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Vadlamudi Sastrulu and ors. Vs. Thalluri Venkataseshayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad614; 110Ind.Cas.894
AppellantVadlamudi Sastrulu and ors.
RespondentThalluri Venkataseshayya and ors.
Cases ReferredSrinivasa Chariar v. Evalappa Mudaliar A.I.
Excerpt:
- ramesam, j.1. these appeals arise out of a suit brought under order 1, section 8, civil p.c. by five plaintiffs claiming to be worshippers of five temples in vellatur, repalle taluk, guntur district, formerly kistna district, for certain reliefs in respect of the suit properties which are alleged to belong to the idols of the suit temples. the subordinate judge has given a decree in favour of the plaintiffs. appeal no 122 was filed by defendants 2 to 44 and appeal no. 463 was filed by defendants 45 to 47.2. the facts of the case may now be briefly stated. early in the last century one thadikonda seshayya, grandfather of defendant 1's adoptive father, who was originally a native of vellattur went to hyderabad, and after acquiring much wealth in the nizam's dominions returned to his native.....
Judgment:

Ramesam, J.

1. These appeals arise out of a suit brought under Order 1, Section 8, Civil P.C. by five plaintiffs claiming to be worshippers of five temples in Vellatur, Repalle taluk, Guntur District, formerly Kistna District, for certain reliefs in respect of the suit properties which are alleged to belong to the idols of the suit temples. The Subordinate Judge has given a decree in favour of the plaintiffs. Appeal No 122 was filed by defendants 2 to 44 and Appeal No. 463 was filed by defendants 45 to 47.

2. The facts of the case may now be briefly stated. Early in the last century one Thadikonda Seshayya, grandfather of defendant 1's adoptive father, who was originally a native of Vellattur went to Hyderabad, and after acquiring much wealth in the Nizam's Dominions returned to his native place where he built the suit five temples for the deities of Siddi Ganapathi Swami, Rajeswara Swami, Bhimeswara Swami, Authi Seshachala Swami and Kameswari Maharani. During his lifetime he was conducting the festivals and the other affairs of the temples. It is said that he left a will of the year 1826 directing his widow to make permanent endowments for the temples, and for this purpose he directed her to spend a sum of Rs. 70,200 out of his properties. Afterwards two sets of properties in the villages of Kowthavaram and Pedapulivaru were purchased by his widow Authi Lakshmamma and another set of properties in the village of Vellatur were given by the Zemindar of Narasaraopet as endowments for the same temples. The widow was. conducting out of the lands purchased by her the affairs of the temples and afterwards made a formal gift of the lands to the idols. In the year 1838 his sons Sidhi Ganapathidoss and Nagabhushana. Gajana Das executed a document recognizing the gift, Ex. F. The defendants do not 'admit the genuineness of the document, but it is clear that, even if the particular document is not genuine, the history of the connexion between the suit lands and temples must be somewhat in the manner set forth in this document.

3. In the year 1857 the elder brother Shidi Ganapathi Doss died. Soon after his death there were some disputes about the dharmakarthaship of the temples between his widow Mahalakshmamma and the younger brother Nagabhushana Gajanadoss. The lands in all the three villages were dealt with by the Inam Commissioner in 1859 to 1864 and inam title-deeds were issued for the lands in all the three villages. A house-site with a building known as Bhimeswara Vilas, because god Bimeswara Swami when carried in procession was made to rest on this sits for some time, was also purchased by Sidhi Ganapathi Doss. It was then sold in execution for certain debts-due by his widow Mahalakshmamma and purchased by V. Vallabarayudu who, in his turn, sold it to N. Gajanadoss by sale-deed, Ex. 12, of the year 1866. This site was also given away by N. Gajana Doss to Sidhi Ganapathi Swami, the first of the five idols under a gift-deed, Ex. N. It appears that N. Gajana Doss began to contract debts either because ha was living an extravagant life or he was carrying on the temple affairs in an extravagant manner, or for some other reason.

