Govinda Menon, J.
1. These two second appeals arise out of O. S. No. 113 of 1944 on the file of the Subordinate Judge's Court of South Kanara. The appellants in each of these appeals are persons who allege themselves to be the owners of the properties which are the subject-matter of dispute. Defendants 10, 11 and 8 are the appellants in S. A. No. 2 of 1949 and defendants 2 and 4 are the appellants in S. A. No. 47 of 1949. The plaintiffs, who are the contesting respondents, are the trustees of the suit temple appointed by the Hindu Religious Endowments Board and they seek to recover possession of the plaint properties from the defendants on the ground that they are temple properties. The appellants in these appeals originally belonged to one family which became divided long ago and they put forward the contention that the properties are not temple properties but belonged to the joint family of which they constituted members, though there was an obligation fastened on them, viz., that with part of the income from the properties certain ceremonies in the temple should be conducted. Both the lower Courts found that the temple is the owner and directed surrender of possession of the properties by the defendants. Hence these second appeals.
2. The first argument put forward is that the plaint temple is not the owner of the properties mentioned in Schedules. A to C and in support of it counsel for the appellants in each of these appeals relied upon certain documents which, according to them, have been misconstrued by both the lower Courts. It is the admitted case that the family of the appellants was at one time the trustee of this Sri Mahalingeshwara Mahadevaru Devastanam and it had also the right of archakatvam i.e., performing the pooja in the temple. Both Messrs. K. Srinivasa Rao and T. Krishna Rao for the appellants contend that the lower Courts are wrong in interpreting the expression 'Mahalinga Devaru Uttara' occurring in Exs. P. 1 and P. 2 as meaning absolute ownership of the temple. The learned Judges in the Courts below have understood the expression in these documents as signifying that there have been admissions by the managers of the defendants' family as early as 1858 and 1863 that the plaint properties are the deity's properties. It is now contended that the word 'uttara' does not connote any absolute right in the temple but that what is meant is only that the temple has some sort of right over the income of the properties to be utilised for the performance of the religious ceremonies. In Ex. P. 2 Ram Bhatta, the then head and manager of the defendants' family, styles himself as the mokthessor or trustee of Srimath Pervaje Mahalinga Devaru and the property dealt with therein is described as 'Mahalinga Devaru's uttara'. There is no word mentioned anywhere in the judgment of either of the lower Courts that this expression means anything other than complete ownership of the temple. Both the trial Judge and the appellate Judge have understood the expression as vesting the ownership in the temple. Moreover, Ex. p. 4, the settlement register, describes the temple as 'wargdar' or the owner of these properties- The contest in both the lower Courts was that the defendants' family is the owner as contradistinguished with the ownership of the temple. Some recent documents were produced on behalf of the defendants Justifying their contention that the temple cannot be said to have absolute rights over the properties. D.W. 1 who is defendant 1 and one of the chief contesting defendant, did not depose that the expression 'uttara' meant anything other than absolute rights. The learned Subordinate Judge in paras. 17 and 18 of the judgment discusses the meaning and import of the expression 'uttara' occurring in Exs. P. 1 and P. 2 and nowhere do we find any statement by him that the defendants put forward the contention that the exoression 'uttara' meant any thing except 'full fee simple'. In view of the admissions contained in Exs. P. 1 and P. 2 and the fact that in the settlement register the properties are described as temple properties, whatever might have been the assertions made by the members of the defendants' family who were the trustees of this temple as well as to the effect that they are the owners of the properties, we have no hesitation in agreeing with both the lower Courts that the properties mentioned in Schedules A to C are endowed properties belonging to the temple. Even if the word 'Uttara' meant anything other than absolute rights we cannot say that Ex. P. 2, not being a deed of dedication, can be interpreted as limiting the rights which the temple had. Ess. P, I and P. 2 can by no means be called 'deeds of dedication'. At the time Exs. P. 1 and P. 2 came into existence there was the basic fact that the family was both the trustee as well as the archaka. In Ex. P. 3 also there is the description that the properties granted in mulgeni belong to Mahalinga Mahadevaru. As stated by the learned District Judge, the few documents on the defendants' side in which private ownership of the properties is claimed are of very recent origin and cannot therefore outweigh the effect and importance of the earlier documents. In such circumstances, it seems to us that both the lower Courts were right in coming to the conclusion that the temple is the owner of the properties.
3. The next question that has been elaborately argued relates to the acquisition of ownership in the family by adverse possession. The earliest document by which an arrangement was made for the enjoyment of some of the properties is Ex. P. 1 by which the two branches of the family agreed to keep some properties for the performance of the ceremonies and the festivals in the temple and divided the rest of them among the branches, with a stipulation that since the properties belong to the deity as 'uttara' property, the branches to whom the same have been allotted should not alienate them at all. This state of things continued till about the year 1917 when one of the branches divided the properties it got possession of without any reference to the temple and treated them as its absolute properties. The other branch also, later on, divided the properties in the same manner and some of the properties have been alienated to third parties as well. What is now urged is that when in 1863 some properties alone were retained for the performance of the ceremonies in the temple and the others were divided between the two branches and only the manager of one branch was made responsible for the performance of the ceremonies, at Jeast over the properties allotted to the other branch, the persons in possession dealing with them subsequently, must be deemed to have acquired ownership by adverse possession and prescription. Exs. D. 2, D. 3 and D. 4 which are partition deeds In the respective branches dealt with the properties on the footing that the temple has no rights over them at all.
4. Strong reliance was placed upon the decision in -- 'Rajagopala v. Anjaneya', AIR 1943 Mad 558 (A), where this Court, following --'Iswari Ehubaneshwari v. Brojo Nath , held that if property dedicated for a public charity, of which the father of a joint Hindu family was the trustee for the time being was treated by the father and son together as belonging to the family for more than 12 years, disclaiming thereby the right of the public trust to that Property, then, so far as the son was concerned, his claim was adverse to the trust and as such he had acquired an interest to the extent of one-half, we do not think that the principle enunciated there should be applied to the present case. In the original partition in tne family evidenced by Ex, P. 1 there is a clear recital that the property is the deity's uttara property incapable of being alienated; and the subsequent treatment of the property on the footing that it is joint family property would not be an assertion of claim adverse to the trust as such. The trusteeship is vested in the family. There are observations in -- 'Alasinga Bhattar v. Venkatasudarsana Bhattar : AIR1936Mad294 CO., wherein Venkataramana Rao J. states:
'So far as the trust is concerned, whoever manages the office by turns must be deemed to be managing on behalf of all and management by one of them in rotation is not considered to be adverse or exclusive to other co-trustees.'
At page 299 also the learned Judge observes:
'In every case of partition where several branches enjoy the office by turns there is no surrender or renunciation. It is always subject to the implied condition that the resumption of actual management can be availed of either by consent of parties or through Court and there is no question of divesting themselves of all control over the offices.'
Such being the case, it cannot be contended for a moment that by dividing the trust properties between themselves the members have in any way disclaimed the interest of the trust in the properties.
5. Mr. T. Krishna Rao for the appellants in S. A. No. 2 of 1949 would put his case in this way. Section 10, Limitation Act cannot apply to the facts of the present case because the various branches among whom the properties have been divided cannot be said to be assignees as contemplated under Section 10, Limitation Act and therefore the principle that a trustee or his assignee, not being assignee for valuable consideration, cannot prescribe against the trust, will not be applicable to the present case. Learned counsel develops his argument by stating that under the circumstances of the present case, Article 134 B, Limitation Act will also be inapplicable, for this Article applies only to transferees for consideration. Therefore the only provision of the Indian Limitation Act which could properly be applied is Article 144 and since more than twelve years had elapsed after the oldest of the partitions between the family, the suit with regard to the properties set apart to the various branches other than those specifically assigned for the performance of the oeremonies in the temple will be barred by limitation. In order to show that partition is not an assignment as contemplated, under Section 10, Limitation Act, our attention was drawn to a recent judgment in -- 'Radhakristnayya v. Sarasamma', : AIR1951Mad213 (D); where the learned Judges -held that partition is really a process in and by which joint enjoyment is transformed into an enjoyment in severally. It cannot, therefore, be considered to be an assignment at all with the usual requisites of a transferor and a transferee. In our opinion the various branches to which the properties have been allotted under the different partitions still form a family and the trusteeship is vested in them all though by arrangement between them one individual performs the functions, of the trustee and hence it is unnecessary to invoke the use of the word 'assigns' occurring in Section 10, Limitation Act in order that the same might be made applicable to them. In addition to the above case, a decision of the Privy Council in -- 'Sudarsan Das v. Ram Kirpal Das', (E), was also brought to our notice. What happened there was that property belonging to a trust was sold in execution of a decree against the trustee and a third party purchased the same and continued in possession for more than twelve years. In a suit by a succeeding trustee, the question as to whether Article 134-B or Article 144 was applicable was mooted and their Lordships held that it was Article 144 that applied, because adverse possession against the trust starts under Article 144 from whatever date after the sale the purchaser obtained effective possession of the disputed property and not from the date of the death of the trustee.
When once we hold that each of the branches amongst whom the properties were divided still continued to be the family of trustees, it is Impossible to hold that any one of them can prescribe adversely to the trust. It has been held that the word 'person' in Section 10, Limitation Act includes Joint family and therefore if the properties are impressed with the character of trust, the trustee family, by becoming sub-divided, cannot throw out that character. If, by the arrangement in the family, one person is to discharge certain religious duties, that does not mean that the family as such renounced the trusteeship and the other members can claim to be holding trust properties adversely to the trust. By mere assertion it is impossible to prescribe a hostile title against the trust because the assertion must be against a person who would be entitled to face the opposition and get rid of that assertion. In this case, since the trusteeship is vested in the family, the members of the family cannot assert a hostile title against themselves. In the present suit, the written statements of defendants 1 and 2 had not disclaimed the trusteeship of the family. In para. 15 of the written statement of defendant 1 he admits that this family had both the hereditary mokthessorship and the hereditary archakaship of the plaint temple. Defendant 2 in his written statement also says that he learns and verily believes that his family had the mokthessorship and the archaka vrltti In the suit temple. It is, therefore, plain that there is no claim that apart from the family as such any member had a right of trusteeship. If that is so, the members of the family in whom the trusteeship is vested cannot, by mere declaration that the property belongs to them, assert a hostile title against the family as such and prescribe a right to adverse possession.
The evidence of D.W. 3 who is defendant 10, also brings out the fact that his branch has also the liability to perform some of the viniyogas in the temple and the C list in Ex. D. 32 shows properties out of the income from which devata viniyogas have to be performed. The learned District Judge in paragraph 11 of his Judgment discusses the question regarding the delegation of the actual management of the institution to one branch and the appropriation of the income of some properties by the other branches as remuneration for the performance of the archakatwam in the temple. We are in entire agreement with him that the partitions cannot be said to be assertions of hostile title against the trust as such. That archakas cannot acquire proprietary rights in the lands as against the temple to which the properties had been granted, because they should; be deemed to have been in possession in a fiduciary capacity, and as such could not claim adverse possession is clear from -- 'Venkatadri v. Seshacharyulu', AIR 1948 Mad 72 (P). The learned Judges refer to various cases and concluded that the archakas in possession cannot claim adverse title against the trust. In the present case, the holding of the property by the various branches can also be related to their status as archakas of the temple. To the same effect are the observations in --'Abdul Rahim Khan v. Fakir Mohammad Shah', AIR 1946 Nag 401 (G)', regarding the inability of a person in a fiduciary capacity to claim prescriptive rights against the trust. As we are of opinion that by the various partitions the branches have not lost or disclaimed the hereditary right of trusteeship, their holding the property must be in their capacity as such trustee and therefore they cannot acquire a right by prescription. The above discussion disposes of the points raised by the appellants.
6. But it is contended by learned counsel that there are improvements on the properties effected by the defendants and if we disagreed with their contention regarding the ownership, at least the value of improvements should be decreed to them when- properties are directed to be surrendered, We would certainly have acceded to this argument if there had been evidence let in on this point. Issues 9 and 10 in the Court of first instance related to the improvements, if any, effected by defendants 2 to 4 and 6 and the learned Subordinate Judge says that no evidence had been led on their behalf in this connection and therefore the claim for improvements must fail for lack of proof. Such being the case it is not possible for us to say whether the appellants are entitled to the value of improvements at all. But the appellants can prove the claim for improvements in execution proceedings. The decree for possession wi5I be conditional on the plaintiffs paying the respective defendants the value of the buildings and other improvements effected by them which the defendants will be at liberty to prove in execution proceedings. The second appeals therefore fail and are dismissed with costs -- one advocate fee.
7. The respondents have preferred a memorandum of cross-objections with regard to the D schedule properties which were obtained by the family of the defendants under a darkhast from the Government. The plaintiffs claim them as accretions to the temple properties. There is no material to show that the darkhast was granted by the Government to the trustees of the temple as such, though the plaintiffs contend that the defendants' family would not have got the same if they had not been the trustees. There is no evidence on record regarding this claim and it cannot be presumed that the Government intended to give the darkhast to the temple trustees as such. Both the lower Courts have observed that it cannot be held that the grant was made on the consideration that the adjoining temple properties were held by the family on warg right. We agree with both the lower Courts that so far as D schedule properties are concerned the temple has no right whatever. The memorandum of cross-objections is also dismissed with costs.