T. Ramaprasada Rao, J.
1. The first defendant in O.S. No. 56 of 1966 on the file of the Subordinate Judge's Court, Ramanathapuram, is the appellant. The plaintiff sued for declaration that he was entitled to be in joint possession along with the first defendant of the plaint schedule properties and for a direction that he be put in joint possession of those properties along with him and for a consequential accounting of the income from the properties for a period of three years prior to suit. Sri Boni Narayana Pillai Charity was created several years ago and amongst various properties endowed for the charity, there was an inam village which was taken over by the Government under the Estates Abolition Act. But it is common ground that from the compensation amount a Tasdiq allowance for the upkeep and maintenance of the charity as described in the third schedule to the plaint is being paid annually. Apart from the inam village, there are pannai lands, the patta for which was issued in the name of the trustees for the time being and they are included in the second schedule. The first schedule enumerates the houses endowed to the charity. Originally one Perundevi Ammal was managing the charities. Under her will and as she was competent to nominate the succeeding trustee, she nominated her son-in-law Venkatanarayana Pillai, who in turn under his will appointed one Parthasarathy Pillai, Kothandarama Pillai and Athilakshmi as executors. The nature of the trust was challenged by one Srinivasa Pillai in C.S. No. 439 of 1928 on the file of the High Court, Madras, who claimed all the properties attached to the trust as his properties. This suit was resisted. Finally, it ended in a compromise. Under the provisions of the trust deed, certain properties were situate in Madras, but were solely intended for the purpose of performing certain kattalais in Sri Parthasarathyswamy Temple in Triplicane. Pursuant to this, a scheme suit C.S. No. 1 of 1933 on the file of the High Court, Madras was filed by the trustees of Sri Parthasarathyswamy Temple. Whilst the scheme suit was pending C.S. No. 439 of 1928 was compromised. A provision therefore, was made in the said compromise decree itself in respect of the properties covered by C.S. No. 1 of 1933. The scheme suit was decreed and the properties went out of the management of the members of the family, but the temple honours alone were enjoyed by the members of the family. The plaintiff states that he is receiving such honours from Sri Parthasarathyswami Temple. Under the compromise decree in C.S. No. 439 of 1928, T. K. Thiruvengadam Pillai and Ranga Pillai acted as trustees of the charities and were managing the trust properties. Thiruvengadam Pillai died leaving a will dated 22nd October, 1941 whereunder the plaintiff was nominated as his successor. When the plaintiff sought probate of the suit will it was granted on 27th February, 1947. The first defendant, who is the son of Ranga Pillai sought to recall the probate which was granted. But again after enquiry the probate was granted to the plaintiff. The appeal against that order was unsuccessful. The plaintiff says that apart from the will, as the original heir of Thiruvengadam Pillai, he is entitled to be a trustee of the charities and as the first defendant is in sole management thereof, he has come to Court seeking for the reliefs already mentioned. He has impleaded the second defendant, who is said to be colluding with the first defendant and who is also said to be interested in ousting the plaintiff from management of the trust properties. It is claimed that the second defendant is only an intermeddler. The plaintiff accuses the defendants as persons who are not interested in performing the charities in accordance with the wills of Perundevi Ammal and Venkatanarayana Pillai. It is in these circumstances, that he filed the suit.
2. In the written statement of the first defendant it is hesitantly claimed that the plaintiff is not a representative of the branch of Srinivasa Pillai and that he is receiving the honours from Sri Parthasarathyswamy Temple not in pursuance of any right in him, but due to the mistake committed be the temple authorities. This defendant says that the plaintiff cannot claim any rights under the alleged will of Thiruvengadam Pillai and, therefore the suit is baseless. The collusion alleged between defendants 1 and 2 is denied and it is said that the trust is being performed as usual by the second defendant, who is in charge of carrying out the charities as the agent of this defendant. The other allegations noted in the plaint are denied, and lastly it is said that the suit is barred by limitation.
3. The second defendant in his written statement says that the plaintiff has no cause of action at all to institute the suit and in other respects adopts the written statement of the first defendant.
4. The third defendant, who is in possession of the trust as lessee sails with the first defendant.
Defendants 4 to 6 remained ex parte.
On the above material pleadings the following issues were framed:
1. Is the plaintiff a representative of the branch of Srinivasa Pillai?
2. Is he entitled to claim joint possession of the suit properties either in his capacity as such representative or as a nominee under the will of late Thiruvengadam Pillai?
