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Kalatty Mudali and ors. Vs. Mangapathi Mudali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad563
AppellantKalatty Mudali and ors.
RespondentMangapathi Mudali and ors.
Cases ReferredThomas v. Thomas
Excerpt:
.....such wrongful recipient of the profits, it has been hold in england, does not acquire title by adverse possession against the rightful cestui que trust. it being the duty of the trustee to pay over the profits to the beneficiary, payment to a wrong person-will not give that person a title, but if one or two beneficiaries is excluded by the other who received the rents to the exclusion of the trustees as well, limitation will commence to run against the excluded beneficiary. it was open to the community to spend its income in any way it liked, and having regard to the admission made by defendant 1 that practically all the surplus income of the community was being spent on the temple, the proper view to sake of the circumstances appearing in the present case would seem to be that the..........the defendants also pleaded that the temple acquired absolute rights to the topes by effect of adverse possession for more than 12 years.5. the trial court found that defendant 1 had been in enjoyment of the topes on behalf of the temple for more than 12 years, and that the rights of the plaint community to the topes in question had become barred and extinguished by limitation. it therefore dismissed the suit with costs.6. on appeal the learned subordinate judge of chittoor after observing that the question of the original title to the topes in the plaintiffs' community was concluded by the finding arrived at by the several courts which had to deal with this litigation, observed that the only question for decision was how far the enjoyment set up by defendant 1 on behalf of the.....
Judgment:

Anantakkishna Ayyar, J.

1. The plaintiffs and defendants 1 to 6 are members of Sangunthi Mndaliar community of the village of Sathravada, and the suit was for a declaration that the plaint topes are common properties of the said community, that the plaintiffs and the members of their faction are entitled to jointly possess and enjoy with defendants 1 to 6, and the members of their faction, the said topes, and for a permanent injunction restraining the defendants and their party from dealing with the topes or the income thereof, independently of the plaintiffs and their party, for any purpose not sanctioned by the general meeting of the whole community.

2. The plea of defendant 1 'was that the topes belonged to Sri Varadharaja Swami temple of Sathravada, that the temple owned the topes from time immemorial and that the same were in the management of trustees of the temple all along, that the office of trusteeship of the temple was hereditarily in the family of defendants 1 and 2 and that defendant 1 was the then trustee of the temple. The Rajah of Karvetnagar was added as the dharmakartha of the temple and made defendant 7 in the case. His plea was that defendant 1 was not the trustee of the temple, but that he defendant 7 was the trustee. He also pleaded that the old accounts disclosed that the plaint topes were the properties of the Sangunthi community mentioned in the plaint, that the trees in the topes were being charged tree tax by defendant 7 and that pattas were issued in respect thereof. Defendant 7 accordingly admitted the title of the plaint community to the topes.

3. This litigation began in 1916. This matter came before the High Court on a former occasion, and the High Court on 8th April 1921, passed orders in Civil Revision Petition 342 of 1921, preferred against the order of remand passed by the Subordinate Judge on 6th March 1920, and the High Court directed three issues to be tried by the District Munsif instead of the issues specified in the order of remand passed by the Subordinate Judge (see p. 37 of the pleadings book). The District Munsif tried the issues framed in the case, and came to the conclusion that the title to the topes was in the Sangunthi community of the village of Sathravada and that they were not the properties of the temple of Sri Varadharaja Swami of Sathravada as contended for by defendant 1 and the other defendants 2 to 6.

4. All the Courts which had to try the present litigation were of opinion that the title to the topes in question was in the plaint community and not in the temple. This finding has now become conclusive, and the discussion of the, further questions raised in the case should proceed on that footing. The plaintiffs' case was that the village affairs are managed by two Periyathanakars, that plaintiff 1 has been the Periyathanakar for the last 40 or 50 years and defendant 1 for the last 12 years; that recently there was a faction in the village, plaintiff 1 had been the head of one faction and that defendant 1 has been the head of the other faction. The defendants admitted the practice of management by two Periyathanakars, but stated that the practice of management related only to caste affairs and properties belonging to the community, but contended that the suit topes were not the properties of the community but were the properties of the temple whose trusteeship vested in defendant l's family. The defendants also pleaded that the temple acquired absolute rights to the topes by effect of adverse possession for more than 12 years.

5. The trial Court found that defendant 1 had been in enjoyment of the topes on behalf of the temple for more than 12 years, and that the rights of the plaint community to the topes in question had become barred and extinguished by limitation. It therefore dismissed the suit with costs.

6. On appeal the learned Subordinate Judge of Chittoor after observing that the question of the original title to the topes in the plaintiffs' community was concluded by the finding arrived at by the several Courts which had to deal with this litigation, observed that the only question for decision was how far the enjoyment set up by defendant 1 on behalf of the temple was true and how far it affected the title of the plaint community to the topes in question. He found in para. 3 that the

alleged possession of the topes by defendant 1 was not adverse to the plaint community.

