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Ganga Prosad Chowdhury Vs. Kuladananda Roy and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1926Cal568,94Ind.Cas.235
AppellantGanga Prosad Chowdhury
RespondentKuladananda Roy and ors.
Cases ReferredMucklow v. Fuller
civil procedure code (act v of 190s), section 11 - res judicata between co-defendants--necessary conditions--res judicata, constructive--limitation act (ix of 1908), section 10--endowment in favour of deity--adverse possession, how established. - mukerjee, j.1. this appeal arises out of a suit in which the plaintiff asked for a declaration that a certain house situated in the town of burdwan is a part of an estate of which he alleges he is now one of the trustees, and also for recovery of possession thereof.2. the trust was created by one annada prosad ghose by a deed which was called a niyam-nirbandhapatra in 1305. he died in the year 1308. shortly after his death his daughter katyani instituted a suit being no. 438 of 1901 wherein she prayed for a declaration that the deed executed by her father was void and inoperative and in the alternative she prayed for construction of the deed. in this suit she impleaded as defendant her step-mother haribhabini, and the trustees named in the deed and also other persons in whose favour.....

Mukerjee, J.

1. This appeal arises out of a suit in which the plaintiff asked for a declaration that a certain house situated in the town of Burdwan is a part of an estate of which he alleges he is now one of the trustees, and also for recovery of possession thereof.

2. The trust was created by one Annada Prosad Ghose by a deed which was called a Niyam-Nirbandhapatra in 1305. He died in the year 1308. Shortly after his death his daughter Katyani instituted a suit being No. 438 of 1901 wherein she prayed for a declaration that the deed executed by her father was void and inoperative and in the alternative she prayed for construction of the deed. In this suit she impleaded as defendant her step-mother Haribhabini, and the trustees named in the deed and also other persons in whose favour certain bequests had been made by the deed. The deed, it may be observed here, purported to dedicate certain properties to the family deity Sri Sri Iswar Sridhar Jieu and creates an endowment for the sheba of the said deity and for meeting the expenses for certain religious observances and the feeding of the guests connected with the worship of the said deity. Certain bequests were also made in favour of others. He appointed himself as trustee to act during his life; and, to act after his death as trustees, nine other persons were named. No provision was made in the deed as regards Haribhabini and she took no active part in the suit. Three of the trustees named in the deed, namely, Sarada Prosad Choudhury, Makhan Lal Choudhury and Kuladananda Roy as well as others with whom we are not concerned at this stage contested the suit. During the trial of the suit Katyani, the plaintiff, withdrew her case as to the validity of the deed. She pressed her case so far as the construction of the deed was concerned and the deed was construed. One of the clauses of the deed which dealt with the house which forms the subject-matter of the present suit was construed and it was held that Annada Prasad Ghose had made an absolute gift of it with the exception of its western room to Makhan Lal Chowdhury one of the trustees named in the deed. Similarly, all the other clauses of the deed were also construed. Subsequently Kulada Prasad and Sarada Prasad Chowdhury, two of the aforesaid trustees, took out Letters of Administration in respect of the properties covered by the deed and administered the properties. The present suit has been instituted by Kulada Prasad Roy as shebait of Sri Sri Sridhar Jieu and as a trustee in respect of the trust properties left as aforesaid by Annada Prasad Ghose for ejecting the defendant-appellant, who is the son of Makhan Lal Choudhury, on a declaration that the house in question is the debutter property of the said deity. -The suit has had a long and chequered career. The decision, which is now under appeal, has been in plaintiffs favour.

3. The questions which arise far our consideration, upon the arguments addressed to us, are four in number: 1st, whether the decision in Suit No. 438 of 1901 operates as res judicata; 2nd, what is the true construction of para. 21 of the deed; 3rd, whether the suit is barred by limitation; 4th, whether the defendant has acquired a title by adverse possession.

4. The contention of the appellant on the question of res judicata is two-fold : It is urged in the first place that the previous decision operates as res judicata as all the requirements for the application of that doctrine as between co-defendants are present in the case, and nextly, it is said that even if. strictly speaking that doctrine cannot be applied, then the Court having construed the deed in the presence of all the parties interested, its conclusions are binding on them all on general principles. To this contention a preliminary objection is put forward on behalf of the plaintiff-respondent. The objection is to the effect that this contention is not entertainable at this stage.

