1. The plaintiff in the suit is the Muktessar or trustee of a small temple in South Canara. The object of the suit is to obtain a declaration that the defendant is not entitled to obtain possession of certain land from the plaintiff on the ground of his being purchaser in execution of a decree which defendant obtained against a third party to whom he had granted the lease and whose rights he brought to sale for the realisation of the arrears of rent due to him under the lease. The defendant had obtained a mulgeni or permanent lease of the land from a former trustee of the temple in the year 1882 and subsequently granted the lease to the person whose rights he brought to sale and purchased in Court auction. Previous to the defendant's suit against his lessee which was in 1906 the plaintiff had obtained possession of the land from the lessee. The plaintiff's contention was that the permanent lease granted by the previous Muktessar was invalid and not binding on the temple. Defendant was admittedly in possession of the land under his permanent lease till 1900, after which time possession was obtained by Phaniappa Vokuda, plaintiff's predecessor in office from the defendant's sub-lessee. The defendant alleged that the permanent lease could not be questioned by the plaintiff after the lapse of so long a time and that he had acquired a permanent lessee's right by prescription. The District Munsif upheld his contention. On appeal the Subordinate Judge Mr. Anantan Nair reversed the Munsif's judgment and held that the defendant could not acquire a permanent lessee's right by prescription as the land was trust property. The defendant preferred a second appeal to this Court. When it first came on for hearing this Court asked the lower Court to record a finding on the question,
"Whether the defendant was in possession of the land in question in pursuance of Exhibit II (mulgeni lease) for more than twelve years and whether he acquired a mulgeni right by prescription by such possession, assuming that the mulgeni was invalid at its inception."
The present Subordinate Judge has returned a finding to the effect that defendant did hold possession for a period of 18 years under the mulgeni, but that he has not acquired by such possession the right of a permanent lessee. He is of opinion that Section 10 would prevent the defendant from acquiring any prescriptive right, that defendant cannot be regarded as an assign for valuable consideration within the meaning of
Section 10 of the Limitation Act as he merely agreed to pay a rent of Rs. 18 (eighteen) per year under the lease but paid no consideration for the grant of the lease itself. He observes further that as the defendant was directed under Exhibit II to pay a sum of Rs. 5 (Rupees five) out of the annual rent of Rs. 18 (Rupees eighteen) towards the expenses of the pooja and other viniyogas of the idol of the temple, it may be said that the defendant's possession was not adverse to the idol to whom the property belongs.
2. The appellant contends that the Subordinate Judge's opinion on the question of limitation is wrong and that the defendant acquijed a complete prescriptive title to a permanent leasehold interest by his possession under Exhibit II.
3. The question for our decision therefore is whether the defendant's possession was adverse to the idol and whether such adverse possession has created a mulgeni right in his favour. Both sides have relied before us on the opinion of the Judicial Committee of the Privy Council expressed in different cases, the appellant relying on Gnana Sambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 M. 271 and Damodar Das v. Lakhan Das (1910) I.L.R. 37 C. 885 and the respondent on Abhiram Goswami v. Shyamacharan Nandi (1909) I.L.R. 36 C. 1003 and on Ishwar Shyam Chand Jee v. Ram Kanai Ghose (1911) I.L.R. 38 C. 536 that followed it. Before referring to these cases we may make a few observations as to how the matter stands under the provisions of the Limitation Act. Both the parties are agreed that the land in dispute is trust property and that the Muktessar for the time being has no beneficial interest in it at all. Section 10 of the Limitation Act enacts that
"no suit against a person in whom the property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property or proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time."
4. We are entirely unable to agree with the Subordinate Judge that the defendant is not an assignee for valuable consideration. The payment of rent every year is as much consideration for the lease as the payment of premium at the commencement of a lease would be. The defendant is permitted to hold the land perpetually in consideration of the payment of an annual sum as rent. There can be no doubt that the defendant must be regarded as an assignee for valuable consideration. That being so, the suit against him is not exempted from the operation of limitation by Section 10. What then is the article of the second schedule to the Act applicable to the case? There are only 3 articles which call for consideration, Articles 134, 142 and 144. Article 134 as it stood at the date of the suit and when it was decided by the court of first instance was applicable to a suit
"to recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee."
The Privy Council held in
Abhiram Goswami v. Shyama Charan Nandi (
1909) I.L.R. 36 C. 1003 that the word purchased does not include anything short of an absolute alienation of title. We must, following this decision, hold that this article is not applicable to the case.
