K SHEERA RAMALINGA SWAMI Vs. RAMMAAYYA

JUDGEMENT

(1.) These two LPAs. arise out of the same appeal A.S. No. 485 of 1972 which was allowed with costs by Madhava Reddy, J. Another appeal No. 436 of 1971 was also considered along with this appeal by the learned Judge, but that was dismissed and there was no appeal against it. So the matter in so far as that is concerned has become final. The plaintiff to the extent that he felt aggrieved by the decision of our learned Brother in A.S. No. 485 of 1972, has preferred LPA No. 134 of 1975. The Legal Representatives of the second defendant have preferred L.P.A. No. 176 of 1975 to the extent the decision went against them. The suit out of which these appeals arise was filed by the Executive Officer of a temple for recovery of possession of two items of land, for accounting and for profits. His case is that under a trust, deed Exhibit A- 4 of the year 1932, two items of land, which are of a total extent pf Ac. 2-76 cents, were endowed in the name of the temple. The first defendant's father was constituted as the trustee of the temple. However the first defendant's father, himself being the trustee, got conveyed the same properties in his name in the- year 1946 under a deed of settlement. The donor Venkata Subbamma died on 18th May, 1946. Under Exhibit B-41 dated 16th June, 1948 first defendant's father purported to have sold item 1, of an extent of Ac. I-S8 cents, to the second defendant for Rs. 3,000. On 1st February, 1951 the first defendant's father died. Thereafter the first defendent continued as the trusstee of the temple. The suit was field on 17th February, 1967 for the reliefs above mentioned. In the plaint it is alleged that the settlement deed in favour of the father of the first defendant, Exhibit A-5, is invalid, because the property is trust property and the temple is entitled to it. Since the defendants have been in enjoyment of these properties, they are liable to deiiver the property to the temple after accounting for its profits and also future profits.

(2.) The trial Court found that the trust evidenced by Exhibit A-4 was a valid one and it vested the two items of property in the temple. The fir t defendant's father was a trustee. In regard to item 2, the trial Court held that section 10 of LIMITATION ACT, 1963 applied to the case, because it was in the possession of the first defendant and to there was to far of limitation to the suit in so far as that item was concerned. Consequently it decreed the suit for that item. In regard to item I, however, it found that since the property was in the enjoyment of the second dffendent, therewas no application of section 10 of the LIMITATION ACT, 1963 to this item. Since the suit was filed more than 12 years after the death of the first defendant's father, it was barred by limitation in so far as item 1 is concerned.

