Skip to content


Chodavarpu Subba Rao and ors. Vs. Veeranjaneyaswami - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in126Ind.Cas.279
AppellantChodavarpu Subba Rao and ors.
RespondentVeeranjaneyaswami
Cases ReferredVizagapatam Sugar Development Co. v. Muthurama Reddy
Excerpt:
limitation act (ix of 1908), schedule i, article 131 - application of article 134--valid transfer, necessity of--reserving nominal rent, whether amounts to valuable consideration--transfer of property act (iv of 1882), section 51--'absolutely,' meaning of--person having only limited interest, whether entitled to claim value of improvements--doctrine of part performance, scope of--fraud--debtor successfully defeating creditors by fraud--estoppel against setting up fraud. - .....court granted a decree against the defendants and each of the defendants has filed a separate appeal. appeal no. 33 is by defendant no. 2, appeal no. 34 is by defendant no. 3, appeal no. 35 is by defendant no. 4 and appeal no. 36 is by defendant no. 1.2. each of the items will now be taken up for consideration. in the case of item no. 1, as i have already stated, a tiled house was built upon it in 1905. in 1913 kameswara rao applied to the chairman of the union to transfer the house to the name of defendant no. 1. in that document he says:it had been assigned by my father himself to my sister's son boddapathi ponniah (husband of the said ambamma)...the said house and site stand nominally in my name in the accounts and the tax is being paid through me and the entry in the accounts.....
Judgment:

Ramesam, J.

1. These appeals arise out of the same original suit, O.S. No. 61 of 1923, on the file of the Principal Subordinate Judge's Court of Masulipatam. The plaintiff sues as the trustee of Sri Veeranjaneyaswamuluvaru temple at Gudivada. Defendant No. 1 is in possession of item No. 1, defendant No. 2 is in possession of item No. 2 and defendants Nos. 3 and 4 are in possession of items Nos. 3 and 4, these being the four items which are the subject-matter of the suit. The plaintiff's adoptive father Kameswara Pakayya and his father one Brahmaraju, endowed certain lands belonging to them in Gudivada for the purposes of the temple. They built the temple in 1886 and conducted it for three years. In 1889 they executed a gift deed Ex. A, by which they endowed the suit land for the purposes of the temple, making themselves dharmakarthas. The document shows that some portions were intended to be built upon. A thatched house was built upon item No. 1 in 1893. Afterwards, some time in 1905 it was replaced by a tiled house: vide D.W. No. 1. The evidence shows that from the beginning there was an intention on the part of Brahmaraju and Kameswara Rao to give item No. 1 to defendant No. 1 who is the brother's daughter of Kameswara Rao. A house was built upon item No. 2 in 1892. The evidence shows that it was intended originally for a sister of Brahmaraju, defendant No. 2 being her grandson. Item No. 3 was given to defendants Nos. 3 and 4 by means of rent letter Ex. V (c), which purports to grant a perpetual lease of that item reserving an annual rent of Rs. 2. This was in March 1913. Item No. 4 is a vacant site placed in the possession of defendants Nos. 3 and 4 by a letter Exs. V (c), dated March 1910. It appears that there was a scheme suit in respect of the temple, and after that suit was disposed of the present plaintiff filed this suit to recover the various items from the respective defendants in possession. The lower Court granted a decree against the defendants and each of the defendants has filed a separate appeal. Appeal No. 33 is by defendant No. 2, Appeal No. 34 is by defendant No. 3, Appeal No. 35 is by defendant No. 4 and Appeal No. 36 is by defendant No. 1.

2. Each of the items will now be taken up for consideration. In the case of item No. 1, as I have already stated, a tiled house was built upon it in 1905. In 1913 Kameswara Rao applied to the Chairman of the union to transfer the house to the name of defendant No. 1. In that document he says:

It had been assigned by my father himself to my sister's son Boddapathi Ponniah (husband of the said Ambamma)...The said house and site stand nominally in my name in the accounts and the tax is being paid through me and the entry in the accounts stands in my name but neither I nor my heirs, have any right in respect to it. It belongs to the said Boddapathi Ambamma herself.

3. The Chairman ordered the change of name by an endorsement Ex. 1 (b), on 26th January, 1914. There was no registered: instrument transferring the right; to the house to defendant No: 1 nor is it possible to, regard such possession as defendant No. 1 and her husband had up to 1913 as adverse to Brahmaraju or his son Kameswara Rao. Under Article 134, Limitation Act, assuming for the present that the article applies to the case of a temple, there must be a transfer and time runs only from the date of transfer. This means that there must at least be a valid transfer between the transferor and the transferee though it might not be operative as against a trust or any other person. Here we have nothing of the kind. The present suit which was filed in 1923 is within 12 years from Ex. 1 (6). It cannot be said that the transfer was made for any necessity binding upon the trust. The result is this appeal must fail so far as item No. 1 is concerned.