5. It would be convenient, first of all, to dispose of the preliminary objection. The suit was dismissed in the first instance by the Trial Court on the ground of res judicata. On appeal the District Judge reversed the decision and remanded the suit for determination of the other issues involved. Those issues were then decided by the Trial Court and the records together with the decision on those issues were sent back to the District Judge and then the appeal was finally decided by him. It is said that the appellant should have appealed against the order of remand which was founded upon a decision adverse to him on the question of res judicata, and that, not having done so, he is now precluded from challenging that decision in this appeal by reason of the provisions of Section 105, Sub-section (1) of the C.P.C. This preliminary objection must, however, be overruled as the order of remand on the face of it purports to have been one under Order XLI, Rule 25 and it was expressly declared by the learned Judge to have been made by him under that rule upon a petition filed by the appellant with the object of finding out its true nature and effect.

6. In order to deal with the contention of res judicata upon the principle as embodied in Section 11 of the C.P.C., and when it is to be applied to parties who were in the position of defendants in the earlier suit, tests have from time to time been laid down by learned Judges, but these tests own their origin to a well-known rule which was expressed by Wigram, V.C., in Cottingham v. Shrewsbury (Earl) (1843) 3 Hare. 627 : 15 L.J.Ch. 411 : 67 E.R. 530 in these words: 'If a plaintiff cannot get at his right without trying and deciding a case between co-defendants the Court will try and decide that case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.' The same rule was suggested by Jesse], M. R. in Kevan v. Crawford (1877) 6 Ch. D. 29 : 46 L.J.Ch. 729 : 37 L.T. 322 : 26 W.R. 49 when he said: 'What right has a Court of Justice to investigate a claim by title paramount by one co-defendant against another? I am not aware of any. The answer is, if you wish to assert these claims you must assert them in a proper action.... Where a plaintiff obtains relief against one or more defendants, and there are subordinate questions either necessary to be gone into to work out that relief completely for the benefit of the plaintiff or necessary to adjust the rights of the defendants consequent on the relief so obtained by the plaintiff, the Court may, by enquiries in Chambers, work out the equities between the co-defendants. But there is no case produced in which any such enquiries were directed where the plaintiff's case wholly failed.' It is contended on behalf of the respondents that the observations, which I have quoted above, go to indicate that it is only when some relief is granted to the plaintiff that the adjudication of a conflict as between co-defendants will operate as res judicata in a subsequent suit as between them. It will be seen, however, that the cases of Cottingham v. Shrewsbury (Ram) (1843) 3 Hare. 627 : 15 L.J.Ch. 411 : 67 E.R. 530. and Kevan v. Crawford (1877) 6 Ch. D. 29 : 46 L.J.Ch. 729 : 37 L.T. 322 : 26 W.R. 49 were both instances where, when after the determination of questions which were necessary to be determined in order to give relief to the plaintiff and when the plaintiff was out of the way, as it were, it was sought to have certain matters gone into and adjudicated upon as between the defendants, it being alleged that the adjudication might be binding between the latter for the future