JAGATHAMBAL ANNI Vs. PERIATHAMBI NADAR

JUDGEMENT

(1.) The only question for determination in this appeal is a point arising under Art. 47, Lim. Act. The suit properties are said to have been endowed for the Arthajama Kattalai of Sri Nageswaraswami temple in Kumbakonam. Prior to 1918 one Periaswami Mudaliar seems to have been enjoying these properties and performing the kattalai. It is in dispute between the parties whether the properties have been wholly dedicated to the trust or are only subject to a charge in favour of the trust. On Periaswami's insolvency, the Official Receiver sold these properties as Periaswami's properties subject to the rights of the kattalai and defendant 1 purchased them in August 1918, though the formal sale deed was executed by the Official Receiver only in August 1920. For some years prior to 1918 the properties had been in the possession of a tenant. In 1919 Periaswami filed an application before the Divisional Magistrate, Kumbakonam, setting forth the trust character of these properties and his management thereof and claiming that on the termination of the lease he had himself resumed possession in March 1919. He complained that the present defendant 1 was interfering with his possession and asked for an order under Section 144 or Section 145, Criminal P.C. (vide Ex. I-A). The Magistrate passed his order Ex. I on 17 February 1920 holding that defendant 1 (then 1 counter-petitioner) was in possession and declared him entitled to possession until evicted in due course of law. The present plaintiff is the mother of Periaswami who died in August 1928.

(2.) The plaint refers to certain events that took place in November 1925 and suggests that the plaintiff became entitled to the trusteeship of the Arthajama Kattalai either from November 1925 or from Periaswami's death in August 1928. Besides defendant 1 who was declared to be in possession by the Magistrate, two other defendants were impleaded as parties to this suit, one being the trustee of Nageswaraswami temple and the other a gentleman who had been associated with the Arthajama Kattalai by some scheme framed by the Endowments Board. It would appear from their statements that arrangements have latterly been made for the carrying out of the Kattalai by payments to be made by defendant 1 from out. of the suit properties. It is not therefore so much the question of the interests of the trust that is in dispute in this suit as the question of the plaintiff's right to remain in possession and perform the trust. The question whether she is beneficially entitled to the surplus income if any has been mooted, but as the lower Court has disposed of the ease only on the plea of limitation, it is not at present possible to say anything as to the beneficial interest, if any, in the surplus.

(3.) The plea of limitation was raised under Art. 47 on the ground that this suit has admittedly been instituted more than three years after the date of Ex. 1. The learned Subordinate Judge upheld this -objection. It was contended before him that the plaintiff is not a person bound by the order of the Magistrate nor one claiming under a person so bound. This argument has been repeated before us though in a slightly modified form. We do not think there is much force in that argument.