4. First, we have got a simple bond, Ex. V-c, dated 16th July 1867 for Rs. 1,500. Under the document one of the title-deeds, namely Ex. B, for the lands in Kowthavaram, was deposited with the creditor as security. On 26th August 1873 for the balance of amount due under Ex. V-c, for the amount due on a hundi and for a sum of Rs. 684 borrowed on that date a mortgage-deed, Ex. V, was executed by N. Gajanadoss by which the lands in Kowthavaram were mortgaged to the same creditor, V. Ramaswami. V. Ramaswami had a younger brother Venkataramanna and in the family partition the debt fell to the share of the latter. Venkataramanna died leaving a son Gopalakrishnamma. Towards the balance due under Ex. V and for further sums borrowed for meeting the expenses of the temples and for executing repairs to the buildings connected with the temples a mortgage-deed, Ex. V-a, was executed in favour of Gopalakrishnamma represented by his mother and guardian in 1881 mortgaging the lands in Kotha-waram as before. Ex. V-a was renewed by Ex. V-b, dated 15th January 1887, for a sum of Rs. 8,000 consisting of the amount of principal and interest due on Ex. V-a and a sum of Rs. 2,632 due on a promissory note of December 1886 and a sum of Rs. 975 borrowed on that date for repairing some of the buildings attached to the temples. This mortgage was a mortgage with possession and the mortgagee was given possession of the lands in Kowthavaram. On 6th December 1888 a permanent kath (muchilika), Ex. 3, was executed by Gopalakrishnamma in favour of N. Gajanadoss by which the lands in Kowthavaram were permanently leased to him for an annual rent of Rs. 802. The consideration for this permanent lease was the discharge of Ex. 5-b, the mortgage for Rs. 8,000. On 10th December the landlord's right under the permanent lease was mortgaged for Rs. 2,000 consisting of the debts already contracted for the. expenses of the temples, festivals and other affairs of the temples, Rs 700, and a sum of Rs. 1,300 borrowed from others for the same purpose.

5. In the year 1891 two persons obtained leave of the District Court of Kistna under Section 18, Religious Endowments Act, 20 of 1863 and filed a suit, O.S. No. 4 of 1891 under Section 14 of the Act against Nagabushanam and his son Seshayya alleging that the various sums borrowed by Nagabhushanam for which Exs. 5 series were executed were not spent for the expenses of the temples and that the permanent lease was wrongly executed and praying for the removal of the defendants from the office of dharmakarthas, for the appointment of a fresh dharmakartha and for such other proper reliefs, Ex. 1-b. The defendants filed a written statement stating that the temples were not public temples but private temples belonging to the defendants who were the owners and not dharmakarthas and that the public had no rights in the suit temples Exs. 1-c and d. The lessee V. Gopalakrishnamma was afterwards added as defendant 3 and he supported defendants 1 and 2 Ex. 1-e. Nagabushanam died soon after. Issues 1 and 2 in the case were:

1. Whether the lands were irrevocably bestowed upon this temple and

2. Whether it is a private foundation of a public endowment?

6. On these issues the District Judge, Mr. Makenzie says:

I am unable to say that these five temples in Vellatur are public temples

and

I find that the lands were not irrevocably-bestowed upon these temples, that they are a private foundation and that Act 20, 1863, does not apply.

7. There was an appeal to the High. Court which came on before Collins, C.J., and Shephard, J. The oral and documentary evidence of the plaintiffs was not printed in the appeal. They observed that they saw no reason to differ from the judgment of the District Judge and mentioned an additional circumstance, namely, that the gods kept in these temples were in the habit of being taken in the houses of the defendants and there kept on certain occasions; and they dismissed the appeal. Seshayya, son of Nagabhushanam, continued in the footsteps of his father.

8. Under Ex. 11-a, dated 22nd February 1894, he mortgaged for Rs. 1,600 the lands at Vellatur and the house known as Bhimeswara Vilas. A suit was brought on this mortgage O.S. 395 of 1896 on the file of the District Munsif's Court of Bapatla. The mother Mahalakshmamma filed a suit for a declaration that her son Seshayya had no right to mortgage the properties and the mortgage was not binding on her Ex. 13-b. The mortgagee pleaded that the temples were private temples belonging to defendant 2, Seshayya Ex. 13-c. The District Munsif of Bapatla relying on the former judgment in O.S. 4 of 1891 found on issue 1 that the temple to which the suit inam was dedicated was a private temple of the family of the plaintiff and defendant 2. On issue 3 he found that the plaintiff also had a right of control over the affairs of the temples and that defendant 2 had no right to alienate the properties without her consent during her lifetime, and on this ground he gave a decree declaring that the mortgage was not binding on the plaintiff, There was an appeal (230 of 1889) to the Subordinate Judge of Kistna and he found relying on the former judgments in O.S. 4 of 1891,. that defendant 2 was the full owner of the lands and he also found that the suit was barred under Article 120 and he therefore dismissed the suit.

