Madras High Court
Sri Arthanareeswarar Of Tiruchengode ... vs T.M. Muthuswamy Padayachi, M. ... on 5 August, 2002
JUDGMENT P. Shanmugam, J.
1. Plaintiffs in both the suits are the appellants. For convenience, the parties are referred as per their rankings before the trial court.
2. The suit property, for which the declaration was sought for was a total extent of about four acres of land in Sankagiri Road, Tiruchengode Municipality Limit, Salem District (1.75 acres of wet land in R.S. No.81/3, Old S. No.348/1 and 2.34 acres of dry land in R.S. No.19/1, Old S. No.350). In the suit O.S. No.60 of 1973 filed by Sree Ardhanareeswarasamy, Tiruchengode by its Executive Officer, the prayer was to declare the title of the plaintiffs to the suit property and for a direction to the defendants to put the plaintiffs in possession of the same. In the suit O.S. No.462 of 1973 filed by four plaintiffs for themselves and on behalf of the community of Padayachis alias Vanniyakula Kshatriyas of Tiruchengode Town, the prayer was to declare that the community is entitled to be in management and possession of the suit lands and for a direction to the defendants to deliver possession of the same after removing the structures, if any. The trial court, by a common judgment, dismissed the suits and the present appeals are against that decree and judgment.
3. The first defendant is O.S. No.60 of 1973 has filed a Cross Objection to the judgment and decree.
4. The facts of the case are as follows :
The suit property, which originally comprised of 1.75 acres of wet land with a well and 2.24 acrse of dry land at Tiruchengode Village, is now within the Municipal limit and town. The said property belonged to one Venkatachala Gounder, he having purchased the same on 25.10.1886 under Ex.B.1. Subsequently, Venkatachala Gounder and his wife Amma Muthu Ammal jointly executed a gift/settlement deed, Ex.A.1 dated 1.11.1897 in favour of Sree Ardhanareeswarasamy for the purpose of maintaining a Nandavanam (flower garden) and others. They have reserved their right of its enjoyment till their life time. After the death of Venkatachala Gounder in 1902/1903, Amma Muthu Ammal usufructuarily mortgaged the suit property under Ex.B.4 dated 17.6.1929 to one Muthuswamy Padayachi, father of the first defendant in O.S. No.60 of 1973. Thereafter, Amma Muthu Ammal, under Ex.A.2 dated 20.7.1929, cancelled the gift/settlement deed on the ground that Ex.A.1 was not given effect to. Amma Muthu Ammal, by Ex.B.3 dated 22.7.1929, also sold the said property to Muthuswamy Padayachi. After this purchase, Muthuswamy Padayachi has been in possession of the suit property by executing several rent deeds, mortgage deeds and sale deeds to various persons and now, defendants 1 to 6 are in possession of the entire suit property and they have put up buildings, factories and other structures in the same.
5. The case of the plaintiff in O.S. No.60 of 1973 (hereinafter referred to as the Executive Officer's suit) is that after the appointment of the present Executive Officer, Periasamy, P.W.1, he made enquiries and came to know in May, 1970 that the property in possession of the defendants is trust property and the various sale deeds in favour of the defendants are not binding on the temple and they are totally void in law and after making a search of the property list in the various Sub Registrars' Offices and after obtaining copies of the same, he issued a notice to the defendant on 15.7.1972 calling upon them to surrender the suit property, and after considering the reply notice, the suit came to be filed.
6. The case of the plaintiffs in O.S. No.462 of 1973 (hereinafter referred to as the Community's suit) is that on coming to know of the Executive Officer's suit, the plaintiffs made enquiries and came to know that their community is entitled to the management and possession of the property which was gifted and vested in trust for a specific purpose and hence they sought for a declaration that the community is entitled to be in management and possession of the plaint schedule lands.
