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Vellachami Naicker and ors. Vs. Alagarasami Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad1163
AppellantVellachami Naicker and ors.
RespondentAlagarasami Naicker and ors.
Cases ReferredRama Reddy v. Ranga Dasan A. I. R.
Excerpt:
- .....plaintiff alleges that he and his father and his grandfather had a hereditary poojari right in the suit temple. various alienations are set out in para. 5 of the written statement. but i think it is only necessary to refer to two. the grandfather of the plaintiff in 1881 alienated a portion of the temple land by simple mortgage to a certain chetty. a suit was brought on the mortgage, a decree obtained and the properties brought to sale and purchased by defendant 1's father in 1889. in 1887, another mortgage of another part of the property was effected to defendant 1's father. decree was obtained and the suit property sold in court auction in 1889, and was bought by defendant 1's father. the only question in second appeal is whether the suit which was started in 1918 is in time. the.....
Judgment:

Odgers, J.

1. This was suit brought by the plaintiff to have it declared that certain properties are trust properties belonging to the Malaiperumal temple and that the defendants who claimed under certain documents executed by the plaintiff' s grandfather had no right to the same and for delivery of possession. The cause of action is said to have arisen in the year 1914, when the plaintiff's father died. The plaintiff alleges that he and his father and his grandfather had a hereditary poojari right in the suit temple. Various alienations are set out in para. 5 of the written statement. But I think it is only necessary to refer to two. The grandfather of the plaintiff in 1881 alienated a portion of the temple land by simple mortgage to a certain Chetty. A suit was brought on the mortgage, a decree obtained and the properties brought to sale and purchased by defendant 1's father in 1889. In 1887, another mortgage of another part of the property was effected to defendant 1's father. Decree was obtained and the suit property sold in Court auction in 1889, and was bought by defendant 1's father. The only question in second appeal is whether the suit which was started in 1918 is in time. The Subordinate Judge thought it was barred even during the lifetime of the plaintiff's father. He found that the plaintiffs were the hereditary poojaris of the suit temple and were, therefore, entitled to maintain the suit and that the property was the trust property of the Malaiperumal temple as set out in the plaint.

2. On appeal to the learned District Judge he held that there was no limitation as down to the death of the plaintiff's grandfather which was only five years before the suit, the possession of the alienees must be regarded as permissive so long as he was alive and with regard to the other portion of the property permissive down to the death of the father four years before suit.

3. The question arises on the construction of the Privy Council case in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 where it was held that Art. 134, Lim. Act, does not apply to a permanent lease granted by the head of a mutt. Their Lordships point out that the lease in question could only enure for the lifetime of the grantor who is referred to as Mahant 1. With regard to Mahant 2, he had a similar power, i. e., the granting of leases to last for his lifetime. Instead of granting a fresh lease for that period he allowed the plaintiff to continue the possession which he had acquired from Mahant 1, and continued to receive rents. It was held that this could only be referable to a new tenancy created by him and, therefore, the possession of the alienee did not become adverse until the death of Mahant 2. The District Judge had applied the decision to this case; and the question is: Is he right? It is alleged for the appellant that this is not a case of lease; there is no acceptance of rent; there is no presumption of permission and if the principle laid down by' the Privy Council is adopted in cases of the sort under consideration, all pleas of adverse possession will fall to the ground. I do not agree. There is no doubt that special considerations have been held to apply to the property of temples and the reason why such considerations have been applied is well pointed out by Devadoss. J., in a judgment to which I shall refer shortly. It is not true to say that adverse possession will never lie in such cases; for if the successor-in-office of the alienor of temple property sits by for 12 years after the death of his predecessor, there is no doubt that in the absence of special circumstances he will be unable to recover the property of the temple. The question, I take it, before their Lordships in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 was whether or not Mahant 2 had stood by or whether he had practically adopted the alienation made by his predecessor in which case adverse possession would clearly not begin until his own death.

4. Madhavan Nair, J., dealt with a very similar point in Ranga Dasan v. Letchuma Dasan A. I. R. 1925 Mad. 822 The case before the learned Judge was one of sale and a distinction was there sought to be drawn between that case and the case in the Privy Council by pointing out that the latter was a case of permanent lease. He held that no such distinction was present to their Lordships' minds as is clear from the fact that their Lordships in the course of the elaboration of the principles refer to cases of alienation by lease and mortgages. There was a Letters Patent Appeal in that matter which was heard by Devadoss and Waller, JJ., who held that the decision in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. 1922 P. C. 123 applies to all cases of alienations of property. The learned Judge continues:

The principle underlying these decisions (quoting the previous Madras and Calcutta decisions) seems to be this: that where the trustee of a religious institution who is only a manager for the time being, alienates any property belonging to the trust, he cannot give a valid title to the alienee, for he himself has no interest in the property and the alienee can only get what the manager himself possesses, the right of being in possession of the property. The principle of adverse possession would apply to cases where a person who could assert his title does not assert his title within the period fixed by Art. 144, Lim. Act. Further where such person acquires possession from the manager his possession can only be with the consent of the trustee for the time being and, therefore, his possession can never become adverse to the temple.

5. They rely on Jagga Row Bahadur Garu v. Gori Bibi A. I. R. 1923 Mad. 545 I do not think, therefore, that we are justified--I am certainly not--sitting as' a single Judge in restricting the decision in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 to one kind of alienation. The cases quoted for the appellant do not seem to me to bear on the question.

6. In Indarapalli Dhanushkotirayudu v. Vankayala Venkataratnam : (1920)38MLJ320 there was no alienation and the property did not belong to a temple. As observed at the end of the judgment, the property for a long number of years had been enjoyed as ordinary private property. Subbaiya Pandaram v. Mahamad Mustapha Maracayar A. I. R. 1923 P. C. 175 was quoted as showing that the Privy Council have decided against the doctrine that the statute of limitation begins to run afresh as each new trustee succeeds to the office. One of the cases referred to in the judgment is Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 and their Lordships consider that it does not show that this is the law. Their Lordships point out that possession during the life of the alienor is not adverse and that upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate and the statute would run against him as from the time when he assumed office. That is exactly what is being done in the present case. In Madura Devasthanam v. Samia Pillai A. I. R. 1922 Mad. 406 to which I was a party, we held that each successor to the office does not get a fresh right of suit for the lands which, as far as I know, is perfectly sound and is not in any way in conflict, as we there pointed out, with the decision in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 Reference may also be made to a recent case before Phillips, J., in Govinda Rao Avergal v. Chinnathambi Pillai A. I. R. 1926 Mad. 193 in which the learned Judge held that Art. 144 applies to a permanent lease. It seems to me that the case as far as I am concerned, at any rate, is concluded by the judgment in Rama Reddy v. Ranga Dasan A. I. R. 1926 Mad. 769 to which detailed reference has been made. The second appeal must be dismissed with costs.


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