9. Seshayya next mortgaged for Rs. 4,000 his rights in the Kothavaram lands subject to the permanent lease and the Vellatur lands under Ex. 11, dated 3rd November 1900, in favour of one Vadla-mannati Srinivasa Dikshat who is now defendant 45. He filed a suit O.S. 29 of 1911 to recover the amount due on the mortgage and this was decreed by the District Judge of Kistna Ex. 15. Defendant 1 in this suit was Subbamma the widow of Seshayya who died in the interval and she pleaded that the properties formed the endowments of the temple at Vellatur and the mortgages were not binding. Apparently the plaintiff met this contention by saying that it was barred by res judicata by the decrees in O.S. 4 of 1891 and its appeal and the decree in A.S. No. 230 of 1899. Issue 2 raised this question of res judicata. The District Judge said nothing about the issue 2 and he decreed the plaintiff's suit. Meanwhile Subbamma filed another suit in 1908 in the District Court of Guntur it was afterwards numbered as 84 of 1910 in the Sub-Court of Guntur for a declaration that the mortgages and alienations made by her husband were not valid. In this suit Srinivasa Dikshatulu, plaintiff in the mortgage suit, was the defendant 15. This suit related only to Vellatur lands and did not relate to the Kothavaram lands. Issue 12 in that suit was

Whether defendant 15's mortgage debt is valid and binding on the plaintiff, even though it was executed for the personal purposes of her husband.

10. The Subordinate Judge found that the lands in the suit, namely the Velattur lands, were public endowments to the temple of Siddi Ganapathi Swami and 'that defendant 15's mortgage debt was binding upon the plaintiff in her capacity as the heir of her, husband but not binding upon her in her capacity as the hereditary dharmakartha of the temples and it was not binding on the lands of Vellattur included in that mortgage. He made a remark that the lands in Kowtha-varam stood on a different footing and gave no decree in respect of those lands. There were appeals to the High Court in both suits. A.S. 11 of 1913 was an appeal against O.S. 29 of 1911 and A.S. 213 and 278 of 1913 were cross-appeals against O.S. 84 of 1910. The appeals came on for hearing before Sankaran Nair and Oldfield, JJ. Their Lordships observed that Subbamma's contention that the temples were not private temples but were public temples, and that the properties in the suit formed the endowments of these temples was not res judicata by reason of the decision in O.S. 4 of 1891. At the same time they construed the judgments of the District Judge and the High Court as showing that the lands at Kowthavaram formed private property of her husband's family but the Vellatur lands were public endowments and the mortgage was not binding on the temples. In the result they exempted the Vellatur lands from the mortgage decree which remained binding of the Kowthavaram lands. There were other litigations in 1913 and 1916 which need not be referred to at present, in 1918 Subbammal's adopted son Kotes-warao Rao filed a suit (O.S. 46 of 1918) for a declaration that the mortgage bond, Ex. 11, in favour of Srinivasa Dikshatulu and the decree obtained on its basis were not binding even as to Kowthavaram lands Ex 18-b. The suit was dismissed on the ground that it was barred by Order 2, Rule 2, Ex. 18, and this judgment was confirmed on appeal to the High Court by Wallis, C.J., and Krishnan, J., Ex. 18-a. The present suit was filed in August 1923.

11. The contesting defendants in both the appeals have repeated the old contention that the temples are not public temples, and whatever the true view may be they contend that the point is res judicata by reason of the decision in O.S. 4 of 1891. They also plead that the suit is barred by limitation either under Article 134 or Article 144. They also contend that the suit is not maintainable, that it is in essence a suit under Section 92, Civil P.C., and that that section could not be evaded by merely framing the suit in a form to which Section 92 would not be applicable. All these contentions have been repeated in appeal. Issue 4 relates to the question whether the suit temple was a public or private temple. After hearing the appellant's argument on this question we did not think it fit to call upon the respondent as we were not prepared to differ from the findings of the Subordinate Judge. It is true that the names of the five idols in the temples are somewhat uncommon in South India, for instance Siddi Ganapathi Swami is uncommon in South India though it is one of the idols to which every Hindu pays a visit when he goes to Benares and it is perhaps more honoured in Northern India. Similarly Rajeswari Swami is unknown in South India, though a female diety Rajeswari is well known. Bhimeswaraswami is not uncommon. Authi Seshachala Swami and Kameswara Maharani are also very rare in South India. But this may be explained by the fact that the founder Thadikonda Seshayya lived for some time in the Nizam'a Dominions. The mere fact that he brings in the names of the deities better known in the part of the country does not mean that the temples he built are private temples. The inam register for Vellatur lands, Ex. C, shows that the grant of the lands was made by a zamindar and that the lands were described in the inam register as Devadayam -facts which make it more probable that the temples were public temples. A zamindar is not likely to make a grant to a private temple. In Col. 8 of Ex. C the inam is described to be for the support of the pagoda. It shows that there was a Dumbala of the year 1810.

