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Palaniyandi Malavarayan Vs. Vadamalai Oodayan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in18Ind.Cas.373
AppellantPalaniyandi Malavarayan
RespondentVadamalai Oodayan and ors.
Cases ReferredJagan Nath Das v. Birbhadra Das
Excerpt:
limitation act (xv of 1877), section 17, schedule i, articles 120 and 124 - trusteeship of temple--adverse possession during period when temple had no trustee--limitation--starting point. - - it is not difficult to see that there are good reasons for doing so, for it would be contrary to the public interests that a person should acquire the office of a trustee by mere possession when there is no one competent to recover it from him. muttuswamy iyer and best, jj. 10. i have tried my best to see whether the above inconvenient conclusion could be avoided and i thought at first that the decision in jagan nath das v......on appeal, the district judge reversed the decree on the ground that the plaintiff had lost the right of trusteeship and the defendants had acquired it by limitation. the facts found are that the temple is one subject to the jurisdiction of the temple committee in whom the right to appoint the trustee is vested under the provisions of act xx of 1863; that trustees were appointed by the committee in 1868; that the survivor of them died in 1883, and that for a period of 24 years, until 1907, no one was appointed as trustee by the committee who appointed the plaintiff in 1907. the defendants' contention that they themselves were in management of the temple since 1883 has been negatived. the district judge finds that they took possession of the office only in 1902, i.e., seven years.....
Judgment:

Sundara Aiyar, J.

1. This is a suit in ejectment by the plaintiff, who claims to be the trustee of the Sri Thirujateswaraswami temple in the Tanjore District, against the defendants who, according to the plaintiff, are holding the lands in question as tenants under the temple. The defendants contended that the lands did not belong to the temple but to the villagers, that the plaintiff was not the trustee and that the villagers themselves were the trustees and that the plaintiff's suit was barred by limitation. The District Munsif found that the plaintiff was the trustee, that the lands belonged to the temple, that the defendants had occupancy right in them but that they had forfeited their holding by repudiation of the title of the temple prior to the suit. He accordingly passed a decree in plaintiff's favour. On appeal, the District Judge reversed the decree on the ground that the plaintiff had lost the right of trusteeship and the defendants had acquired it by limitation. The facts found are that the temple is one subject to the jurisdiction of the temple Committee in whom the right to appoint the trustee is vested under the provisions of Act XX of 1863; that trustees were appointed by the Committee in 1868; that the survivor of them died in 1883, and that for a period of 24 years, until 1907, no one was appointed as trustee by the Committee who appointed the plaintiff in 1907. The defendants' contention that they themselves were in management of the temple since 1883 has been negatived. The District Judge finds that they took possession of the office only in 1902, i.e., seven years before the suit. But he holds that this is sufficient to bar the plaintiff's right. He has not recorded any findings on the other questions raised in the case.

2. The only question argued in second appeal is whether the finding on the question of limitation is right. The District Judge has applied Article 120 to the case as no period of limitation is provided in any other Article of the Schedule to the Limitation Act.

3. Article 124 lays down the rule of limitation applicable to a suit 'for possession of a hereditary office.' This would, of course, include the office of a hereditary trustee of a temple. The period provided is 12 years and the starting point is when the defendant takes possession of the office adversely to the plaintiffs. An explanation is added which states: 'A hereditary office is possessed when profits thereof are usually received, or (if there are no profits) when the duties thereof are usually performed.' The defendants' contention is that at the expiration of six years, they acquired the right to the office, though tot a hereditary right.

