KANDA PONNAPPA NAICKEN Vs. VENKATASESHAIYAR

JUDGEMENT

(1.) The 1st defendant executed Exhibit R, the lease deed, to two trustees of a temple. They sued on it for rent and Thundu and Kuppatham to which the temple was entitled as mirasidar. The suit was decreed in the two Courts below and these decrees were confirmed by Mr. Justice Ayling in Second Appeal No. 238 of 1912. In Letters Patent Appeal No. 97 of 1913 against the judgment of Ayling, J., it was held that the two trustees were not entitled to the decree and that the other trustees should be made parties and the case was remanded. When the new plaintiffs were added, the suit was barred by limitation. Both the Courts below have now held that as the suit was originally instituted to enforce the claims of the temple, the addition of other representatives, though out of time, would not bar the suit.

(2.) Mr. K. Ramanath Shenai argued that the remand order of this Court precludes the Courts below from giving a decree to the temple. In our opinion, the remand order should be held to have decided only that others should be made parties. The learned Judges who beard the Letters Patent Appeal had not to consider the question of limitation. Apparently the decision of the Judicial Committes in Kishen Parshad v. Har Narain Singh 9 Ind. Cas. 739 : 33 A. 272 : 21 M.L.J. 378 : 15 C.W.N. 321 : 8 A.L.J. 256 : 13 C.L.J. 345 : 13 Bom. L.R. 359 : 38 I.A. 45 : 9 M.L.T. 343 : (1911) 2 M.W.N. 396(P. C) was not brought to their notice, nor the decision in Subramania Aiyar v. Subba Naidu 21 Ind. Cas. 421 : 25 M.L.J. 452 : 14 M.L.T. 437. In the former case it was held that the manager of a family with whom a contract was entered into would be competent to maintain the suit on behalf of the family and that the addition of the other persons after the period of limitation would not affect the right of the family to obtain a decree. In Meyappa Chetty v. Suppramanian Chetty 35 Ind. Cas. 323 : (1916) 1 A.C. 603 : 85 L.J. P.C. 179 : 43 I.A. 113 : 114 L.T. 1002 : 20 C.W.N. 833 : (1916) 1 M.W.N. 455 : 18 Bom. L.R. 642(P.C.), the Privy Council held that if the institution of the suit was by parsons who had no locus standi, the addition of proper persons out of time would not sure the defect and that Section 22 of the Straits Settlements Ordinance No. No. 6 of 1896 which deals with the limitation of suits would operate as a bar. That is not this case. On the other hand it was held in Subramania Aiyar v. Subba Naidu 21 Ind. Cas. 421 : 25 M.L.J. 452 : 14 M.L.T. 437, that if some persons who have an interest in the trust sue to enforce the rights of the trust, the subsequent addition of more representatives out of time would not be within the mischief of Section 22 of the Limitation Act. The Calcutta decision in Nistarini Dassya v. Sarat Chandra Mojumdar 29 Ind. Cas. 680 : 22 C.L.J. 279 : 20 C.W.N. 49, is to the same effect: see also Kasturchand Bahiravdas v. Sagarmal Shriram 17 B. 413 : 9 Ind. Dec.(N.S.) 269.

(3.) We are, therefore, of opinion that the, decree was rightly given to the temple in this case. The Courts below have found that by custom the temple is entitled to Thundu and Kuppatham and we see no reason to differ from that finding. The second appeal is dismissed with costs.