12. Mr. Mackenzie in 1891 was very much impressed by the dominant part taken by the Thadikonda family in connexion with these temples. In the height of their devotion they seem to have identified themselves so much with the temples that this conduct proved the domestic character of the temples. It must be remembered that in this part of the country private temples are somewhat unusual. If there was oral evidence at that time that outsiders were coming into the temples with the permission of the Thandikonda members, the evidence now is that the public used them as public temples. The temples have got a number of vahanams and other paraphernalia: see schedules to Ex. 1-d. It is also noteworthy that the decisions in O.S. 4 of 1891 and its appeal have been construed by a Bench of this Court to-mean not that the temples were private temples but that the Kowthavaram lands which were the subject-matter of that suit formed the private property of the Thadikonda family. Their finding: as to Vellatur lands practically amounts to holding that the suit temples were public temples. It is unnecessary to repeat the other circumstances mentioned by the Subordinate Judge in his judgment. We think, therefore, that the suit temples are public temples.

13. But a mere finding of fact to this effect does not dispose of this question completely, for the next question arises: How far is this point res judicata in this suit?' So far as defendant 45 and his sons, defendants 46 and 47, are concerned there can be no res judicata on this question; for the judgment of the High Court in A.S. No. 273 of 1913, as I have already pointed out, amounts to saying that the suit temples were public temples. If there is any res judicata it is in favour of the plaintiffs and against the defendants; but when we come to defendants 2 to 44, who are the representatives of the permanent lessee under Ex. 3 the question is a little more difficult. They were not parties to the later litigations and so far as they are concerned we have to deal with the judgments in O.S. No. 4 of 1891 by themselves and not as construed by the later judgments of the High Court. The first question is, do the plaintiffs in that case represent the present plaintiffs. For this purpose we have to analyze under what right the present plaintiffs are litigating and under what right the former-plaintiffs were litigating. The present plaintiffs claim to be worshippers of the temples. They say that they and other worshippers of the temple are entitled to a declaration that the lease is not binding, on the temples and as the body of worshippers is a large and numerous body five plaintiffs claim to represent the general body of worshippers under Order 1, Rule 8; so that we come to this; that the suit is by the general worshippers of the' temple, which again means on behalf of the idols, and they seek to have the property of the idols restored to the idols so that worship might be properly kept up. The former suit was also by two persons who were interested in the temples and in the performance of the service and worship thereof and, therefore in having the properties of the temples which had been wrongfully alienated restored to them (Ss. 14 and 15, Religious Endowments Act). In either case the suit is really on behalf of the idol. In Alagappa Chettiar v. Muthiah Chettiar [1918] 41 Mad. 237 (240), Sadasiva Ayyar, J., observed:

A suit under Section 14, Act 20 of 1863 is in my opinion as much a representative suit as one brought under Section 92, Civil P.C. or some of the suits under Order 1, Rule 8 of that Code, as it is equally brought in and as it affects the rights of all those interested in the religious endowment. All such interested persons become in the eye of the law parties to such a suit.

14. I agree with this observation. In my opinion both the suits were filed to protect the same interests and, therefore, they were between the same parties.

15. It is then said that the old suit was conducted with gross negligence and, therefore, the finding in it does not bar the present contention as res judicata. Assuming that the idol is in the position of a minor and that the darmakarthas of the temple or some of the worshippers suing for the purpose of establishing the rights of the idol are to some extent in the position of guardians and, therefore, where they are guilty of fraud, collusion or gross negligence in the conduct of the litigation the findings in the course of such litigation might not be res judicata: see Lalla Sheo Churn Lal v. Ramanadhan Dobey [1895] 22 Cal. 8, followed in Punnayyah v. Viranna A.I.R. 1922 Mad. 273. We still have to see whether there has been such negligence in this case as to come within the scope of that rule. (The judgment then discussed the evidence and held as follows). Anyhow it is clear that the plaintiffs in that case were not guilty of fraud or collusion, nor even of gross negligence, having regard to the facts above pointed out. The lease deed, Ex. 3, mentions the fact that the lands were in the possession and enjoyment of the Thadikonda people as darmakarthas of the temple and the title-deeds were issued in the name of N. Gajanandoss as darmakartha. In Madhavayya v. Kerala Varma : (1903)13MLJ68 , Benson and Bashyam Ayyangar, JJ., held that the fact that certain karars were not produced in the former litigation did not necessarily show want of diligence or want of interest in the conduct of the former litigation. They pointed out that the former litigation was actively and earnestly prosecuted and the plea found on the evidence of karar was strongly pressed by the plaintiff. These observations apply in this suit also. The contention that the title-deeds were issued in the name of the darmakartha was certainly very earnestly pressed and the fact that the documents were not actually produced made no difference. As to the not printing of the plaintiffs' oral and documentary evidence in appeal I do not think that this amounts to gross negligence. Mr. Mackenzie was impressed by the defendant's evidence and it is this evidence that the appellants had to demolish in the appellate Court and that it is the evidence which had to be put before the Judges of the High Court, commented on and, if possible, got over. They made the attempt honestly, but failed. The case cannot be worse than if they never had filed the appeal. In my opinion, therefore, there was no gross negligence in the conduct of the former litigation. Therefore, the finding that the temples were private temples is res judicata between the present plaintiffs and defendants 1 to 44.

16. Another point pressed for the appellants is that the suit as framed under O.1, Rule 8, Civil P.C., is not maintainable. It has been held in Madras that in the case of a temple where the suit is to establish the right of the temple to property in the hands of alienees, to recover the property and to have it restored to the trustee, it is maintainable under O.1, Rule 8: see Venkataramana Ayyangar v. Kasturiranga Ayyangar [1917] 40 Mad. 212, which is the case of a temple and Chidambaranatha Thambiran v. Nallasiva Mudaliar [1918] 41 Mad. 124, which is the case of a mutt. Similar decisions have been passed in the Calcutta High Court. But it is said that this suit is really to evade the provisions of Section 92, Civil P.C. In the present case we have got the fact that the trustee of the temples, namely defendant 1, does not support the plaintiffs. He contended that the temples are not public temples and that the deities were intended for the worship of the family exclusively. If So, he is not fit and proper to be the trustee of these temples. Assuming that they were really public temple, it looks as if it is the duty of the plaintiffs after getting a declaration that the suit temples are public temples to get fresh trustees appointed and then prima facie it is for the new trustees to take steps to recover possession of the alienated property. Such a suit would lie only under Section 92, Civil P.C. By framing a suit not as one for appointment of fresh trustee, seeing that defendant 1 disclaimed his capacity of trusteeship for the suit temples, but merely for the purpose of getting the property restored to the temples it strikes one that there is an attempt to evade Section 92, Civil P.C. In Mufti Ali Jafar v. Fazal Hussain Khan : AIR1922All349 , it was observed:

These reliefs have obviously been framed in order to avoid the operation of Section 92, Civil P.C. We entertain the gravest doubts whether a suit of this nature is maintainable at all.

17. In the present case also the reliefs claimed are such as are not strictly covered by Section 92; but as I have already pointed out the suit temples have no proper trustee and any prayer to get the properties restored to the trustee seems to be a futile prayer without having a proper trustee appointed and a suit to get a proper trustee appointed would fall under Section 92. I agree with the observations in Mufti Ali Jafar v. Fasal Hasain Khan : AIR1922All349 and I am of opinion that the suit is not maintainable as evading the provisions of Section 92.

18. The next point we have got to consider, which is the most important point, is the question of limitation with respect to the properties covered by Ex. 3. On this point it will be convenient to refer to a few decisions bearing on this matter. I will refer mostly to the decisions of the Privy Council only. But as a necessary introduction to them I will have to refer to two Madras decisions. In Mohomed v. Ganapathi [1890] 13 Mad. 277, it was held that where the darmakartha of a temple granted a lease the cause of action for the successor ran not from the date of the lease, but from the date of succession to the office. It was observed:

Subject to the law of limitation, the successive holders of an office, enjoying for life the property attached to it, are at liberty to question the depositions made by their predecessors and it is equally clear that time runs against the successor who challenges his predecessor's disposition, not from the date of the predecessor's death when only the successor became entitled to possession.

