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Rao Bahadur M.N. Govinda Rao Avergal Trustee Piranmalai Etc. Devasthanam Vs. Chinnathambi Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in91Ind.Cas.377
AppellantRao Bahadur M.N. Govinda Rao Avergal Trustee Piranmalai Etc. Devasthanam
RespondentChinnathambi Pillai
Cases ReferredMahomed v. Ganapati
Excerpt:
limitation act (ix of 1908), scheduled i, articles 131, 153 - permanent lease of temple property--suit by succeeding trustee--article applicable--starting point of limitation--madras estates land act (i of 1908) section 26--'bringing into cultivation', meaning of--land lying fallow, whether 'waste land'. - .....grant a permanent, lease of the trust properties and that, therefore, the period started from the date of the lease. the appeal was also opposed by the respondent on the ground that the lease was justifiable under section 26 of the estates land act, that is to say, because it was a lease granted for the purpose of bringing waste land into cultivation. although the lease recites that this land was overgrown, that the irrigation source was out of repair and that the land was uneven, it does not appear that the land was waste land within the meaning, of section 26. i agree with the district judge that 'bringing into cultivation' means cultivating land which had hot previously been cultivated or at any rate had not been cultivated for a long period. the mere fact that land has been fallow.....
Judgment:

Phillips, J.

1. The plaintiff in this case is the manager of the Piranmalai Devasthanam and he sues to recover rent in respect of certain lands belonging to the Devasthanam, which were granted on a permanent lease at a favourable rent by one of his predecessors. The lower Appellate Court has held that the suit is barred by limitation because the starting point of limitation under Article 134 is the date of the transfer which in the present case was more than 12 years before suit. He has come to this conclusion on the ground that the lease was void ab initio as the trustee of the Devasthanam had no right to grant a permanent, lease of the trust properties and that, therefore, the period started from the date of the lease. The appeal was also opposed by the respondent on the ground that the lease was justifiable under Section 26 of the Estates Land Act, that is to say, because it was a lease granted for the purpose of bringing waste land into cultivation. Although the lease recites that this land was overgrown, that the irrigation source was out of repair and that the land was uneven, it does not appear that the land was waste land within the meaning, of Section 26. I agree with the District Judge that 'bringing into cultivation' means cultivating land which had hot previously been cultivated or at any rate had not been cultivated for a long period. The mere fact that land has been fallow for one, two or even for four years cannot constitute it as waste land within, the meaning of that section. Otherwise land lying fallow for even one year would come within the definition.

2. The main question is whether the suit is barred by limitation. The lower Appellate Court has held that the permanent lease being invalid must be deemed to I have been invalid from the date of the alienation and that, therefore, the limitation period must be calculated from that date, the possession of the lessee being adverse, from that date. In this conclusion I think the District Judge is clearly wrong. The point, was decided in Mahomed v. Ganapati 4 Ind. Dac. 905, in a case precisely analogous to the present and it was there held that the period of limitation ran not from the date of the permanent lease but from the date of the accession of the plaintiff trustee to his office. This was followed; in Sathianama Bharati v. Saravanabagi Ammal 18 M. 265 . In Vidya Varuthi Thirtha Swamigal v.Balusami Ayyar 65 Ind. Cas. 161 (1922) A.L.R. (P.C.) the same point was decided with reference to a Mutt and Madadhipathi or Pandarasannadhi of that Mutt. Although in that case the religious institution in question was a Mutt a perusal of the judgment shows clearly that their Lordships draw no distinction between a Mutt as such and other Hindu religious institutions. The two cases, I have cited above, are referred to in their Lordships' judgment and referred to with approval. The basis of the decision is that ordinarily trust property belonging to Hindu Religious institutions is not vested in the so called trustee who is not in the position of an express trustee as understood in English Law. As the property does not vest in him, Article 134 of the Limitation Act is not applicable because the property 4has not been conveyed or bequeathed in trust and after wards transferred by the trustee, as the manager of the, institution is not a trustee within the meaning of the Article. That is, the view taken by their, Lordships, is, I think, clear from the passage in the judgment at page 847 page of 44 M. (Ed.): 'From the above review of the general law relating to Hindu and Muhammadan pious institutions, it would prima facie follow that an alienation by a manager or superior, by whatever name called, cannot be treated as the act of a 'trustee' to whom property has been 'conveyed in trust' and who by virtue thereof has the capacity vested in him which is possessed by a 'trustee' in the English Law.'

3. For the respondent it is urged that Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar 48 I.A. 302 : 26 C.W.N. 537 A.L.R.(1922) (P.C.)123, does not apply to the present case but he is not able to point out any principle on which a distinction can be drawn. Reliance is placed on another case of the Privy Council in Subbaiya Pandaram v. Muhammad Mustapha Marcayar (1924) M.W.N. 65 28 C.W.N. 493 50 I.A. 295 (P.C.), but that was a case of a specific trust, and consequently it was held that Article 134 was applicable. I am clearly of opinion that Article 134 is not applicable to the present suit.

4. It is then argued that under Article 144, the suit would be barred the contention being that from the date of the alienation there was possession adverse to the idol and consequently that after 12 years of such adverse possession the suit is barred. This is the view expressed in an obiter dictum in Ramrup Gir v. Lal Chand Marwari 67 Ind. Cas. 401 : 1 Pat. 475 and the proposition is sought to be supported by Damodar Das v. Lakhan Das 20 M.L.J. 624 : 37 I.A. 147 (P.C.). The former case seems to be directly opposed to the Madras decisions and, therefore, I need not further consider it. As regards the case in Damodar Das v. Lakhan Das 37 I.A. 147 (P.C.) the facts show that the dispute was between two chelas or trustees and in so far as the idol was concerned it, was not heldthat the idol had lost any rights in the property. The question decided was that one particular chela had by adverse possession acquired a right of management as against the representative of another chela, That is not the point here. The point has been dealt with in Jagadindra Nath Roy v. Hemania Kumari Debi 31 I.A. 203 : 8 Sar. P.C.J. 698 (P.C.). In that case property belonging to an idol had been alienated and the alienation occurred during the minority of the trustee. The contention raised there was that this minority of the plaintiff was of no avail, inasmuch as time had begun to run as against the idol. This contention was negatived by their Lordships on the ground that the idol had no power to bring a suit except through the trustee. Consequently there could be no question of a suit being barred inasmuch as it could not have been brought at an earlier date. There is, therefore, no reason why, even if Article 144 is applied, the decision in Mahomed v. Ganapati 4 Ind. Dec. 535 should not apply. Following that decision I must reverse the decree of the District Judge and restore the decree of the Deputy Collector' with costs, throughout.


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