5. There appears to be no reason for holding that Article 142 is not applicable if the possession of the defendant was adverse to the trust, inasmuch as the plaintiff must be taken to claim the land in his capacity as trustee through his predecessors in office. The trustee or the idol discontinued the possession of the land after the grant of the permanent lease in 1882 and for a period of more than twelve years the defendant continued in possession. If his possession was adverse to the trustee or the idol, then after the expiration of twelve years the right of the idol to possession inconsistent with the defendant's lease became extinguished by limitation. But if Article 142 does not apply, 144 must apply, provided the defendant's possession was adverse. As already stated, the trustee, who granted the lease had no beneficial interest in the property at all and the lease therefore could not be regarded as valid to the extent of any limited interest that he individually possessed. On the assumption that the lease was not binding on the idol of the temple the defendant's possession was without any valid title at all and must be regarded as adverse to the institution. See Sailendra Nath Mitter v. Karali Charan Singh (1906) 2 C.L.J. 546 Nilmony Singh v. Jagubhandu Roy (1896) I.L.R. 23 C. 536 Gnanasambanda Pandara Sannudhi v. Velu Pandaram (1899) I.L.R. 23 M. 271 Dattagiri v. Dattatraya (1902.) I.L.R. 27 B. 363 Narayan v. Shri Ramachandra (1902) I.L.R. 27 B. 573. It is now settled law that Articles 142 and 144 are applicable where a person in adverse possession has prescribed for a limited interest such as that of a mortgagee or permanent lessee instead of claiming the absolute title to the property. This was the view held by the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 M. 271. In that case both the office of manager and the possession of the lands belonging to an idol were alienated by the guardian of the plaintiff in the suit. Their Lordships held that so far as the recovery of the office was concerned Article 44 applied to the case. They then observe "Their Lordships are of opinion that there is no distinction between the office and the property, the endowment, the one is attached to the other. But if there is, Article 144 of the same schedule is applicable. That bars the suit after twelve years' adverse possession." The same rule has been laid down in cases governed by the English Law. In the President and Governors of Magdalen Hospital v. Knotts (1879) 4 A.C. 325 a lease of land belonging to, an Elemosynary Corporation was granted for 99 years at the rate of one pepper corn in 1783 by the managers for the time being. The grant was not in conformity with the provisions of the 3rd section of 13 Elizabeth C. 10. The suit was instituted in 1876 for the recovery of the land on the ground that it was not binding on the Corporation. The House of Lords held that the suit was barred. The Lord Chancellor (Earl Cairns) points out the distinction between two classes of cases, one class where the whole property is devoted to the charity and the other. class where the head of the Corporation has a personal interest in the property. In the one class of cases the possession would be adverse from the commencement of the possession while in the other class adverse possession would begin only after the death of the head who granted it. His Lordship observes. "It is clear that in the case of an Elemosynary Corporation the whole. property of which is devoted to the charity and where the officebearers and other members of the Corporation have no personal interest whatever, the object must be to make the property of the Corporation absolutely inalienable in any other than by the particular form of lease which is authorised. There is no intention to protect a successor against a predecessor. There is no ground for admitting an intention that individual office-bearers of the Corporation granting the lease should be bound,but that their successors should be free, either to affirm or disaffirm it. The intention is to condemn the lease as a wrong and a viod thing even though every member of the Corporation should have committed himself to it and should be anxious to maintain it." With regard to the 2nd class of cases, "His Lordship observes "Probably they proceed on the principle of a personal estoppel by reason of a personal interest in the head of the Corporation. But they appear to me to have no application to the case before your Lordships." In Attorney General v. Davey (1859) 4 De. G. and J. 136 there was a lease in 1726 by the wardens of a Parish Church for 500 years reserving a rent of six prounds par annum. A suit was instituted in 1852 for setting aside the lease and recovering possession. It was held to be barred and that the payment of rent could not be taken to have created a tenancy from year to year. In Attorney General v. Payne (1859) 54 E.R. 65 the managers of a hospital granted a lease for 999 years which was held to be not binding on the institution. The Master of the Rolls (Sir John Romilly) held that possession became adverse from the date of the lease to the extent of the alienation contained in the lease. In Shyamacharan Nandi v. Abhiram Goswami (1909) I.L.R. 26 C. 1003 strongly relied on for the respondent the mahant of a shrine of two idols granted a Mokurari pa tta or permanent lease of certain land. The suit for the recovery of the land was instituted long after the period of twelve years had elapsed from the date of the lease. The plea of limitation was set up by the defendant who also alleged that the property was not really debutter or dedicated to the idols, but only subject to a religious charge. Sir Andrew Sooble delivering the judgment of the Judicial Committee, after finding that the property was debutter and that the lease was not binding on the idols, dealt with the question of limitation. But the only article considered by His Lordship is 134. He observes. "The article in the limitation act applicable to this case is Article 134, by which a period of twelve years from the date of purchase is fixed for suits "to recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee for a valuable consideration." His Lordship holds that the expression "purchased" would apply only to an absolute transfer. He then observes "For these reasons their Lordships are of opinion that the leases under which the respondents claim were valid only during the life-time of the Mahant by whom they were granted." In a previous passage His Lordship observes that the lease "on the most favourable construction enured only for the life-time