C DORAIVELU MUDALIAR Vs. GODAY ADIKESAVALU NAIDU

JUDGEMENT

(1.) This is an appeal brought by the two worshippers (plaintiffs in the suit) against the respondent who is the hereditary Dharmakartha of two temples at Chintadripet, Madras. The suit was originally heard before Coutts-Trotter, J and dismissed without calling upon the defendant. But that decision was reversed and the suit came on for trial before Kumaraswami Saatri, J., and it is from his judgment that this appeal is brought.

(2.) Questions under Section 10 of the limitation Act of 1908 arose and have been argued before us. The law is clear that a suit based on the failure of a trustee to reduce trust property into possession is barred under the Act notwithstanding Section 10. Further a trustee is not liable for the acts or defaults of his predecessors. If the defendant himself had actually received money for which he had not accounted, Section 10 prevents any period of limitation running, and in my view it is also right to say that if he held money in another capacity which he ought to have held as trustee, he could not be heard to say that he held it in the other capacity and not in the capacity of a trustee and therefore in such a case Section 10 could apply and prevent him from relying on the Limitation Act. But I do not think that in this case on the facts, any of these points arise.

(3.) The appeal really against the decision of the learned Judge in respect of three specific items of the property, (I) property known as "Nariangadu Paracheri" referred to in paragraph 10(d) and (e) of the plaint. The facts as to this are fully dealt with by the learned Judge in his judgment which is most clearly reasoned and expressed. I can see no reason to disagree with him and I have nothing to add. (2) "A Bazaar in Swami Pandaram Street" referred to in paragraph 10(f) of the plaint. This question was definitely raised in a suit of 1881 brought by two worshippers against Rajagopal, the then hereditary trustee, the present defendant's father by adoption. That suit was brought on this point (2). I agree with the judgment of the learned Judge as to this and I further incline strongly to the view, though it is unnecessary for the decision, that the matter is res judicata under Section 11, Explanations V and VI, Civil Procedure Code. (3) The property known as "the ground in Mangapathi Naick Street" upon which Rajagopal built a house for his concubine referred to in paragraph (10)(h) of the plaint, As to this also I agree with the judgment of the learned Judge and I would add that the whole proceeding of 1881 in relation to a window of this house went on the basis that it was Rajagopal's house. I see no reason for holding the contrary.