7. He accordingly reversed the decision of the first Court and decreed the suit in plaintiffs' favour.

8. Defendants 1, 2 and 5 have preferred this second appeal. On their behalf it was contended by their learned advocate that the decision of the learned Subordinate Judge was vitiated by reason of his not having properly apprehended the scope of the issues as settled by the High Court in the Civil Revision Petition already referred to. He also urged the some of the distinction made by the learned Subordinate Judge should not be accepted. On behalf of the respondents (plaintiffs) it was argued that the title to the topes being found to be in the community and defendant 1 being admittedly one of the Periyathanakars of the community, there could be no adverse possession against the community in the circumstances, and that the accounts filed in the case and also defendant l's admissions made it clear that the funds of the community including, income from the topes were being now and then spent for the temple, as the temple was situated in the village and as the community worshipped the idol of the said temple and that the idol could not claim any rights to the topes in the circumstances.

9. After having carefully considered the contentions raised by the learned advocates on both sides, I have come to the conclusion that the decision of the learned Subordinate Judge is right and that the community has not lost its title to the topes by limitation.

10. In 1901, defendant 1 sued on behalf of the temple for recovery of possession of portions of one of the two topes in question, after removing the huts standing, thereon. I agree with the learned advocate for the appellants that the description of the present defendant 1 in the possession receipts in those suits should not be taken to negative defendant 1's contention, if his contention would otherwise be tenable, having regard to the other proceedings in those suits. The learned Subordinate Judge's observation that in the possession receipts 1-a and 2-a, the decree-holder was not described as trustee of the temple, though in the suits concerned he had sued as trustee of the temple, should not be taken to be anything more than a verbal criticism of the said exhibits. I do not think that the circumstance that in the possession receipts the decree-holder was not described as a trustee should be taken as conclusive against the present defendant l's contention; but the lower appellate Court has referred to the various other circumstances appearing in the case. It has dealt with the way in which the properties and the moneys of the community were being dealt with by the Periyathanakars. It is pointed out that moneys belonging to the community were being spent for temple purposes, and it; is only natural, seeing that the temple was situated in the village and the community worshipped at the temple. Use of the community funds for temple purposes in such circumstances could not be said to confer any rights on the idol to any properties of the community. Just as individual members-worshippers-make offerings of money or materials to the God, the community thought it proper to offer moneys and materials belonging to the community to the God; oven if the incomes from these topes were utilized for such worship, the same could not (for that reason alone) confer any title in the God to the topes, having regard to the circumstances. As remarked by the learned Subordinate Judge in para. 2 of his judgment:

Admittedly defendant 1 and his deceased brother Muthu Muniappa before him have had control of the village collections and that as the 'periyathanakars of the community of Sengunthas.

11. Defendant admitted that the 'plus' balance (surplus income) of the village collections was always devoted for the temple:

He also admitted that item 1 of the village collection was spent for the temple because the villagers authorized him to do so.

12. The law on the point as stated by Mitra in his work on the Law of Limitation is quoted in the judgment of the lower appellate Court, and neither of the learned advocates who appeared before me questioned the correctness of that statement. In fact both the learned advocates admitted that the law was correctly stated in Mitra's book. This is what is stated in Mitra's book:

Whilst the trustee is in possession of the estate, the right of the beneficiary is safe, so that if the trustee mistakes his beneficiary and mates over the profits of the estate to a wrong person, such wrongful recipient of the profits, it has been hold in England, does not acquire title by adverse possession against the rightful cestui que trust. It being the duty of the trustee to pay over the profits to the beneficiary, payment to a wrong person-will not give that person a title, but if one or two beneficiaries is excluded by the other who received the rents to the exclusion of the trustees as well, limitation will commence to run against the excluded beneficiary.

13. In discussing the questions argued in the case it is necessary to remember the observations of Sir John Romilly, M.R., in Lister v. Pickford 31 Bev. 575:

A trustee who is in possession of land, is so on behalf of his cestuis que trust, and his making a mistake as to the persons who are really his cestuis que trust cannot affect the question.... Suppose that they had imagined bona fide that they themselves were personally entitled to the property, and that they were not trustees of it for anyone, it would, nevertheless, have been certain that they would have been trustees for the cestuis que trust, and no time would run while they were in such possession. The legal estate was vested in them, no other person could have maintained an ejectment against them; they are bound to know the law, they ought to have taken possession, as soon as they saw who were the real beneficiary devisees, and being in possession, they ought to have applied the proper proportion of the rents for the benefit of such residuary devisees. The fact that they did not do so cannot, in any respect, weaken the rights of the devisees. Nor can I see the least distinction in this respect between the trustees having wilfully and fraudulently paid rents belonging to their cestuis que trust to a stranger, and their having done so ignorantly and bona fide. However, they obtained possession and as soon as they did so, their possession must be attributed to their real right to possession and not to any other. Were it otherwise, it would be possible for trustees to give the property of one cestuis que trust to another.

