1. S.A No. 1405 of 1925. This second appeal is directed against the decree and judgment of the Subordinate Judge of Ramnad at Madura in A.S No. 2 of 1922 which affirmed the decree of the District Munsif of Srivilliputtur dismissing the plaintiff's suit. The suit related to the office of Sri Pandaram in Vaidyanathasawmi temple, Srivilliputtur. The plaintiffs alleged that the office was held by one Veerappa Pillai's family as a hereditary office, that they as members of that family are at present entitled to hold that office, that defendants 1 and 2 are trustees of the temple and that defendants 3 to 6 are obstructing them from holding office and receiving its emoluments. The suit was for a declaration of their right to hold the office and for an injunction directing the defendants not to prevent the plaintiffs from entering into the temple and performing the duties attached to it. Various issues were raised in the case; but in this second appeal we are concerned only with the questions formulated, by the Subordinate Judge as points 3, 4 and 5 which are as follows:

Point 3.—Whether a suit for a mere declaration and injunction without a prayer for possession cannot be maintained.

Point 4.—Whether the plaintiffs have got title to the office claimed.

Point 5.—Whether the plaintiffs' rights, if any, are barred by limitation.

2. The lower appellate Court found that the office of Sri Pandaram was held by Veerappa's family as a hereditary office-and that a suit for a mere declaration and injunction without a prayer for possession could be maintained; but it held that the plaintiffs have no present title to the office claimed and that their rights, if any, are barred by limitation. The appellants call into question the correctness of the decision on points 4 and 5, while the respondents try to sustain the judgment also on the ground that a suit for a mere declaration and injunction would not lie on which point the learned Subordinate Judge, as stated before, has found against him. A decision on any of these points, if it is adverse to the plaintiffs, will entail a dismissal of this second appeal.

3. I shall first consider the question raised as point 4 by the Subordinate Judge that is, whether the plaintiffs have got title to the office claimed.

4. The following facts are not disputed: Ex. R, the genealogical tree will explain the relationship of the various members-of the family. The present plaintiffs are the sons, of Vaidyalingam Pillai marked as defendant 7 in that table. Veerappa. Pillai, the last holder of the office died in 1884, leaving his widow as his only heir. She carried on the duties with the help of one Audinarayana Pillai, her sister's daughter's husband. She died in 1895. As the trustees were not satisfied with Audinarayana Pillai, he was dismissed from the office in 1889 and when he attempted to re-enter on his duties by force, the then trustee instituted a suit to recover possession of the suit properties from him. In that suit O.S No. 77 of 1897 the Sub-Court of Tinneyelly gave a decree that;

“Upon the plaintiff satisfying the Court in execution that a proper person with hereditary right has been appointed by the trustee of the plaint temple, with the sanction of the Siva temple committee, to perform the duties of Sri Pandaram and to have possession of the lands etc., the plaintiff as trustee of the temple be put, with the assent of such a person, in possession of the plaint lands……”

5. This decree was subsequently modified by the High Court by expunging the words “with hereditary right” and by substituting the words “on behalf of such a person” in the place of the words “with the assent of such a person.” The trustees by this decree acquired the right of appointing the Sri Pandaram office holder. In accordance with the decree of the High Court, the trustees appointed one Muthukumara Gurukkal to the office of Sri Pandaram on 5th January 1900. He continued in office for over 18 years and was dismissed by the trustees on 19th November 1918, When Muthukumara Gurukkal was discharging the duties of the office the plaintiff's paternal uncle, Umaiorupagam Pillai filed O.S No. 32 of 1905 for possession of the Sri Pandaram office and its emoluments; but that suit was ultimately dismissed by the Subordinate Judge on remand from the High Court, on the ground that Umaiorupagam Pillai could not maintain the suit inasmuch as one Arunachalam Pillai belonging to the family was living and he was the preferential heir. This decree was confirmed by the High Court.

