1. The suit out of which this Second Appeal arose was instituted by Pathaikara Pramathan Thuppan Nambudripad, the Manager of a Nambudri Illom, to recover possession of certain lands demised on kanom in 1866 to the first defendant by the plaintiff's father. At the time of the suit the lands were in the possession of the second defendant. The original demisee, the first defendant, assigned his rights to one Krishnan Nair in 1894. He subsequently in 1901 attorned to one Kodalur Nambudri who claimed the lands as the property of a temple Kizhuthir kovil Devasvam. The second defendant subsequently, obtained an assignment of the rights of Krishnan Nair. The second def en d ant denied the plaintiff's right to redeem the mortgage and set up the right of the Devasvam to the lands and his holding under the Devasvam. He denied the genuineness of the demise sued on; but both the lower Courts have held it to be genuine. In view of the findings of the Appellate Court it is unnecessary to refer to certain other contentions raised by the second defendant. In the kanom deed, Exhibit VII, the lands in question are described as belonging to the temple and the counterpart-Kychit, Exhibit A, provides that the annual rent should be paid at the Devasvam Office.
2. Both the lower Courts have found that the lands belong to the Kizhuthir kovil Devasvam.) The District Munsif gave the plaintiff a decree for possession. He said, "I find that the plaint properties are attached to the $azhuthir kovil Devasvam properties and belong to the plaintiff/and that they are held under the plaint Kychit, Exhibit A. He was of opinion that the second defendant who was an assignee from the assignee of the original kanoindar was estopped from denying the plaintiff's title to recover the properties and was bound to surrender them. One of the two defendant's contentions was that it had been finally decided between the plaintiff and Kodalur Nambudri that the latter was the trustee of the temple and not the former; but the District Mnnsjif decided this issue in the negative in plaintiff's favour.
3. On appeal, the Subordinate Judge held that the plaintiff's claim to the trusteeship of the temple was negatived long before the suit and that he was not the present trustee of the temple. He also held that as the lands were demised by the plaintiff's father as the property of the temple and as the plaintiff was not the present trustee thereof, he could not claim to recover the land and dismissed the suit. The District Munsif's judgment is rather confused. While holding that the lands belong to the temple, he also observes that they might have been kept apart as property belonging to the plaintiff's family when the temple itself was made over to the Kodalur Nambudri in 1848 by a member of the plaintiff's family. It is not quite clear whether he intended to decree the lands to the plaintiff as the private property of his Illom or as the property of the temple. His judgment must be regarded, as based on his finding that the second defendant was estopped from denying the title of the plaintiff from whose father the kanora was originally obtained by the first defendant. It is quite clear that if the lands still belong to the temple and if the plaintiff is no longer its trustee, the principle of estoppel would not apply inasmuch as the demise was made by the plaintiff's father as trustee of the temple. The temple being the virtual demisor, the second defendant could be estopped from denying only the title of the temple, and would not be estopped from denying the plaintiff's right on the ground that he was not the trustee at the date of suit.
4. Mr. T.R. Ramachandra Ayyar, the learned vakil for the appellant, contends that the temple itself is treated in the demise as the property of the demisor and that therefore the plaintiff's father must be treated as having demised the property as his own. This proposition clearly cannot be upheld. Even assuming that there is foundation for the appellant's argument, that the temple was a private one in which the public had no rights, it is quite clear that it was still trust property though the beneficiaries' might be only members of the Pathaikara family. The lands demised would also be trust property attached to the private temple. It is argued the stipulation for payment of rent at the temple office merely described the place where the rent was to be delivered and did not indicate the ownership of the temple over the lands; but taken along with the clear description of the lands in the kanom deed as belonging to the temple, we have no hesitation in confirming the finding of the Subordinate Judge that the lands in question were demised by plaintiff's father as the trustee of the temple. No attempt has been made at the hearing to dispute the correctness of the finding that the plaintiff at the date of the suit had no right whatever over the temple. It would therefore follow that the decree dismissing the suit must be upheld.
5. Mr. Ramachandra. Ayyar urges two contentions in support of his argument that the plaintiff is entitled to recover the property, First, that the right of the temple and of the Kodalur Nambudri as trustee thereof to the property is extinguished by limitation and that the plaintiff has acquired a right thereto by adverse possession: secondly, that assuming the property to have been originally temple property, it ceased to be such in 1848 and that it has since remained as private property.
