LAWS(PVC)-1912-8-199

MAHAMADGAUS DADASAHEB AND DILAWARKHA SIKANDARKHA Vs. RAJBAX ROSHANBAX

Decided On August 22, 1912
MAHAMADGAUS DADASAHEB AND DILAWARKHA SIKANDARKHA Appellant
V/S
RAJBAX ROSHANBAX Respondents

JUDGEMENT

(1.) The only two points argued in this appeal are limitation and rest judicata.

(2.) The property in suit consists of lands at Malapur and Dharwar which the plaintiff claims by right of succession to his deceased father and Guru Roshan who was a Fakir of the Makan of Malapur and held also the office of Surguro. The lands in suit had been alienated by the previous holder of the office of Surguro in favour of the ancestors of defendant 1. The last alienation was made by Roshan in 1891 by way of lease in favour of defendant 1st father for a term of seventy-five years in satisfaction of an old debt of Rs. 7000. The plaintiff s case is that Roshan had no power to alienate the property beyond his life-time and he claims to recover possession on the footing that since Roshan s death the lease is no longer binding.

(3.) It is admitted that the property descends to the disciple of each holder of the office of Surguro in succession, and that according to custom the son of the last holder is appointed disciple, successor and Surguro. It is found as a fact, and the finding is not challenged in appeal, that the plaintiff is the disciple nominated by Roshan to succeed him. It is also found that the lands in suit were granted for the support of the office of Surguro. This finding also has not been seriously attacked. It is not now contended that the lease was granted by Roshan for a necessary purpose so as to bind the property in the hands of successive holders. Roshan died in 1904 and the plaintiff contends he is entitled to challenge the alienation at any time within twelve years of that date. The defendant contends that time ran in his favour, as lessee for a term, from the date of the lease and that the suit is barred. In support of this argument the defendant placed reliance chiefly upon the judgment of the Privy Council in Gnanasnmbanda Pandara Sannadhi v. Velu Pandaram (1899) L.R. 27 I.A. 69 : 2 Bom. L.R. 597. That was a case of sales of an office which were void an initio and it was held that time ran in favour of the purchaser from the date of the sales and the vendor s right and the right of his son, who would succeed to the office by inheritance, was barred after twelve years. In the present case, however, we have no . sale of an office but a lease for a term of years by the holder for the time being of lands assigned to support services rendered to the Makan and a religious community by successive holders. The rule in such cases is that the holder of the lands may \ alienate them for his own life or any shorter period but cannot separate them permanently from the duties to which they are annexed so as to bind his successor : see Mayne s Hindu Law, Section 401.