7. The defendants in the Executive Officer's suit pleaded that no trust was ever created validly, much less any religious trust. The alleged gift/settlement deed dated 1.11.1897 was never given effect to or implemented. Venkatachala Gounder and his wife Amma Muthu Ammal never parted with the possession of the property and one Komarasamy Paradesi, who was the person contemplated under Ex.A.1 to take charge of the property, was never put in charge of the same. Amma Muthu Ammal continued to be in possession of the property in her own right after the death of her husband and she validly revoked the settlement deed on 20.7.1929 and the said Komarasamy Paradesi, who was supposed to take charge of the property, did not raise any objection. According to the defendants, no one accepted the property in trust and no Nandavanam was ever kept in the property as contemplated. The suit property was purchased for a valuable consideration and the first defendant's father had made several alienations of the property to third parties who have put up constructions and structures like rice mill, petrol bunk, saw mill, etc. at huge costs. Komarasamy Paradesi died on 18.9.1929 and Amma Muthu Ammal died on 18.12.1934. The defendants pleaded that the plaintiffs' claim over the suit property is barred by limitation and adverse possession.
8. The defendants in the Community's suit made a similar plea that there was no valid trust and the same was cancelled by Amma Muthu Ammal and that they have purchased the suit property for a valuable consideration and had been in possession and enjoyment of the same by putting up constructions to the knowledge of the plaintiffs. They pleaded that the suit is barred by limitation and adverse possession.
9. On these pleadings and after examining the oral and documentary evidence, the learned Principal Subordinate Judge found -
(a) that the trust deed dated 1.11.1887 is true and was acted upon till the year 1929 and thereafter, it was not acted upon;
(b) that the revocation deed dated 20.7.1929 is not valid;
(c) that the defendants in the Executive Officer's suit have not perfected their title to the property by adverse possession;
(d) that the Executive Officer's suit is not barred by limitation, but is only filed by an improper person;
(e) that Muthuswamy Padayachi was not in possession of the property as a trustee of the community; and
(f) that the right of the community to manage the estate has been extinguished by virtue of limitation.
The appeals are against this judgment and decree and the Transfer Appeal is against the findings.
10. Learned counsel Mr. P. Gopalan appearing on behalf of the appellant in the Executive Officer's suit submitted that Ex.A.1 is a complete religious trust with a clear intention and a line of succession provided. The said trust was not only acted upon upto 1929, but it was continued. The Executive Officer is a person in charge of the affairs of the temple and in the absence of a Board of Trustees taking interest in the management, he is entitled to sue on behalf of the temple and recover possession. Muthuswamy Padayachi, being a member of the community, was a trustee in terms of Ex.A.1 and therefore, any possession by him and his successor could not be said to be adverse to the trust. The Executive Officer should be treated as the Manager for the purpose of Article 96 of the Limitation Act. According to him, the registered copies of Exs.A.1 and A.2 are admissible under Section 65(d) of the Indian Evidence Act and no adverse possession can be claimed against the temple.
11. Learned senior counsel Mr. S. Desikan appearing on behalf of the appellants in the Community's suit submitted that any two interested persons like the worshippers could get the property of the temple restored to itself by getting the alienations cancelled. According to him, there is no necessity to obtain sanction under Section 92 of the Code of Civil Procedure inasmuch as Section 5 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 excludes the provisions of the Civil Procedure Code from its application to hindu religious institutions and endowments. According to him, the Community's suit is not barred by time and they had no necessity to claim exemption and hence, their suit is within time.
12. Learned senior counsel Mr. T.R. Mani and Mr. T.R. Rajagopalan appearing on behalf of the cross objectors and respondents, in their detailed submissions, assailed the maintainability of the suit, both on the ground of competency as well as on the ground of limitation. According to them, Exs.A.1 and A.2 are inadmissible and there is no valid trust and in any event, it was not acted upon. The suits are clearly barred by limitation and the plaintiffs have neither pleaded nor proved to claim exemption. On the other hand, the defendants have purchased the suit property for a valuable consideration and have been in possession and enjoyment of the same from 1929. Various alienations were made and rights created in favour of the other defendants and constructions and buildings have been put up and enjoyed to the knowledge, adverse and everybody concerned and hence, they have perfected their title by adverse possession.
13. We have heard the counsel and considered the matter carefully.
14. The following questions arise for our consideration in these appeals :
(i) Whether Exs.A.1 and A.2 are admissible in evidence ?
(ii) Whether the suits are maintainable ?
(iii) Whether there was a valid trust ?
(iv) Whether the suits are barred by limitation ?
