VELLACHAMI NAICKER Vs. ALAGARASAMI NAICKER

JUDGEMENT

(1.) This was suit brought by the plaintiff to have it declared that certain properties are trust properties belonging to the Malaiperumal temple and that the defendants who claimed under certain documents executed by the plaintiff's grandfather had no right to the same and for delivery of possession. The cause of action is said to have arisen in the year 1914, when the plaintiff's father died. The plaintiff alleges that he and his father and his grandfather had a hereditary poojari right in the suit temple. Various alienations are set out in para. 5 of the written statement. But I think it is only necessary to refer to two. The grandfather of the plaintiff in 1881 alienated a portion of the temple land by simple mortgage to a certain Chetty. A suit was brought on the mortgage, a decree obtained and the properties brought to sale and purchased by defendant 1's father in 1889. In 1887, another mortgage of another part of the property was effected to defendant 1's father. Decree was obtained and the suit property sold in Court auction in 1889, and was bought by defendant 1's father. The only question in second appeal is whether the suit which was started in 1918 is in time. The Subordinate Judge thought it was barred even during the lifetime of the plaintiff's father. He found that the plaintiffs were the hereditary poojaris of the suit temple and were, therefore, entitled to maintain the suit and that the property was the trust property of the Malaiperumal temple as set out in the plaint.

(2.) On appeal to the learned District Judge he held that there was no limitation as down to the death of the plaintiff's grandfather which was only five years before the suit, the possession of the alienees must be regarded as permissive so long as he was alive and with regard to the other portion of the property permissive down to the death of the father four years before suit.

(3.) The question arises on the construction of the Privy Council case in Vidya Varuthi Thirtha Swamigal V/s. Balusami Ayyar A. I. R. 1922 P. C. 123 where it was held that Art. 134, Lim. Act, does not apply to a permanent lease granted by the head of a mutt. Their Lordships point out that the lease in question could only enure for the lifetime of the grantor who is referred to as Mahant 1. With regard to Mahant 2, he had a similar power, i. e., the granting of leases to last for his lifetime. Instead of granting a fresh lease for that period he allowed the plaintiff to continue the possession which he had acquired from Mahant 1, and continued to receive rents. It was held that this could only be referable to a new tenancy created by him and, therefore, the possession of the alienee did not become adverse until the death of Mahant 2. The District Judge had applied the decision to this case; and the question is: Is he right? It is alleged for the appellant that this is not a case of lease; there is no acceptance of rent; there is no presumption of permission and if the principle laid down by the Privy Council is adopted in cases of the sort under consideration, all pleas of adverse possession will fall to the ground. I do not agree. There is no doubt that special considerations have been held to apply to the property of temples and the reason why such considerations have been applied is well pointed out by Devadoss. J., in a judgment to which I shall refer shortly. It is not true to say that adverse possession will never lie in such cases; for if the successor-in-office of the alienor of temple property sits by for 12 years after the death of his predecessor, there is no doubt that in the absence of special circumstances he will be unable to recover the property of the temple. The question, I take it, before their Lordships in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar A. I. R. 1922 P. C. 123 was whether or not Mahant 2 had stood by or whether he had practically adopted the alienation made by his predecessor in which case adverse possession would clearly not begin until his own death.