3. Is the suit barred by limitation?
4. Is the suit property item 1 the property of 'Boni Narayana Pillai Charity' and if not, is the plaintiff entitled to claim joint possession thereof?
5. Whether the plaint discloses cause of action against third defendant?
6. To what relief is the plaintiff entitled?
5. The learned Judge found the first two issues in favour of the plaintiff and held that he is a representative of the branch of Srinivasan Pillai and he is entitled to claim joint possession of the suit properties either in his capacity as such representative or as nominee under the will of late Thiruvengadam Pillai. On issue No. 3, he held that the suit was not barred by limitation. He found issues 4 and 5 in favour of the plaintiff and decreed the suit.
5-A. Mr. Balasubramaniam, the learned Counsel for the appellant mainly rested his argument on the plea that the suit is barred by limitation. In the view that we intend taking in the matter, it would be sufficient to rest out discussion on the arguments of counsel relating to the issue on limitation, for if this is held against the plaintiff, then even though the findings of the trial Court on the other issues have to be accepted by us, it would not make any difference. We shall now therefore, deal with the plea as to bar of the suit by the law of limitation as urged by the appellant-first defendant.
6. Thiruvengadam Pillai, who appointed the plaintiff under his will dated 22nd October, 1941 died issueless on 26th November, 1945. The probate was granted to the will on 27th February, 1947. The appellate Court in Appeal No. 66 of 1954 in which the grant of the probate was questioned, dismissed the appeal on the ground that the caveator had no caveatable interest to oppose the grant of a probate to the will. Ranga Pillai died in 1952. Thereafter, it is common ground that the first defendant was in sole management of the trust properties as the sole trustee with the assistance of the second defendant as the actual manager thereof. The suit is for declaration that the plaintiff is entitled to be in joint possession of the trust properties as such trustee along with the first defendant and for a direction that he be put in joint possession of these properties. This was filed on nth June, 1966. On the above relevant and admitted facts the learned Counsel for the appellant maintains that Article 58 of the Indian Limitation Act, which is the residuary article in the matter of obtaining declarations applies and says that the suit not having been filed within three years from the date when the right to sue first accrued, it is barred. Reference is also made to Article 107 which provides that a suit for possession of a hereditary office has to be instituted within 12 years from the date when the first defendant takes possession of the office adversely to the plaintiff. The relevant Article 124 was the old article in this respect. It is contended that the trusteeship of this trust is not a hereditary office and Article 107 of the Limitation Act may not be attracted at all.
7. On the other hand, Mr. T. R. Srinivasam, would say that the suit is not barred by limitation and that Article 167 alone would apply. He would contend that the suit is not a suit for a bare declaration but being coupled with a relief for possession Article 58 would not apply. The suit has to be interpreted as a suit for possession in the main and that, therefore, the suit is in time.
8. At this stage it is useful to refer to the prior porceedings between the parties. C.S. No. 439 of 1928 was a suit instituted by one Srinivasa Pillai in which he sought for possession of the trust properties as a person, who was solely entitled to it. To that suit all the necessary claimants were made parties. This was ultimately compromised. The plaintiff therein--Srinivasa Pillai, representing his branch (of the family consisting of himself and Thiruvengadam Pillai and Ramakrishna Pillai) and the sixth defendant therein representing his branch (consisting of himself and Ranga Pillai) were made the joint trustees of the charities in question and they were put in joint possession of the properties and were obliged to perform the charities as directed in the Wills of Venkatanarayana Pillai and Perundevi Ammal. Clause 4 in the said compromise deed says that on the death of either the plaintiff or defendant 6 herein, the senior most in age in their respective families defendants 5 and 7 or their representatives, if they are not living then, shall succeed to the possession and management of the said properties set out in schedule hereto and be co-opted with the survivor and they shall hold the said properties and manage them as specified in the scheme. A reference was also made to the proceedings in G.S. No. 1 of 1935 which we shall presently refer to. The first defendant in this suit is the son of Ranga Pillai The plaintiff in this suit is the nominee of Thiruvengadam Pillai, who died leaving a will nominating the plaintiff as his successor. We have already referred to the fact that a