6. The plaintiffs instituted the present suit alleging that Arunachalam Pillai orally released his rights to the Sri Pandaram office in their favour and that Muthukumara Gurkkual gave them possession of the keys of the office and of the properties attached to it. This oral release has been found against the plaintiffs by both the lower Courts. In the course of the trial in the first Court, the plaintiffs succeeded in obtaining from Arunachalam Pillai a registered release deed dated 5th March 1919. This was not admitted in evidence by the first. Court but was admitted by the appellate Court and marked as Ex. YY. Reliance is placed on this document to show that the plaintiffs have a present title to institute this suit. The question is: (a) whether Ex. YY validly conveys Arunachala's rights in favour of the plaintiffs-and (b) if it does, how far this new title can be relied on by them in support of their claim, having regard to the fact that the title, i.e, the oral release, alleged in the plaint has been found against by the lower Courts. Though the plaintiffs belong to Veerappa's family, admittedly Arunachala has superior right to the office as the preferential heir. Ex. YY after mentioning the previous-history of the office recites that, as Arunachalam Pillai has received Rs. 1,000 for his “superior right” in the office and as the plaintiffs are the heirs next to? him in the order of succession and as they have obtained possession from Muthukumara Gurukkal, Arunachalam relinquishes his rights and that the plaintiffs may enjoy them. The document is called a release deed. The law is well settled that a reversioner can surrender or release his rights but the surrender or release to be valid must have been executed to the next in succession.

7. In the present case, it is clear that during the lifetime of Umaiorupagam Pillai (plaintiff in O.S No. 32 of 1905 aleady referred to) the plaintiffs are not the next in succession to Arunachalam Pillai. This is conceded, Umaiorupagam Pillai was living at the time of Ex. YY as he died only on 24th November 1922. If so, the plaintiffs, not being the next reversioners to Arunachalam Pillai, can derive no title to institute the present suit under Ex. YY but it is argued that Ex. YY, though it is called a “release deed,” must be? deemed to be a conveyance and as such effect should be given to it. I cannot agree with the contention that it is not a release deed, relinquishing the rights of Arunachalam Pillai. Ordinarily a release deed is executed in favour of the next reversioner. In Ex. YY, Arunachalam says one of the reasons for executing Ex. YY in favour of the plaintiffs is that they are the heirs next to him in the order of succession. Of course here he is obviously wrong because Umaiorupagam Pillai was living at that time and he was the next heir in succession. But the statement that he is executing the document in favour of the plaintiffs as they are the heirs next in succession to him shows what his intention was when he executed the document. There can be no doubt that he must have thought that he was executing a release deed.

8. Otherwise there was no reason for him to have alleged that he was executing the document as the plaintiffs are his next reversioners. In my opinion Ex. YY cannot be considered as anything else than an ordinary “release deed.” However I shall deal with the argument that effect should be given to Ex. YY treating it as a conveyance. In my opinion this cannot be done. In the first place there is nothing to show that the consideration mentioned in it was paid by the plaintiffs to Arunachalam, and further, if it is treated as a conveyance, it will be invalid as it will amount to a conveyance or sale of the office of a trustee for consideration. It is argued that as the duties of the office are merely secular as found by the lower Courts, such as keeping of the jewels, possession of the room containing vahanam and vyanjana arai, lighting, temple watch, gate watch, etc., the office, though attached to the deity in the temple, has nothing religious about it and therefore there is nothing illegal in conveying it for consideration. The duties attached to the office may not, strictly speaking, be religious duties; but there can be no doubt that the office holder of Sri Pandaram is a trustee. The office involves duties to be performed in the temple of Vaidyanathaswami with the right of enjoying the emoluments and properties attached to that office. The properties are described as devadayam properties endowed for the support of the temple. The grant was made by the Nawab of the Carnatic. The fact that the properties were granted to the officeholder does not show that the properties are not trust properties. The officeholder who has to perform the duties attached to the office and who has the right of enjoying the properties after meeting the expenses, etc., is clearly a trustee and the office of Sri Pandaram is the office of a trustee. The question is whether the sale of the office of a trustee for consideration is valid under the law. It has been held by the Judicial Committee in Baja Varmah Valid v. Ravi Varmah Kunhi Kutti . [1876] 1 Mad. 235 that the sale of the office of trustee for the pecuniary advantage of the trustee is not valid in law; but it is argued that if the alienation is in favour of a member of the alienor's family to which the office belongs hereditarily, then there can be no objection to the transfer. But the decisions of the Madras High Court do not support this general proposition. In Narayana v. Ranga . [1892] 15 Mad. 183 the view was expressed that in the absence of special usage the alienation of a religious office would not be valid if made in favour of any person other than the sole immediate heir. In that case as it was found that the alienee was not the sole next heir of the alienor because he had three brothers, the alienation of the office was held invalid.