6. It will be convenient to deal with the latter contention first. The second defendant in his written statement stated that, in 1814 at a division between the then karnavan of Pathaikaramana and an adopted son of his, subsequent to the birth of a natural born son, the temple was assigned to the adopted, son and that this person sold, the temple with its properties, to the Kodakir Nambudri in 1848. The demise in question in this suit, it will be remembered, was in 1866 by the Pathaikara Nambudri subsequent to the transfer of the devasvam to the Kodalur Nambudri. The argument is that the temple being a private one in which the members of the Pathaikaramana alone had any beneficial rights, the trust ceased to exist when it passed away to the Kodalur Nambudri in 1848. To begin with, this argument is based on the assumption that the temple Tvas a private devasvam and not a public one. The District Munsjff no doubt observes in paragraph 11 of his judgment, "It is admitted that the Devasvam was a private property of the.plaintiffs mana." But the Subordinate Judge says, "There is no admission of the defendants on record that the Devasvam was a private property of plaintiff's mana and set apart to an adopted son after the birth of a 'natural' son as stated by the District Munsif in paragraph 11 of his judgment." Evidently the defendants denied in the Court of Appeal that they made any admission regarding the private character of the temple. We cannot, in the circumstances, proceed on the assumption that the temple was a private institution. But assuming that it was such, we cannot assume that the trust ceased to exist when the Kodaiur Nambudri obtained a transfer of the temple. Admittedly, there were disputes about the temple the Pafchaikaramana and the Kodalurmana regarding the rigid; of management of the temple; and. the question was finally decided in favour of the Kodalurmana. This is not reconcilable with the cessation of the temple as a religious institution with properties attached to it. Even in this suit the plain till' contended before the Muusif that he was the manager of the temple. After the transfer to the Kodalurmana the presumption would be, even if the temple was a private one, that the members of the Kodalurmana at least would all be entitled as beneficiaries, to the temple and its properties. The temple would still continue to own the lands attached to it though the beneficiaries might have changed by the transfer to the Kodalurmana. It is not shown that the plaint lands ceased to belong to the temple by their being severed from it by any valid act on the part of the trustee. The demised property must therefore still be regarded as belonging to the temple and vesting in its trustee unless the right of the temple has been extinguished by limitation. It is therefore necessary to deal with the contention that the plaintiff has acquired a right to the property by adverse possession. Mr. Ramachandra Ayyar argues that as the plaintiff and his father have always continued to remain in possession of the lands the temple has lost its right under the statute of limitation. But, the demise in question was made by the plaintiff's father as the representative and trustee of: the temple. In 1866 when the demise was made the demisor was evidently claiming to be the trustee and the litigation which negatived his right ended only in 1894. We must hold that the demisor purported to deal with the lauds as trustee of the temple. As a matter of fact, he has been held to be not trustee now. He never succeeded in acquiring the right of trusteeship by adverse possession. 13ut when a person purports to hold the property as a trustee, he cannot by such possession acquire a right to the property by prescription for himself against the beneficiaries. In determining what right adverse possession would confer on the holder the animus possidendi is the decisive factor. The character in which possession is held must determine the right which the possession would confer. Thus a person who has been in possession for the statutory period in the assertion of a kanom right would acquire only a kanomdar's interest by limitation: Madhava v. Narayana (1886) I.L.R. 9 Mad. 244. Similarly one who assert to the right of a permanent lessee would acquire that right; see Thalcore Fatesingji v. Bamanji A. Dalal (1903) I.L.R. 27 Bom. 515. "When a person takes wrongful possession of land, and keeps it for the prescribed period of limitation, claiming to be himself entitled in fee, or, not setting up any title at all, he gains the estate for his own benefit; but if he enters, claiming a limited interest under some instrument, it does not follow that he can, by possession till the rightful owner is barred, claim the whole estate in perpetuity. Thus, if a man obtains possession of land claiming under a will, he cannot afterwards set up another title to the land against the will, though it did not operate to pass the land in question; and if he remain in possession till twelve years have elapsed and the title of the testator's heir "be extinguished, he cannot claim by possession an interest in the property different from that which he would have taken if the property had passed by the will." Bosanquet and Merchant on "Limitation," page 498. "The nature of an inchoate possessory title may be stated as follows: If a stranger upon entering claims an existing particular estate in the land, as a life estate, he is seised of that estate.... If he only claims an existing term, he is possessed of that term. , and his possessory title will devolve as personality;" Lightwood's Time limit on Actions, page 125. The same principle is applicable where a person is in possession as a trustee and not for his own benefit, because his possession in such a case is really that of the beneficiaries under the trust. In Secretary of State for India v. Krishnamoni Gupta (1902) I.L.R. 29 Calc. 518 (P.C.), the Judicial Committee of the Privy Council hold that if a person is in possession as the tenant of another of land which really belongs to himself he would lose his right by continuing to hold as tenant for the statutory period because, in reality, his possession is that of the landlord. In Kernaghan v. M'Nally 12 Ir. Ch. Rep. 89, it was held, in a case where wrongful possession was held by a person as cestui que trust under a will which did not divide the property, that his possession would be regarded as the possession of the trustee and would inure to the benefit of all who would take if the property had really been demised to him. "A person purporting to act as trustee cannot be allowed to say for his own benefit that he had no right to act as trustee and is estopped from taking advantage of the lapse of time." In Lyell v. Kennedy (1889) 14 A.C. 437 at p. 459, this principle was affirmed by the House of Lords. There a person was managing certain land as the agent of a life tenant. After the death of the life owner he continued to receive the rents and pay them into the Bank as he was doing before, not informing the tenants in actual occupation by stating to several persons that he was acting as agent and receiver for the true owner whoever he might be; after the expiration of twelve years from the death of the life tenant he claimed the property on his own account. The assignees of the heir brought an action against him to recover possession of the land, and for an account of the rent and, profits. The House of Lords held that the agent could not claim any right by virtue of his possession as he purported to hold on behalf of the true heir whoever he might be. Lord Selborne regarded the principle as well established. After referring to the earlier cases--Rackham v. Siddall (1850) 1 Mac. And G. 607 at p. 621 and Life Association of Scotland v. Siddal (1861) 3 D.F. and J. 58 at p. 69--His Lordship observed, "The principle of those decisions, as stated by Turner, L.J., in the latter case, was, that a person who had assumed to be a trustee 'could not be heard to say, for his own benefit, that he had no right to act as a trustee' Mr. Lewin, in his learned and accurate treatise upon the Law of Trusts, thus puts it (seventh edition, page 191: "If a person, by mistake or otherwise, assume the character of trustee when it really does not belong to him, and so becomes a trust de son tort, he may be called to account by the cestui que trust for the monies he received under colour of the trust." In Soar v. Ashwell (1993) Q.B. 390 at pp. 396 and 405, the same rule was acted upon by the Court of Appeal. Lord Bowen says, referring to the case of Life Association of Scotland v. Siddal (1861) 3 D.F. and J. 58 at p. 69: "This extension of the doctrine is based on the obvious view that a man who assumes without excuse to be a trustee ought not to be in a better position than if he were what he pretends." Kay, L.J., said, "The result seems to be that there are certain cases of what are, strictly speaking, constructive trusts, in which the Statute of Limitations cannot be set up as a defence. Amongst these are the cases where a stranger to the trust has assumed to act and has acted as a trustee."
7. It is clear from the abovementioned cases that the law will not permit the plaintiff: in this case to say that he held in any-character other than that of trustee of the temple. It is not alleged that at any time subsequent to the demise he repudiated the character of trustee and claimed to hold the land for his own benefit. Mr. Ramachandra Ayyar urges that he did not apply the rents of the property for the benefit of the temple but took them himself; but this cannot better his position. It would only have the effect of making him liable to account for the rents which he, having collected in the character of trustee, misappropriated for his own benefit. It was observed in Shaw v. Keighron I.R. 3 Eq. 574,
"I think it is necessary to go beyond the mere circumstance that some one not entitled to the rent has received and kept it. The section requires not only that the rent should have been received by a person other than the person rightfully entitled, but that it should have been received under some claim of title and that a wrongful one. For example, if rent were received by a person falsely pretending to be agent to the rightful owner and who never accounted for it this would not bar the, rightful owner."
8. We must therefore hold that the plaintiff did not acquire any title to the property by adverse possession as against the temple. The right to the property must go with the right to the trusteeship. See Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) I.L.R. 23 Mad. 271 at p. 279 (P.C.); also the judgment of this Court in Ambalam Pakkiya Udayan v. Bartle (1913) I.L.R. 36 Mad. 418.
9. We dismiss the Second Appeal with costs.