probate of this will was granted by this Court in T.O.S. No. 12 of 1951 - O.P. No. 37 of 1947 on the file of the High Court, Madras. An appeal as against this judgment of the original side by the first defendant in the suit was dismissed by Rajamannar, CJ. and Ganapathia Pillai, J., in O.S. A. No. 66 of 1954 on the ground that the first defendant K. Venkataramanujam did not have a locus standi to file the caveat. Whilst this was the position, there was correspondence between the plaintiff in this action and the other parties interested in the charities during the year 1946. Exhibits B-3 and B-4 are very important letters, which were exchanged between the plaintiff on the one hand and the widow of Thiruvengadam Pillai and the defendant on the other. In Exhibit B-3 apparently Thiruvengadam's widow, challenged the will also. Even from Exhibit B-3, it is clear that the plaintiff by then did not secure possession of the trust properties nor was he in management thereof. Even in the affidavit filed by him in support of his application for the grant of probate, he would allege that he was entitled to the right to manage the trust and that he was entitled to joint management of the properties attached to the trust. Exhibit B-4 is a more clinching letter. This was addressed to Ranga Pillai and his agent. In this notice, the plaintiff unconditionally acknowledges that Ranga Pillai and Thiruvengadam Pillai were in joint possession and management and that a local person was appointed as the manager of the trust. He refers to the will of Thiruvengadam Pillai and affirms that consequent on the grant of the probate, he was entitled to be in joint possession. He accuses Ranga Pillai of wasting the corpus and charges him with misappropriation of trust funds and claims that he is not only the joint huqdar and trustee entitled to be in joint possession and management of the proportion but that he was one who was entitled to See to the proper performance of the charities as a member of the family. His counsel finally wrote in Exhibit B-4 as follows:
When my client called upon to you account, the first of you put in a spurious plea that you do not recognise my client's right... My client hereby gives both of you final notice that both of you are liable to account to my client for the management upto date and that my client is entitled to joint management, and possession and he will enforce his rights thereto without any further reference.
Exhibit B-4 is dated 4th March, 1949-The plaintiff, examined himself as P.W. 1, relies upon the othies created by him over two items of the trust properties and also refers to the fact that he was getting the honours in the Parthasarathyswamy Temple as a representative of the family under the scheme framed by the High Court in C.S. No. 1 of 1933 already referred to. He would say that the first defendant did not object to such honours and would add that he did not send any notice saying that he had no right in the trust. He admits that the first defendant filed O.S. No. 105 of 1962 on the file of the Court of the District Munsiff, Srivilliputhur challenging the othis made by the plaintiff. He would say that he had to mortgage properties in order to obtain money for probating the will of Thiruvengadam Pillai. It is in the context of the above admitted facts that the plea of limitation has to be considered.
9. The fact that Sri Parthasarathyswamy Temple was honouring the plaintiff by itself would not create any right. If such honours were given by the temple authorities under a mistake, that would not by itself whittle down the legal right obtained by the first defendant to challenge the present action of the plaintiff for joint possession of the trust properties. Mere conferment of temple honours would only mean the gaining of a privilege as long as it does not flow from a right of a vested and recognised office of trusteeship, such a privilege even if obtained by the plaintiff from the Partbasarathyswamy Temple will not improve matters. If the suit by the plaintiff for joint possession and for declaration asked for is barred in law on the date when he filed it, then 'the recognition of such a right under a mistake of law and fact by third parties would not bind the defendant. We are unable to-agree with the learned trial Judge that Exhibits A-9 to A-11 which are letters written by an agent to a trustee would tilt the legal position in the case. A claim that a person is entitled to be a trustee is far different from saying that he was functioning as trustee and was in possession of the properties attached to the trust. In fact we have referred to Exhibit B-4 dated 4th March, 1949 in which the plaintiff admits that he was seeking for possession of the suit properties and he would allege that he was taking steps to get his right declared. There is no evidence before us to show that the customary honours received by the plaintiff in the Sri Parthasarathyswamy Temple was in pursuance of a recognition given to the plaintiff as a trustee in possession of the charities.