9. The decision in Mancharam v. Pranshankar . [1881] 6 Bom. 298. relied on by the appellants in support of the general proposition is accepted by this Court as authority only for the view that a transfer to one next in the line of succession may be held to be valid: see Rajam Bhattar v. Singarammal . [1919] 51 I.C 979.. As the plaintiffs in this case are not the immediate heirs next in the line of succession to Arunachala the alienation in their favour cannot in any event be supported. In discussing the validity of the transfer, I have thus far assumed that Arunachala, the alienor, had at that time an existing right to release or transfer the rights of the office; but if it is held, as has been done by the lower Courts, that his rights were barred at that time, that would be an additional ground to hold that Ex. YY could not convey any rights to the plaintiffs as Arunachala had no rights at all to convey since his claim was barred by limitation at that time. This question will be considered as the last point in this judgment. Apart from this ground my conclusion is, for the reasons given above, that Ex. YY cannot have legal effect either as a release or as a conveyance.

10. The next question is, assuming that Ex. YY confers a valid title on the plaintiffs to the office of Sri Pandaram, how far it can be relied on in support of their title having regard to the fact that it was not relied on by them in the plaint and that it was obtained and filed only in the course of the suit. The title alleged by the plaintiffs in the plaint is an oral release in their favour, of his rights by Arunachalam. Since this has not been found to be true by both the lower Courts it follows that they had no title at all to institute the suit. Can this initial defect of the want of title in the plaintiffs be cured by the fact that they secured in their favour Ex. YY after the suit was filed? In certain cases Courts have given permission to parties to cure formal defects in their alleged title and even to put forward new grounds of title; but whether such permission should be granted or not would depend upon the special circumstances of each case. In the present case the contention was raised by the defendants in para. 21 of the written statement that the plaintiffs even if the office is hereditary in the family, have no title to institute the suit. It was pointed out in that paragraph that

“the plaintiffs could have no right to maintain the suit while Umaiorupagam Pillai, Muthukaruppa Pillai, and Arunachalam Pillai, referred to in O.S 32 of 1905, Tuticorin Sub-Court, are alive.”

11. As pointed out by the learned Subordinate Judge the point was explicitly raised in the written statement, and the plaintiffs after obtaining the release deed from Arunachalam Pillai could have put in an additional statement meeting these pleas and “set themselves right”. This they have not done. Arunachalam and Umaiorupagam are now dead; but this does not mean that the plaintiffs are the next heirs; Muthukaruppa is alive and all of them, Arunachala, Umaiorupagam and Muthukaruppa have left sons. This appears from the evidence. It will be a difficult question to decide who, amongst these persons including the plaintiffs, have present title to claim the office. Having regard to these facts I agree with the Subordinate Judge that even if Ex. YY may be said to confer rights on the plaintiffs which would entitle them to institute the suit it cannot be relied on by them in support of their title as it was obtained after the suit was filed. As in my view Ex. YY is a deed of release and at that time the plaintiffs were not the next in succession to Arunachala, it does not confer any title on them and hence they have no present title to institute this suit and the suit must therefore be dismissed. In this view the question just discussed does not really arise for consideration.