14. In East Stonehouse Urban Council v. Willoughby Brothers Ltd. [1202] 2 K.B. 318, Channell, J., observed as follows:

The persons for whom the trustees really were trustees were not barred by the erroneous payment because a trustee could not by any act of his own make his rightful possession adverse to the real cestuis que trust.

15. In considering whether possession was adverse or not, we should remember that there ought to be nothing equivocal in the possession relied upon as being adverse. As remarked in the Pull Bench case reported in Lallubhai Bapubhai v. Mankuwarbhai [1877] 2 Bom. 388:

The Courts are loth to convert a possession which began lawfully into a wrongful and adverse possession

and again, as stated by Wood, V. C, in Thomas v. Thomas 169 E.R. 701, 'possession is never considered adverse if it can be referred to a lawful title,'

16. These principles should be kept in view in deciding the present case, because the properties of the community were in the possession of two Periathanakars plaintiff 1, and defendant 1 and they were managed by these two people on behalf of the community. Therefore, the mere circumstance that either a part or the whole of the management_of the topes was more directly under defendant 1 than under plaintiff 1, or that defendant 1 was solely in possession and management of the topes and even spent the whole income of the topes as he thought fit, would not make his possession adverse to the community. Nor, having regard to the circumstances that the temple is situated in the village and the idol is being worshipped by the members of the community, who make various offerings to the idol, could the circumstance of the income from the topes being spent for the temple be taken to change the original possession of defendant 1 on be-half of the community, into adverse possession on behalf of the idol. It was open to the community to spend its income in any way it liked, and having regard to the admission made by defendant 1 that practically all the surplus income of the community was being spent on the temple, the proper view to Sake of the circumstances appearing in the present case would seem to be that the amounts were spent as offering by the community to the temple, not that the idol acquired any rights either to the topes or any other properties of the community. The description of defendant 1 as trustee of the temple in the litigation of 1901 in respect of small portions of one if the topes, or his taking a rent deed in respect of huts standing thereon (Ex. 3 of 1899) could not; having regard, to the general circumstances appearing in the case and to the special circumstances mentioned already, be taken to be conclusive in favour of the view put forward by defendant 1. The same should be considered along with the other circumstances, and I think the learned Subordinate Judge was right in his view.

17. Defendant 1 no doubt filed two suits in 1901 as trustee of the temple, in respect of small portions of one of the topes in question, to have certain huts put upon the same by certain trespassers removed. He got decrees in those suits and got possession in execution As observed by the learned Subordinate Judges 'possession receipts do not describe him as trustee' but those receipts should be read along with the proceedings in the suit. But it should be remarked that the subsequent accounts filed in the suit make it clear that the income from the topes was included in the general accounts of the community, and the ledger books showing that the income from the topes was enjoyed by defendant 1 on behalf of the temple has been found to be a recent-concoction by all the Courts. Exs. C-l (relating to fasli 1317) A series and D-(pattah issued on behalf of the Karvetnagar Samasthanam) are in the name of both defendant 1 and the plaintiff, and they are in respect of the topes in question. Defendant l 's previous deposition Kl contains important admissions against his present contentions as also his depositions in the present suit as D.W. 1. He admits that the plaintiff and himself are the Periathanakars of the community, that in fasli 1316 or 1317, he knew that these topes were described in the accounts as the topes of the community; he adds that it was only four or five years back that he heard that they were puttahed in his name and in plaintiff l's name. The two Periathanakars.have been managing the affairs of the community for a long time. For suits in regard to these topes moneys were spent and they are entered in the account as gramapathu (p. 30 of his deposition). Further,, amounts are shown as spent as gramapathu for removing prickly pear in the eastern tope, the entries being in defendant l's brother's handwriting. He says that he credited marriage collections to the temple as the villagers asked him to do so. At p. 32, he admits that tope pattah suit was conducted at Ranipet against Mangapathi-plaintiff 1 only. He admitted that the village collections were all with him, At p. 33 in re-examination he said:

balance of village account if any, will betaken to temple account at the end of the year.

18. Having regard to the admissions made by defendant 1 and the circumstances proved in the case, I think that the learned Subordinate Judge had materials before him on which he could have come to the conclusion that possession of the topes was with the plaint community only, that defendant 1 had not got the possession of the same as trustee (in the legal sense) that whatever possession defendant 1 had must be taken to have been only on behalf of the village community, that the same could not be said to be adverse to the village community, whose title to the topes has been found by all the Courts, that the criminal proceedings which upheld defendant l's possession could not operate to render it adverse to the village community, and that the community had not lost its rights to the topes by adverse possession.

19. In the circumstances, I do not think it necessary to discuss in detail the status of defendant 1 as a trustee defacto or de jure of the temple. For disposing of the present second appeal, it is enough to say that the right of the community to the topes has not been lost by adverse possession.

20. It follows that the decision of the learned Subordinate Judge was correct. The second appeal is dismissed with costs.


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