10. It would be necessary, therefore to start with Exhibit B-4. In 1949 the plaintiff was not in possession of the suit properties, but on the other hand, he was very keenly agitating for such a right. He was kept out of the office by the defendants. The suit as framed by him is a suit for a declaration that he is entitled to be in joint possession along with the first defendant and for a direction that he may be put in joint possession of these properties. Assuming for argument's sake that on account of the age-old trust attached to these charities and the customary made of appointment of trustees to them the office of trusteeship is hereditary even than the question arises whether the suit is or is not barred by limitation. We are assuming this position having regard to the definition of hereditary trustee in Section 6(ii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. The contention of Mr. Balasubramaniam is that the office is not hereditary and, therefore Article 58 of the Limitation Act would apply and not Article 107. Article 58 is obviously a residuary article appearing in Part III of the schedule to the Limitation Act. The cause of action for such a suit arises on the date when the right to sue first accrues. Taking Exhibit B-4 the right to sue for a declaration, such as the one now asked for is already stated to have accrued in favour of the plaintiff. But no action has been filed till 1966. Even assuming that the plaintiff was seeking for possession of a hereditary office, the question is whether the cause of action survived in 1966 to the plaintiff. The trend of the correspondence between the plaintiff and the trustees in management of the trust from time to time and particularly in 1949 shows that they have taken possession of the office to the exclusion of the plaintiff and so were in possession of the office adversely to the plaintiff. If he was, therefore, seeking a right to joint possession of such hereditary office, from which he was ousted, he should have filed a suit within 12 years from the date when the defendant took possession of the right adversely to the plaintiff. The language in Exhibit B-4 is unambiguous and clear. There is no allegation in Exhibit B-4 that the plaintiff was ever in joint management of the trust properties. As a matter of fact, every line in the said notice brings home the exclusion from such possession and a non-recognition of the plaintiff as a trustee thereto in spite of the nomination made by Thiruvengadam Pillai and in spite of the will of Thiruvengadam Pillai containing such nomination having been probated. The plaintiff claims in 1949 that he is entitled to joint possession and management and that be would enforce his rights without any further reference. Having said that, he files a suit only in 1966, long after the period of limitation. This is a case where the facts amply demonstrate that the other trustee excluded the plaintiff from management. It is no doubt true that a co-trustee cannot take advantage unless such possession is proved or demonstrated to be adverse to the other trustees entitled to be in joint possession of the trust properties. But if a co-trustee virtually ousts another trustee from possession and continues in possession for well over the statutory period, then such a possession would be understood as possession adverse to that of the ousted trustee. It is unnecessary in this case to go into the question whether this is a case of succession to office within the meaning of Section 6(ii) of the Tamil Nadu Hindu Religious and Charitable Endowments Act. Even assuming it is so, the suit is barred by limitation.
11. Article 58 provides a period of three years and Article 107 a period of 12 years. The plaintiff not having filed the suit within the longer of the periods allowed to him by law, the suit is undoubtedly barred by limitation.
12. On issue Nos. 1 and 2 we agree with the trial Court that the plaintiff should be deemed to be a representative of the branch of Srinivasa Pillai within the meaning of the scheme decree referred to above and he would be entitled to claim joint possession of the suit properties either in his capacity as such, representative or nominee under the will of late Thiruvengada Pillai. That the plaintiff was interesting himself in the proper administration of the trust cannot be denied. In fact he mortgaged certain charity properties in order to probate Thiruvengadam Pillai's will as early as 1947. He obtained permission from the High Court to mortgage the properties. A suit challenging the mortgage by the 1st defendant failed. Even so, an appeal thereon. We are not however concerned with these circumstances. The first defendant's application to recall the probate was ordered and he entered a caveat without success but later on the Division Bench characterised him as a person, who did not have any cave at able interest. The extreme contention of the first defendant that the plaintiff's father was not a member of the branch of Varadaraja Pillai was rightly discountenanced as even according to the relevant clause in the compromise decree in C.S. No. 439 of 1928, the plaintiff could be said to be a representative of the branch c f Srinivasa Pillai. All these above relevant facts, which were noticed in detail by the trial Judge points out that the plaintiff is a person, who could claim to have a right to be in joint possession and enjoyment of the trust properties.
13. Even though we agree with the trial Judge on issues 1 and 2 and in view of the fact that we are unable to subscribe to the view that the suit is not barred by limitation, in any view whatsoever, the appeal has to be allowed.
A.S. No. 422 of 1971.
14. This suit arises on almost the same facts but obviously relating to some of the properties belonging to the trust but situate within the jurisdiction of the Subordinate Judge of Kancheepurarn. The pleadings are almost similar and one of the material contentions therein was, the suit was barred by limitation.
15. The learned Judge was of the view that there were no particulars placed before him to substantiate that the suit was barred by limitation and in that view he held the issues against the first defendant. But in A.S. No. 12 of 1970 a full argument was addressed before us and fuller materials were made available. In the view we Lave taken in A.S. No. 12 of 1970, the appeal A.S. No. 422 of 1971 also has to be allowed.
16. In these circumstances, both the appeals are allowed and there will be no order as to costs in both the appeals.