as having finally adjusted their rights. This peculiar feature of the cases, therefore, necessitated those observations. They were not cases in which any question arose as to whether any previous decision operated as res judicata in respect to the cases themselves. To accept the respondent's contention in this respect would be to hold that a decision will be res judicata only if the suit ends in a particular way. Such a position is hardly tenable. On the other hand there are many reported decisions in which notwithstanding the dismissal of the plaintiff's suit, the decision has been held to operate as res judicata as between co-defendants: e.g., Venkayya v. Narasamma 11 M. 204 : 4 Ind. Dec. (N.S.) 142, Kandiyil Cheriya Chandu v. Zamorin of Calicut 29 M. 515 and Yusuf Sahib v. Durgi 30 M. 447 : 17 M.L.J. 260 : 2 M.L.T. 368. The true rule was enunciated by West, J., in his judgment in the case of Ramchandra Narayan v. Narayan Mahadev 11 B. 216 : 11 Ind. Jur. 301 : 6 Ind. Dec. (N.S.) 142 in these words: 'There must be a conflict of interest amongst the defendants, and a judgment defining the real rights and obligations of the defendants inter se. Without necessity the judgment will not be res judicata amongst the defendants, nor will it be res judicata amongst them by mere inference from the fact that they have collectively been defeated in resisting a claim to a share made against them as a group.' This statement of the rule has been accepted as settled law in the generality of cases. Madhavi v. Kelu 15 M. 264 : 5 Ind. Dec. (N.S.) 535, Ahmad Ali v. Najabat Khan 18 A. 65 : A.W.N. (1895) 156 : 8 Ind. Dec. (N.S.) 749, Chajju v. Umrao Singh 22 A. 386 : A.W.N. (1900) 120 : 9 Ind. Dec. (N.S.) 1293, Balambhat v. Narayanbhat 25 B. 74 : 2 Bom.L.R. 511, Muhammad Kuni Rowthan v. Visvanathaiyar 26 M. 337 : 12 M.L.J. 471 and Magni Ram v. Mehdi Husain Khan 31 C. 95 : 8 C.W.N. 30. The rule has been stated in some other decisions as requiring the fulfilment of three essential conditions : (1) that there should be a conflict of interest between co-defendants, (2) that it should be necessary to decide on that conflict in order to give to the plaintiff the relief appropriate to his suit, and (3) that the judgment should contain a decision on the question as between co-defendants. Gurdeo Singh v. Chandrika Singh 1 Ind. Cas. 913 : 36 C. 193 : 5 C.L.J. 611 and Jadav Chandra Sarkar v. Kailash Chandra Singh 34 Ind. Cas. 929 : 21 C.W.N. 693 at p. 694 : 25 C.L.J. 322. Courts are reluctant to apply the doctrine as between co-defendants unless clear indications appear of the presence of all the requisite conditions, and in the generality of cases where it has been applied, it has been applied with great caution [observations of the learned Judges in the case of Jadav Chandra Sarkar v. Kailash Chandra Singh 34 Ind. Cas. 929 : 21 C.W.N. 693 at p. 694 : 25 C.L.J. 322]. So chary are the Courts of applying this doctrine in the case of co-defendants that in some cases the Courts have enunciated the rule as limited to cases of active contest, e.g., Ramanuja Ayyangar v. Narayana Ayyangar 18 M. 374 : 6 Ind. Dec. (N.S.) 609, Kandiyil Cheriya Chandu v. Zamorin of Calicut 29 M. 515, Ramaswamy Reddi v. Abhoy Chetty 11 Ind. Cas. 17 : (1911) 2 M.W.N. 306 : 11 M.L.T 71, Yusuf Sahib v. Durgi 30 M. 447 : 17 M.L.J. 260 : 2 M.L.T. 368, Muhayadeen Alli Sahib v. Bacha Sahib 49 Ind. Cas. 369 : (1918) M.W.N. 580 : 8 L.W. 473, Nand Lal Pal v. Naresh Chandra Deb 41 Ind. Cas. 468 : 2 P.L.W. 108. and Mohendra Nath Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954 : 19 C.W.N. 1280 : 21 C.L.J. 157.

