Pydigantam Jagannadha Row v. Rama Doss Patnaik

Notwithstanding some doubtful language used in the plaint and also in the judgment, there can be no doubt as to the real nature of the plaintiffs' claim. The temple referred to in the plaint was founded by Jagayya and dedicated to the public, endowments to it having been made by him as well as by others. The founder left no writing evidencing the dedication or laying down rules as to the devolution of the office of trustee. During his lifetime he himself acted as the trustee and the evidence proves he contemplated that the office of trustee after him should devolve upon his heirs according to the ordinary rules of inheritance under the Hindu Law. He died childless and his widow succeeded him and continued to manage the affairs of the institution. In 1885 she executed exhibit V purporting to transfer to the first defendant the right of trusteeship, the possession of the temple and the properties belonging to it including the lauded endowments. The first defendant entered into possession and has ever since held it. The transfer was altogether invalid and the defendant's possession was from its inception adverse to the transferor.

In 1897 she died and the present plaintiffs, as the persons entitled to be trustees in succession to her, brought this action in December 1900 to have the transfer made by exhibit V in favour of the first defendant declared invalid and not binding upon them to establish their right as trustees and to recover possession of the temple and its endowments. The point for determination is whether the suit is barred by limitation.

In proceeding to consider this question, it is perhaps right to refer to an observation made on behalf of the plaintiffs that the founder in granting the endowment made by him reserved a right of maintenance. Whether there was any reservation of the kind, and if so, in whose favour, whether only of himself and his widow, or of all succeeding trustees, is a matter which was not made the subject of an issue and has not been properly determined. Assuming there was some such arrangement that would not affect the determination of the question now to be decided amounting as it would only to a charge on the income of the endowment in favour of the parties to be maintained.

It has been earnestly pressed on behalf of the plaintiffs that the suit is governed by article 141 of the Limitation Act; but we cannot agree with this contention. The claim being one for the recovery of an hereditary office, it is obvious that the article applicable is No. 124. No doubt the bulk of the property sought to be recovered is immoveable property but this as well as the other properties are recoverable by the plaintiffs only in their right as trustees, and if their right to the office has ceased to exist by operation of the Law of Limitation, they could have no right to possession of the properties which pass with the office. In the view that the article applicable in the circumstances is article 124, the question is whether the possession of the first defendant has been as contended for him adverse to the plaintiffs for more than twelve years, and this would be so, if the plaintiffs can be rightly held to be persons deriving their right to sue “from or through” the widow. No doubt with reference to the ruling of the Privy Council in Gnanasumbanda Pandara Sannadhi v. Velu Pandaram(1), the widow on succeeding to the trusteeship must he taken to have become trustee without the right of transmitting the office to her own heirs, the person to take the office on her death being the party who would be her husband's heir on the footing that succession to him opens then. No doubt also as in the case of her succeeding to property as her husband's heir beneficially, her right as trustee in succession to her husband would he liable to be divestedly an adoption duly made by her after her succession. Again the Privy Council have extended the principle on which article 141 rests to moveable property vesting in a widow beneficially and liable to pass to the reversionary heir on her death holding that the six years' period under article 120 applicable to the case runs only from the date of the widow's death. These considerations may at first seem to suggest the propriety of holding that in cases like the present the plaintiffs should not be held to claim “from or through” the widow so as to make the possession during her lifetime adverse to them also the propriety in short of treating the case as within the spirit of the rule on which article 141 rests.

On the other hand her position as trustee possesses a distinction from that occupied by her with reference to her husband's estate vesting in her by inheritance beneficially which makes it apparent, that the case is not really one within the scope of the said rule. As regards property inherited by a widow beneficially, the reversioner cannot claim relief by way of possession so long as she is alive, and a transfer by her would at all events be valid till her death. It is different in both respects here. Her powers of transfer are precisely those of a male trustee. Neither can alienate the office and the validity of other transfers has reference in her case as in that of male trustees, simply to the requirements of the trust. For misconduct she is removeable from the office and complete relief is obtainable without reference to her death.

In other words notwithstanding that the office would not after the death of the female trustee descend to her heir, the trust estate during her incumbency for all other purposes resides in her as fully and effectually as it does in a male trustee. The reason for the rule on which article 141 is founded being thus inapplicable, the adoption of the principle of that rule hero would not he warranted. The mere fact that the devolution after her death is not to one who is her heir in the strict sense of the term could not by itself be held to be an adequate reason for treating her successor as not claiming from or through her in connection with limitation. Take, for instance, the case of trustees succeeding by virtue of an appointment made by persons other than the predecessor of the appointee. To hold that the appointee in such a case does not claim through his predecessor as regards a question of limitation arising under article 144 the phraseology of which in column 3 is similar to that in 124, would virtually he holding that there is no limitation in such cases.

The better view, in our opinion, therefore, is that the plaintiffs here are persons deriving their right, through the widow and consequently the possession of the defendants as against her was adverse possession against the plaintiffs also.

As regards the observations of the Judicial Committee in Runchordas v. Parvatibai they must not be detached from the contest and must be understood as made only with reference to a case governed by article 141. As to Harinath Chatterjee v. Mothurmohun Goswami(2) the only question decided there was one of res judicata. The language in Kalianasundram Ayyar v. Umamba Bayi Saheb(3) on which also much street was laid by Mr. Krishnaswami Ayyar, merely amounts to saying that under the terms of the grant then the devolution of the trusteeship after the death of the Ranee was not to her heir but to those of the Rajah of Tanjore in whom the right of management had vested up to his death.

Differing from the District Judge, we hold that the suit was barred by limitation and accordingly reverse his decree and dismiss the suit with costs throughout.