KARUNALAYA VALANGUPULI PANDIAN ALIAS KARUNALAYA PANDIAN Vs. REVFATHER PIGNOT, FATHER SUPERIOR OF THE ROMAN CATHOLIC MISSION(REVFATHER GFOREAN, SJ, THE PRESENT ACTING FATHER SUPERIOR OF THE ROMAN CATHOLIC MISSION, PALAMCOTTAH, BROUGHT IN THE PLACE OF REVFA

JUDGEMENT

(1.) This petition is filed by the plaintiff for leave to appeal to His Majesty in Council against the judgment and decree of this Court in A.S. No. 32 of 1938. It is opposed by the respondent who was the first defendant on the ground that the decree of this Court confirmed the decision of the lower Court and that there is no substantial question of law so as to justify the grant of leave under the last paragraph of Section 110, Civil Procedure Code. The properties are admittedly worth over Rs. 10,000, and the only question is whether the other conditions of Section 110 are satisfied.

(2.) The facts that are necessary for the disposal of this application are these. The petitioner filed the suit for recovery of possession of the suit properties as the trustee of an endowment for certain services in Sri Papavinasa Swami Temple at Vikramasingapuram, Tinnevelly district. The properties in suit were admittedly the inams originally endowed for the performance of this trust. But, during the lifetime of the petitioner's grandfather, the properties were sold in execution of a money decree against him, purchased by one Hem. Singh and transferred thereafter to Ramachandra Nachiar the grandmother of the petitioner. She then created an usufructuary mortgage of the first item of the suit properties to a third party and during the subsistence of that mortgage, she died leaving a will bequeathing the properties to the petitioner's father who was then a minor and appointed some persons to act as his guardians during his minority. The guardians sold the first item to the respondent, which forms the major portion of the suit properties. The petitioner's father died in the year 1931 and the present suit was filed on the 24 September, 1934 claiming recovery of possession of the suit properties from the various defendants.. The suit was dismissed by the trial Court and there was an appeal to this Court. There were a number of respondents in the appeal, but the appeal was pressed only as regards item 1 against the first respondent in the appeal and he is the sole respondent in this application. The defences are that the suit is barred by limitation, that the properties were all resumed by the Government and granted to the respondent on the 3 June, 1907 on ryotwari tenure and that the resumption freed the properties from the burden of service. It might be mentioned that the sale to the respondent was subject to a condition that a sum of Rs. 300 should be paid every year for the performance of the suit trust. After the resumption and the grant of the lands on ryotwari tenure even this sum was not paid as the lands were no longer trust properties.

(3.) In this Court it was contended that the suit was filed within 12 years from the death of the petitioner's father in 1923, that as the lands were alienated on his behalf limitation began to run only from the date of his death and that, therefore, the suit was within time. Following two earlier decisions of two Division. Benches of this Court in Venkatasubramania v. Sivagurunatha, . a decision of Ramesam and Stone, JJ. and Alam Khan Sahib; v. Karuppannaswami Nadan, . a decision of Venkatasubba Rao and Abdur Rahman, JJ., this Court held that where the alienation was not by the manager as such but in his individual capacity as the absolute owner of the property, limitation began to run from the date of the alienation itself and that, therefore, the suit was barred by limitation. It was also held that the resumption by the Government and the subsequent grant of the lands on ryotwari tenure to the respondent who was not the trustee put an end to the character of the properties as trust properties and conferred an absolute right on the grantee. As regards the undertaking in the sale-deed of 1893 to pay a sum of Rs. 300 per year for the performance of the trust, an argument was advanced that at least that sum was payable by the respondent. It was urged in reply that even this claim could not be enforced after the resumption and the grant on ryotwari tenure but the learned Counsel for the respondent offered that he would get his client to pay into Court a sum which would fetch Rs. 300 per year for the benefit of the trust. This was as a matter of concession and it is not a decision of this Court. This Court, therefore directed the respondent to pay a sum of Rs. 12,100 into Court and gave certain directions regarding that sum.