Sir Shadi Lal:
This appeal relates to a village khown at Saktni, which is situated in the District of Gorakbpur in the province of Agra. The village formed part of the estate annexed to the math of Kanchanpur in that District and was sold to the defendants, hereinafter called the appellants, on 1st March 1914, by one Rajbans Bharthi alleged to be the mahant of the math at that time. Rajbans died on 21st March 1916, and the present action was brought on 23rd February 1926, by Karia Bharthi, who claimed to be his successor as the mahant of the shrine. A large number of pleas were raised to defeat the suit, but there are only two questions which have been argued on this appeal: first, that the plaintiff was not entitled to maintain the suit; second, that the claim was barred by limitation. The facts of the case bearing on these questions do not admit of any real dispute. In April 1894, one Bachchu Bharthi, who was admittedly the mahant of the math, died, and two persons, namely Rajbans Bharthi and Karia Bharthi, came forward to claim the office of the mahant. Karia was, at that time, a boy of only about 13 years of age; and his father, acting as his guardian, settled the dispute with the rival claimant by a compromise. In accordance with this compromise Rajbans executed on 2nd May 1894 a deed by which he promised to adopt the boy as his chela and declared him to be his successor to the office of mahant. As a result of this settlement, Rajbans was recognised and installed as the mahant of the math.
On attaining majority Karia repudiated the compromise and instituted in 1899 a suit to establish his claim to the office of mahant on the death of his guru Bachchu Bharthi. This claim was allowed by the trial Court but dismissed on appeal by the High Court. Against the judgment of the High Court Karia preferred an appeal to His Majesty in Council, but, while the appeal was pending, he entered into a compromise with Rajbans. In compliance with the compromise Rajbans executed, on 25th April 1904, a document by which he assigned to Karia two villages Kanchanpur and Pathkauli, and also the building of the math situated at Kanchanpur; while he retained for himself the rest of the property appertaining to the institution including the village of Saktni. The deed also provided that each of the claimants would be competent to alienate the property allotted to him without any objection by his rival. In the result, Karia did not prosecute his appeal to the Privy Council and that appeal was apparently dismissed without any decision on the question of his title to the mahantship. After this compropromise Karia lived in the building of the math at Kanchanpur, and Rajbans took his abode at Pakri, one of the five villages which continued to be in his possession. Karia has admittedly alienated both the villages which were assigned to him by the compromise, and Rajbans also has transferred some properties annexed to the institution including the village of Saktni. In the plaint filed by Karia in the present case he laid claim to the village in question on the ground that be was the dhela of Rajbans, and was, after his death, installed as the mahant of the math. The trial Court and the High Court have, however, held that he was neither the chela of Rajbans, nor appointed to be the head of the institution. Both the Courts have also found that Karia, though not duly installed, was, in fact, the mahant of the math; but they differed on the question of whether he could, in that capacity, recover the property. The learned Judges of the High Court have answered the question in the affirmative, and their Lordships are of opinion that the conclusion reached by them is correct.
There can be little doubt that Karia has been managing the affairs of the institution since 1904, and has since the death of Rajbans been treated as its mahant by all the persons interested therein. The property entered in the revenue records in the name of Rajbans was, on his death, mutated to Karia, and it is not suggested that there is any person who disputes his title to the office of the mahant. In these circumstances their Lordships ships agree with the High Court that Karia was entitled to recover for the benefit of the math the property which belonged to the math and is now wrongly held by the appellants. They are in no better position than trespassers. As observed by this Board in 1933 PC 75 (1), a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the math.
On behalf of the appellants it is contended that the action brought by Karia should have been dismissed, when it was found that he could not substantiate his allegation that he was installed as the mahant after the death of Rajbans. But this defect in the statement of claim, if any, could have been remedied by an amendment of the plaint, if the objection had been taken in the Courts below. It is clear that all the relevant facts were before the High Court, and the learned Judges were, upon the facts found by them, justified in determining the real dispute on the merits. The only other question raised on behalf of the appellants is that the claim was barred by limitation. This question must be answered with reference to the law which obtained prior to its amendment by the Indian Limitation (Amendment) Act 1 of 1929. It is common ground that the article of the Indian Limitation Act of 1908 applicable to the claim is Article 144, which prescribes a period of 12 years from the date when the possession of the appellants became adverse to the math. Their case is that in 1904, when Rajbans settled his dispute with the plaintiff, he ceased to be the mahant of Kanchanpur and repudiated the title of the math to the village of Saktni as well as to the other villages which he got in pursuance of the compromise. On that date, it is contended, he began to hold the property adversely to the institution, and the action which was brought after the expiry of 12 years from that date, was barred by time.
It is however obvious that Rajbans had entered into the possession of the property in 1894 as the mahaht of the math, and that his status as mahant was confirmed by the judgment delivered by the High Court in 1903. He admittedly held the village in question on behalf of the math until the compromise in 1904, and the mere fact that the parties to the compromise purported to confer upon each other an unrestricted power of alienation in respect of the endowed property did not change the character of Rajban's possession. The deed of compromise makes no mention of the transfer of the office of mahant, and it is to be noted that Rajbans, though he migrated thereafter to Pakri, did not relinquish his position as the mahant of the institution. In the sale-deed in question, as well as in the other documents executed by him after 1904, he took care to describe himself as mahant, and even justified the sale in dispute on the ground that he required money to discharge the debts which he had contracted for protecting the other property appertaining to the math. This recital of legal necessity would have been wholly unnecessary, if he had repudiated the title of the math and was holding the property on his own behalf. The learned Counsel for the appellants has cited the case of 37 Cal 885 (2), in support of his argument that the possession of Rajbans became adverse from the date of the compromise, but that case is clearly distinguishable.
The document dealt with therein was an assignment of the math as well as its properties, and as observed by this Board in 1933 PC 75 (1), such an assignment was void, and would in law pass no title, with the result that the possession of the assignee was adverse from the moment of the attempted assignment. In the present case there is no assignment of the religious institution itself to Rajbans, nor any other transfer which Was a void transaction and rendered his possession adverse. He was undoubtedly the mahant of the math in 1904, and, while transferring certain items of property to Karia, he kept the rest of the estate for himself. It is one of the villages retained by him that he sold in 1914, and that sale was a voidable transaction. The period of limitation for the recovery of the village did not begin to run until the death of Rajbans in 1916. The action, which was commenced in 1926, was therefore within the limitation prescribed by Art. 144. The result is that this appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed with costs.