1. This suit is brought by the plaintiffs to recover possession of house property in Calcutta as shebaits of a family idol on the ground that the property is debutter and that it is held by the defendant, Adoremoney Dassee, under a title founded on a permanent lease illegally granted by some of the previous shebaits. There is no doubt that they are the sons of one of the grandsons of one Ram Chandra Banerjee by whom it is alleged that the endowment was granted, or by whom the property in: suit was held as debutter. Their pedigree has been satisfactorily proved and if the debutter is proved, they have made out their claim, subject to the case made by the defendant and the law of limitation.
2. The facts on which Sreemutty Adore-money, the only contesting defendant, founds her case are as follows: On the 2nd July 1877, a mourasi lease of the premises in question was granted to one Sri Ram' Banerjee by three out of four of the grandsons of Ram Chandra of whom it was alleged that one was insane, and who together represented Ram Chandra's estate. Of the three grantors, one was the plaintiff's father, another their uncle and another their father's first cousin. Subsequently the uncle and his cousin sold their reversionary interests to Sri Ram the former being entitled to one-sixth, the latter to one-half of the whole. Sri Ram mortgaged the premises to Bholanath Chakrabutty, and after his death, his heir Natai Chanel Chakra-butty obtained a decree on this mortgage and brought the premises to sale, when they were bought by one Girish Chundra Bose in 1906, who died the same year leaving Adoremoney, his heiress. She is, accordingly, the principal defendant, the others being representatives of Sri Ram and the other shebaits whose position it is not necessary for the moment to consider. Her defence, so far as I need consider it, is a statement that she is and her predecessor was, in exclusive possession of the premises, and a denial that the plaintiffs have any title thereto. She then sets up the mourasi lease in question, dated the 22nd July 1877, denies that it was granted without necessity, or that it was in breach of any trust reposed in the lessors or that there ever was any such trust, and she asserts that the lessors were justified in granting the lease and that it is binding on the plaintiffs. She afterwards alleges that her husband, from whom she inherited the property, was bona fide purchaser for value of the premises without notice of any decimeter and pleads that the suit is haired by limitation. As the case was argued before me the last, point afforded the main ground of the defence; but before considering it, it is convenient that I should first notice the contention of the defendant that no dedication has been proved with sufficient certainty to support the plaintiffs' case. The plaintiffs produce no evidence of actual dedication either by writing or verbally. But we find that a dedication was referred to in a deed of partition entered into between the two surviving sons of Ram Chandra, that it was found to exist in a decree between the son of one of these sons and the other son in 1874, and that an enquiry was directed to ascertain as to how much of certain scheduled land was affected by it. It does not appear on the decree that these lands are identical with those in suit, but the only boundary that is of a permanent character, namely, a public road, is the same in the schedule and in the mourasi deed, and this point was not raised till it was too late for the plaintiffs to produce evidence on it. No books of account are produced; but there is oral evidence which though weak, I see no particular reason for disbelieving', including that given by the only witness Called for the defendant, that the land was debutter. Were this all, I should have doubts about finding in favour of the debutter but the contents of the mourasi lease where the debutter is recited and provisions inserted in consequence of its existence seem to me decisive and I find that the land in question was debutter at the time of the mourasi lease.
3. Another point to be considered before I deal with the question of limitation is whether' the permanent lease was invalid which the defendant asserts there is nothing to shew that it was. I cannot agree with this view. The shebaits pin-ported to relinquish all future increment in the value of the property for a little more than seven years purchase of the rents arising from it, reserving apparently about the rent that was then being raised and two of the three shebaits concerned subsequently parted with all their interests to the permanent lessee. We have no evidence at all as to what happened to the money so raised. I find it impossible to suppose that this was jus tillable in the interests of the endowment,. I have been referred to the case of Nawab Sir Syed Hossein Ali Khan v. Mohant Bhagwan Das 11 C.W.N. 261 : 34 C. 249 : 6 C.L.J. 442 as an authority Justifying the alienation in this case. I need only say that that case and the present are very different in their circumstances and I am not aware of any authority more nearly supporting the defendant's contention. The necessity for alienation recited in the lease itself seems to me illusory. It was that the shebaits might be called on to fill up a tank on the property which they could not afford to do. There is some insignificant evidence that a tank was filled up by Sri Ram but I cannot suppose that the advisability of filling it up constituted a necessity that justified alienation of the trust property. In order to consider the question of limitation, I have now to add only that the defendant's statement that Girish Chandra Hose had no notice of the debutter at the time of the sale to him cannot be sustained; as it is proved that a notice as alleged in Section 17 of the plaint was given.
4. Under the circumstances, the defendant contends that she is entitled to the benefit of Article 134 of the limitation Act on the ground that this is a suit for immovable property convoyed in trust and afterwards purchased from the trustees, that is the shebaits, for a valuable consideration. In support of this contention, she relies on the decisions in Ram Kanaz Chose v. Raja Sri Sri Hart Narayan Singh Deo Bahadur 2 C.L.J. 546 and Shama Charan Nandy v. Abhiram Goswami 10 C.W.N. 738 : 33 C. 511 : 3 C.L.J. 506 for the two propositions that the lessee under the permanent lease in this case was a purchaser under Article 13 A and neither the notice of the debutter contained in the deed, nor the notice given at the time of the sale deprived her of the benefit of the article in question.