12. The next question is whether a suit for a mere declaration and injunction without a prayer for possession of the office and of the properties attached to it can be maintained. The Subordinate Judge answered the question in the affirmative in favour of the plaintiffs. The respondents take objection to the decision of the Subordinate Judge on this point. In the plaint the plaintiffs allege that they are in possession of the office as they have obtained the keys from Muthukumara Gurukkal and that they are also in possession of the lands attached to the office. These were denied by the defendants. As regards the office it is clear that they are not discharging its duties. As a matter of fact they are not allowed to go to the office nor are they permitted to attend to its duties. The evidence in the case shows that they were asking permission from the trustees even as late as four days before the suit. If doing the duties of the office is the test of possession of the office: see Jalandhar Thakur v. Jharule Das . [1915] 42 Cal. 244, it is clear that the plaintiffs in this case are not in possession of the office; but in a case like this where the trustees and their nominee are preventing the plaintiffs, who say that they are entitled to the office, from discharging their duties, is it necessary that actual possession should be asked for as a further relief in addition to the relief of injunction or in the place of it, for maintaining the suit under Section 42 of the Specific Relief Act? The plaintiffs have asked for injunction against the trustees and the other defendants. In Kunj Bihari v. Keshavlal Hiralal . [1904] 28 Bom. 567 it was held that, in the case of an office with reference to the title of which a declaration is asked for, a prayer for possession is unnecessary and a prayer for injunction will give all that can also be obtained by a prayer for possession. This case has been approvingly referred to in Govindaswami Pillai v. Ramanathan Chettiar, A.I.R 1926 Madras 164. I think I must hold that the present case, having regard to the contentions raised, should be governed by the principle of the decision in Kunj Bihari v. Keshavlal Hiralal. If the plaintiffs succeed in getting the declaration of their title which they seek, then, it is clear that the relief by way of injunction preventing the defendants from interfering with the proper discharge of their duties will give them all that they want and a separate prayer for possession of the office thus becomes unnecessary. As regards possession of the lands it is true that the plaintiffs have not secured actual possession of any of the lands attached to the office; but, as pointed out by the Subordinate Judge, many of the tenants have attorned to them while some of the tenants have attorned to the trustees. Both the plaintiffs and the trustees have been trying to get lease deeds executed by the defendants in their favour. Where the parties to the suit are scrambling for possession and the tenants are taking sides, some ryots recognizing one claimant as their landlord and some the other, it has been held in this Court that the

“case is eminently one in which a declaratory decree is desirable to avoid multiplicity of suits and to obtain a decision once and for all which will secure peaceful possession of the properties”,

and that

“there is nothing in the language of the proviso to Section 42 of the Specific Relief Act to prevent the Court from pissing a declaratory decree in the case: see Chinnammal v. Varadrajulu . [1892] 15 Mad. 807.”.

13. This case has been followed in this Court in Dampanabogina Gangi v. Addala Ramaswami . [1902] 25 Mad. 736 and Boyanapalli Venugopal Row v. Venkata Narasimha Raw . [1911] 12 I.C 548.. In this connexion attention may be drawn to the decisions in Nirmal Chunder Banerjee v. Mahomed Siddih . [1899] 26 Cal. 11 Joyanarain v. Srikant Roy . A.I.R 1922 Cal. 8, Mahommad Umar v. Nwab Din . [1914] 24 I.C 678. and Labhu v. Nathu . [1920] 55 I.C 32.. The decision in Narayana v. Shankunni . [1892] 15 Mad. 255, relied on by the respondents is distinguishable as that was not a case of a scramble for possession at all. I think the Subordinate Judge is right in holding that having regard to the circumstances of the present case a suit for a mere declaration and injunction without a prayer for possession can be maintained.