7. Bearing these principles in mind, when we come to examine the facts of the present case we find that Makhan and Kuloda were arrayed as defendants in the suit of 1901. The validity of the deed was challenged by Katyani, and she also prayed for a construction of the deed on the ground that ' if the deed was held to be operative there was a chance of her rights being injured and, therefore, it was necessary to determine what rights she has in her father's estate under the deed, and if the said deed be not construed, her rights and that of her heirs will not be settled.' Makhan, Kulada and Sarada jointly filed a written statement in that suit presumably for the purpose of defeating the plaintiff's claim. The whole of the written statement deals with the validity of the deed and challenges Katyani's right to have it construed. It does not appear that they set up any claim, far less any conflicting claims, to the house which is now in suit. The deed was construed as it had to be for the purpose of finding out what the rights of Katyani and her heirs were. Under Clause 21, she was found to have no rights and it was held on a construction of the said clause that the house had been made an absolute gift of to Makhan and his heirs. In the decree that was drawn up it was only declared that the deed was construed. To apply the doctrine of res judicata to the case a contest will have to be presumed from the mere fact that Kulada might and ought to have contested the title of Makhan, that is to say, the doctrine of constructive res judicata founded upon Explanation IV to Section 11 of the Code will have to be invoked. The tendency of Courts is to apply this doctrine within very narrow limits even as between plaintiffs and defendants; and there is scarcely any room for its application as between co-defendants. At any rate, there is no authority that this doctrine may be applied as between them in a case where they made a joint defence to the plaintiff's suit. The plaintiff got some relief, which was said to be a 'nominal' one in the judgment, but none under Clause 21 of the deed. The view of the Court as to the meaning of the clause was embodied in the judgment--but the course of the proceedings do not suggest that any conflict inter se as between Kulada and Makhan was decided, such as might give Kulada a right of appeal. One defendant may under certain circumstances prefer an appeal against another, although the plaintiff's suit has been wholly dismissed in respect of adverse findings in the judgment; but such an appeal is maintainable only when the adjudication has been upon a real conflict as between the co-defendants. In the present case no such conflict is discernible. There was a joint defence and the construction of the deed seems to have been made in order to find out the rights of the plaintiff and her heirs. It is difficult to see how Kulada could have appealed against the decree as against Makhan; and, if he could not then on the principle laid down in the Full Bench decision of this Court in the case of Brojo Behari Mitter v. Kedar Nath Majumdar 12 C. 580 : 6 Ind. Dec. (N.S.) 394, the previous decision cannot be held to operate as res judicata. This principle has been followed in a recent decision of this Court in the case of Gopal Jew Thakur v. Radha Binode Mondal 88 Ind. Cas. 616 : 41 C.L.J. 396 : A.I.R. 1925 Cal. 996.

8. It is also contended that on the principles which are applicable to suits for partition or for construction of a Will, the decision must be held to be binding as against all the parties to the suit. Suits for partition have always been regarded as standing on a different footing. A decree for partition made in a suit instituted by a member of a joint Hindu family is res judicata as between all co-sharers who are parties to the suit. Nalini Kanta Lahiri v. Sarnamoyi Debya 24 Ind. Cas. 294 : 41 I.A. 247 : 19 C.W.N. 531 : 27 M.L.J. 76 : 1 L.W. 607 : 16 M.L.T. 544 : (1914) M. W.N. 948 : 21 C.L.J. 23 : 17 Bom. L.R. 1 (P.C.). A decree for partition is a joint declaration of the rights of persons interested in the property of which partition is sought, and when properly drawn up, it is in favour of each share-holder or set of share-holders having a distinct share; Pursotam Rao Tantia v. Radha Bai 6 Ind. Cas. 692 : 32 A. 469 : 7 A.L.J. 451, Sheikh Khoorshed Hossein v. Numbee Fatima 3 C. 551 : 2 C.L.R. 187 : 1 Ind. Dec. (N.S.) 935, Dost Muhammad Khan v. Said Begam 20 A. 81 A.W.N. (1897) 199 : 9 Ind. Dec. (N.S.) 411, Assan v. Pathuma 22 M. 494 : 9 M.L.J. 37 : 8 Ind. Dec. (N.S.) 353 and Ashidbai v. Abdulla Haji Mahomad 31 B. 271 : 8 Bom. L.R. 652. In the last mentioned case, it will be observed, it was laid down that where a plaintiff brings a suit for partition and fails, it is not open to any of the defendants to claim that the partition suit should go on in order that the share of one or more of the defendants may be determined. The difference is probably attributable to the fact that a conflict between the plaintiff and each defendant or set of defendants involves necessarily, in most cases, a conflict between the defendants or sets of defendants inter se. Where in a prior suit for partition certain parties were arrayed as co-defendants and the decision in that suit did not decide any question of partition amongst them inter se that decision does not operate as res judicata, Muhammad Ahmad v. Zahur Ahmed 67 Ind. Cas. 523 : 44 A. 334 : 20 A.L.J. 193 : 4 U.P.L.R. (A.) 55 : A.I.R. 1922 All. 19.