19. In Velu Pandaram v. Ganasambanda Pandara Sannidhi [1896] 19 Mad. 243, it was held following this decision that where the hereditary trustee of a katalai alienates the office and the properties belonging to the kattalai, the successor can bring a suit to recover all these properties within 12 years of the succession as it may be said that there was a succession of life-estates and the suit was, therefore, not barred though it was brought more than 12 years after the date of alienation. This decision was reversed by the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram [1900] 23 Mad. 271. It was held that there was no such thing like succession of life-estates in the office of trusteeship and the cause of action arose immediately after the alienation which was void according to the decision in Raja Vurmah Valia v. Ravi Vurmah [1877] 1 Mad. 235 and that the suit was barred; so far as the office was concerned Article 124 was applied and so far as the properties were concerned Article 144 was held to apply. In Damodar Das v. Lakhan Das [1910] 37 Cal. 885 the facts were: There were two mutts belonging to the Mahant; on his death there was a dispute as to succession and there was a compromise by which one of the claimants got one mutt and the other claimant got the second mutt. The successor of the former afterwards refusing to recognize the validity of the compromise brought a suit to recover the second mutt on behalf of the idol in his mutt. Sir Arthur Wilson in delivering the judgment of the Privy Council, held that the suit was barred, agreeing with the High Court of Calcutta. No particular article was referred to in the judgment of the Privy Council. The High Court' relied on Gnanasambanda Pandara Sannadhi v. Velu Pandaram [1900] 23 Mad. 271. and seeing that the Judicial Committee agree with the High Court we must take it that it was held that adverse possession began from the date of the compromise. The High Court referred to the defendant's adverse possession for 27 years. In Ishwar Shyam Chand Jier v. Ram Kanai Ghose [1911] 33 Cal. 526 the Rajah of Pacha-kote brought a suit as the shebait of certain Hindu deities in 1901 within three years of the death of his predecessor-in-title to set aside a mokurari lease granted by such predecessor in 1872 and to recover possession in Abhiram Goswami v. Shyama Charn Nandi [1909] 36 Cal. 1003, the Privy Council held that Article 134 did not apply as the defendants were not purchasers within the meaning of that article as it then stood in the Act of 1877. As the language of Article 134 has since been changed, that decision on which it was founded, namely Abhiram Goswami v. Shyama Charn Nandi [1909] 36 Cal. 1003 are of no more value now. There is no discussion about the applicability of Article 144. The next decision we have is the decision in Vidya Varuthi v. Baluswami Ayyar A.I.R. 1922 P.C. 123 ,in which the judgment of the Board was delivered by the Right Hon'ble Mr. Ameer Ali. By this time Article 134 had been changed and no question whether the lessee is a purchaser arose and it was held that the word ' trustee ' in that article was not applicable to the manager of a mutt. In that case there was a lease granted by the former head of the mutt and the successor brought a suit to recover possession of the properties. It was held that Article 134 did not apply because Pandara Sannidhi was not a trustee within the meaning of the article. In the course of the judgment there are observations tending to show that not only Matadhipathis were not trustees, but also managers or Darmakarthas of temples or of mosques were not also trustees within the meaning of the article, though actually the case related to a mutt. As to the applicability of Article 144 the following observation occurs in the judgment at p. 855:

He (mahant No. 2) permitted the plaintiff to continue in possession and received the rent during his life.... Such receipt was with the knowledge which must be imputed to him that the tenancy created by his predecessor ended with his predecessor's life, and can, therefore, only be properly referable to a new tenancy created by himself. It was within his power to continue such tenancy during his life, and in these circumstances the proper inference is that it was so continued, and consequently the possession never became adverse until his death.

20. As I read that judgment there are two points decided in that case: (1) the question of law, namely that Article 134 does not apply to transfers by Madathipathies as they are not trustees within the' meaning of that article; and (2) the question of fact, namely, that on the facts of that case Mahant No. 2 had in his power the option to get rid of the lessee or not at his pleasure, that he chose to exercise' the option in favour of continuing him in possession, that the lessee continued in possession only by the permission granted by Mahant No. 2, that a new tenancy was created by the conduct of the parties and, that, therefore there was no adverse possession. In Srinivasa Chariar v. Evalappa Mudaliar A.I.R 1922 P.C. 325, Lord Shaw of Dunfermline, in delivering the judgment of the Board, held that the Dharmakartha of a Hindu temple is no more than a manager 'and his position and his rights were never higher than those of a mere trustee. In Subbaiya Pandaram v. Mahamad Mustappa Mara' cayar A.I.R. 1923 P.C. 175, also a decision on appeal from the Madras High Court, where property belonging to a chatram was sold in execution of a decree and was purchased by the defendants and the suit was brought more than 12 years after the purchase, it was held that the suit was barred whether Article 134 or Article 144 applied. Throughout the judgment the appellant and his predecessor-in-title were referred' to as trustees and there was also a reference to Section 10, Lim. Act. Having regard to the fact that in the case of a temple or a chatram the trustee himself has no beneficial interest in the property of the institution and may, therefore, be-regarded as a trustee within the strictest meaning of the term and remembering' that in the case of mutts the head of a mutt has got larger powers than those of the manager of a temple and has some beneficial interest in the income of the endowments and therefore it may be said that he is not a bare trustee, it seems to me that the decision in Vidya Varuthi v. Baluswami Ayyar A.I.R. 1922 P.C. 123 must be confined only to the case of a mutt which was actually the subject of the decision and cannot be applied to the case of temples or chatrams in view of the later decisions of the Privy Council in Srinivasa Chariar v. Evalappo Mudaliar A.I.R 1922 P.C. 325 and Subbaiya Pandaram v. Mohamad Mustappa Maracayar A.I.R. 1923 P.C. 175 already referred to. If there is alienation such as sale, there can be no question of the alienation being valid during the lifetime of the person who made it and of the cause of action arising for his successor when the succession opened. In all such cases it makes no difference whether Article 134 or Article 144 applies. It is not matter of importance whether the manager of a temple or chatram can be properly described as trustee, for if Article 134 does not apply Article 144 would apply and there would be adverse possession from the date of the alienation; but where instead of having a sale we have got a permanent lease it is possible to say that the lease is not entirely void, but is binding on the original lessor for the rest of his lifetime and it is not binding only on his successors. This is the distinction suggested by the Earl of Buckmaster who delivered the judgment in Subbaiya Pandaram v. Mohammad Mustapha Maracayar A.I.R. 1923 P.C. 175.