(v) Whether the defendants have perfected their right and title by adverse possession ?
15. Admissibility of Ex.A.1 and Ex.A.2 :
Ex.A.1, the gift/settlement deed is only a registration copy, the original of which has neither been called upon to be produced nor produced by the plaintiffs. In order to treat Ex.A.1 as a secondary evidence, it is necessary that the existence of it had been proved to be admitted in writing by the persons against whom it is proved. Ex.B.3 is the original sale deed executed by Amma Muthu Ammal in favour of Muthuswamy Padayachim, wherein she has stated that the property namely the subject matter of the sale was originally given in trust for Nandavanam and that it was subsequently cancelled and that there is no other encumbrance against the transfer of the suit property. By referring to this recital, it is submitted that the existence of Ex.A.1 had been admitted. The said argument was repelled contending that if taken as a whole, there is no admission.
16. In this context, a learned Judge of this court, in PURUSHOTHAM CHETTIAR VS. RA PADAYACHI [1969 (1) M.L.J. 237], has set out the principles as follows :
"The principle that emerges from a consideration of the decisions and the relevant provisions of law is that where a document, on the basis of which a suit is laid, has been lost or is not in the possession of the plaintiff, the various clauses of Section 65 of the Indian Evidence Act would come into play. But, even where those conditions do not apply, if the condition or the content of the original had been admitted in writing by the person against whom it is proved or by his representative-in-interest, secondary evidence could be given about the contents of the document and the admission of the person against whom it is proved can itself be relied upon for holding that the facts so admitted, have been proved. The admission has to be accepted or rejected as a whole, but that applies to only the contents of the documents and not to matters which are not contained in that document, though it might relate to, or be connected with the document which is said to have been lost. There is no rule of law that if a plaintiff, who has a document in his possession, does not produce it, the suit has necessarily to be dismissed."
17. In the instant case, Section 65(b) comes to the rescue of the Executive Officer. It is specifically provided that secondary evidence may be given of the existence, condition or contents of a document when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest and in such a case, the further requirement is that the written admission must be admissible. It has been held by the Supreme Court in BISWAMBHAR v. S.A. that when the existence and contents of a document are admitted in a letter, secondary evidence is admissible.
18. In the instant case there is admission in Ex.B.3 = Ex.A.14 which is an original registered document about the execution of the original of Ex.A.1 and the subsequent cancellation under Ex.A.2. Exs.A.1 and A.2 are verily admissible in evidence. Mr. T.R.Mani submitted that for pressing into service the provisions of Section 65 of the Indian Evidence Act, for receiving secondary evidence, notice to produce, in writing as contemplated under Section 66 has to be given. We do not agree. If we have a look at Section 66 it would be clear that the requirement pertains only to Section 65(a) and not Section 65(b). We do not agree with Mr. T.R.Mani that because the plaintiffs have not explained the non-production, nor have they called upon the defendants to produce the original, Exs.A.1 and A.2 are inadmissible in evidence. May be Mr. T.R.Mani has a point that admission should be taken as a whole. Ammanmuthu Ammal has mentioned in Ex.B.1 that there are no encumbrances. Even her statement, in our view, is only a general statement and not about the creation of the trust. Our view is that in case the trust had come into existence, the donor has no powers of cancellation or revocation.
19. Maintainability of the suits :
The Executive Officer's suit is filed by the then Executive Officer. The case of the Executive Officer is that after his appointment in the year 1970, he came to know, after enquiry, that the suit property is a trust property and that the various registered documents obtained are colourable and not binding on the temple. Though the question as to the competency of the Executive Officer to file the suit was not raised in the written statements, the question was raised in the course of argument that under the H.R. & C.E. Act, the Board of Trustees alone have been empowered to sue and be sued and that before filing the suit, enquiries have been made by the authorities of the H.R. & C.E. Department and it was found that there was no Nandavanam in the suit property. Rejecting the objection of the plaintiffs, the trial court proceeded to consider the question of maintainability as the question of law and found that the Executive Officer had no authority to file the suit and that he cannot invoke Article 96 of the Limitation Act. The Supreme Court, in STATE OF RAJASTHAN VS. RAO RAJA KALYAN SINGH , has held that the plea of maintainability of a suit is essentially a legal plea. If the suit, on the face of it, is not maintainable, the fact that no specific plea was taken or no precise issues were framed is of little consequence. Therefore, it is open to the parties to raise the plea of maintainability of the suit as a legal plea without there being a specific plea in the written statement or the issues.