9. Judgments, orders or decrees which come within Section 41 of the Evidence Act partake of a conclusive character for certain limited purposes on the footing of their being judgments in rem. Cases of construction of deeds which all the parties to a litigation submit before the Court in order to ascertain or adjust their respective rights fall within the principle that where the parties to a litigation submit a question for the decision of the Court and the Court gives a decision on being so invited that decision binds all the parties for the future.

10. Lastly, it is contended that even if the rule of res judicata as embodied in Section 11 of the Code does not apply the decision is conclusive on the general principles which relate to the conclusive character of judgments inter partes. Reliance has been placed as regards this branch of the contention upon certain cases which have now to be considered. The case of George Henry Hook v. Administrator-General of Bengal 60 Ind. Cas. 631 : 48 I.A. 187 : 48 C. 499 : 25 C.W.N. 915 : 19 A.L.J. 366 : 40 M.L.J. 423 : 29 M.L.T. 336 : (1921) M.W.N. 313 : 33 C.L.J. 405 : 3 U.P.L.R. (P.C.) 17 : 23 Bom. L.R. 648 : 14 L.W. 321 (P.C.) is one of these cases. In this case it was pointed out by the Judicial Committee that the question of res judicata is not completely governed by Section 11 of the C.P.C., that the said section prevents the re-trial in a subsequent suit of an issue which was directly and substantially in issue in a previous suit and does not deal with cases where the same issues arise in the same suit but at a later stage of it. Their Lordships quoted with approval the pronouncement of the Board made in the case of Ram Kirpal Shukul v. Rup Kuari 11 I.A. 37 : 6 A. 269 : 4 Sar.P.C.J. 489 : 3 Ind. Dec. (N.S.) 718 (P.C.) as to the applicability of the general principles which prevent a case being twice litigated. The next case relied upon is that of Ramachandra Rao v. Ramachandra Rao 67 Ind. Cas. 408 : 26 C.W.N. 713 : 35 C.L.J. 545 : 30 M.L.T. 154 : 45 M. 320 : 16 L.W. 1 : (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom.L.R. 963 : A.I.R. 1922 P.C. 80 : 49 I.A. 129 (P.C.). In that case it was held that a decision of a competent Court even in proceedings under the Land Acquisition Act, will operate as res judicata and the same question cannot be re-opened in subsequent litigation as between the parties, it having been erroneously supposed in the Courts in India on a misapprehension as to the effect of the decision of the Judicial Committee in the case of Rangoon Botatoung Co. v. Collector of Rangoon 16 Ind. Cas. 188 : 39 I.A. 197 : 16 C.W.N. 961 : 12 M.L.T. 195 : (1912) M.W.N. 781 : 16 C.L.J. 245 : 23 M.L.J. 276 : 14 Bom.L.R. 833 : 10 A.L.J. 271 : 5 Bur.L.T. 205 : 40 C. 21 : 6 L.B.R. 150 (P.C) that the judgment, since it arose out of proceedings under the Land Acquisition Act, could not operate as res judicata. The case of Badar Bee v. Habib Merican Noordin (1909) A.C. 615 : 78 L.J.P.C. 161 : 101 L.T. 161 cited in the judgment of the last mentioned case is also referred to. From the judgment of their Lordships in that case it is clear that there was a previous decision inter partes in which it had been held that the defendants were estopped from questioning a decree which made certain declaration but they did not appeal' from that decision as the interest then at stake was of trifling value and afterwards attempted to question its correctness when the interest at stake was much larger.' Their Lordships observed: 'It is not competent for the Court in the case of the same question arising between the same parties to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed from in due time. Nor can the residuary legatees be heard to say that the value of the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. If such a plea were not admissible there would be no finality in litigation. The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute.'

11. These cases do not in any way qualify the provisions of Section 11 of the C.P.C, so far as regards cases which come within the scope of that section, or affect the question of res judicata, when a previous decision of a suit is alleged to operate as a bar in a subsequent one as between persons who were co-defendants in the previous suit. As observed by the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh 29 C. 707 : 6 C.W.N. 825 : 29 I.A. 196 : 4 Bom.L.R. 793 : 8 Sar.P.C.J. 323 (P.C.) the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

12. For the foregoing reasons I agree with the learned District Judge in holding that the decision in the suit of 1901 does not operate as a bar on the question of construction of Clause 21 of the deed upon which the title of the appellant rests.