4. Proceeding on the footing that Article 120 would be applicable to bar the right to an office which is not claimed as hereditary, what is the starting point of limitation in such a case? Article 120 states that it is 'when the right to sue accrues.' In the case of a suit for an office, the starting point must be taken to be, by analogy to Section 124, 'when the defendant takes possession of the office adversely to the plaintiff.' The possession of the office must, therefore, be adverse to the plaintiff. The analogy of Article 124, under which discontinuance of possession on the plaintiff's part would be sufficient, cannot be applied, as pointed out in Raghunathachariar v. Tiruvengada Ramanujachariar 19 M.L.J. 257. See also Umayurubhugum Pillai v. Madavar Vilagam Vaithinathasawmi Kovil 9 M.L.T. 485. Kidambi Raghava Chariar v. Tirumalai Asari Nallur Ragava Chariar 26 M.k 113 proceeds on the same basis In Jagan Nath Das v. Birbhadra Das 19 C. h776 it does not appear whether there were any trustees to whom the testator's possession was adverse for the statutory period, but the judgment does not show that the Court intended to lay down any contrary rule. The possession would, of course, be adverse to the plaintiff if it was adverse to any one through whom the plaintiff claims. Can the possession in this case be regarded as having been adverse to the plaintiff from the year 1902? If it could, the suit would be barred by limitation. The office of trustee of the temple was, according to the finding of the District Judge, vacant from 1883 to 1907. The defendants' adverse possession commenced in 1901. To whom was the defendants' possession adverse till the plaintiff's appointment in 1907? There was no trustee from 1901 when the defendants' possession commenced till the date of plaintiff's appointment in 1907. There was no one during that time who was competent by virtue of his legal right to the office of trustee to claim it from the defendants who were in possession of it. Taking it that the plaintiff could be said to claim it from the previous trustee who died in 1883, the defendants never held the office adversely to the latter as their possession commenced only in 1901, long after his death. The plaintiff could not be said to claim it through the members of the Committee in whom the right of appointment of trustee was vested as the members of the Committee were not themselves the trustees of the temple. There was considerable discussion at the Bar, whether the members of the Committee could themselves manage the properties of the temple or whether a trustee appointed by them could alone do so. The decisions of this Court are not, perhaps, quite uniform on that question. See Neelayathakshi Ammal v. The Taluk Board of Mayavaram 10 M.L.T. 353 in which the previous cases are cited and Venkatachala Pillai v. The Taluk Board, Saidapat (1911) 1 M.W.N. 304. But, if the Committee can take up the management of a temple under any circumstances, it can do so not by virtue of their holding the office of trustee but by virtue of their powers under the statute as members of the Committee. No doubt, the Committee could have appointed a trustee and probably the beneficiaries of the temple might have instituted a suit under the provisions of the Civil Procedure Code for appointment of a trustee, if it neglected to appoint a person to the vacancy. But there was no one who could claim to recover the office from the defendants on the ground of being the lawful trustee. The defendants could not, therefore, be said to have held office adversely to the plaintiff.

5. It is a recognised principle of law that the statute of limitation would not run where there is no person competent to sue. This is the principle underlying Section 17 of the Limitation Act, which provides that where a person, who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application. This principle was acted on in England before a provision similar to Section 17 of the Limitation Act was expressly enacted by statute, it being held that the cause of action could not be said to arise before there is any body in whom it vests. See Darby and Bosanquet's Statute of Limitations, 2nd Edition, pages 49 and 50. The same principle was followed in Chan Kit San v. Ho Fung Hung (1902) A.C. 257 See also Atkinson v. Bradford Third Equitable Benefit Building Society 59 L.J.Q.B. 360 It was also adopted in Jewan Dass Sahoo v. Shah Kubeerooddeen 2 M.I.A. 390 in Murray v. The East Indian Company 24 R.R. 325 which proceeded, not on any express provision such as that laid down in Section 17 of the Limitation Act, but on the ground that the cause of action did not arise until there was a person competent to sue. Effect is given to this principle in suits for the recovery of an office by providing that time would run only when the possession of the defendant becomes adverse to the plaintiff. It is not difficult to see that there are good reasons for doing so, for it would be contrary to the public interests that a person should acquire the office of a trustee by mere possession when there is no one competent to recover it from him. With regard to public charitable and religious trusts, the duty of appointing a trustee rests in the Court which has to be moved by the Advocate-General or by the members of the publics as beneficiaries. The Legislature apparently considered it undesirable that the omission on the part of the public or the Advocate-General to take steps to get a trustee appointed should make possible for a person in possession of the office without a title to acquire the office by virtue of has occupation in the absence of any one entitled to claim it from him. The same reasoning would apply to the omission of a person having the right to appoint to exercise that power. Such an omission may often occur as the person has not the inducement of self-interests to make him discharge his functions promptly.