20. Insofar as the Executive Officer's suit is concerned, it is seen that 'Executive Officer' has been defined under Section 6(2) of the H.R. & C.E. Act. According to this definition, Executive Officer is a person who is appointed to exercise such powers and discharge such duties appurtaining to the administration of a religious institution as are assigned to him by or under the Act or the Rules framed thereunder. 'Trustee' has been defined under Section 6(22) of the Act as any person or body in whom the administration of a religious institution is vested. Section 45 of the Act deals with the appointment and the duties of an Executive Officer. Sub-section (2) to Section 45 says that the Executive Officer shall exercise such powers and discharge such duties as may be assigned to him by the Commissioner. The proviso says that only such powers and duties as appurtaining to the administration of the properties of the religious institution shall be assigned to the Executive Officer. The powers and duties of the Executive Officer shall be defined by the Commissioner. Section 28 of the Act empowers the trustee of every religious institution to administer its affairs and to apply the funds and properties of the institution. He shall be entitled to exercise all powers incidental to the provident and beneficial administration of the religious institution.
21. In this case, the Executive Officer, in his chief-examination as P.W.1, has stated that for the purpose of filing the suit, he sought permission from the Commissioner and got the order under Ex.A.12. On a perusal of Ex.A.12 dated 24.6.1970, it is seen that instructions were issued to the Executive Officer and the Board of Trustees to obtain legal opinion to enforce the charges mentioned in the settlement deed dated 1.11.1897 executed by one Thiru Venkatachala Gounder and his wife. A copy of these instructions was issued to the Executive Officer as well as to the Chairman, Board of Trustees. The above instructions did not authorise the Executive Officer to file a suit. As a matter of fact, the instructions were addressed to both the Executive Officer as well as to the Chairman, Board of Trustees in order to obtain legal opinion in reference to the enforcement of the settlement deed. Thereafter, the Inspector, H.R. & C.E. Department held an enquiry on 1.10.1971 on the petition by T.P. Ardhanari Padayachi (the first plaintiff in the Community's suit). Ex.B.107 is the report of the Inspector dated 24.1.1972 wherein he has stated that he found on his enquiry, that from the date of the gift/settlement deed dated 1.11.1897, no such Nandavanam and its performance was conducted. It was further noted that in reference to this property, there was already an enquiry by the Commissioner on 26.5.1970 and an order dated 24.6.1970 had been passed directing the concerned to take legal opinion. From the above, it is clear that the Executive Officer is not the authority competent to initiate legal proceedings and that he had not been assigned with the power of filing a suit. It is only the Board of Trustees in existence at that time which was competent to initiate the legal proceedings. The trustees are not made parties to the suit and therefore, the finding insofar as the Executive Officer's suit is concerned, that it is filed without authority has to be upheld.
22. The suit by the villagers -
B.K.MUKHERJEA's "The Hindu Law of religious and Charitable Trust" states as follows:
" An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol."
Thus, the legal position is that even a worshipper can sue when cause of action is due to trustee acting adversely. The suit by the worshippers is maintainable. However, this will be subject to our finding whether trust had indeed been created and come into effect.
23. Whether there is a valid trust :
Venkatachala Gounder and his wife Amma Muthu Ammal, by a document dated 1.11.1897, executed a registered deed describing it as a charitable gift deed. In the suit notice Ex.A.13 dated 15.7.1972, the document has been described as 'gift deed'; in the plaint in the Executive Officer's suit, it is described as 'trust deed' and in the plaint in the Community's suit, it is referred as 'gift/settlement deed in the nature of a trust deed'. Ex.A.1 reads that the suit property was gifted to Lord Ardhanareeswaraswamy for the purpose of maintaining a Nandavanam and others. The deed also says that one Komarasamy Paradesi, who had been looking after the Nandavanam of the temple, had to maintain the Nandavanam and after him, somebody from their community has to maintain it. The settlors will have the right to enjoy the tamarind tree in the nanja land and the whole extent of punja land till their life time. After their life time, the whole extent of the land shall be used for the purpose of maintaining a Nandavanam and others.
