SRI SARANGADEVAR PERIA MATAM AND ANOTHER versus RAMASWAMY GOUNDER (DEAD) BY LEGAL REPRESENTATIVES

SRI SARANGADEVAR PERIA MATAM AND ANOTHER

RAMASWAMY GOUNDER (DEAD) BY LEGAL ltEPRESENTA TIVES September 23, 1965

[K. SUHBA RAO, J. R. MVDllOLKAR AND R. S. BACHAWAT, JJ.]

Indian Limitafwn Act (9 of 1908), s. 28 and Art. 144--Absence of legally appointed mathadhipathi-Right of mL:.th to recover e1klowed property--Slarting point of litni!al..ion.

The mathadhipathi of the apj)C!lant nu1h granted perpetual lease of the math properties, at fixed rent to the predecessor of the respondent jo 1883, but \vithout any legal ncccso;;ity, lbe malhaJipalhi died in 1915. From 1~15 there w:!s only de facto manager of the moith for 20 years. In 1939, the present mathadhipatlu was elected and in 1950 the math obtained possession of the properiics. Since 1915 the respondent and his predecessors did not pay any rent to the math. In 1954, the respondent filed the suit against the m~th rcpresen1ed by the mathadhipathi, for recovery of pos~s'.on of the properties claiming title by adverse posr ses:,ion. 'Ilic trial court decreed the suit. On appeal, the decree w<ls set a!ide, but was rC";tored by the High Court on further appeal.

In the appeal to this Court the appellants contended that adverse possession could not run till !he machadhip•lthi was appointed. because, the right to sue for the recover)· of the math properties vested only io the lcgaJJy appointed mathadhipathi; and before posses\ion cou!d be :1dvcrse iherc rn~t be con1pctitor who, hy due vigilance, could avoid the running of time.. HELD: In the absence of legal neccosity, the lease of 1883 endured only during the Jife time of rhe previous mathadhipathi and terminated on his <lcath in 1915, and possession thereafter of the respondent and his predecessor wa.'\ adverse to the math. Therefore, the time under Art. 144 of 1he Limitation Act. 1908, commenced to run in 1915 and the absence of legally appointed mathadhipathi did not prevent the running of time. Thus, the title of the. math to the suit properties became extin-guished in 1927 and the respondent acquired title by prescription, by operation of s. 28 and art. 144. [910 E; 913 H; 914 C]

math is the O\vner of endowed property and like an idol is juris-tic person having the power of acquiring, owning and possessing propl!rties and having the capacity of suing and heing sued. It may acquire prc>-perty by prescription and likewise lose it by adverse possession. legally appointed mathadhipathi .has 1arge heneficial intc.re<>t~ in the m.alh properties and he may sue on Its. beh~lf for recovery of its properties. In his absence. de facto mathadh1path1 may do so, and where i:iec~sa.ry. disciple or other beneficiary of the n1ath may take .steps .• for Y1a~1cat1ng its lc,!Zal rights. Therefore. if before the mathad~1path1 s appo1n[1]ment ]imitation under art. 144 had commenced to run against the math, the a:>-pointment does not give citl~cr the. math ?T. th7 malbadhipa.thi n.ew right of suit or fresh srart1~g po;nt ~1f !Jm11a11on, and so, 1f. the tJtle of the math to any propertv 1s e"ttl~gtt1shcd by adverse 'Posscs.~1on,. the rights of aU bene.Jiciarieco of the math 1n the property are also cx!1ngu1shed. [912 A·D; 912 H-913 BJ

(1904) 1.1..R. 32

Jagadindra Nath Ruy v. Hemerrta Kunwi Debi, Cal. i29, distin~uished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 544 of 1963.

Appeal by special leave from the judgment and decree dated July 16, 1959 of Madras High Court in Second Appeal No. 513 of 1957. A. s: S. Javali and for

A. V. Viswanatha Sastri, s: S. Javali and Ganapathi Iyer, for

the appellants.