21. But seeing that the manager of ' a temple is one who has no beneficial interest 'and seeing that a permanent lease or improper terms granted on behalf of a temple by its manager can be set aside by a suit properly framed for the purpose by worshippers if not by the trustee himself, because it is sometimes said that there is a personal estoppel, I do not see why adverse possession does not begin from the date of the lease itself in the case of a temple as opposed to the case of a mutt. In the case of a mutt it is clear that there can be no adverse possession during the lifetime of the lessor and in such a case the cause of action, if any, arises only on his death, and if the facts relating to the dealing with the property by his successor are such that they are inconsistent with any adverse possession, that is, are such as will lead to an inference that the possession of the defendant was only permissive as was found in Vidya Varuthi v. Baluswami Ayyar A.I.R. 1922 P.C. 123, there can be no question of limitation at all. But if on the other hand the facts show that the successor was able to dictate to the lessee but that the lessee took his stand on the permanent lease, and the successor of the lessor thought that he was bound by it and yielded to the claim of the lessee wrongly, though it may be, in such a case 'there would certainly be adverse possession from the death of the lessor. This is a question to be found on the facts of the particular case; there may be adverse possession in one case and may not be in another. But there can be no adverse possession during the lifetime of the lessor if the lease is of the property of the mutt. But if on the other hand it is property belonging to a temple, I do not see why the possession is not adverse from the time when the lease was created if the lessee and his successor consistently and unanimously took their stand on the lease and prescribed under it.

22. In the present case it does not matter whether adverse possession began from the date of Ex. 3 or from the date of the death of the lessor N. Gajanadoss. Either way the suit is barred by limitation. On the facts of this case it seems to us that there has been adverse possession at least from 1891. In the suit of 1891, the lessees relied on the permanent lease, and not only relied on it as a lease made for proper purposes, but also contended that the temples were not public but private temples. The lessees came out of it triumphantly. Rightly or wrongly both the District Judge, and the High Court held that the temples were not public temples and the plaintiffs in the suit of 1891 were not entitled to set aside the permanent lease. One would imagine that the lessees after that decision were enjoying the lands as permanent lessees with all the assertion of absolute claim which one could make and on the other hand the successors of the trustees have so far yielded to the decision, that when in 1908 a suit was filed by Subbamma for a declaration that the acts of her 'husband and other predecessors were not binding on the temples she flinched from filing a suit against the permanent lessees and confined it only to the mortgagee under Ex. 11 though it covered both Kowthavaram and Vellatur lands. It shows the consciousness of the successors of the trustees and the public and the lessees that their position was made impregnable by the decision of 1891. It is impossible on the facts of this case to attribute either to the trustees or to the lessees any conciousness that the possession of the lessees was permissive under the trustees or that there was a new tenancy created on the death of N. Gajanadoss, and the succession of Subba Rao. There is no resemblance between the facts of this case and those of Vidya Varuthi v. Baluswami Ayyar A.I.R. 1922 P.C. 123. Anyhow it is impossible to find on the 'facts of this case, that Subba Rao permitted the lessees to continue in possession from 1891 or that the possession of the lessees can be described as permissive under Subba Rao or that there was a fresh tenancy created by the conduct of Subba Rao, and of the lessees in 1891. That being so there was adverse possession of the lessees at least from 1891 if not from 1888, the date of Ex. 3. In my opinion, therefore, the suit is barred by limitation. I will only refer to one more decision of the Privy Council Lal Chand Marwari v. Ramrup Gir A.I.R. 1926 P.C. 9. It is a case of a mutt and not of a temple. It is not the case of a lease but of alienation. It was held that Article 144 applied. Lord Blanesburgh who delivered the judgment of the Board observed:

Whether...the case is governed by the decisions of which Damodar Das v. Lakhan Das [1910] 37 Cal. 885 may be taken as the leading authority or by the line of authority of which Vidya Varuthi Thirtha v. Balusami Ayyar A.I.R. 1922 P.C. 123 may be taken as typical. Their Lordships while not 'pronouncing upon it have given very careful consideration to this interesting and difficult question. Upon it they say no more than this, that they must not be taken to accept the view with reference to it propounded by the High Court. So far as they are concerned the question remains entirely open to be determined when it arises.