24. Mr. T.R. Mani, learned senior counsel submitted that there was no valid trust created, that for a gift to be valid there must be acceptance and delivery of possession as contemplated under Section 122 of the Transfer of Property Act and the document in question did not recite delivery of possession, that even treating it as a creation of trust the requirements of Section 6 of the Indian Trusts Act were not satisfied; there was no total effacement; the donors retained dominion over the properties; and the endowment was illusory and never brought into effect. Countering this, Mr. Desikan and Mr.Gopalan submitted that the provisions of the Indian Trusts Act would not apply to religious trusts as also the provisions of the Transfer of Property Act, that the document in the instant case was complete in all respects, that there was admission of dedication in the document, and that management had been provided for and a line of succession created. They further submitted that once a valid public trust was created, it would be irrevocable by any subsequent act of the author of the Trust.
25. Section 1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments. But the Supreme Court in ABDUL KAYUM Vs.. ALIBHAI, has however observed that the Sections in the Indian Trusts Act "however embody nothing more or less than the principles which have been applied to all trusts in all countries. In STATE OF UTTAR PRADESH Vs.. BANSI DHAR, , the Supreme Court has again said that "while these provisions (of the Indian Trusts Act) proprio vigore do not apply, there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Indian Trusts Act, they cannot become 'untouchable' where public trusts are involved. Care must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English judges though also sanctified by the statute relating to private trusts".
26. In PHULCHAND Vs.. HUKUMCHAND, AIR 1960 BOMBAY 438 it has been held -
" In matters which are not provided for, the Courts in India apply the principles and rules of English law (on which the provisions of the Trusts Act are based) unless they are in anyway inconsistent with specific provisions."
"Correct interpretation will be that general principles of 'creation of Trusts', 'Duties and Liabilities of Trustees', 'Rights and Liabilities of Beneficiaries" etc., in respect of which there is no specific provision in the Charitable and Religious Trusts Act, 1920, or in the States local Public Trusts Act or in Communal Act like 'the Wakf Act', the provisions of Indian Trusts Act, 1882, may be applied if they are not in any way repugnant to the personal laws of the different communities."
[MUKHERJEE - Indian Trusts Act]
27. In Mulla's Hindu Law {1998, XVII Edition, Vol.1, p.610, para 407(2)}, it is stated -
" A Hindu who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it. A trust is not required for that purpose. All that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes. Even in the case of a dedication to an idol, which cannot itself physically hold lands, it is not necessary, though it is usual, to vest the lands in trustees. Nor it is necessary, that there should be any express words of gift to the idol. No religious ceremony such as sankalp, samarpan, pranapratishta or kumbhabhishekam, etc, is necessary and a clear and unequivocal manifestation of intention to create a trust and vesting of the same in the donor or another as a trustee is enough to constitute dedication. Such a dedication is valid, but the subject of endowment has to be certain."
28. As pointed out in B.K.MUKHERJEA's HINDU LAW OF RELIGIOUS AND CHARITABLE TRUST (page 106), the real test is furnished by the intention of the grantor.
"If there is clear and unequivocal manifestation of the intention to create a trust and there is formal divesting of ownership in the property on the part of the donor with the intention of devoting it to the religious or charitable purpose, dedication must be deemed to be complete."
29. It has been held by a Full Bench of this Court in NARASIMHA Vs. VENKATALINGAM, AIR 1927 MADRAS 636 (FB) : ILR 50 MADRAS 687 that a dedication of land for a public temple is not a gift within the meaning of Section 122 of the Transfer of Property Act, 1882 and therefore the provisions of Section 123 of the Act, which require a gift of land to be effected by a registered instrument do not apply to such a dedication. [See also GOPU Vs. SAMI, (1905) ILR 28 MADRAS 517; RAMKUMAR RAM CHANDRA & CO. Vs.. COMMISSIONER OF INCOME TAX, U.P., ; SHANTI SARUP Vs.. R.S.SABHA, ; SHRI RAM KISHAN MISSION Vs.. DOGAR SINGH, ].
