1. The appellant is defendant 4 in the mortgage suit brought by the appellant in O.S. Appeal No. 87 of 1933. The mortgage was executed by-one Appadurai Gramarti, the father of defendants 1-4, and by defendants 1-3, and Appadurai also executed it on be-behalf of defendant 4 who was then a minor. The mortgage comprised a plot of land which Appadurai's father, Tanikachala, had dedicated to a private temple built by Thanikachala on the land. The first three defendants were ex parte. But defendant 4 defended the suit. In his written statement he raised the plea (inter alia) that the particular plot having been dedicated to charity could not be bound by the mortgage. The learned Chief Justice who tried the case permitted the plaintiff-mortgagee to file an additional statement wherein the plaintiff pleaded that Appadurai and his sons had acquired title to the plot by adverse possession and that they were therefore competent to mortgage it. The learned trial Judge found that a title by adverse possession had been acquired. The correctness of this finding is the subject of this appeal.
2. Tanikachalla made a - will a few years before his death. This attempt to dispose of his property was objected to by his sons, and led to the matter being submitted to a panchayat. The panchayatdars made their award (Ex. 4). The award recites that a garden of 6 cawnies had been dedicated to charity by Tanikachalla for the performance of puja at the temple which he had built there and at the samathi or tombs in the garden and for the feeding of 100 pandarams at Tirupporur, and that his sons had consented to the endowment. The award was given in March 1893. In May following Tanikachalla put up a stone in the garden with an inscription Ex. 3 (a) stating that he had built a temple and had made a private dharmam arrangement and that no member of his family had any right to alienate the property. In December 1893 he executed a registered deed of gift (Ex. 7). This deed recites:
I have built a Kanniaka parameswara temple; and have been doing puja. To this temple I have made a gift.
3. And then it provides that he and his wife Manonmani were to have the conduct of the charity, viz. the puja at the temple and the feeding at Tirupparur, during their lifetime. It further recited:
On our 'death, we shall bo buried in'tho abovesaid garden and tombs built arid puja shall be done to these tombs also, by Raju (xramani, the son by the third wife, whom we have appointed from among our sons in our last days, and if he happens to die without issue, such person as may be appointed by him from among the sons of my other sons shall conduct the abovesaid dharma Kainkaryams.
4. Tanikachalla died in May 1896, and Manonmani became entitled under the deed to the management of the endowment. His sons however whose consent to the dedication had been obtained in the panchayat award, lost little time in tearing up that treaty. In February 1897, they entered into a partition deed by which they divided up their father's properties, including the endowed garden, this last named piece of property being allotted to Appadurai. The mortgage, namely the suit mortgage, of this property was made in November 1922, more than 25 years after the partition. It has been suggested in the argument that it was competent to the family to put an end to what was a private family endowment, and that the partition must be regarded as effecting this result. If this contention is sound, there is an end of the case. But we think it cannot be maintained. Assuming that as a private religious endowment, it was one which could be converted into secular property, by the consensus of the whole family, this could only be done with the consent of all the male and 'female relations of the founder interested in the charity: (see Golapchandra Sarkar Sastri's Hindu Law, Edn. 7, p. 860). Manonmani, as the appointed manager of the endowment, was interested in the charity and her consent would be necessary to the termination of it. But there is no evidence that she consented to or was consulted upon the partition of the property. She was not a party to the partition deed, and all that she has done is to put her mark in witness of the execution of it by Appadurai and his two brothers. That will not be proof of her consent to the contents of the deed. The question then remains whether at the date of the suit mortgage Appadurai and his co-mortgagors-had obtained a title to the endowed property by adverse possession.
5. It is clear from the document (Ex. 7), that there was a complete dedication of the land to the temple or to the idol located therein. There,-was no conveyance in trust to any person on behalf of the idol. There was consequently No. trustee' in the strict sense of the word, appointed. The appointment made in the deed of Tanikachalla himself and of Manonmani and then of Raju, was the appointment of persons who were to act as managers of the endowment. The distinction between a person so appointed and a 'trustee.' has been pointed out by their Lordships in Vidya varuthi v. Baluswami Ayyar 1922 PC 123 , where they say:
Neither under the Hindu law nor in the Mahomedan system is any property 'conveyed' to a shebait or mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain Beneficial interests regulated by custom or usage.
6. We think that the deed (Ex. 7) vested the legal estate in the idol. The only fight with which the manager was invested was the right to manage the garden and to spend the balance of any profit derived from it on the puja and charity. However, far the purpose of Section 10, Lim. Act, a manager of a religious endowment is in the same position as an express trustee. This is the effect of the amendment introduced by way of an exception to Section 10 by the Indian Limitation (Amendment) Act of 1929. The Exception says;
For the purposes of the section any property comprised in a Hindu religious or charitable endowment, shall be deemed to be property vested in trust for a specific purpose, and the manager shall be deemed to be the trustee thereof.
