LAKSHMINARAYANA KULLURAYA Vs. RAJAMMA AND ANR

JUDGEMENT

(1.) The Plaintiff is the appellant. Plaintiff s suit was for recovery of possession of suit properties and also for rent. The properties were given on a permanent lease by the plaintiff in 1904 to defendants 5 and 6, who are the contesting parties in the Second Appeal. These properties ware set apart for a family religious trust. On the death of the lessor, the present plaintiff who has come into management of this trust instituted this suit, for possession of the properties. The lower Appellate Court gave a decree for the rent, but the relief as regards possession was declined, on the ground that the suit is barred by limitation, under Article 134 of the Indian Limitation Act, In so holding, the learned Judge relied on a decision of this Court, in Baluswamy Iyer v. Venkitaswamy Naicken [1917] 40 Mad. 745, which held that in a case like the present one, Article 134 of the Indian Limitation Act applied. But the decision has been subsequently reversed by the Privy Council in Vidya Varuthi v. Balusami Ayyar A.I.R. 1922 P.C. 123.

(2.) According to this decision a permanent lease of this kind cannot be considered, as a transfer for consideration, contemplated under Article 134. This Privy Council decision has been subsequently followed in Srinivasa Chariar v. Evalappa Mudaliar A.I.R. 1922 P.C. 325, and has been applied in Second Appeals Nos. 410 and 411 of 1921, It therefore follows that the suit cannot be said to be barred by limitation, under Article 134, nor do I think is it barred under Article 144. The plaintiff is therefore entitled to a decree for possession. It has been argued for the respondents that there is no family trust in this case, but on the instruction of Exs. A and B, it has been found by the lower Court that a family endowment has been created and going through the terms of the document, I am not prepared to differ from that opinion of the lower Court. Then it was argued that though there was a trust, that trust was subsequently put an end to, by the conduct of the parties to the suit. This ground does not seem to have been raised in the Appellate Court; and in the first Court, where the Munsif has dealt with it, he has not given any considered opinion about it. His remark amounts to a randum observation, made in the course of the examination of the case as regards the nature of the family trust. It was then argued that a portion of the second item of property 67/6 should be excluded from the operation of the decree; but the learned Subordinate Judge has found that these properties under B, which incorporate the provision of A, have been devoted to the family trust. The last argument of the learned vakil for the respondents is, if possession is to be decreed for the plaintiff, he is entitled to the value of improvements. This question has not been considered by the lower Court. Therefore, before finally disposing of the Second Appeal, I call upon the Subordinate Judge to submit a finding with regard to the value of improvements to which the respondents are entitled. After the receipt of that finding, a decree for possession of suit items will be given in favour of plaintiff. The finding is to be submitted on the evidence on record before 15th August. The lower Court will ascertain the mesne profits also. Time for objections, ten days.

(3.) [On receipt of the finding from the lower Court, the High Court accepting the same, modified the lower Court s decree.]