13. I now proceed to consider the second question, namely, the construction of the clause. I have very carefully read the deed several times, especially as I have been unable to agree with the view taken of it by several Bengali Judicial Officers whose interpretation of the deed, which is in Bengali, is naturally entitled to every respect. The governing intention of the author of the deed is to create an endowment in favour of the deity Sri Sri Iswar Sridhar Jieu and the feeding of the guests connected therewith, the house is item No. 1 of Schedule Uma which along with the properties in the other schedules, namely, ka to gha are dedicated in Clause 1 for the worship of the said deity and the feeding of the guests connected therewith. Clause 21 opens with a clear and unambiguous statement making the said house together with the surrounding lands and trees, etc., as debutter property of the deity. To construe the remainder of the clause it will have to be seen whether there is anything therein which is necessarily repugnant to the intention so unequivocally expressed in the opening words. The wording of the whole deed is somewhat clumsy but the meaning of the clause does not appear to be ambiguous. The clause has been put into English by the learned Subordinate Judge and I adopt his translation with some slight variation. It would run thus:

My Burdwan lodging house (consisting of) a dalan (pucca building) with lands on all sides and trees, etc., is given to debutter. But so long as Sreeman Makhan Lal remains in Burdwan, after educating his son (and) on making him a trustee in his place will enjoy and remain in possession (of the same) oirup uttara-dhikarirupey and he will remain on paying taxes and making necessary repairs. But the western room in which I put up remains mine. When the trees dry up Makhan Lal will be entitled to use them as fuel. There is a talk of purchasing the lands to the west and north of the dalan (pucca building) on payment of their price. In future Sriman Saroda, Rajendra or Jegesh will be entitled to build houses. But if any (of them) quarrels with each other, the trustees will disappoint them all. (As to) the house and garden given to Mukshoda by me, no one will have any concern therewith. He will enjoy and remain in possession thereof, putrapoutra-dhikramey (from generation to generation).' The learned Subordinate Judge has translated the words ' oirup uttaradhikarirupey ' as 'in the same way as an heir 'and in this, in my opinion, he was in error. In my opinion the words mean 'as successor in the same way,' that is to say, as trustee appointed in the place of Makhan Lal and possessing the same rights and privileges as Makhan Lal. It is noteworthy also that these properties find no place in any of the eight schedules at the end of the deed, namely, schedules 1 to 8 wherein bequests in favour of certain persons are specified. Other grounds have been given by learned District Judge in support of the view he has taken and I agree generally with his reasoning. In my opinion, beyond the right to enjoy the properties in the manner indicated and subject to the conditions prescribed, no other right, far less any absolute interest, was created in favour of Makhan.

14. The question of limitation has next to be considered. On this question the point to be considered is whether Section 10 of the Limitation Act applies to the case. For this section to apply it will have to be held that the property became vested in Makhan in trust for a specific purpose, that is to say, two conditions must combine; there must be a trustee with an express trust and an estate or interest vested in the trustee; in other words, the trust must have been created for some specific purpose and the property must have become vested in the trustee with the object of carrying that purpose into effect. In this connection the true effect of the deed has to be construed.

