AR L N RM AR SEVUGAN CHETTIAR Vs. RAJA SRIMATHU MUTHU VIJIYA RAGHUNATHA DORAISINGAM ALIAS GOURI VALLABHA THEVAR AVL, ZAMINDAR OF SIVAGANGA, REPRESENTED BY THE ESTATE COLLECTOR

JUDGEMENT

(1.) This appeal arises out of a suit instituted under Section 14 of the Madras Survey and Boundaries Act. The lower Court has dismissed the suit as barred by limitation. This plea of limitation is the only point for decision in the appeal. In the village of Kallal, in the Sivaganga estate, there is one portion belonging to a temple of which the Zamindar is the dharmakartha and the other portion which belongs to the plaintiffs family has been set apart by them for certain charities and in that character has been under their management. During the survey operations carried on in the estate, the Survey Officer demarcated the boundary between the two portions in a manner to which the plaintiffs take exception. Hence this suit Under Section 14 of the Madras Survey and Boundaries Act, the suit has to be instituted within three years of the final publication of the survey demarcation, which in the present case took place on the 21 January, 1928. As the suit was instituted only on the 19 February, 1931, it will be prima facie barred, unless the plaintiff can claim the benefit of Section 15(2) of the Limitation Act, which provides that in computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment, for the time being in force, the period of such notice shall be excluded. As the Sivaganga Estate was under the management of the Court of Wards, the plaintiffs apparently thought that in the present case notice under Section 49 of the Madras Court of Wards Act had to be given and they have given a notice to the Estate Collector and another notice to the District Collector. If the two months period required by Section 49 could be excluded, the present suit would undoubtedly be in time. The question was accordingly raised before the lower Court whether this is a case in which notice had to be given under Section 49. The learned Subordinate Judge held that notice was not required under that section in the present case and that the plaintiffs were therefore not entitled to claim the benefit of Section 15(2) of the Limitation Act in respect of the period of notice.

(2.) Before us, it has been contended that the view of the learned Judge is not right, that the decision in <JGN>Varadachariar</JGN> V/s. Raja Ramakrishnamba Garu (1922) 44 M.L.J. 367 which he purports to follow was not a decision on this point and that the observations relating to Section 63 of the Court of Wards Act should not be followed. As a matter of the ordinary meaning of the language employed in Section 49, it seems to us difficult to say that the expression "property of a ward" can include property of an institution of which the ward is a manager or trustee. Whether the Office of trusteeship is not in a sense property and to that extent it might not fall under Section 49 is not a question that we need consider in this case; because the suit does not relate to the right to the office. Again, whether the word property in Section 49 should be restricted to property in which the ward has a beneficial interest or can also comprise property whereof the legal title is vested in him though he may hold it subject to certain obligations either wholly or partly in the nature of a trust is again a question which does not arise for decision in this case. So far as we can gather, the property of which the Zamindar claims to be in possession is one of the usual endowments of temples in this country which prima facie belong to the deity and of which the dharmakartha is only a manager and not the legal owner, as explained in Vidyavaruthi V/s. Baluswami Aiyar (1921) 41 M.L.J. 34 : L.R. 48 I.A. 302 : I.L.R. 44 Mad. 831 (P.C.). Mr. Venkatarama Aiyar the learned Counsel for the appellant relied on the decision of the Judicial Committee in Jagadindra Nath Roy V/s. Hemanta Kumari Debi (1904) L.R. 31 I.A. 203 : I.L.R. 32 Cal. 129 (P.C.) but that case does not help him. All that their Lordships there held was that as the possession and management of the property of the idol were vested in the shebait any cause of action for the protection of such property must also be held to accrue to the shebait, within the meaning of Section 7 of the Limitation Act. On the other hand, their Lordships recognise - though they say that it is only in an ideal sense true - that the title vests in the deity; and, in view of the fuller discussion of the subject in Vidyavaruthi V/s. Baluswami Aiyar (1921) 41 M.L.J. 34 : L.R. 48 I.A. 302 : I.L.R. 44 Mad. 831 (P.C.) it is impossible to interpret the decision in Jagadindra Nath Roy V/s. Hemanta Kumari Debi (1904) L.R. 31 I.A. 203 : I.L.R. 32 Cal. (P.C.) as supporting the view that the shebait is the owner of the property of the institution.

(3.) Whether the grounds of policy which led the legislature to enact that a notice should be given in certain cases will not equally apply to cases of trust properties dealt with under Section 63 of the Court of Wards Act is a matter which we are not justified in taking into account in the interpretation of Section 49. On the other hand, the history of the legislation on the subject seems to suggest that prior to 1902 the consensus of opinion was that neither the Court of Wards nor a Civil Court exercising jurisdiction under the Guardian and Wards Act was entitled to deal with the properties of institutions of which the ward was only a trustee or manager and it was to provide for the performance of the ward's duties as such trustee or manager during his ward ship, that special provision was made by Section 63 of the Madras Court of Wards Act of 1902. It does not seem to us proper to read this special provision as having the effect of bringing the properties of the institution into the management of the Court of Wards in the sense in which the private properties of the Ward come under its control. On the other hand, Section 63 speaks of them as properties belonging to the institution or endowment. Though the actual point for decision in <JGN>Varadachariar</JGN> V/s. Raja Ramakrishnamba Garu (1922) 44 M.L.J. 367 was different, we respectfully agree with the view expressed by the learned Judges that the expression "property of the ward" used in various sections of the Madras Court of Wards Act (including Section 49) cannot comprise the property of an institution of which the ward is only a trustee or manager.