5. To this the plaintiffs make several answers. In the first place they argue that, as the defendant has pleaded exclusive possession of the premises and denied any title to them in the plaintiffs, it is not open to her to set up a title under the mourasi lease, which in effect is what she is doing. The effect of the plea, however, is merely to put the plaintiffs to proof of a title which will justify their prayer for ejectment and does not prevent the defendant from relying on the mourasi.
6. They then argue that if the defendant is to be taken as the tenant of the plaintiffs, which is in fact the position that she takes up, she cannot be heard to say that she is holding adversely to her landlords in such a way as to give her any rights under the Limitation Act. This, however, depends on the character under which the defendant and her predecessors-in-title have been holding. If they have been holding under the mourasi lease and if it constituted an alienation which it was beyond the powers of the lessors to make, as I have hold it did, they have been trespassers and their possession has been adverse to the title of the lessors from the time of the mourasi, which brings the case far beyond the period of limitation. So far the facts of the case seem to me to be the same as those in Shami Charan Nandy v. Abhiram Goswami 10 C.W.N. 738 : 33 C. 511 : 3 C.L.J. 506. and the position of Sri Rant to have boon the same as that of Anango' Mohini Debee in that case. This brings us to the question whether Sri Ram and his successors have been holding under the moursai, and it is contended on. behalf of the plaintiffs that they have not, for, according to the ruling in Nitya Gopal Sen Poddar v. Mani Chandra Chakrabutty 12 C.W.N. 63 if at the time of the mourasi lease they wore holding under a legal title, their acceptance of the invalid lease did not make their holding adverse, and the statute of limitation will have no application. The oral evidence on the record is directed to this point, and, in my opinion, does not sustain the plaintiffs' contention. Jadu Nath and Peary Mohun Chatterjee do, indeed, give evidence of a collection of rents by Sri Ram before the date of the mourasi, but their evidence is entirely unsupported by any documents, and Jadu Nath in cross-examination admitted that the collection of rent by Sri Ram was only in order to see if the mourasi would suit him. They are contradicted by Umeah Chandra Nandan who is tenant and whose family long have been tenants of the premises in question. The rent under the mourasi is slightly in excess of that alleged to have been previously paid by Sri Ram, and the provisos in the mourasi that delivery shall take place at once, and that the lessee may serve notice on the tenants, ,go to show that the mourasi did constitute a new holding;, though, of course, they might well find ,a place where they are, though the lessee was already in possession. Taking all this evidence together, it does not, as I have already said, seem to me of sufficient force to prove a previous holding, and the case does not, therefore, fall under the principle of Nitya Gopal Sen Poddar v. Mani Chandra Chakrabutty 12 C.W.N. 63 which is indeed only a special case of the rule forbidding a tenant to deny his landlord's title.
7. Taking the allegations of the necessity of the mourasi to be untrue, on the hypothesis which lies at the foundation of the plaintiffs case, I am unable to distinguish this case from the two decisions on which the defendants rely. If, in the language of Mookerjee, J. Ram Kanai Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur 2 C.L.J. 546 Sri Ram did not profess or intend to take anything more than the qualified interest which the transferor was competent to alienate, there would be no room for the application of Article 134; and it follows that, if he did, the article may apply and Sri Ram was a purchaser within its moaning, and an absolute purchaser within the meaning of Radhanath Dass v. Gisborne & Co. 15 W.R. 24 : 14 M.I.A. 1. I cannot, therefore, assent to the argument that ho was not such a purchaser; and if he was, it is not now argued that the defendant must shew that he and his successors acted in good faith which I am not prepared to hold that they did. It is argued that the mourasi was a fraudulent transaction intended to effect practically a sale of that which the vendors could not alienate, and I am not prepared to hold that this was not so, though, on the very scanty evidence before me, I should hesitate to hold that was. There is, however, no evidence that leads me to impute fraud to Girisli Chander, and the question of good faith, whatever meaning is to be attached to that phrase, does not arise.
8. A further point is made by the plaintiffs that, in this case, the mourasi was granted by three only out of four of the shebaits, and that the shebaits are suing as such on behalf of the idol. If the question were one of estoppel, this argument might have some force; but it is a question of limitation founded on adverse possession, which puts a different complexion on the case because if the possession was adverse against some of the shebaits, it. is difficult to see how it can have been otherwise than adverse against them all. The force of the plaintiffs' contention in this respect is also weakened by the fact that Kaliprasanna's representative Hemangini is a defendant to the suit and I cannot grant a relief to her, which is what the plaintiffs are in fact asking for, against her co-defendants.
9. The last point raised by the plaintiffs to meet the plea of limitation is that, under Section 7 of the Limitation Act, a god must be regarded as a perpetual infant and the shebait as his manager. To support this contention, ho relics on a passage in Sastri's Hindu Law, at p. 447 of the 2nd edition. No judicial decision has been brought to my notice to support this view, though, it seems to refer to a passage in the judgment of the Judicial Committee in Konwar Doorganath Roy v. Ram Chander Sen 2 I.A. 52 : 2 C. 341 and it seems to me to be contrary to many previous decisions of this and other Courts. I cannot, therefore, accede to the plaintiffs' argument on the point.
10. The result is that I must hold this suit barred by limitation. Judgment for the defendants with costs.