15. The deed expressly dedicates the properties, including the house which is mentioned in schedule uma for the worship of Sri Sri Iswar Jieu and the feeding of the guests connected therewith. In the opening lines of para. 21, the house is expressly dedicated to the said deity. In para. 2 the trustees are appointed for the purpose of 'protecting, managing and so forth' the properties so dedicated. In para. 1 Annada Prosad Ghose declares thus.--'To all those properties I shall have in future no right other than that of mere superintendence. All the aforesaid properties shall come under the management of the trustees named below from the moment I shall depart from this place for good.' The different paragraphs of the deed lay down rules for the guidance of the trustees. In para. 15 it is repeated that the properties are dedicated for the worship of the deity and the feeding of guests. In several places in the deed the estate is called the debutter estate. The effect of the deed clearly in my opinion, is to vest the properties in the deity and not in the trustees for a specific purpose. The mere use of the word 'trustee' is of no consequence if what I have said is the real import of the deed The distinction between the two classes of cases has been pointed out in the decision of the Judicial Committee in the case of Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar 65 Ind. Cas. 161 : 48 I.A. 302 at p. 315 : 26 C.W.N. 537 : (1921) M.W.N. 449 : 41 M.L.J. 316 : 44 M. 831 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L. T. 245 : 24 Bom.L.R. 629 : 20 A.L.J. 497 : A.I.R. 1992 P.C. 123 (P.C.) where their Lordships after quoting the words of Section 10 of the Limitation Act observe thus: ''The language of Section 10 gives the clue to the meaning and application of Article 134. It clearly shows that the article refers to cases of specific trust, and relates to property conveyed in trust'. Neither under the Hindu Law nor in the Muhammadan system is any property 'conveyed' to a shebait or a mutwalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Muhammadan Law, the moment a wakf is created all rights of property pass out of the waqif, and vest in God Almighty. The curator, whether called mutwalli or sajjddanishin, or by any other name, is merely a manager. He is certainly not a 'trustee' as understood in the English. system.' After this pronouncement it is difficult to maintain that Section 10 has any application to the case of an endowment in which there is a dedication in favour of the deity, as I hold there has been in the present case. To my mind it is clear that the properties vested in the deity and the management, control and possession remained in the so-called 'trustee.' Certain passages from some of the later decisions of the Judicial Committee were cited before us on behalf of the respondent, namely, from the decision in the case of Srinivasa Chariar v. Evalappa Mudaliar 68 Ind. Cas. 1 : 27 C.W.N. 317 : 31 M.L.T. 1 : 16 L.W. 247 : 45 M. 565 : 43 M.L.J. 536 : 24 Bom.L.R. 1214 : A.I.R. 1922 P.C. 325 : 36 C.L.J. 524 : 21 A.L.J. 250 : 49 I.A 237 (P.C.), Subbaiya Pandaram v. Makamad Mustapha Maracayar 74 Ind. Cas 492 : 28 C.W.N. 493 : 21 C.L.J. 730 : A.I.R. 1923 P.C. 175 : 45 M.L.J 588 : 25 Bom. L.R. 1275 : 46 M 751 : 18 L.W. 903 : (1924) M.W.N. 65 : 2 Pat.L.R. 104 : 33 M.L.T. 285 : 40 C.L.J. 20 : 50 I.A. 295 (P.C.), Nainapillai Marakayar v. Ramanathan Chettiar 82 Ind. Cas. 226 : 28 C.W.N. 809 : 47 M. 337 : A.I.R. 1924 P.C. 65 : 19 L.W. 259 : 22 A.L.J. 130 : 53 M.L.T. 10 : (1924) M.W.N. 293 : 46 M.L.J. 546 : 10 O.& A.L.R. 461 : 51 I.A. 83 : L.R. 5 A. (P.C.) 33 (P.C.) as apparently qualifying to some extent the pronouncement of the law as made in Vidyavaruthi's case 65 Ind. Cas. 161 : 48 I.A. 302 at p. 315 : 26 C.W.N. 537 : (1921) M.W.N. 449 : 41 M.L.J. 316 : 44 M. 831 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L. T. 245 : 24 Bom.L.R. 629 : 20 A.L.J. 497 : A.I.R. 1992 P.C. 123 (P.C.). This matter, however, need not be discussed, for so far as regards the cardinal principle to which I have referred, the law must be taken to have been finally settled. For the contention that Section 10 applies to the case reliance was placed on behalf of the respondent upon the decision, of the Judicial Committee in the case of Srinivasa Moorthy v. Venkatavarada Iyengar 11 Ind. Cas. 447 : 38 I.A. 129 : 15 C.W.N. 741 : 8 A.L.J. 774 : 13 Bom.L.R. 520 : (1911) 2 M.W.N. 375 : 14 C.L.J. 64 : 21 M.L.J. 669 : 34 M. 257 : 10 M L.T. 263 (P.C.) but that was a case of an executor and trustee appointed under a Will. In the present case as I have already said the mere use of the word 'trustee, signifies nothing. The Article which would apply in a case of this nature is either Article 142 or Article 144. For this proposition reference may be made to the decision of the Judicial Committee in the case of Abdur Rahim v. Das Aurora 71 Ind. Cas. 646 : 50 I.A. 84 : 28 C.W.N. 121 : A.I.R. 1923 P.C. 44 : 17 L.W. 509 : 32 M.L.T. 153 : 44 M.L.J. 624 : 25 Bom.L.R. 670 : (1923) M.W.N. 441 : 36 C.L.J. 242 : 50 C. 329 (P.C.).