of the grantor, Prananda, who died in 1891." Notwithstanding the finding that the property was debutter, their Lordships apparently proceeded on the view that the Mahant who made the grant had, as the head of the institution, a personal interest in the property which would validly pass under the lease. The sanad which was the root of the title obtained by the Goswamis who were the managers of the institution apparently left room for holding that the Mahant for the time being did possess some personal interest. The grantee was to "bestow his blessing on the grantor and to enjoy and possess the property with great felicity." See the judgment of the High Court in the case Shyamacharan Nandi v. Abhiram Goswami (1906) I.L.R. 33 C. 511 Again in Ishwar Shyam Chand Jiv v. Ram Kanai Ghose (1910) I.L.R. 38 C. 526 the question of the applicability of Article 134 was alone considered and their Lordships merely followed the previous judgment of the Board in Shyamacharan Nandi v. Abhiram Goswami (1909) I.L.R. 26 C. 1003. Their Lordships observe "whatever might have been the inclination of their opinion, if the matter bad been resintepra it seems to their Lordships that they would not be justified in reviewing on an ex-parte application, the considered judgment of the board delivered after full argument. They will therefore simply follow the decision in Abhiram Goswaini v. Shyama Charan Nandi (1909) I.L.R. 36 C. 1002. They do so with less hesitation because the language of the article fn discussion in that case and in this has been altered by subsequent legislation." We are bound to take it that in that case also the judgment of the Privy Council proceeded on the footing that the manager of the institution had a personal interest in the alienated property. Damodar Das v. Lakshan Das (1910) I.L.R. 37 C. 885 (P.C.) is in our opinion a distinct authority in favour of the appellant. Sir Arthur Wilson, delivering the judgment of their Lordships observed "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 the 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." It is no doubt true the case was not argued before their Lordships for the respondent, but the decision is none the less an authority binding on us Gnana Sambanda Pandara Sannadhi v. Velu Pandaram (1899)I.L.R. 25. M. 271 and Nilmony Singh v. Jagabandhu Roy (1901) I.L.R. 23 C. 536 were cited by the appellant's counsel and were apparently accepted by their Lordships as correct. Lord Mc Naughten who delivered the judgment of the Council in the later case of Ishwar Shyam Chand Jiv5 was a party to this judgment.
6. On the whole we are of opinion that the cases Abhiram Goswami (1909) I.L.R. 26 C. 1003 and Ishwar Shyam Chand (1910) I.L.R. 38 C. 526 must be taken to have been based on the fact that the alienor possessed an individual interest on which the alienation could opsrate during his life time.
7. It was contended by Mr. Adiga for the respondent that as the defendant paid the rent reserved under the permanent lease during his continuance in possession, a tenancy from year to year must be deemed to have been created between the temple and the defendant and he relied on an observation of Lord Selborne in President and Governors of Magdellen College v. Knotts 4 A.C. 335. The observation is as follows:--" The other observation which I wish to, make is that the present case is one for which there was probably no precedent and which is never likely to be followed by another similar to it a long term having been attempted to be granted by a charitable corporation at a pepper corn rent. If any rent had been reserved and received the legal relation from year to year would have been created and the statutes of limitation could not havs run." There is nothing in the judgment of the Lord Chancellor or of Lord Gordon to show that they concurred in these observations. It is opposed to the judgment of the Court of appeal in Attorney-General v. Davey (1859) 4 De. G. and J. 136 already referred to. A tenancy from year to year could result in this case only if a mutual agreement of parties to that effect could be inferred. How is this possible when the defendant never intended to hold as a tenant from year to year but under the invalid permanent lease? His payment of rent under the permanent lease might no doubt prevent him from setting up, as the result of his adverse possession, any higher right than that of a permanent lessee. It could not create a tenancy from year to year which must be the result of a contract, express or implied. In the absence of a contract, the only question is, what was the right set up by the defendant? This was the view acted on in the "cases already cited.
8. It was next contended that although the previous trustee had no right to grant a permanent lease he was competent to grant a lease from year to year and that the lease must be regarded as a good lease from year to year. But to accept this argument would be entirely to change the contract between the parties which the Court has no power to do. It has no doubt been sometimes held that where a person has a limited power under an instrument and he acts in excess of his power, if the Court can separate the valid portion of his act from the invalid portion, his act could be upheld in so far as it is valid. In Bishop of Bangor v. Parry 2 Q.B. p. 277 Charles J. refused to accept an argument similar to that urged for the respondent. There a trustee of a charity who had no power without the approval of the Charity Commissioners to grant a lease for more that 21 years executed a lea se for 45 years; it was contended that the lease should be upheld as valid for 21 years. The learned Judge held that this could not be done and that the lease must be regarded as altogether invalid and he observed that there was no analogy between the case before him and the class of cases where persons possessing only a limited interest have purported to make a grant in excess of that interest and where it has been held that the grants though bad as regards the excess should be regarded as good for so much as, was within the competence of the grantors. As illustration of such cases we may mention a grant of a lease by a widow or other life owner for a period longer than her or his life. We do not think that the analogy of such cases is applicable to the lease in question in the present case. We must hold that the defendant acquired by prescription the right of a permanent lessee in the land in question.
9. We reverse the decree of the Lower Appellate Court and restore that of the District Munsif with costs both here and in the Appellate Court.