ALAM KHAN SAHIB Vs. ALMKARUPPANNASWAMI NADAN

JUDGEMENT

(1.) This appeal raises two important questions, first as to limitation and adverse possession in suits by trustees of religious institutions and secondly, as to a presumption in support of titles from long enjoyment. The suit has been brought for the recovery of nearly 60 items of immovable property from about as many defendants. The plaintiff (the appellant) claims them as the present trustee of an institution known as the Bairam Khan Thaikkal. The lower Court has upheld the plaintiff's contention that there was a valid wakf and that the gift of the lands, by whomsoever made, was confirmed in 1865 after the inam inquiry. The original trustee was said to be a holy saint, an ancestor of, the plaintiff, who may be called Bairam Khan I. Nothing is known of the subsequent history of the Thaikkal till the trusteeship was assumed by Bairam Khan II, the father of the plaintiff. He was a long-lived man, who after alienating the bulk of the trust property, died in the year 1914. The plaintiff brought this suit in 1926, that is, just on the eve of the, expiry of 12 years from his father's death. The suit lands, as, the learned trial Judge points out in his careful judgment, fall under twp groups : (1) the lands of those defendants who trace their title to Bairam Khan II and (2) those who held under alienations (mostly dating from a period anterior to him), made by persons whose connection with the Thaikkal has not been shown. The second group may be further subdivided into (a) such of those defendants as gave positive evidence of their possession requisite under Art. 144 and (b) those in whose case this evidence was lacking, they having remained ex parte in the lower Court.

(2.) All the properties claimed fall under the one or the other of the categories mentioned above. The law governing the present case is, as it stood, before the recent amendment of the Limitation Act, which in 1929 enacted three new Articles 134-A to 134-C. It is unnecessary to show how the law was gradually developed by the decisions of the Judicial Committee, as it would quite suffice to state the principles which may now be taken as established by authority. 1. Notwithstanding that property devoted to religious purposes is as a rule inalienable, it is well settled law that a trustee has got power to incur debts and to alienate the trust property to the same extent as the manager of an infant heir see Sri Vidya Varuthi Thirtha Swamigal V/s. Balusami Aiyari (1921) 41 M.L.J. 346 : L.R. 48 I.A. 302 at 324 and 325 : I.L.R. 44 Mad. 831 (P.C.). His alienations can be justified by proof of necessity for the preservation of the endowment or institution. Srimath Daivasikhamani Ponnambala Desikar V/s. Periyanan Chetti (1936) 71 M.L.J. 105 : L.R. 63 I.A. 261 at 274 and 276 : I.L.R. 59 Mad. 809 (P.C.). 2. Where the disposition by the trustee is of the "math and its properties" (which apparently means the institution itself), it is wholly void and would in law pass no title, with the result, that the possession of the assignee would be adverse from the moment of the attempted assignment. See Ram Charan Das V/s. Naurangi Lal (1933) 64 M.L.J. 505 : L.R. 60 I.A. 124 at 125, 129 : I.L.R. 12 Pat. 251 (P.C.).

(3.) Where the assignment is of one or more of the properties of the mutt, as distinguished from the institution, adverse possession will commence to run from the cessation of the office of the alienating mahant. The reason is, that though the grant purports to be for a longer period, it is good to the extent of the Mahant's interest, so that no question of adverse possession can arise during the period when the grant is effective. (See the same case, pages 130 and 131.) This rule will be stated more fully later on.