30. Again, in KRISHNASAWMY v. KOTHANDARAMA [AIR 1915 MADRAS 380] relied on by Mr. Desikan and Mr. Gopalan, a Division Bench of this Court has referred to a number of earlier authorities and held that a valid public trust once created is irrevocable by any subsequent act of the author of the trust. In PULLAYYA CHETTY v. VEDACHELLA PILLAI [(1911) 11 IC 24] and MAHADEVA AIYAR v. SANKARA SUBRAMANIA AIYAR [(1911) 12 IC 546] referred to and relied on by the Division Bench, it has, indeed, been laid down that in cases of public trusts there can be no revocation if there has been a complete dedication of a property.
31. If a gift is made to an impersonal deity without any element of uncertainty in any material respect, that is a valid one notwithstanding the fact that the deity is incapable of accepting the gift.
32. However, as pointed out by MULLA in his principles of HINDU LAW paragraph 407-A "The mere execution of a deed, though it may purport on the face of it to dedicate property to an idol, is not enough to constitute a valid endowment; for the real object of the executant may be to defraud creditors, or to defeat the provisions of the ordinary law of descent, or to restrain alienations and keep the property in perpetuity in the family. It is necessary for the validity of a deed of endowment that the executant should divest himself of the property. Whether he had done so or not is to be determined by his subsequent acts and conduct. Thus if the profits of the property are appropriated by the executant to his own use and not to the worship of the idol, and his subsequent dealings with the property show that he did not intend to create an endowment, the dedication will be inoperative and the property cannot be treated as debutter, i.e., belonging to the idol."
33. The Supreme Court, in BABY AMMAL VS. RAJAN ASARI , was construing a similar recital in a gift deed to the effect, "all the rights to enjoy the property and the right to reside in the building will remain with me during my life time and Rajan Asari will derive the said right with full freedom after my life time". Their lordships held that the appellant had retained the title of enjoyment of the property during her life time as full owner and there was no divesting the title to and the possession to the donor of the property. There must be proof of delivery and acceptance of possession of the gifted property. The Supreme Court held that in that case, both the title and the possession in respect of the property remained with the appellant. There was no acceptance of possession by the respondent in the light of the above recital and as a consequence, the appellant remained the owner of the property during her life time. Under those circumstances, it was held that it cannot be construed to be a gift deed executed in favour of the respondent. A learned Judge of the Rajasthan High Court, in I.L. MURALI MANOHARJI VS. DR. GOPILALKAR (A.I.R. 1971 RAJASTHAN 177), has taken the view that the law seems to be well settled that even in the absence of a document and ceremony, dedication may be established by other evidence. The question whether there has been a dedication of a certain property to a temple is a question of fact to be determined on the basis of the evidence produced in each case. When the property in question has always been treated as private property and has already been partitioned among the heirs, it was held that the circumstantial evidence indicates that there was no dedication.
34. Ultimately it boils down to finding out whether the following criteria are satisfied - that is to say whether -
(i) the properties in respect of which the endowment is made are designated with precision;
(ii) the object or purpose of dedication is clearly indicated;
(iii) the founder has clearly and unambiguously expressed his intention to create an endowment and effectively divested himself of all beneficial interest in the endowed property.
35. P.W.1, the Executive Officer, in his chief-examination, has stated that he had enquired the attestors to Ex.A.2, namely Ardhanari Poosari and the scribe Shanmugam, who had told him that they have attested and written the document respectively at the request of Amma Muthu Ammal; however, they are dead now. He has further stated that Subramania Pandaram and Maruthamuthu Poosari have never informed him that they were plucking the flowers from the Nandavanam. However, D.W.2 has produced Ex.B.109, the death certificate showing that Ardhanari Poosari died as early as on 11.5.1938. Similarly, Exs.B.110 and B.111 show that the first witness Shanmugam Pillai died on 22.9.1959 and Namagiri Pandithan died on 3.8.1926. The learned trial Judge, considering the evidence of P.W.1, found that P.W.1 has come forward to give false evidence by exercising over-enthusiasm to support the plaintiffs' case. It is commented by the defendant's counsel that he has even committed perjury in the court. His evidence is totally unbelievable for any respect.