R. K. Garg. S. C. Agarwal, D. P. Singh and M. K. Rama-murthi, for the respondents.

The Judgment of the Court was delivered by

Bachawat, J. Sri Sarangadevar Peria Matam of Kumbako-nam was the inamholder of lands in Kannibada Zamin, Dindigul Taluk, Madurai District. In 1883, the then mathadhipathi granted perpetual lease of the melwaram and kudiwaram interest n in portion of the in am lands to one Chinn Gopiya Goundar, the grandfather of the plaintiff-respondent on an annual rent of Rs. 70. The demised lands are the subject-matter of the pre-sent suit. Since 1883 until January 1950 Chinna Gopiya Goun-dar and his descendants were in uninterrupted possession and enjoyment of the suit lands. In 1915, the mathadhipathi died without nominating successor. Since 1915, the descendants of Chinna Gopia Goundar did not pay any rent to the math. Between 1915 and 1939 there was no mathadhipathi. One Basavan Chetti was in management of the math for period of 20 years from 1915. The present mathadhipathi was elected by the disciples of the Math in 1939. In 1928, the Collector of Madurai passed an order resuming the inam lands, and directing full assessment of the lands and payment of the assessment to the math for its upkeep. After resumption, the lands were transferred from the "B" Register of inam lands to the "A" Register of ryotwari lands and joint patta was issued in the name of the plaintiff and other persons in possession of the lands. The plain-G tiff continued to possess the suit lands until January, 1950 when the math obtained possession of the lands. On February 18, 1954, the plaintiff instituted suit against the math represented bv its present mathadhipathi and an agent of the math claiming recovery of possession of the suit lands. The plainfll' claimed that he acquired title to the lands by adverse possession and by the issue of ryotwari patta in his favour on the resumption of the inam. The Subordinate Judge of Dindigul accepted the plaintiff's contention, and decreed the suit. On appeal, the District Judge

of Madurai sd aside We decree and dismissed the suit. On second appeal, the High Court of Madras restored the judgm~nt and decree of the Subordinate Judge. 'file deien'1ants now appeal to this Court by special leave. During the pendcncy of the appeal, the piaintiff-respondent died and his legal representatives have boen substituted in his place.

The plaintiff claimed titie to the suit lands on the 1olh.n.mg grounds : ( 1) Since l ') 15 he and his predecessors-in-interest were in adverse possession of the lands, and on the expiry of 12 years in 1927 he acquired prescriptive title to the lands under s. 28 read with Art. 144 of the Indian Limitation Act, 1908; t2) by the resumption proceeJings amt the grant \lf the ryoiwari patta new tenure was created in his favour and he acquired full ownership in the lands; and (3) in any event, he was in adverse possession of the lands since 1928, and on the expiry of 12 years in 1940 he acquired prescriptive title to the lands under s. 28 read with Art. 134-B of the Indian Limitation Act, 1908. We are of the opinion that the first contention of the plaintiff should be accepted, and it is. therefore, not necessary to consider the other two grounds of his claim.In the absence of legal necessity, the previous mathadhipathi had no power to grant perpetual lease of the math p[Jlpecties at fixed rent. Legal necessity is neither alleged nor proved. l3ut the mathadhipathi had power to grant lease "hich could endure for his lifetime. The lease of 1883, therefore, endured during the lifetime of the previous mathadhlpathi and terminated on hi< death in 1915. Since 1915, the plair1iff and his predecessors-in-interest did not pay any rent to the math, and they possessed the lands on their own behalf adversely to the math. Before the insertion of Art. 134-B in the Indian Limilation Act, 1908 hy Act I of 1929, the suit for recovery of the lands from the defend-ants would have been governed by Art. 144. The contro,·ersy i' about the st~rting point of limitation of suit for the recoverv of the math properties under Art. 144. Did the limitation com-mence on the date of the death of the previous mathadhipathi, or did it commence on the dat~ of election of the present mathadhi-pathi"

On behalf of the appellants. Mr. Ganapathy Iyer wntended that the right to sue for the recovery of the math-properties vests in the legally appointed mathadhipathi and adverse possession against him cannot run until his appointment. Jn support of his contention. he relied upon the minority judgment of Full Bench

of the Madras High Court in Venkateswara v. Venka1esa(1), Kameswara Rao v. Somanna(") and Manikkam Pillai v. Thani-kachalam Pillai (3). He argued that this view has received legis-lative sanction in Art. 96 of the Indian Limitation Act, 1963. He relied upon the following observations in Jagadindra Nath Roy v. Hemanta Kumari Debi(') "the possession and management of the dedicated property belongs to the sebait. And this carries with it the right to bring whatever suits are necessary for the protec-tion of the property. Every such right of suit is vested in the sebait and not in the idol." Relying on Murray v. The East India Company(') and Meyappa Chetty v. Subramanian Chetty([6 ]) and several decisions under Arts. 120 and 110 of the Indian Limi-C talion Act, 1910, he submitted that the cause of action does not accrue and time does not co=ence to run unless there is some-one who can institute the suit. Relying on Radhamoni Devi v. Collector of Khulna(') and Srischandra Nandy v. Baijnath fugal Kishore([8 ]) he contended that before possession can be adverse there must be competitor who by due vigilance could avoid the running of time .

Mr. Garg on behalf of the respondents contended that adverse

possession commenced to run against the math on the death of the mathadhlpathi who granted the lease and the operation of the Limitation Act is not affected by the fact that there was no legal manager of the math. In support of his contention, he relied upon the majority judgment of the Full Bench of the Madras High Court in Venkateswara's case('), Monmohan Haldar v. Dibbendu Prasad Ray Chaudhuri(") and Administrator-General of Bengal v. Balkissen Misser(''). Relying on Pramatha Nath Mullick v. Pradyumna Kumar Mullick("), he submitted that math, like an idol, has juridical status with the power of suing and being sued. He argued that in the absence of legally appointed mathadhipathi, de facto manager could institute suit for recovery of the math properties, and the beneficiaries of the endowment could take appropriate steps for the recovery, and, in any event, the mere absence of machinery for the institution of

the suit would not suspend the running of limitation.

We are inclined to accept the respondents' contention. Under Art. 144 of the Indian Limitation Act, 1908, limitation for suit by math or by any person representing it for possession of irn-

(I) I. L. R. 1941 Mad. 599. (3) A. I. R. 1917 Mad. 706.

(2) A. I. R. 1955 Andhra Pradesh. 212.

(4) (1904) I. L. R. 32 Cal. 129,141.

(6) (1916) L. R. 43 I. A. 113,120 .

(S) (1821) 5 B. & Aid. 204,217.

(/) (1900) L. R. 27 I. A. 136.

(8) I. L. R. 14 Patna. 327 P. C.

(9) (1949) I. L. R. 2 Cal. 263.

(10) (1924) I. L. R. 51 Cal. 953, 957-960.

R. 52 I. A. 245, 250.

(11) (1925) L.

movable properties belonging to it runs from the time when the possession of the defendant becomes adverse to the plaintiff. ·111e math is the owner of the endowed property. Like an idol, the math is juristic person having the power of acquiring, owning and possessing properties and having the capacity of suing and being sued. Being an ideal person, it must of necessity act in relation to its temporal affairs through human agency. Sec BabajirQQ v. Laxmandas( [1]). It may acquire property by pres-cription and may likewise lose property by adverse possession. If the math while in possession of its property is dispossessed or if the possession of stranger becomes adverse, it suffers an injury and has the right to sue for the recovery of the property. If there is legally appointed mathadhipathi, he may institute the suit on its behalf; if not, the de facto mathadhipathi may do so, see Mahadeo Prasad Singh v. Karia Rharri('); and where, necessary, disciple or other beneficiary of the math may take steps for vindicating its legal rights by the appointment of receiver having authority to sue on its behalf, or by the institution of suit in its name by next friend appointed by the Court. With due diligence, the math or those interested in it may avoid the running of time. The running of limitation against the math under Art. 144 is not suspended by the absence of legally appointed mathadhipathi; clearly, limitation would run ag3inst it where it is managed by de facto mathadhipathi. See Virhal-bowa v. Narayan Daji Thire('), and we think it would run equal-ly if there is neither de jure nor de facto mathadhipathi.

mathadhipathi is Che manager and custodian of the insti-tution. See Vidya Varuthi Thirtha v. Balusami A.war('). The office carries with it the right to manage and possess the endowed properties on behalf of the math and the right to st1e on its behalf for the protection of those properties. During the tenure of his office, the mathadhipathi has also large beneficial interests in the math properties, see The Commissioner, Hindu Religious Endow-ments, Madras v. Sri Lakshmindra Thirtha Swamiar of Srirur Mutt('). But by virtue of his office, he can possess and enioy onlv such properties as belonl( to the math. If the title of the math to any property is extinguished by adverse possession, the rights of all beneficiaries of the math in the property are also extinguished. On his app~intment, the mathadhipathi acquires no right to recover property which no lonj!er belongs to the math. If before his appointment limitation under Art. 144 has

(1) o91i4l I. L. R. 28 Born. 215.223.