14. The last question for decision is whether the plaintiffs' suit is barred by limitation. The answer to this question is not free from doubt; but after giving my best consideration to it I am inclined to agree with the views of the Courts below that the claim of the plaintiffs is barred by limitation. The article of the Limitation Act applicable to the case is Article 124. Under this article, for possession of an hereditary office, time runs against the plaintiff from the time when the defendant takes possession of the office adversely to the plaintiff. In this case Arunachala, the predecessor of the plaintiffs, never claimed the office or exercised its rights. Audinarayana, who was doing the duties, was clearly a trespasser and the trustees brought against him, as already noticed, O.S No. 77 of 1897, as a result of which they obtained the power to appoint a person to hold the office of Sri Pandaram. Such a power to appoint became an incident of the trusteeship by virtue of the decree of the High Court. In the exercise of this power the then trustee appointed Muthu Gurukkal to the office. That he held the office adversely to the true claimant is clear from the fact that he pleaded adverse possession in the suit instituted by Umaiorupagam Pillai, O.S No. 32 of 1905, though the plea did not succeed as the office had not been then held for 12 years. Now 18 years have passed since Muthukumara had taken possession of the office and his title to hold the office as the nominee of the trustee has become perfected by adverse possession or in other words the trustees, though they themselves cannot hold the office, through the exercise of the power of appointment vested in them by the decree adversely to the claimant, for the statutory period deprived the plaintiffs of their right to the office through their nominee Muthukumara Pillai. I can find nothing in, Annaswami Pillai v. Rama krishna Mudaliar . [1901] 24 Mad. 219 inconsistent with this position of the trustees. The right of holding the office being perfected by Muthukumara's adverse possession for over 12 years, the next nominee, defendant 6, who though appointed temporarily, still continues to discharge the office, cannot be disturbed by the plaintiffs. The decision of our High Court reported in K. Thathachariar v. Veeraswami Mudali . [1919] 49 I.C 393., which is a case very much like the present one, supports the above conclusion. In that case the question was whether the plaintiffs who according to the finding were at that time hereditary archakas of the suit temple, but who had been out of possession and enjoyment of that office for about 60 years, were barred under Article 124, Lim. Act, when they brought the suit against defendant 6 the archakas in possession and defendants 1 and 4, the trustees of the temple by whom this archaka and the preceding archakas for many years had been appointed. Archakas like the holders of the Sri Pandaram office in the present case, held their office by virtue of the power of appointment vested in the trustees. The High Court answered the question in the affirmative.

15. It may be noticed that the archaka then in office had been in possession of the office for less than 12 years but the High Court held that periods of possession of the previous archakas would enure to the advantage of the then archaka as it may be said that each successive holder of the office claims from or through each other as in the case of successive holders of a stanom. This legal position may no longer be tenable having regard to the decision of the Privy Council reported in Vidya Varuthi v. Baluswami Ayyar . A.I.R 1922 P.C 123, which says that in cases like these one holder does not claim through the other; but in our present case this difficulty does not arise as Muthukaruppa himself held the office adversely for over 12 years and so to make up the necessary 12 years there is no need to add the periods of the office of successive holders. Arunachala, the predecessor of the present plaintiffs, having allowed his rights to the office to get barred by limitation those who are next in succession to him should also be deemed to have lost their rights. Gnanasamhanda Pandara, Sannadhi v. Velu Pandaram . [1900] 23 Mad. 271 is an authority in support of this position. I hold therefore that the plaintiffs' suit is barred by limitation. Before I conclude I may mention that it was argued by Mr. Sampath Ayyangar that the article of the Limitation Act applicable to the case is the general Article 120 and not Article 124. This is a new argument urged for the first time here. Having regard to the relief claimed, i.e the claim to a hereditary office, the article applicable is clearly Article 121. When a case falls within the provisions of a special article of the Limitation, Act there is no room for the application of the general article which is designed to meet cases for which no period of limitation is fixed by the Act. In the result the second appeal is dismissed with costs. S.A Nos. 1406 to 1408 are also dismissed.

P.R.S/K.N

16. Appeals dismissed.