CHARU CHANDRA BASU Vs. NRITYA GOPAL BASU

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of possession on declaration of debutter title to certain properties, described in the plaint, which were alienated by some of the shebaits of Sree Sree Iswar Sridhar Jew, who is plaintiff 1. The other shebaits were made pro forma defendants. The suit was decreed as regards the properties except properties Nos. 1 to 7 and 9 of Schedule 4. As regards these properties the suit was dismissed by the Appellate Court on the ground of limitation and the only question which arises in this appeal is whether the suit is barred by limitation under Section 144, Limitation Act. The learned Judge has held that the period of limitation starts from the period at which delivery of possession in execution of the mortgage decree took place, whereas, for the appellants, it is contended that the period of limitation starts from the death of the last of the mortgagors. This took place in 1339 corresponding to 1932 and if the contention of the appellants is correct as regards the starting point, then the suit will not be barred by limitation, having been within 12 years of the date of death of the last alienating mortgagor. On the point of limitation, the trial Court decided in favour of the plaintiffs relying on the decision in Ram Charan Das V/s. Naurangi Lal . The Appellate Court in reversing the decision of the trial Court relied upon the case in Subbaiya Pandaram V/s. Mohamed Mustafa Maracayar (1923) 10 A.I.R. P.C. 175 and also upon the case in Ronald Duncan Cromartie and Francis Arthur Shephard V/s. Radha Damodar (1935) 62 C.L.J. 10.

(2.) In this appeal the learned advocate for the appellants has, in addition to the case relied upon by trial Court, relied upon the later case in 4. Mahadeo Prasad Singh V/s. Karia Bharti and has distinguished the case in Subbaiya Pandaram V/s. Mohamed Mustafa Maracayar (1923) 10 A.I.R. P.C. 175 as being the case of a trustee, in which it was held, that a trustee was at liberty to dispose of the trust properties during the period of his life and a grant made for a longer period was good but good only to the extent of his own life interest with the result that possession during his life was not adverse. But, it was held that that argument has no relation to the case of a property acquired under an execution sale and of which possession had been retained throughout. Whatever may have been the view adopted in the older case, however, it is clear, since the decision in Ram Charan Das V/s. Naurangi Lal that both in case of a lease and in case of a sale limitation will start from the date of the death of the last shebaits responsible for the transfer and upon the accession of a new shebait a fresh period of limitation commences. In this case it was laid down that: ...a Mahant has power (apart from any question of necessity) to create an interest in property appertaining to the math which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of Mahant of the math, with the result that adverse possession of the particular property will only commence when the Mahant who had disposed of it ceases to be Mahant by death or otherwise. If this be right, as it must be taken to be, where "the disposition by the Mahant purports to be a grant of a permanent lease, their Lordships are unable to see why the position is not the same where the disposition purports to be an absolute grant of the property; nor, was any logical reason suggested in argument why there should be any difference between the two cases. In each case the operation of the purported grant is effective and endures only for the period during which the Mahant had power to create an interest in the property of the math.

(3.) In this case there was not only a mukarrari lease but also a sale and it was held that limitation under Art. 144, Limitation Act, only commenced when the mahant ceased to be a mahant. For the respondent, it is sought to distinguish that case which was followed in Mahadeo Prasad Singh V/s. Karia Bharti on the ground, (1) that in that case it was only a limited interest which was transferred, but as I pointed out, this was not so in Ram Charan Das v. Naurangi Lal and also on the ground (2) that in those cases the plaintiff was in possession whereas in the present case the plaintiff was not in possession. But in Ram Charan Das v. Naurangi Lal also the plaintiff appears to have been out of possession. So this is a case which is indistinguishable from the cases on which the appellants rely. In Ronald Duncan Cromartie and Francis Arthur Shephard V/s. Radha Damodar (1935) 62 C.L.J. 10 it was held that: The true rule deducible in cases where properties are sold in execution of a decree the period of limitation will run from the date of the sale and the suit brought after 12 years from that date of sale must be held to be barred by limitation.