Dalal and Boys, JJ.:— The Judgment of the Court after setting forth the facts, thus proceeded:
The statement submitted by the learned Additional District Judge has referred to us the following questions for decision:—
(1) Whether the deed, dated the 17th of April, 1905, could constitute an alienation of the dedicated property (waqf) which was under the management of the Marwari faction of the biradri of Agarwals at Ajmere and thereby give rise to adverse possession.
(2) Whether respondent No. 1 could acquire any title to the said property.
(3) Whether in the circumstances of the present case respondent No. 1 could claim the benefit of the law of limitation, especially in view of paragraphs 1 and 2 of the written statement.
We shall take up issue No. 2 first, according to the sequence in which the case was argued by the plaintiff's learned counsel Dr. Sen. He argued that an idol suffered the disability of perpetual minority, so any suit by an idol at any period of time after the date of the transfer would be saved from the bar of limitation under the provisions of section 7 of the Limitation Act. He based his argument on a tentative opinion put forward by the learned author of a treatise on Hindu Law (Sastri's Hindu Law). At page 726, Chapter XIV of his book, 5th edition, the present editor of the book has made the suggestion in the following words:—
“As regards limitation it should be considered whether section 7 of the Limitation Act is not applicable to a suit to set aside an improper alienation by a sebait of the property belonging to a Hindu god. As the god is incapable of managing his property he should be deemed a perpetual minor for the purpose of limitation.”
We were not referred to any ruling where this opinion may have been followed. With respect, it may be pointed out that in a transfer by a minor the question of a proper or improper alienation would not arise. Under the Contract Act a transfer by a minor would be void and not only voidable: Mohori Bibee v. Dharmodas Ghose. If the rule were enforced the property of a god would not fetch any money in the market when need arose to transfer it for the benefit of the temple where the idol may be installed. The learned editor himself has quoted in the book a pronouncement of their Lordships of the Privy Council in conflict with this view, Jagadindra Nath Roy v. Hemanta Kutnart. In that case a suit for possession was brought by a sebait of an idol and the High Court of Calcutta held that the idol being a juridical person, capable as such of holding property, limitation started running against him from the date of the transfer and so the suit by the sebait was time barred. Their Lordships accepted this view as probably the true legal viewy when the dedication is of the completest kind known to the law (page 209, paragraph 3). They, however, held that limitation was saved because when the cause of action arose the sebait to whom the possession and management of the dedicated property belonged, was a minor. So the right to bring a suit for the protection of the property was at the time vested in a minor and such a suit could be brought within three years of the majority of the sebait in whom the right to sue had been vested. This is clear authority for holding that the idol was not considered by their Lordships to be a minor in perpetuity. In a later ruling this point is made more clear. That ruling is also quoted by the editor of Sastri's Hindu Law with great fairness: Damodar v. Lalckan Das. The senior chela and rightful mahant of a math transferred half the property of the math to another chela. When the senior chela was succeeded by his disciple, the latter brought a suit for recovery of possession against the chela to whom his predecessor had transferred half the property. The suit was brought 12 years after the transfer and was held by their Lordships to be time-barred. They observed: “The learned Judges of the High Court have rightly held that in point of law the property dealt with by the ekrarnama was prior to its date to be regarded as vested not in the mahant, but in the legal entity, the idol, the mahant being only his representative and manager and it follows from this that the learned Judges were further right in holding that from the date of the ekrarnama the possession of the junior chela by virtue of the terms of that ekrarnama was adverse to the right of the idol and of the senior chela as representing that idol and that therefore the present suit was barred by limitation.” (page 894). We have clear authority, therefore, in refusing to accept the plaintiff's argument.
[The judgement then proceeded to deal with the other two issues which are not material for the purpose of this report.]
For these reasons our answers to the questions put to us by the learned Additional Judge are:—
(1) That the transfer of the 17th of April, 1905, was an alienation which started adverse possession in favour of Musammat Bishni.
(2) That Musammat Bishni could acquire title to the property under the deed and by adverse possession.
(3) That by her admission of paragraphs 1 and 2 of the plaint Musammat Bishni was not estopped from putting forward a plea of limitation.
A copy of this judgement shall be sent to the court which made this submission and the costs consequent on the reference here shall be costs in the appeal out of which the reference arose. The costs will be payable by the plaintiff.