7. The amended section was in force when this suit was brought, and therefore would be applicable to the suit :Mt. Allah Rakhi v. Shah Muhammad Abdur Rahim 1934 PC 77. Under Section 10 no length of time will bar a suit against an ex. press trustee or his legal representative, or assigns (not being assigns for valuable consideration) for the purpose of following the trust property in his or their hands. The rule is that an express trustee cannot prescribe for a title by adverse possession against his beneficiary, and, of course, the trustee's legal representatives or assigns (without valuable consideration) are in no better position than the trustee himself. But the rule does not prevent a stranger to!, the trust,-who takes possession of the trust, property independently of the,. trustee, from acquiring title by adverse possession. These propositions are in-! disputable. It has been contended! that Appadurai was the legal representative not of Manonmani in whom the management of the endowed property vested on Thanikaehalala's deaths but of. Thanikachala, the original manager or 'trustee'. There is no substance in this contention. There is no evidence that on Thanikachala's death. Manonmani renounced the management. It is not to be assumed that she, did. She was dejure manager. Whether she-carried on. the duties of the management in the brief interval between, her husband's death and the partition of the property by her step sons there is no evidence to show, and there was not likely to be, any evidence after the lapse of so many years. Manonmani survived till 1918. Appadurai as a son and heir of Thanikachala might be his legal representative in respect of his separate property; but he had no locus standi to. represent Thanikachala in respect of the. endowed property vested in the idol and of which Manonmani was the appointed manager.
8. The substantial argument is that Appadurai mttst be regarded as having taken the property subject to. The 'trust' and that he was consequently; in the position of a trustee de son tort., There can be no doubt that if Appadurai took the endowed land subject to the ''trust' he would be subject to the disabilities of an express trustee, including the inability to acquire a title to the trust property by adverse possession. Thus, in Soar v. Ashwell (1893) 2 Q.B. 390 Lore Esher said:
The cases seem to decide that where a per son has assumed either with or without con-sent, to act as trustee of money or other property, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee.
9. In the argument reliance has been placed on the statements in the partition deed that the puja at the tomb and in the temple would be performed by Appadurai and Baju Gramani. There is no mention made of the feeding of Pandarams at Tirupparur. And the conclusion which we have been invited to draw is that the brothers were undertaking the duties of the 'trusteeship'. We think that these pious resolutions fin the partition deed signified nothing. It is apparent from the evidence that beyond the father's annual' ceremony- which is a duty common to Hindu sons none of the charities, puja or feeding, instituted by Thanikachala were perform ed from the moment that Appadurai usurped possession of the endowed property. Neither he nor his brothers assumed to act as 'trustee' of the property. On the contrary, their conduct hows that they took the earliest opportunity of making an end of the charities.
10. Turning to Appadurai's conduct with regard to the dedicated property taken by him on the partition, there is evidence that he mortgaged it in 1909 and again in 1914. In 1915 he filed his Insolvency Petition in which he included among his assets this same property, claiming 1/5th share in it, he having four sons then living. All these acts were quite inconsistent with his recognising any title to the property remaining in the idol or any right of Manonmani to manage the property. It is impossible to believe that Manonmani was not aware of the use to which Appadurai was putting the property. In our opinion the evidence establishes that his possession became adverse from the time of the partition deed, and accordingly a title by prescription had been obtained by him to the property long before the suit mortgage was executed. Possession adverse to the manager of property dedicated to an idol is radverse to the idol, and will extinguish the idol's right to the property : Jagadindranath Roy v. Hemanta Kumari Debi (1905) 32 Cal 129 and Damodar Das v. Lakshan Das (1910) 37 Cal 885.
11. But it has been contended on the strength of Phillipson v. Gibbon (1871) 6 Ch 428 , that the presence of the inscribed stone (Ex. 3-a) in the garden is incompatible with an intention to hold the property adversely to the idol. In that case a vendor had filed a bill for specific performance of a contract to purchase a house. The purchaser's objections to title had been overruled; but he then discovered on a wall of the property an inscription stating that the title was in the East India Company. It was held that the vendor had not a good title. The Lords Justices observed:
When there is a boundary wall and that boundary wall remains undisturbed, and an inscription is allowed to remain in it as evidence, or as a statement to all the world that it : is the boundary wall of the adjoining proprietor, it seems to us idle to suppose that any question of the statute of Limitations, or of adverse possession, or of cesser of possession, could properly arise.
12. The facts in the case before us are very different. There is evidence that the stone was removed from its original position in the garden when some of the land had been compulsorily acquired, and had been put up in another place. The circumstances that the stone continued to be set up in the garden appears to us to have no more significance than the circumstances that the tombs and the temple were left untouched. It is apparent from the other evidence that Appadurai and his brothers deliberately ignored it and its purpose.
13. We accordingly agree with the finding of the learned trial Judge that Appadurai had acquired a title to the property in question at the time of the suit mortgage, and we dismiss the appeal with cost.