(2) (1934) L. R. 621. A. 47. St.

(3) (1893)1. L. R. 18 'lorn. Sfl7. St t. (4) L. R. 481. A. 302 at 311,315.

(S) (1954} S. C.R. 1005, 1018-1020.

commenced to run against the math, the appoiritment does not

give either the math or the mathadhipathi new. right of suit or fresh starting point of limitation under that Article for rec?very of the property. In the instant case, the present matha~path1 was elected in 1939 when the title of the math to the smt lands was already extinguished by adverse possession. By his election in 1939 the present mathadhipathi could not acquire the right to possess and enjoy or to recover properties which no longer belong-ed to 'the math.

In Jagadindra Nath Roy's case('), the dispossession of the idol's lands took place in April, 1876. The only sheb_ait of the idol · was then minor, and he sued for recovery of the lands in Octo-ber, 1889 within three years of his attaining majority. The Privy Council held that the plaintiff being minor at the commence-ment of the period of limitation was entitled to the benefit of s. 7 of the Indian Limitation Act, 1877 (Act XV of 1877) corres-ponding to s. 6 of the Indian Limitation Act 1908, and was entitled to institute the suit within three years of his coming of age. This decision created an anomaly, for, as pointed out by Page, J. in Administrator-General of Bengal v. Balkissen Misser(2) at p. 958, in giving the benefit of s. 7 of the Indian Limitation Act, 1877 to the shebait, the Privy Council proceeded on the footing that the right to sue for possession is to be divorced from the proprietary right to the property which is vested in the idol. We do not express any opinion one way or the other on the correctness of Jagadindra Nath Roy's case([1]). For the pur-poses of this case, it is sufficient to say that we are not inclined to extend the principle of that case. In that case, at the com-mencement of the period of limitation there was shebait in existence entitled to sue on behalf of the idol, and on the institu-tion of the suit he successfully claimed that as the person entitled to in~titute the suit at the time from which the period is to be reckon-ed he should get the benefit of s. 7 of the Indian Limitation Act 1877. Jn the present case, there was no mathadhipathi in exist-ence in 1915 when limitation commenced to run. Nor is there any question of the minority of mathadhipathi entitled to sue in 1915 or of applying s. 6 of the Indian Limitation Act, 1908.

For these reasons, we hold that the time under Art. 144 of the Indian Limitation Act, 1908 commenced to run in 1915 on the death of the mathadhipathi, who granted the lease, and the absence of legally appointed mathadhipathi did not prevent the running of time under Art. 144. We, therefore, agree (I) (1904) I.LR. 32 Cal. 129. (2) (1924) I.LR. 51 Cal. 953.

L8Sup. C. 1/65-15

with the answer given by the inajurity of the Judges to the third question referred to the Full Bench of the Madras High Court in Venkatesivara's case(') at pp. 614-615, 633-634. We express no opinion on the interpretation of Art. 134-B of the Indian Limitation Act, 1908 or Art. 96 of the Indian Limitation Act, 1963. Under Art. 96 of the Indian Limitation Act, 1963, the starting point of limitation in such case would be the date of the appointment of the plaintiff as manager of the endowment, but this Article cannot be considered to be legislative recogni-tion of the law existing before 1929.

We hold that by the operation of Art. 144 read with s. 28 of the Indian Limitation Act, 1908 the title of the math to the suit lands became extinguished in 1927, and the plaintiff acquired title to the lands by prescription. He continued in possession of the lands until January, 1950. It has been found that in January, 1950 he voluntarily delivered possession of the lands to the math, but such delivery of possession did not transfer any title to the math. The suit was instituted in 1954 and is well within time.

In the result, the appeal is dismissed with costs.

Appeal dismissed.