23. My conclusion upon a consideration of all the cases cited above may be summed up as follows:

(1) If it is a case of out-and-out transfer of property whether it is a voluntary sale as is in Lal Chand Marwari v. Mahant Ramrup Gir A.I.R. 1926 P.C. 9, or a sale in execution as in Subbiah Pandaram v. Muhammad Mustafa Maracayar A.I.R. 1923 P.C. 175, the suit is barred if beyond 12 years from the date of the transfer; it is immaterial whether Article 134 or Article 144 applies. In the case of mutts Article 134 does not apply, but Article 144 will apply. In the case of temples it does not matter which article is applied; as Article 144 is only a residuary article one would be right and proper in applying Article 134, but if Article 134 does not apply Article 144 would apply.

(2) The difficulty arises where it is a case of a lease, and in this case two sub divisions have to be made (a): in the case of a temple the trustee having 'beneficial interest he may be still called a trustee and Article 134 will apply, and this I say having regard to the decisions in Srinivasachariar v. Evalappa Mudaliar and Subbaiya Pandaram v. Muhammad Mustapha Maracayar A.I.R. 1923 P.C. 175, and in spite of the observations in Vidya Varuthi v. Balusami Ayyar A.I.R. 1922 P.C. 123 and (b) 'but if it is a case of a mutt Article 134 cannot apply, and the case will be governed by Vidya Varuthi v. Balusami Ayyar A.I.R. 1922 P.C. 123, and there will be certainly no adverse possession from the date of the lease. Whether there is adverse possession after the death of the lessor would be a matter dependent on the particular facts of each case and no general observation can be laid down. In the present case I am of opinion that the suit is barred by limitation, whether under Article 134 or under Article 144. This disposes of the appeal (No. 122) of defendants 2 to 44 and 48. The appeal must be allowed and the plaintiffs suit dismissed with costs throughout.

24. The next appeal to be considered is Appeal No. 463. In this case the only ground on which the appellants can succeed is the ground of res judicata. There can be no question of adverse possession. The mortgage under Ex. 11 was simple and not with possession; the sale in execution of the decree obtained by the defendant 45 was within 12 years before suit and therefore the suit is not barred by limitation. But the defendants contend that the suit is barred by res judicata because similar relief in respect of this mortgage was sought for and denied. In O.S. No. 46 of 1918 the present first defendant brought the suit for a declaration that the mortgage and the decree passed upon it were not binding on the first defendant and the temples. The suit was dismissed on the ground that it was barred under Order 2, Rule 2. It is not for us to discuss the question whether the decision in that suit was correct or not. If the decision was right the result was that on some ground or other, legal, technical, or on the merits, the relief which the plaintiff sought in the case was denied to him. It may be that even if that suit was not filed the present suit would be barred under Order 2, Rule 2. So far as the contention based on Order 2, Rule 2, is concerned, the intervention of the suit does not add to the situation; but it does add to the situation in this way: the present suit would be barred not only under Order 2, Rule 2, but also is res judicata because it seeks for relief which was denied in the former suit on some ground or other. It may be that it might have been argued in the former suit that Subbimmal in framing her suit of 1908 afterwards numbered as 81 of 1910 was grossly negligent in omitting a claim as to the permanent lease and because of that gross negligence of Subbammal O.S. 46 of 1918 ought not to have been held to be barred under Order 2, Rule 2. If such a contention was really maintainable the plaintiff might have carried an appeal to the Privy Council, but he did not. The result was that he lost the suit and the relief sought by him was denied. Whether O.S. 46 of 1918 was correctly decided or not, it is immaterial. The present suit for the same relief is barred as res judicata

25. The result is that the appeal of defendants 45 to 47 must be allowed and the plaintiffs' suit dismissed with costs throughout.

Phillips, J.

26. I agree. So far as the decision in Vidya Varuthi v. Balusami Apya A.I.R. 1922 P.C. 123 is concerned, I agree that it must be confined to its own particular facts, as otherwise it is difficult to reconcile it with the subsequent decision of the Judicial Committee in Srinivasa Chariar v. Evalappa Mudaliar A.I.R 1922 P.C. 325, and the earlier decision in Abhiram Go-swami v. Shyam Charan Nandi [1909] 36 Cal. 1003.


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