The Lower Appellate Court has found that the plaintiff is the Pujari or trustee of the suit temples. It has also been found that the suit property is property attached to the temples. The plaintiff's suit to recover possession has, however, been dismissed, on the ground that it is barred by Art. 134 of the Limitation Act.
It has been held by the Privy Council in Vidya Varuthi v. Balusami Ayyar that Art. 134 of the Limitation Act does not apply, to a case of this kind. The respondents' learned vakil seeks to distinguish the present case, from the decision in Vidya Varuthi v. Balusami Ayyar(1), by pointing out that in the Privy Council, the alienation by the trustee complained of was only a permanent lease and not a sale as in this case; and reliance is placed upon the following passage in Subbaiya Pandaram v. Mahammad Mustapha Marcayar(2), in support of the distinction. The passage runs as follows:—
“This is not in fact, a transfer by the trustee himself, for a valuable consideration, though there is little difference in principle between a transfer under an adverse execution and a sale by the trustee himself, but disregarding that article, Art, 144 covers the exact case”.
It will be remembered that in Subbaiya Pandaram v. Mahammad Mustapha Marcayar, the trust property sought to be recovered was acquired by the purchaser under an execution sale and the question was whether the suit was barred under Art. 134 or Art. 144 of the Limitation Act. From the context in which it appears it seems to me that in the passage quoted, their Lordships of the Privy Council were only meeting an argument that must have been raised at the bar with reference to Art. 134. They were only pointing out this, namely, that it might be, that there is little difference between a transfer under an execution sale, that is, involuntary transfers; and a sale by the trustee himself, that is voluntary transfers; but Art. 134 applies to transfers by the trustee himself for a valuable consideration, namely, voluntary transfers. Then, their Lordships proceed to discuss the applicability of Art. 144. That no such distinction, as is now pointed out, was present to their Lordships' mind is also clear from the fact that their Lordships, in the course of the elaboration of the principle, refer to cases of alienation by leases and mortgages. (Cf. Mahomed v. Ganapati, Jamal Saheb v. Murggaya Swami, Behari Lal v. Muhammad Muttaki(5)). The decisions quoted by the learned vakil for the respondent, Madhava Rao Vaman v. Regunath Venkatesh(6), Madura Devasthanam v. Samia Pillai(7) and Majavath Ali v. Mujafar Ali(8), do not refer to this distinction. I therefore think that the plaintiff's suit is not barred by Limitation, under Art. 134 of the Limitation Act. As it has been admittedly brought within two years after he became a Pujari, his suit is within time.
I therefore set aside the decrees of the Courts below and give the plaintiff a decree as prayed for, subject to his giving defendants 3 to 5 Rs. 1,700, for the value of improvements effected by them. The plaintiff will have his costs in all the Courts.
K. V. S.Decree set aside..