4. Taking up item No. 2, we find from the account books Exs. 3 and 3 (a) that some money was spent on the construction of a house by defendant No. 2's father who was then employed elsewhere and used to remit money to Brahmaraju and Kameswara Rao. The genuineness of these accounts is attacked by the respondents but we think it is unnecessary to say anything on this question.' Assuming they are genuine and assuming that some money was spent by defendant No. 2's father and by defendant No. 2's grandmother: vide Ex. 4 series, on the construction and upkeep of the house we find that some time prior to 1906 the house was attached by certain creditors of defendant No. 2 and then a claim petition was filed by, Kameswara Rao claiming that the site belongs to him and the house was constructed by him and that defendant No. 2's father had nothing to do with the house. This claim petition was allowed. Obviously, the claim petition was instigated by defendant No. 2 himself. The creditors having been successfully defeated, it does not lie in the mouth of defendant No. 2 to say now that he possessed any kind of interest in the house after the order on the claim petition. He cannot claim either the ownership in the whole house and site or the equitable interest, to the extent of the sums spent in building the house. In 1906 Ex. C was executed by Kameswara Rao in favour of defendant No. 2 in which these facts are set forth, and the house was purported to be transferred by the document This document is registered and, therefore there in no question of there being a valid transfer as between the transferor and the transferee. The document reserves a rent of 8 annas a year payable to Sri Veeranjaneyaswamuluvaru and the transferee is to pay the Government revenue himself which comes to about 7 annas proportionately to the area of the site.

5. Now, by 1906 the town of Gudivada had altered. In less it was a mere village. Some time about 1892 the District Munsif's Court was opened and other public offices also have been existing there. A number of houses were built. As I have already said there was already a tiled house on item No. 2. It cannot be said that the only rent of 8 annas reserved in favour of the idol of the temple is a valuable consideration within the meaning of Article 134. In Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar 65 Ind. Cas. 161 : 44 M. 831 : 48 I.A. 302 : A.I.R. 1922 P.C. 123 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 80 M.L.T. 66 : 3 P.L.T. 245 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 (P.C.) it was observed by the Judicial Committee in respect of lands which were the subject-matter of that case that an annual rent of Rs. 24 could not be regarded as a valuable consideration. In that case the land was six kulis in extent and the rent reserved was Rs. 24 at the rate of Rs. 4 a kuli. The permanent lessee afterwards sub-leased them for Rs. 1,250. In the present case on the footing that by the date of Ex. C the whole of the items belonged to the temple it cannot be said that a rent of 8 annas a year is other than a mere cloak to cover what was really intended to be a gift to defendant No. 2. Therefore, the terms of Article 134 of the Act are not satisfied. The respondent argued that Article 134 does not apply to a temple at all relying on the decision in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar 65 Ind. Cas. 161 : 44 M. 831 : 48 I.A. 302 : A.I.R. 1922 P.C. 123 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 80 M.L.T. 66 : 3 P.L.T. 245 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 (P.C.). That question has been very elaborately argued before us but we do not think it necessary to decide in this appeal whether Article 134 applies generally to temples. The plaintiff's case is that there is a specific trust under Ex A. It is argued that Article 134 would apply. Though Article 134 may apply to a specific trust for a temple, the other conditions are not satisfied here. Mr. Ganapathi Iyer appearing for the appellant argued at the end of the case that in Article 134 does not apply Article 144 may apply. But we think if the conditions were satisfied, Article 134 is the proper Article because we find there is a specific trust and if the conditions are not satisfied there is no limitation at all. On this ground the appeal in respect of item No. 2 fails.

