LAKSHMANA PILLAI Vs. EMAKALAPERUMAL NADAR (DIED) AND ORS.

JUDGEMENT

(1.) THE order of reference to the Bench, states the reasons which impelled the learned Judges who heard the case in the first instance to place the matter before a Bench. As the whole case is before us we intend to deal with the question in its entirety. Valiavanda Vinayagar temple mentioned in schedule 1 of the plaint as well as the properties described in schedules 2 and 3 thereunder belonged to the family of the plaintiff and defendants 2 to 5 for which one Manikkavasagam Pillai was the huqdar and manager in 1934. Under Exhibit B -2 dated 1st October, 1934, Manikkavasagam describing himself as the manager and huqdar of the temple and its properties and stating that he could not manage the affairs of the temple properly and that his successors cannot perform the puja and other appurtenant rituals assigned away the huqdar right and management of the temple and its properties to the first defendant for a consideration of Rs. 100. The document recites that as a result of the assignment the first defendant is entitled to take the place of Manikkavasagam, become the huqdar of the temple and its properties and enjoy the properties mentioned in the schedule to the document as huqdar by himself and his heirs from son to grandson hereditarily. The effect of this document was to completely transfer the trusteeship of the temple, its properties and everything appertaining to the temple in favour of the first defendant. Thereafter no vestige of any right remained in the transferor. The first defendant has been in possession of the temple properties, managing them and has also been performing the pujas and other duties by stepping into the shoes of Manikkavasagam since then. Nearly three years later Manikkavasagam died on 1st September, 1937. Had not Manikkavasagam transferred all his right in the temple and its properties under Exhibit B -2 the next huqdar and manager would be his son who it is stated relinquished his hereditary right of huqdar and manager in favour of the plaintiff who also was a member of the family of Manikkavasaga. There is no documentary evidence with regard to the relinquishment but it is the case of the parties, and the second defendant who is the son of Manikkavasagam does not dispute Such a relinquishment.

(2.) ACCORDINGLY the plaintiff claims to recover possession of the temple properties and also the management of the temple from the first defendant on the ground that Exhibit B -2 is invalid and not binding on the family and that as the cause of action for recovery of the properties and the right of huqdar arose only after the death of Manikkavasagam, the suit brought on 29th June, 1949, is within time. The District Munsif accepted the plea of that plaintiff and decreed the suit holding that Exhibit B -2 is not valid, and that the suit having been filed within 12 years from the date of the death of Manikkavasagam, viz., 1st September, 1937 - when the cause of action arose was within time relying upon Article 134 -B of the Limitation Act. He found following the decision in Vinkateswara v. Venkatesa : (1941) 1 MLJ 644 , that limitation can run only from the date of the death of Manikkavasagam and not from the date of the transfer in 1934. On appeal, the learned District Judge Tirunelveli disagreeing with the District Munsif held that as the transfer was void at its very inception the starting point limitation was the date of the transfer and since more than 12 years had elapsed from the date of the transfer the suit was barred by limitation both as regards the recovery of the office of huqdar of the temple and the temple properties. Hence this second appeal by the plaintiff.

(3.) ON the other hand, Mr. Veeraswami, learned Counsel, for the first defendant, respondent, submits that since the suit is one for the office and for recovery of the properties, the starting point of limitation is under Article 124 of the Limitation Act when the possession becomes adverse to the transferor, that is, from the date of Exhibit B -2 and Exhibit B -2 does not make any distinction between trusteeship and property. Learned Counsel further contended that the enactment of Article 134 -B of the Limitation Act did not make any change in the law regarding the transfer of trusteeship and that being the case as has been held in a number of cases where the suit is for recovery of the office and the property attached to it, the starting point of limitation is the date of the transfer under Article 124 of the Limitation Act. It is further urged that since it is impossible to dissociate the office of the trusteeship from the properties of the trust if the right to recover the office is barred the right to -recover property would also become extinct. Further in the case of hereditary trustees succession to the office of trustee is from predecessor to successor and the whole number of trustees constitutes a chain each succeeding the other. Such being the case it is argued that the suit is barred.