V RAJARAM Vs. RAMANUJAM IYENGAR

JUDGEMENT

(1.) THE appellant in this appeal is the plaintiff in the suit out of which it arises". The suit was brought by the appellant against a number of defendants who are all respondents here for the main relief of recovery of possession of properties alleged to belong to a choultry. There were two schedules attached to the, plaint. Schedule A contained the site and the building of the choultry founded by one veerappa the paternal grandfather of the plaintiff. Schedule B to the plaint contains a list of properties, all lands, endowed by this Veerappa for the maintenance and upkeep of the said choultry founded by him. Veerappa executed a gift deed in 1887 for this creation of this endowment and also provided by that deed for succession of managers for the institution. He indicated that he would be manager during his lifetime, and after him his son and sons' heirs should manage the endowments, receive income from B schedule lands and keep up the charity by maintaining the services to be performed therein. The alienations as a result of which the B Schedule properties went out of the hands of the trust can be classified under three heads : (i) alienations by Nachiappa, the paternal grandfather of the plaintiff, between the years 1898 to 1907. It may be noticed here that Nachiappa died only in 1919. The second class of alienations is covered by two court sales in O. S. No. 1011 of 1901, D. M. C. Kulitalai, and O. S. No. 1251 of 1904 of the same court. The third category of alienations are two sales by veerappa, the father of the plaintiff, who was impleaded as the 38th defendant in the suit. It may be noticed here that he died during the pendency of the suit in the lower court, and consequently, an amendment of the plaint was sought and the relief of recovery of possession of the properties alienated by Veerappa was added to the plaint.

(2.) IT is common ground that all B schedule properties are absolutely dedicated to the charity namely the said chatram. Various pleas were taken by the defendant which it is unnecessary for the present purpose to detail. Out of the numerous issues framed in the suit the learned Subordinate Judge proceeded to consider issue 10 and additional issue 1 as preliminary issues. These issues read as under :

(3.) MR. Ramaswami Aiyangar counsel for the appellant was on very firm ground when he attacked the last finding of the learned judge, namely, the alienations made by the 38th defendant (father of the appellant ). Under Article 134-B of the limitation Act time begins to run to recover possession of immoveable property alienated by a previous manager of a Hindu, Mohamedan or Buddhist religious or charitable endowment only from the date of death, resignation or removal of the transferor. Out of the two alienations made by Veerappa one was made after Act I of 1929 became law. It is by that Act that Article 134-B came into force on the 1st january, 1929. The other alienation by Veerappa was in 1926 and certainly when the amending Act of 1929 was passed introducing Article 134-B and providing a period of limitation of 12 years from the death of the previous manager. Limitation could not begin to run so long as Veerappa was alive. The learned Judge was therefore obviously wrong with reference to the alienations made by Veerappa when he held that the plaintiff's suit was barred by limitation. However he was correct when he said the suit was premature at the time when it was instituted because Veerappa was then alive, because the cause of action for bringing the suit would come into existence only on the death or resignation of Veerappa. But on the date when he dismissed the suit certainly Veerappa was dead and the plaintiff had a clear cause of action under Article 134-6 of the Limitation Act. The suit would therefore be remanded for the purpose of determination of this question namely the right of the plaintiff to avoid alienations made by his father and to recover properties comprised in items 10 and 11 in paragraph 7 of the plaint. Those alienations are dated 4-1-1929 and 4-2-1928 (Exs. B. 65 and B. 74 ). When the suit is remanded for the determination of the claim of the plaintiff in regard to these two relevant issues touching this question will also have to be decided by the learned Subordinate Judge as till now no trial on those issues has been had.