6. The next item is item No. 3. A house was built upon this item and an account book was produced as Ex. 8 in respect of this item by defendant No. 3's husband. The evidence including even the plaintiff's evidence shows that defendant No. 3 was not a poor woman and, however much Kameswara Rao wanted to help his daughters it does not follow that we must assume that defendant No. 3 was unable to incur the expense of building a house. We have no reason to suspect the genuineness of Ex 8. It is true that defendant No. 4 does not appear to be a well-to-do lady; but defendants Nos. 3 and 4 were acting together, their interests were never separated except in filing the appeals and even if one of them is not well-to-do we must find that defendants NOS. 3 and 4 were together able to incur the expenses of building a house on item No. 3. Exhibit 8 shows that a sum of Rs. 1,470-15-0 was spent in building the house. There is no question of the title of defendants Nos. 3 and 4 in respect of this item being completed by prescription. The only question is whether we should not allow the value of the building in favour of the appellants before the plaintiff can get a decree. The respondent relied on three decisions of this Court Perumal Gramani v. Mahamad Kasim Sahib 28 Ind. Cas. 840, Govindasami v. Ettirajammal 34 Ind. Cas. 1 : (1916) 1 M.W.N. 180 and Venkatappier v. Ramaswami Aiyar 52 Ind. Cas. 517 : (1919) M.W.N. 548 : 10 L.W. 137, in which it has been held that the word 'absolutely' in Section 51, Transfer of Property Act, shows that the person entitled to the equity under that section must show that he believes he hag absolute and not limited interest in the property. In the course of the argument it was pointed out by my learned brother (Jackson, J.) that this section was based upon Act XI of 1855 which applied only to cases governed by English Law. In that Act the words used are:

If any person shall erect any building or make an improvement upon any lands held by him bona fide in the belief that he had an estate in fee simple or other absolute estate.

7. This shows that the main principle of this section is that a person must show that he believed that he was entitled to the laud in such a way that he is not to be disturbed, whether it is a sale or perpetual lease he claims under. There are a number of English cases referred to before us in which tenants were held entitled to such improvements; I will only refer to one decision in Attorney-General v. Davey (1854) 19 Beav. 521 : 124 R.R. 194 on appeal (1859) 4 De G. & J. 136 : 124 R.R. 194, though this decision was reversed by the House of Lords on another point. Another is Attorney-General v. Pretyaman (1854) 19 Beav. 538 : 105 R.R. 231, in which it was held that the lessee was entitled to the improvements though the lease was not actually completed. The case of a lease is, therefore, an a fortiori case. In Mahalatchmi Ammal v. Palani Chetti 6 M.H.C.R. 245 and Kunhammed v. Narayanan Mussad 12 M. 320, it was held that a tenant was entitled to improvements. A similar view was taken in Dattatraya Rayajipai v. Shridhar Narayan Pai 17 B. 736 : (1892) P.J. 348 and Dattaji v. Kalba 21 B. 749, and two decisions of this Court, namely, Gopalakrishna Ayyar v. Sukirtha Theenthara 24 Ind. Cas. 790 and Thavasi Ammal v. Salai Ammal 43 Ind. Cas. 643 : 35 M.L.J. 281 : 22 M.L.T. 530 : (1918) M.W.N. 46 : 7 L.W. 178, also take the same view. We prefer these cases to the other cases relied on by the respondent and hold that before the plaintiff can eject defendant No. I he should pay to defendants Nos. 3 and A the present cost of the improvements effected on the site by way of the construction of the house. We direct the lower Court to estimate the cost of building the house now existing on the item. The plaintiff must pay the value of the improvements before taking possession of the house.

8. We now come to item No. 4, This item was placed in the possession of the appellants in March 1910; but there was no deed of transfer beyond Ex. 5 (b) which is a mere letter and was not registered. Even Article 144 cannot help the appellants so far as this item is concerned because the whole oral evidence does not show that anything was done upon this item so that there is not even adverse possession so far as this item is concerned. The appeal, therefore, fails in respect of item No. 4 also.

9. One argument is addressed by Mr. Ganapathi Ayyar, namely, that in the case of items Nos. 1, 3 and 4 though there is no registered instrument, as possession was given the doctrine of part performance as has been laid down in the Full Bench case in Vizagapatam Sugar Development Co. v. Muthurama Reddy 76 Ind. Cas. 886 : 46 M. 919 : A.I.R. 1924 Mad. 271 : 45 M.L.J. 528 : 33 M.L.T. 53 : (1924) M.W.N. 14 might, be applied. But that doctrine is only used to complete an intended transfer between the transferrer and the transferee, where there is no other objection to complete the transaction. It has never been used to complete a transaction against a third person such as the idol of a temple of a cestui que trust or a minor against whom it could not be regarded as operative.

10. The result is Appeals Nos. 33 and 36 are dismissed with costs. In the lower Court, they will be liable only for the plaintiff's costs referable to the items separately. In Appeals Nos. 34 and 35 we call for a finding from the lower Courts as to the present cost of the improvements in the house on the site. Two months and ten days.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //