KAMALATHAMMAL Vs. KRISHNA PILLAI

JUDGEMENT

(1.) The suit is by the widow of an archaka to recover the office and the lands which appertained to the office from defendants Nos. 1 and 2. The office and the lands were alienated by the plaintiff's husband under Exhibit I in 1893 to the 1 defendant. It is found by the District Judge on appeal that the lands have been in the 1 defendant's possession for mote than 12 years. As regards the office he says possession passed at the same time. He does not, however, find who held possession of the office since 1897.

(2.) The Munsif held that since 1897 the 2nd defendant performed the duties of the office. Mr. Ramachendra Iyer argues, applying Art. 124, Schedule II, Indian Limitation Act, that as the 1 defendant enjoyed the emoluments he must be deemed to have held the office as well. This we are unable to agree to. Art. 124 deals with a suit for possession of a hereditary office. That means the suit is against the holder of the office. The third column says that the time runs from the date when the defendant takes possession adversely. An explanation is attached to the clause in the third column that the office is possessed when the emoluments are received in cases where emoluments are attached. The explanation is not attached to the words in the first column. Nor does it say that mere receipt of the emoluments, without reference to any performance of the duties, will enable the recipient to claim possession of the office if the duties are being performed by another. At all events to apply the article the suit must be one against the holder of the office. To hold otherwise would mean when two different persons perform the duties of the office for the statutory period the latter acquires the right to the office, a conclusion which appears to us to be manifestly absurd, nor can the conclusion be avoided, when the emoluments are taken by several persons in severalty without any of them doing the duties, that they have all acquired a rioyt to the office. We must then overrule the contention that the 1 defendant by possession of the lands alone has acquired a right to the office.

(3.) The next question is whether the 2nd defendant's possession since 1897 was as the deputy of the 1st. In that case the plaintiff's right to the office would be barred and, as a consequence thereof, his right to the lands as well. As regards : the lands the claim would not be barred if the plaintiff's family was entitled to the beneficial enjoyment thereof. See Mahomed V/s. K. Ganapathi (1890) I.L.R. 13 M. 277. This view has not been overruled by the Privy Council in Gnana Sambanda Pandara Sannadhi V/s. Velu Pandaram (1900) I.L.R. 23 M. 271 which was the case of a trust. We are unable to hold that Abhiram Goswami V/s. Shyama Charan Nand (1909) ILR 36 C. 1003, which was the case of a lease under which rent was being paid, affects the principle to be applied to the present case. But Mr. Ramachendra Aiyar says that the lands belonged to the temple and were only burdened with a charge for beneficial enjoyment in favour of the plaintiff's family. This does not appear to us to affect the right of the plaintiff to recover the property from the time her right to beneficial enjoyment accrues. But before we dispose of the case it is necessary to have a finding on the question as to who had possession of the office since 1897 and, in case it was the 2nd defendant, whether he was in possession on behalf of the 1st.