(3.) The first defendant filed A.S. No. 436 of 1971 in respect of item 2. As we have already pointed out, Madhava Reddy, J. dismissed it and there was no appeal against that judgment. So the decision of the trial Court decreeing item 2 in favour of the temple has become final. The Executive Officer of the temple has preferred A. S. No. 485 of 1972 in respect of item I. Madhava Reddy, J., held that even in respect of item I, there is no bar of limitation though section. 10 of the Limitation Act did not apply to this item. The view of the learn d Judge is that section 103 of Andhra Pradesh Charitable and Hicdu Religious Institutions Endowments Act. 1966 (hereinafter referred to as the new Act) which corresponds to section 94 of the Madras Hindu Religious Institutions and Charitable Endowments Act, 1951 (hereinafter referred to as the old Act) applies to the case and saves the claim of the temple from the bar of limitation and therefore the claim of the temple for this item also is in time, Since the learned Judge agreed that the Trust Deed Exhibit A4 was a valid trust and that the Settlemeat Deed in favour of first defendant's father Exhibit A-5 was invalid, there was no other valid defence to the plaintiff's claim. In that view he decreed the plaintiff's suit in respect of item I as well, excepting as regards the relief of accounting against the legal representatives of the second respondent. On behalf of the temple L.P.A.No. 134 of 1975 has been filed, being under the mis-apprehension that the learned Judge refused to grant the future mesne profits. But that apprehension does not appear to be correct Though the learned Judge did not specifically refer to the claim of mesne profits, the judgment clearly says that A.S. No. 485 of 1972 is allowed, except as regards the relief of accounting against the legal representatives of second respondent. That clearly means that the learned Judge has granted the relief of future mesne profits, which the plaintiff has claimed in the plaint. That was why in the decree, provision was made for ascertainment of future profits. The L.P.A No. 134 of 1975 is therefore unnecessary. Consequently it is dismissed as unnecessary. There will be no order as to costs. L. P. A. No. 176 of 1975, brought by the legal representatives of the second respondent is the more important of the two L. P. As. It is strenunously urged by Sri T. Veerabhadraiab, learned Counsel, that the claim of the plaintiff in respect of item 1 is barred by limitation. He pointed out that the sale in favour of the second defendant by the first defendant's father was dated 16th June, 1948 and the suit was filed on 17th Febaury, 1967. The first defendant's father died on 1st February, 1951. Therefore, Article 134-B of the Old LIMITATION ACT, 1963 of 1908 prescribes a period of 12 years for a suit by the Manager of a Hindu, Muslim or Buddhist religious or charitable endowment to recover its immovable property, which has been transferred by a previous manager for a valuable consideration and the period of 12 years will have to be reckoned from the date of the death, resignation or removal of (he transferor. According to the learned Counsel the transferor in this case i.e., the father of the first defendant, died on 1 st February, 1951. Therefore the present suit, which has been filed more than 12 years after that date, is clearly barred by time. Sri Veerabhadraiah further contends that the learned Judge is wrong in relying upon sectiou 103 of the Charitable and Hindu. Religious Institutions and Endowments Act, 1966, which corresponds to section 94 of the Madras Hindu Religious and Charitable Endowments Act, 1951. Whichever provision applies, so the learned Counsel argues, the safeguard that is provided in these provisions is available only in case, where the property belonging to religious institutions was not vested in a person or his predecessor in title before the commencement of the 1951 Act, viz. 30th September, 1951, Here the property vested in the second defendant by virtue of the sale deed executed by the father of the first defendant on 16th June 1948. The vesting according to the learned Counsel, need not necessarily mean vesting in title. The word 'vesting' has very many meaning, includings vesting in possession. By virtue of the sale deed dated 16th June, 1948, the property vested in the second defendant atleast in possession and it could be defeated only by filing a suit within 12 years. That does not take away from the fact that the property had vested in the second defendant under the sale deed dated 16th June, 1948. There fore the present suit and the claim therein are not saved by section 103 of the new Act and section 94 of the old Act, However Sri Madhava Reddy, J. held that there was no vesting in the second defendant of these properties before the commencement of 1951 Act. The learned Judge understood vesting used in the section for the second time as vesting by expiry of the prescriptive period. To put it in other words, in the view of the learned Judge, the property must have vested before the commencement of that Act by way of prescriptive right. It is only then the person in whom the property of the religious'institution had vested is saved from the operation of section 94 of the old Act or section 103 of the new Act. This is, what is pressed before us by Sri Surya Rao, learned Counsel for the plaintiff temple- He also maintains the sale deed executed by the first defendant's father in favour of the second is a void document as a consequence of which there was no vesting of the property, in the purchaser. He pointed out that the trial Court as well as the learned single Judge found that the trust deed in respect of both the items of the property, as evidenced by Exhibit A-4, was a true and valid endowment. It was also found that so-called settlement deed, which the first defendant's father got executed in his favour in respect of the property in the year 1946 was an invalid one. The father, and after his death, the first defendant were the trustees of the plaintiff temple. First defendant's father had no manner of right to sell the trust property. When they had no right in the property they could not have conveyed any to the alienee. Therefore nothing vested in the second defendant under this void document dated 16th June, 1948. There is considerable force in this argument. This sale deed in favour of the second defendant is a void document. So there is no vesting of the property in the second defendant so that he can escape from the operation of Sec 103 of the new Act or section 94 of the old Act. However, Mr. T Veerabhadraiah forcefully urges that the sale in favour of the second defendant on 16th June 1948 was a voidable transaction and subsequently the manager or any person interested in the trust can challenge a transaction and get it avoided. That is why the old LIMITATION ACT, 1963 provided in Article 134-B a limitation period of 12 years for such suits. Further the word 'vesting' is capable of very many meanings and is not confined to vesting of title alone. It can as well be vesting of possession.