6. In England special statutory provisions have been enacted for actions similar to the present one. 3 and 4 William IV, C. 27 by Section 230 enacts, with regard to an action for the recovery of an advowson by quare impedit, (being the action which the patron of a living or advowson brings to recover the living or advowson), that the patron of an advowson may institute an action of quare impedit to recover the living or advowson either within the period during which three clerks in succession, (all claiming adversely to the plaintiff or to the plaintiff's predecessors-in-title), shall have held the living if that aggregate period shall amount to 60 years, or, if that period shall not amount to 60 years, a further time bringing the period of the three clerkships up to 60 years. See Banning on the Limitation of Actions, p. 244, Lightwood on the Time Limit of Actions, pages 12 and 13 and Darby and Bosanquet's Statutes of Limitations, pages 484 to 490. In Halsbury's Laws of England, Volume 19, page 153, Section 310, it is observed: If a stranger usurps a presentation to a benefice, the rightful patron can recover the benefice by an action of quare impedit provided he pursues his remedy within six months from the institution of the usurper's presentee. But, even if the rightful patron does not do so, the usurper gains no right to the advowson, nor anything more than the benefit of a single presentation.' No such special provisions have been enacted in the Limitation Act. But the starting point of limitation would prevent the trespasser from acquiring the right of a trustee by possession when there is no lawful trustee entitled to sue. It is hardly necessary to say that the Committee's right to appoint cannot self be barred by limitation. In Lakshminarayanappa v. Venkataratnam 17 M.k 395 two karnams sued for a declaration that the appointment of a third karnam wag invalid and conveyed no right to the appointee. The District Judge held that the appointee, having been out of possession of the office for 20 years, had lost all his right to it and was barred by Article 124 of the Limitation Act. Muttuswamy Iyer and Best, JJ. observed: 'It is contended that the third defendant's right to the office was barred, as his father had died 10 years previously, and he has also during the last 10 years of his life ceased to do the duties of karnam, though his name was retained in the list of karnams. The question is not, whether the 3rd defendant's right to claim the office is barred, but whether the Collector had no power to make the appointment.'

7. The decision of the District Judge on the question of limitation cannot be upheld. His decree must be reversed and the appeal remanded for disposal on the other question raised in the case. The costs of this second appeal will abide the result.

8. Second Appeals Nos. 91 and 92 of 1911 follow.

Sadasiva Aiyar, J.

9. The question of limitation to be considered in this case is not at all free from difficulty. If plaintiff was a hereditary trustee against whom adverse possession could be claimed by the defendants, the plaintiff would be barred by the 12 years' rule under Articles 124 and 144 according to Valu Pandaran's case Gnana Sambanda Pandara Sannadhi v. Velu Pandaram 27 I.A. 69. If there was anybody entitled to hold the office of trustee without hereditary rights when a wrong-doer took possession of the said office, then that trustee would have been barred after six years' tenor of the office by the wrong-doer See Kedambi Raghava Chariar v. Tirumalai Asari Nallur Raghava Chariar 26 M.k 113 under Article 120 and the wrong-doer would become the trustee of the office by prescription entitled also to deal with the trust immoveable property as trustee. But, in this case, there was no person entitled to the office of trustee when defendants took possession of it and hence it would seem that they could not claim any title by prescriptive enjoyment till such a person came into existence by the Committee's appointment of plaintiff. The result seems startling, for if the temple Committee chooses to remain idle for 60 years during which a person claims the office and performs the duties of trustee, he could be deprived of that office by a suit brought by a person within six years of his appointment as trustee by the Committee, though it may be 65 years after the defendant had taken wrongful possession of the office.

10. I have tried my best to see whether the above inconvenient conclusion could be avoided and I thought at first that the decision in Jagan Nath Das v. Birbhadra Das 19 C.k 776 may be invoked for the proposition that possession for six years of a trustee's office (not hereditary) is sufficient to give a title by prescription, even though there was no person in existence who had a legal right to the office daring the six years' term. In that case, a Sudra trustee held that office in a temple for six years without title, the rules of the institution requiring a Brahmin or Baistab to be the trustee. It does not appear from the report whether a Brahmin or Baistab entitled to office was in existence during the six years. I was at first inclined to the view that the learned Judges proceeded on the assumption that no such person existed, in which case the decision will be authority for the proposition that mere wrongful possession for six years of the office will suffice to give a man the title to the same. But, after further consideration, I am unable to say that in that Calcutta case, no such person legally entitled to the office really existed and I am unable to meet the reasons given in my learned brother's judgment for his view on the question of limitation by valid counter-arguments to the satisfaction of my mind. I, therefore, concur in the decree proposed by him.


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