JAMSHEDJI PESTONJI HODIWALA Vs. DORABJI KUVERJI CHARNA

JUDGEMENT

(1.) This is an appeal from a decree of the First Class Subordinate Judge of Surat dismissing the plaintiffs suit. The plaintiffs, who are three in number, sue as representatives of the Parsi Anjuman of Chikhli. They sue to recover two houses which have been mortgaged by defendant No. 1 to defendant No. 4, and put very shortly, their case is that originally the father of defendant No. 1 and two other persons, who were the vahivatdars or managers of the old Agyari or fire-temple of Chikhli and were representatives of the Parsi Anjuman, purchased these two houses, which are on either side of the Agyari, for the Anjuman, but subsequently, defendant No. 1's father treated this property as his own and mortgaged it to various persons and ultimately to defendant No. 4 who is at present in possession. Defendants Nos. 1, 2, and 3 are brothers, The only contending defendants are defendants Nos. 1 and 4. Defendant No. 1 is the son of Kuverji Mancherji, who was one of the original vendees and the person who set up his own title to the property. Defendant No. 4 is a mortgagee now in possession from defendant No. 1, and defendant No. 5 is one of the trustees and is merely a pro forma defendant, and the remaining defendants Nos. 6 to 10 are members of the Anjuman, who appear in response to the notice given under Order I, Rule 8, and some of them support the plaintiffs and some support the defendants.

(2.) The two principal points which arose in the case were whether the purchase by Kuverji and his two co-vendees was in their capacity as trustees of the Parsi Anjuman of Chikhli or in their individual capacity, and whether the suit was barred by limitation or whether it was governed by Section 10 of the Indian Limitation Act.

(3.) The Subordinate Judge found, after taking evidence, that Kuverji and his two co-vendees were trustees of the Anjuman and that the purchase was made on behalf of the Anjuman. But he held afterwards that they were not express trustees for the purpose of this sale, and relying on the case of Vidya Varuthi V/s. Balusami Ayyar (1921) I.L.R. 44 Mad. 831 he held that Section 10 of the Indian Limitation Act would not apply and therefore the suit was barred by limitation, the adverse possession of Kuverji having begun from 1891. The plaintiff's have appealed against this decision.