16. So long as Annoda was alive there is no question that the deity was in possession through him. On the death of Annoda, Makhan came to be in possession, but in view of his knowledge of the deed, it must be taken that he came into possession in the fiduciary character conferred on him by the deed, and the possession of the deity must be presumed to have continued unless it is proved that Makhan set up a title hostile to the deity. The onus is on Makhan to show that he did not come in that character or if he did, that his possession subsequently became adverse to the debutter either by disclaimer or by open and clear assertion of a hostile title. It is, therefore, immaterial whether Article 142 or Article 144 applies, and the real question is whether Makhan's possession at any time became adverse and if so has this possession continued for a sufficient length of time to extinguish the plaintiff's title and create a title in Makhan and the appellant.

17. This brings us to a consideration of the last question which arises in this appeal, namely, whether the appellant and his father Makhan has been in adverse possession for a period of twelve years. On the facts found, Makhan contested the suit of Katyani, but did not do any other act as trustee under the deed. The learned District Judge remarks in his judgment that in the written statement Makhan claimed the house as his own, but in this he has been in error. Nor, on the other hand, was the learned District Judge, in my opinion, right in treating the filing of the written statement in Katyani's suit as acceptance of the trusteeship. No doubt an executor trustee by proving the Will is deemed to have accepted the trusts of the Will; Mucklow v. Fuller (1821) Jac. 198 : 37 E.R. 824 : 23 R.R. 29. But the filing of a written statement, such as it, was in the present case, asserting the validity of the deed and opposing its construction when its validity was challenged by Katyani, in my judgment, does not go so far. At any rate it was not inconsistent with Makhan having accepted the position of a 'trustee' not in respect of all the properties included in the deed but only in respect of such of them which were found by the Court at that time to have been dedicated to the deity. On the question of adverse possession the learned Subordinate Judge held that Makhan through his Pleaders in the suit of 1901, must have set up a hostile title to the property, and that as the plaintiff was one of the Pleaders such assertion must have been to the knowledge of the plaintiff.

18. Though there is no direct evidence of this assertion of a hostile title, yet all the circumstances point to such an assertion having been made on behalf of Makhan by his Pleader and that to the knowledge of the plaintiff who was also one of the Pleaders for Makhan in that suit. The decision of that suit as also of several suits which subsequently came on, all affirmed the view that Makhan was the absolute owner. It is not unreasonable to suppose,--in fact any assumption to the contrary would be most unreasonable,--that Makhan continued to possess the property with the knowledge of the plaintiff on the assertion of the title which was found in his favour in several successive suits. No particular form of expression of an intention is necessary to constitute adverse possession; it is always a question of animus which has to be gathered from all the circumstances. The character of the possession of Makhan since the time of those suits, till the time when the appellant has been in possession has remained the same, and the one conclusion that follows is what has been found by the learned Subordinate Judge, namely, that there has been adverse possession for over twelve years, and the plaintiff's title has been extinguished.

19. The appeal, therefore, must be allowed, the decree of the learned District Judge reversed, and that of the Subordinate Judge restored with costs in this Court as well as in the lower Appellate Court.

Suhrawardy, J.

20. In Katyani's suit she invited the Court to construe the deed of endowment for the purpose of finding if any term of it was invalid so that the property not validly dedicated would descend on her as the heir of the settlor. She did not ask the Court to construe the terms of the deed in order to determine the real nature and effect of the settlement. The construction in Katyani's suit upon Clause 21 of the deed, therefore, is not, in my opinion, res judicata as between plaintiff and Makhan.

21. I agree with my learned brother in the interpretation of the document and in holding that the plaintiffs suit is barred by limitation.

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