BASAPPA Vs. SHIVAGANGAWWA

JUDGEMENT

(1.) This appeal is directed against the Judgment and decree of the Court of the Additional Civil Judge, Bijapur, in RA No. 46/1974 reversing the Judgment and decree of the Court of the Munsiff, Muddebihal, in O.S.No. 108/1959.

(2.) The original suit was filed by the plaintiffs for recovery of possession of the suit lands bearing R.Sy.No. 102 measuring 5 acres 34 guntas of Nagaral village in Muddebihal taluk of Bijapur District on the ground that it was the property of Maruthi Deity of Nagaral village and it is the trust property and gifted in favour of Thippanna by the trustees Basappa and Narayanappa. This gift was as far back as in the year 1911 by Narayanappa and Basappa. While Narayanappa had pre-deceased Basappa, Basappa died on 1-2-1943. Thereafter, in the year 1955 i.e., in February 1955, the application came to be made to the Charity Commissioner, Bijapur, for permission to file a suit and the permission was granted. Thereafter, the suit came to be filed for the said relief. The trial Court mainly found that the gift in favour of Tippanna by Narayanappa and Basappa was void in as much as it was not permissible to make such gift and since then the possession of Tippanna had become adverse, therefore, the suit filed by the plaintiffs was not maintainable. Thus dismissed the suit.

(3.) The first appellate Court, however, took the view that the gift in favour of Tippanna was not void but voidable. As such, the alienation could be valid during the life time of the alienors and the cause of action accrued to file the suit only after the death of Basappa in February, 1943 and within 12 years thereafter the steps were taken to initiate the proceedings and therefore, the provisions of Section 10 of the Limitation Act (as amended in the year 1929) come to the rescue of plaintiffs that there could not be bar of limitation to proceed against an alienee of the trust property and so saying, gave a decree in favour of the plaintiffs. It also found that there was no gift as such but there was transfer of the office of Archaka with the condition superimposed and from the income realised from the estate of the temple the transferee must discharge the obligations to the temple of performing pooja.