RAM CHANDRA NAIK Vs. DADHIBABAN THAKUR AND ORS.

JUDGEMENT

(1.) THIS appeal is by Defendant No. 2 who is a transferee pendente lite from Defendant No. 1 under lit deed of sale dated 9 -9 -1957. It is directed against the judgment and decree dated 19 -10 -1963 passed in appeal by Shri J.N. Patnaik, Third Additional Subordinate Judge, Cuttack, affirming those of the trial Court dated 8 -2 -1963.

(2.) THE suit was instituted on the allegation that the property in dispute is a debottar property given in gift to the deity Dadhibaban Jiew and that the same was sold without legal necessity, firstly by Hadibandhu Sahu in favour of Sadhu Charan Parida under the deed of sale dated 5 -4 -1944, thereafter by Sadhu Charan Parida in favour of Birendra Kumar Mukherji under the deed of sale dated 11 -2 -1946 and lastly by Birendra Kumar Mukherji in favour of Defendant No. 1 under the deed of sale dated 3 -3 -1955. All these deeds of sale, according to the Plaintiffs who are the sons of Hadibandhu Sahu, are void and illegal in law. Hence the suit for declaration of their title as sebayats or marfatdar and for recovery of possession. The suit, which has been contested mainly by Defendant No. 2, had been dismissed by both the Courts below. Therefore now Defendant No. 2 has come in Second Appeal.

(3.) THE attack as against the first finding made by Mr. Mohanty is that the Court below should have held that the suit as constituted is barred by time under Article 144 of the Limitation Act. It appears that at the trial Court a controversy was raised whether the suit in the present case was governed under the law of Limitation by Article 134(B or Article 144 of the Limitation Act. The submission made by Mr. Mohanty is that the sales effected under the aforesaid deeds of sale dated 5 -4 -1944, 11 -2 -1946 and 3 -3 -1955 have been made by the successive transferors on the footing that the property conveyed thereunder was their private property and not a trust property, and as such in a case like this the Article under the Limitation Act which should be applied would be Article 144. In support of this contention, reliance has been placed by the learned Counsel on the decision in Hamanta Kumari v. Iswar Sridhar Jiu, A.I.R. 1916 Cal. 473. On principle there can be no controversy that once a trust property is transferred in negation of its being trust, or in other words on the assumption that it is not trust property, but a private property, the alienation made will be governed by the law of limitation as laid down in Article 144. But it is also equally well established that if a trust property is transferred by the transferor qua trustee, or in other words on the footing that it is a trust property, such a transfer is governed by Article 134(13) and not Article 144. The Court below has elaborately gone into the question and held that what has been conveyed under the aforesaid deeds of sale by the successive transferors is not the property itself which is in dispute here, but only the marfatdari interest of the vendors. In other words, the Court below has held that under the deeds of sale the transfers have been effected on the assumption that the property in suit was a trust property and the vendors were the trustees of the same and not that the property transferred thereunder was their personal property which they bad right to sell freely. In view of this finding of fact arrived at by the lower appellate Court, the law of limitation which is attracted is one laid down in Article 134(B) and Article 144 of the Limitation Act. Therefore the submission made by Mr. Mohanty against the finding given by the lower appellate Court on the question of limitation has to be negatived as unfounded.