingly,