1. The facts on which the suit (out of which this appeal arises) is based are as follows: One Kalayana Rama Ayyar of Kumbakonam established a choultry as a rest house and for feeding Brahmins and endowed certain properties for its maintenance and upkeep. It became known as Kalyana Rama Ayyar Chatram He died in about 1855 leaving five sons. On 22nd August 1864, there was a partition between the sons by Ex. A which provided that the eldest son Sivasubramania Ayyar should conduct the charity during his lifetime and after him the other brothers in order of seniority. In the year 1871 Sivasubramania Ayyar surrendered the management of the choultry in favour of the next two brothers Venkataranga Ayyar and Suri Ayyar. The fourth son Swaminatha Ayyar died in 1881 after disposing of his property by his will dated 7th November 1881 (Ex. B). Under this will two thirds of the income of his properties were devised to his wife Chellathammal for her life, and the remaining one third was to be utilized for the purpose of feeding Brahmins in the family choultry. After the death of his widow, two thirds of the two third share given to the wife, should be utilized 'for (the) charity' and the remaining one third was to be taken by his brothers Venkataranga Ayyar and Suri Ayyar who were also appointed executors under the will. On 30th July 1882 Sivasnbramania Ayyar executed a formal deed of surrender in favour of Vankataranga Ayyar. Venkataranga Ayyar managed the charity until his death in 1884. Afterwards Chellathammal died about July or August 1892. Sivasubramania Ayyar died in 1910 and the fifth brother died before 1884. Suri Ayyar was conducting the charity and carrying out the directions of Swaminatha Ayyar's will till his death on 29th December 1913. Prior to his death he executed a will on 29th June 1913. Some of the descendants of Suri Ayyar took possession of the charities. Thereupon, certain daughter's sons of Kalayana Rama Ayyar, the founder of the Chatram, instituted O.S. No. 90 of 1916 of the Sub-Court, Kumbakonam for the settlement of a scheme in respect of the Chatram. The Subordinate Judge of Kumbakonam by his judgment directed the framing of a scheme (Exs. H and H.1). There was an appeal to the High Court. The appeal was dismissed subject to some slight modification (Exs. H-2, H-3 and H-4). There was a further appeal to the Privy Council. This was disposed of in June 1924 (Ex. H-5). The decision of the Judicial Committee is reported in Vaidyanatha Ayyar v. Swaminatha Ayyar (1924) 11 A.I.R. P.C. 221. One of the points raised in the course of that litigation was that the gift of two thirds of two third under the will of Swaminatha Ayyar after the death of Chellathammal 'for (the) charity' was void for uncertainty. All the three Courts held in the course of that litigation that these words plainly referred to the Chatram charity which had immediately before been indicated and the gift was not void for uncertainty.
2. The present suit was filed on 26th April 1920 by the trustees appointed under the scheme to recover the properties which, according to the decision in the former litigation, belonged to the trust but which were in the unlawful possession of the various defendants under alienations made by Suri Ayyar. Under Ex. 1 dated 9th May 1898 Suri Ayyar sold the items described in Schedule C of the plaint to the father of defendant 5. The properties in Schedule C have been acquired by Government under the Land Acquisition Act and are now represented by a sum of Rs. 48,122-14-7 deposited in the Treasury by the receiver appointed by the Court pending litigation between defendants 5 to 13 inter se in O.S. No. 67 of 1919 on the file of the Kumbakonam Sub-Court. This alienation recognized that one third of the income of the properties was to be devoted for the Chatram, but proceeded on the footing that the whole of the remaining two third was the property of Suri Ayyar, i.e. Suri Ayyar acted on the footing that the gift under the 'will of Swaminatha Ayyar of two thirds of two third 'for (the) charity was void and therefore instead of being content to claim only two ninth of the property he claimed two third of the property. He recognized the right of the trust only to the extent of one third instead of recognizing it to the extent of seven, ninth. Defendants 5 to 13 now represent the alienees under Ex. 1. In 1910 Suri Ayyar executed another sale dead (Ex. IP) in favour of defendant 4 of the properties in Schedule B. The dispute regarding these properties has been compromised in the Court below and is not before us in this appeal. By Ex. 3 dated 2nd June 1912 there was another alienation by Suri Ayyar of the properties in Schedule A in favour of defendant 1 who is an Advocate of Kumbakonam. These alienees were not parties to the former litigation and they accordingly raised the plea that the gift under Swaminatha Ayyar's will of two thirds of two third of the property was void for uncertainty and contended naturally that the judgments in the former litigation did not bind them. This was one of the points to be decided in the case. There was also a question of limitation raised by the contesting defendants. This is the other point arising in the case and is the subject of issue 11.
3. The Subordinate Judge found the first point in favour of the defendants. On the question of limitation he found that so far as defendant 1's alienation under Ex. 3 is concerned, it was not barred, but as to defendants 5 to 13 he held that the suit was barred by limitation even as to the one third share recognized to belong to the charity. The plaintiffs have filed this appeal. (On the question of construction of the will, his Lordship found that the construction put upon it by the Judicial Committee in the previous litigation was the proper one and held accordingly differing from the Subordinate Judge). The next question is that of limitation. On this matter I agree with my learned brother in thinking that the suit is barred by limitation so far as the property in Schedule C is concerned. (His Lordship then discussed the evidence regarding the points covered by the memorandum of objections and found in favour of the defendants-respondents.)
4. I agree. As regards the 1898 alienations (Schedule C), the question of limitation has been very strenuously argued, but I do not consider it necessary to traverse all the grounds covered. Two Articles scheduled to the Limitation Act are relied upon, the old Article 134 and Article 144. Article 134 (before its recent amendment) is said not to apply because here there is no express trust. Article 144 is said not to operate as a defence here because 1912 is the critical date for a reason that cannot be shortly stated but can be expressed as follows. It is urged that in India a variety of objects have been held to be capable of owning property. These objects, not being human, must, of necessity, have their property managed for them. Such managers are not in the position of trustees. The legal estate merely (leaving the equitable estate in the object) is not vested in the managers. The legal estate is vested in the object and the conception of an equitable estate does not arise at all. Such objects are juridical persons, as capable of holding property as a public company duly empowered. As in the case of the directors of a public company, its managers are not trustees though the relationship may well be fiduciary. Examples of such persons are idols, some temples and some mutts.
5. In such cases, it is further said, the manager though having no estate, legal or equitable, has power to alienate on behalf of the object. That power goes so far as in confer title upon the alienee. In some cases that title is void able. But even where void able, it may be good during the lifetime or period of office of the manager. If that is the position in any given case, then the alienee is not in adverse possession until the title is avoided. Until than, the title transferred is good and the alienee must be deemed to be holding under it. It follows therefore that cases may arise where, say, the alienation is in 1900; the manager alienating continues in office until 1920 and then a new manager comes on the scene and the question will arise whether the period of limitation dates from 1900 or 1920. If Article 144 applies, then, in the case put, the adverse possession starts in 1920. Article 131 does not apply because there is no trust.
6. On the other hand, if the original transfer was void, then the alienee would have been in adverse possession since the date of transfer i.e. 1900 in the case above put. The above is the effect of Vidya Varuthi v. Baluswami Iyer, (1922) 9 A.I.R. P.C. 123 Ram Charan Das v. Naurangi Lal, and Subbaiya Pandaram v. Mahammad Mustapha Maracayar, (1923) 10 A.I.R. P.C. 176 and the cases there cited and later oases such as Mahadeo Prasad Singh v. Karffa Bharthi (1935) 22 A.I.R. P.C. 44 which follow the above. The 12 Pat 251s group is dealing with the case of a transfer that is effective up to a time; the Subbaiya Pandaram v. Mahammad Mustapha Maracayar, (1923) 10 A.I.R. P.C. 176 group with oases void ab initio. Both groups date the adverse possession from the moment the alienee is without lawful title. That time is, in the case of a void transfer, the date of the transfer; in the case of a void able transfer, the date of the avoidance; in the case of a transfer effective for a period (whether because of estoppel or otherwise), the date of the termination of the period.
7. It will be observed that cases within the 12 Pat 2513 group are cases where the manager or mahant is purporting to transfer on behalf of the object (mutt, temple, etc.), i.e. the juridical person. And this must be so. For the legal estate is in that person. Obviously therefore a good title could not be conveyed by the manager if the manager was not purporting to sell the land of the juridical person (owner) as manager but was purporting to sell his own land as owner. For, such a case would be a case where a man was selling what did not belong to him, and at the suit of the real owner the transaction would obviously be void. This is the kind of case considered in Subbaiya Pandaram v. Mahammad Mustapha Maracayar, (1923) 10 A.I.R. P.C. 176 6.Mahadeo Prasad Singh v. Karffa Bharthi (1935) 22 A.I.R. P.C. 44 where the transfer took the form of an execution sale under a decree obtained against the manager (or trustee) personally. It was held by the Privy Council that the alienation was void ab initio against the charity and the adverse possession accordingly dated from the transfer.
8. Now, despite the above manifest differences between the facts of those cases and the facts here, it is sought to apply those decisions and those principles to this case in the following way: (I). There being, it is said, no express trust contained in this, will and no trustees appointed, there is here no trust. Executors as such are not express trustees: In re Davis; Evans v. Moore, (1891) 3 Ch 119 , In re Laoy; Royal General Theatrical Funds Association v. Kydd, (1899) 2 Ch 149 , John William Cunningham v. George Octavius Foot, (1878) 3 A.C. 974 and In re Mackay; Mackay v. Gould, (1905) 1 Ch 25 . We are therefore, it is urged, not concerned with the conception of trusts, equitable and legal estates, trustees, and cestui que trust. We are dealing with a charitable institution which under the law of India can hold as a legal persona the legal estate. The legal institution here it is said, is not the choultry; it is not the poor that are to be fed; it is the idea of feeding the poor at this choultry. Freed from the clinging: folds of matter, form realizes the idea. One's mind goes back in imagination once more to the Academia. (III). This idea being clothed with legal personality and vested with the legal estate operates by means of human agency. The human agency is the surviving executor. (IV). The surviving executor having transferred the property not on behalf of the legal owner (the above-mentioned idea) but purporting to be the legal owner, transfers, it is said, a good title for his lifetime in the same way as a mahant of a mutt purporting to sell the mutt's property for the mutt's necessities, when in fact there is no necssity, conveys avoidable title. (V). There fore, it is urged, possession only became adverse in 1912 when the executor died and not in 1898 when the transfer took place.
7. My observations on the above are that, as to (I) under the terms of this will the persons named executors were not merely executors, but were charged with the duty of managing the property and paying l/3rd of the income to the charity and 2/3rd of the remaining 2/3rd of the income to the charity after a certain event. Bearing in mind that only income was being disposed of, and some one must have the legal estate in the corpus, bearing also in mind the duties cast upon the executors and also bearing in mind the possibility of having successive legal estates, I am in the opinion that here the executors were in all but name trustees. This is really enough to dispose of the matter, for it brings in Article 134 (which contests both the 4/9th and 1/3rd). But assuming that I am wrong as to this, I pass to (II). I find it a little difficult to treat (II) seriously. My reason for this is not the inherent impossibility of the conception. On the contrary, there is no particular difficulty about vesting, by a fiction, some purpose or object with the qualities of a legal person. But I ask myself, how is it that in a country where the feeding of the poor has been made the object of tens of thousands of gifts intervivos and by will, where it is widespread and benevolent idea that to feed the stranger and those in want is a pious and worthy thing to do, how is it that it has never been decided that in such cases the idea of feeding the poor, or the stranger or the place where the poor are fed are legal persona capable, without the intervention of any trustee or any scheme of owning property? But assume that this idea is a legal person capable (III) of operating through a human agent and that agent (for no apparent reason) is the executor, still (IV) raises a fatal difficulty. This executor acting as manager of this juridical person did not alienate as manager the legal estate of the juridical person. He purported to sell (as to 4/9th) the property as being his own. It was not his own. He never purported to pass title as manager of a juridical person clothed with the legal estate. I accordingly reject the conclusion arrived at in (V) and conclude that the alienation was void ab initio, the possession was adverse in 1898 and the suit is barred.
10. There is, however, another point that must be mentioned. It is said that while the executor was alive there was nobody competent to sue. The answer is: The executor could have sued. Then it is said: But as the executor was the alienor he was not likely to sue even assuming he was a thoroughly honest man. He believed he had title and that belief was derived from a possible reading of an ambiguous will. If he was dishonest, he is all the less likely to sue. That of course is not really a legal but a practical objection. Even that, I think, is answered by saying that the testator's heirs (or next of kin) could and would have sued or at least would have sought the aid or permission of the Advocate-General and thereby set on foot proceedings either to remove the trustee or to set aside the transfer.
11. Cases such as Jalandhar Thakur v. Jharula Das (1914) 1 A.I.R. P.C. 72 have in my opinion no bearing on this case. That case turned on the fact that where a man of low caste purports to carry on an office only capable of being conducted by a man of high caste and wrongfully receives offerings and appropriates them, then (1) he has not taken possession of the office and (2) on every occasion on which he wrongfully takes offerings he commits a new actionable wrong. Meyyappa Chetty v. Subramanian Chatty (1916)3 A.I.R. P.C. 202 shows that where there is a will and an executor, though no probate, the executor's title and authority being derived from the will, the testator's rights of action vest in him and time begins to run from the death. That largely turns on Section 17 which does not apply here, We are here concerned not with the rights of the settlor but with the rights of cestui que trust.
12. Manikka v. Thanikachalam (1917) 4 A.I.R. Mad 706 was a case where X was trustee of temple A and trustee of temple B. In 1894 X died and Y was appointed trustee of temple B. No one was appointed trustee of temple A. Daring X's lifetime he had been in possession of the lands of temple A and temple B. When 7 succeeded he in fact took possession not only of the lands of temple B but also of the lands of temple A. Trustees were eventually appointed for temple A in 1900 and in 1911 these trustees sued for possession. It was held by a Bench of this High Court that the action was not time-barred because until 1900 there was no one competent to sue and consequently possession was only adverse from 1900, i.e. adverseness of possession was made dependent upon there being a possible plaintiff. This proposition is in turn founded upon Peria Aiya Ambalam v. Shunmuga Sundaram (1914) 1 A.I.R. Mad 334. That was a case involving a mortgagor, mortgagee in possession and A. A dispossessed the mortgagee in possession. The question was when did that possession become adverse to the mortgagor and it was held that it dated not from the dispossession, but from the date the mortgagor knew that the possession was adverse to his interest, for, up to that moment he would have no reason to think his rights were being invaded or that he had any cause of action to litigate.
13. The proposition laid down in Meyyappa Chetty v. Subramanian Chatty (1916)3 A.I.R. P.C. 202 is also based on Jagadindranath Roy v. Hemanta Kumari Debl (1905) 32 Cal 129 It is a little difficult to see what bearing that case has. There A, as shebait of an idol, sued. He sued after the normal period of limitation had expired, but he brought the case within the rule which relates to actions by minors for at the time the cause of action arose, he, the then shebait, was a minor and he sued within 3 years after attaining majority. It was held that even though the property be in the idol, the possession and management is in the shebait. Consequently the shebait alone has the right to sue for invasions of possessory rights and the fact that the appropriate plaintiff is a shebait does not affect the application of the section relating to minors. Manikka v. Thanikachalam (1917) 4 A.I.R. Mad 706 is a very short judgment delivered in second appeal and purports to be based on the two decisions above cited. It would appear that the line of reasoning underlying that judgment is this: a temple can own but not possess. Possession is in the temple trustee: Jagadindranath Roy v. Hemanta Kumari Debl (1905) 32 Cal 129 Therefore, if there is no trustee there is no one possessed of possession, no one to defend possession, no one against whom possession can be adversely held. Therefore the possession by a stranger is not adverse until trustees for the temple are appointed, for until then there is no one possessed on behalf of the temple.
14. However that may be, it does not touch this case where the right to sue was in the executor who at all material times was the person entitled to possession and was able to sue and knew all about the right of action, once one assumes he was aware of the true construction of the will. Palanlyandi Malavarayan v. Vadamalal Odayar (1916) 3 A.I.R. Mad 1001 was a case of a claim to a hereditary office and the question was whether Article 120 or Article 124 applied. It is discussing what is the starting point for limitation. It considers that it is 'when the defendant takes possession of the office adversely to the plaintiff'. Therefore if there is no 'plaintiff', i.e. no one in existence capable of claiming, i.e. no trustee of the temple, there is no taking possession adversely to the plaintiff, for there is no plaintiff; That is all that case decides. At page 725 however is the following sentence:
It is a recognized principle of law that the statute of limitation would not run when there is no person competent to sue. This is the principle underlying Section 17, Limitation Act.... This principle was acted on in England...it being held that the cause of action could not be said to arise before 'there is anybody in whom it vests'.
15. In support of this proposition, as one depending not upon any particular section of a statute but upon a principle of procedure, there is then quoted Murray v. The East India Co. (1821) 5 B & Ald 204 In that case at p. 1171 Abbott C.J. observes:
Now independently of authority, we think that it cannot be said that a cause of action exists, unless there be also a person in existence capable of suing.
16. Then turning to authority, the Lord Chief Justice refers to (1689-1712) 2 Salk Referred in Saffyn v. Adams (1603-25) Cro Jao 60 and Fairclaim v. Little unreported but noted at p. 1171 of 106 E.R. The law of limitation is of course purely the creation of statute.
17. Here however there is a person capable of suing. I consider that here the real question is: If A, a trustee, alienates property he honestly believes to be his own, but which on a true construction of the deed of trust belongs to the cestui que trust, does time which the trustee allows to pass owing to this mistake, count when computing limitation? So posed, the question appears to me to answer itself. If a person could extend the time for suing by alleging that he had mistaken the meaning of an instrument, a most serious inroad would be made into the law of limitation and that quieting of title which is the reason for and the policy behind the statutes of limitation would be gravely disturbed. But here indeed the matter hardly goes so far as that. Who is there now to say that the executor who alienated had misconstrued the will? He may have been mistaken; he may have known all along the truth.
18. In any event a charity being the beneficiary, the Advocate-General could take steps and those of the family of the testator anxious to see his wishes carried out even if they could not directly sue, and as above indicated I incline to the view that they could, they could have informed the Advocate-General of the position or, what is quite clear, they could have, by appropriate proceedings with the leave of the Advocate-General, removed the executor, trustee from his trusteeship, replaced him by a new trustee which trustee could have sued. I am accordingly of the opinion that as to the 1898 alienation the defence of limitation succeeds.