ARUMUGAM PILLAI Vs. KHAZI MOHIDEEN SHERIFF SAHIB

JUDGEMENT

(1.) A.S. Nos. 75 and 76 of 1927.-Both these appeals arise out of O.S. No. 2 of 1924 instituted by the plaintiffs, described as the mullas or trustees of a Muhammadan mosque at Paramathi. The suit is for the recovery of two items of property said to have been improperly alienated by the previous trustees. Appeal No. 75, in which the 1 defendant is the appellant, relates to item 1, the alienation of which was effected in his favour under three sale deeds, Exs. D.D (1) and D (2), dated 17 February, 1901, 19 April, 1901 and 3 May, 1901, respectively. Item 2 was alienated in favour of the 2nd defendant, the appellant in A.S. No. 76, under two documents, Exs. E and E (1), dated 7 October, 1900 and 19 April, 1901, respectively. The present suit was instituted on 9 January, 1924. The main question in these appeals is whether the suit is barred by limitation under Art. 134 or Art. 144 of the Limitation Act. Art. 134 specifies 12 years as the period of limitation for a suit "to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration" and the limitation period commences from the "date of the transfer". Art. 144 specifies 12 years as the period of limitation "for possession of immovable property or any interest therein not hereby otherwise specially provided for" and the period commences from the date "when the possession of the defendant becomes adverse to the plaintiff". The learned Judge held that the suit is not barred by limitation and decreed the plaintiffs suit. The question of limitation is common to both the appeals. In Appeal No. 76 some subsidiary points also arise for consideration. We will, therefore, deal with these appeals separately. A.S. No. 75 of 1927.--In considering which of the two Articles mentioned above applies to suits of this nature, it will be necessary, as may be seen from decided cases, first" to consider the essential nature of the trust. But in this appeal the question of limitation may be disposed of on another consideration, though the nature of the trust will have to be inquired into, in the connected appeal, and what is stated in it on that question will well apply to this appeal also. Though the sales under Exhibits D and D (1) took place in 1901 according to the documents, it is admitted that the portions of item 1 dealt with under the documents were under prior encumbrances and possession of the items was obtained by the 1 defendant only in 1914. It has been held by a Full Bench of this Court in Seeti Kutti V/s. Kunhi Pathumma (1917) I.L.R. 40 Mad. 1040 : 33 M.L.J. 320 (F.B.) that Art. 134 of the Limitation Act does not apply to a transfer from a trustee or mortgagee under which possession is not taken by the transferee. . It follows therefore with respect to these alienations that the suit cannot be said to be barred either under Art 134 or under Art. 144 also as ft has been instituted before the expiry of 12 years from 1914. With regard to the alienation under Exhibit D (2), the learned Advocate-General says that possession was transferred on the date of the deed, 3 May, 1901. The respondents contend that in the case of this alienation also possession was not transferred on the date of the sale deed but was transferred only in 1914 as in the case of the other alienations. The sale of this item was also subject to an encumbrance as may be seen from the document. The sale deed no doubt says that the transferee was put in possession. Whether the prior encumbrance was a simple mortgage or a usufructuary mortgage, there is, we think, sufficient evidence in the case to show that possession with regard to this item was not obtained by the alienee before 1914. Exhibit I is the plaint "in O.S. No. 45 of 1914, the scheme suit, by the decree in which predecessors of the present plaintiffs were removed and the present plaintiffs appointed. The present 1 defendant was the 23 defendant in that suit. In paragraph 10 of the plaint in that suit the following statement occurs: The 23 defendant Arumugam Pillai claims to have purchased the suit property in the said case. He has also filed a suit for the recovery of the said second item of property in the Court of the District Munsif of Namakkal and in O.S. Nos. 347 and 367 of 1914.

(2.) The second item of property referred to in this statement is admitted to be the present first item. The 1 defendant did not evidently obtain possession of this portion of item 1 before 1914 as he instituted a suit to recover possession of item 1 in 1914. The written statement of the 1 defendant in the present suit also shows that he did not obtain possession of item 1 before 1914. In paragraph 6 he says: The land mentioned in item 1 was in the possession of a usufructuary mortgagee and this defendant had to institute a suit for redemption in O.S. Nos. 364 of 1914 and 347 of 1914 on the file of the District Munsif's Court, Namakkal, and finally obtained possession through Court and has paid the vendors the other amounts mentioned in the sale deeds and he is therefore by right entitled to be in possession.

(3.) In his evidence given in this case as D.W. 1 there is nothing to show that he obtained possession of this portion of item 1 or of the other portions before 1914. Having regard to the 1 defendant's statement in his own written statement and the other evidence we have referred to, we do not think it is necessary to call "upon the Lower Court to take fresh evidence and submit a finding as to when the 1 defendant came into possession of the property sold under Exhibit D (2). In our opinion it is established by the evidence that he did not obtain possession of the item before 1914. On this finding the suit is not barred with respect of this item also as in the case of the other portions of item 1 sold under Exs. D and D (1). Even if possession was obtained on the date of the deed it will be seen from the reasoning of our judgment in the connected Appeal No. 76 of 1927 which will equally apply to this case also, that the plaintiffs suit is not barred. This, appeal is therefore dismissed with costs. A.S. No. 76 of 1927.--In this appeal the 2nd defendant is the appellant. Item 2 of the suit property had been alienated in his favour under two sale deeds, Exhibits E and E (1), dated 7 October, 1900 and 19th April, 1901, respectively. It is not disputed that the appellant got possession" of the property on these dates. It is argued on his behalf that the institution to which this property belongs is a bare trust, that therefore Art. 134 applies to the case and that in any event the suit is barred by Art. 144 inasmuch as it has been admittedly instituted beyond 12 years from the date of the alienation. The respondents argue that having regard to the real nature of the trust, Art. 134 does not apply to the case, and that the suit, having been admittedly brought before the expiry of 12 years from the removal of the previous trustees, i.e., the trustees who made the alienation, the suit is not barred. In this connection a very large number of cases, amongst which the following seem to be the most important, was brought to our notice: Vidya Varuthi V/s. Balusami Aiyar (1921) L.R. 48 I.A. 302 : I.L.R. 44 Mad. 831 : 41 M.L.J. 346 (P.C), Subbaiya Pandaram V/s. Mahamad Mustapha Maracayar (1923) L.R. 50 I.A. 295 : I.L.R. 46 Mad. 751 : 45 M.L.J. 588 (P.C), Ranga Dasan V/s. Latchuma Dman (1924) 48 M.L.J. 114, Rama Reddy V/s. Ranga Dasan (1925) I.L.R. 49 Mad. 543 : 50 M.L.J. 589, Vellachami Naicker V/s. Alagarsami Naicker (1926) 104 I.C. 355, Venkatasubba- rayudu V/s. Haji Silar Sahib (1929) 58 M.L.J. 524, Vadlamudi Sastrulu V/s. Thalluri Venkataseshayya (1927) 110 I.C. 894, Periyanan Chetty V/s. Govinda Rao (1931) 62 M.L.J. 496, Badri Narayan Singh V/s. Mahanth Kailash Gir (1925) I.L.R. 5 Pat. 341, Debendra V/s. Naharmal , Naurangi Lal V/s. Ram Charan A.I.R. 1930 Pat. 455, Sarabdeo Bharthi V/s. Ram Bali (1932) I.L.R. 54 All. 909 and Administrator-General of Bengal V/s. Balkissen Misser (1924) I.L.R. 51 Cal. 953. We have considered each one of these cases, but having regard to the trend of the decisions of this Court it will not be necessary to examine all of them in detail.