36. In M. DASARATHARAMI REDDI VS. D. SUBBA RAO (A.I.R. 1957 S.C. 797), while considering the question whether or not dedication is complete in a given situation, the Supreme Court held that, that would naturally be a question of fact to be determined in each case in the light of the material terms used in the document. In such cases, it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole. The use of the word 'trust' or 'trustee' is, no doubt, of some help in determining such intention; but, the mere use of such word cannot be treated as decisive of the matter. The answer to the questions whether the private title over the property was intentioned to be completely extinguished or whether the title in regard to the property was intended to be completely transferred to the charity can be found not by concentrating on the significance of the words 'trustee' or 'trust' alone, but by gathering the true intent of the document considered as a whole. In JAI DAYAL VS. DEWAN RAM (A.I.R. 1938 LAHORE 686), a Division Bench of the Lahore High Court has held that there must be a clear and unequivocal manifestation of intention to create a trust and there must be a formal divesting of the ownership of the property on the part of the donor and vesting the same in another. There must also be a clear change in the tenure of the property with the intention on the part of the donor to devote it to religious or public purposes. Then only, the dedication must be deemed to be complete. The evidence of divestiture must be contemporaneous and the subsequent acts and conducts of the donor are irrelevant and cannot re-invest him.
37. The oral evidence let in by P.W.1, the Executive Officer, was disbelieved by the trial court itself. The evidence of P.W.1 was discarded as unbelievable as he went to the extent of committing perjury in the court when he attempted to say that he had made enquiries with the attestor and the writer of the document, Ex.A.1, who are dead and gone long time back. The court also discarded the evidence of P.Ws.2, 3 and 4 saying that they are interested witnesses and their evidence cannot be believed, apart from the fact that they were having personal enmities with the defendants. However, the trial court has chosen to believe the evidence of P.W.5 in support of the case of the plaintiffs that there was a Nandavanam and that the object of the trust was carried out. According to P.W.5, there was a Nandavanam in the suit property in the extent of half acre and the remaining extent was cultivated by the father of D.W.1. But, he says in his chief-examination that he does not know who was looking after the Nandavanam. He further says that one Samiar was looking after the Nandavanam, but he does not know the name of the person. According to him, Komarasamy Paradesi died 50 years ago and admittedly, he died on 18.9.1929 and at that time, his age was 12 years. He further says that there were 10 to 20 plants in the Nandavanam and that there are no plants for the past 35 years and that buildings are there for the past 30 years. Admittedly, this witness was 12 years at the time when Komarasamy Paradesi is said to have been plucking the flowers from 10 - 20 plants and therefore, his evidence cannot be relied upon on the question of divesting of the property in the year 1897 and its continuance.
38. Therefore, we are of the view that there is absolutely no oral evidence to support the case that there was divestiture of the property contemporaneously so as to say that there was a valid trust. Besides, admittedly, there was no mutation of records in the name of the trust or the temple. The property continued to be in the name of Venkatachala Gounder and after the purchase of the property, the records were changed in the name of the purchasers. We have also got Ex.A.2, a registered cancellation deed executed by the wife of Venkatachala Gounder, Amma Muthu Ammal, one of the donors of Ex.A.1. The recitals in that deed say that though they have executed a gift of the property for the purpose of performing Nandavanam charities, from the date of the deed, the property was in their possession and they had been paying the kist and other charges to the Government. Besides, it is specifically recited that the suit property was not put to use for Nandavanam purposes. She further proceeds to say that since the charities were not being performed and there was no possibility of their performance in future, she cancelled the said trust. Whether this document is valid or not, this can collaterally be used as an evidence as to its contents, namely that the gifted property was not utilised for the performance of the charities. Hence, we are of the view that no valid trust has come into existence in reference to the suit property.
39. Limitation :
The appellant in the Executive Officer's suit has pleaded that since the suit property is a trust property given to the deity in trust, the remedy to ask for possession of the same is not barred under Section 10 of the Limitation Act. According to them, the suit is filed within 12 years of the knowledge of the alienation. The defendants have denied the factual position of the knowledge stating that the suit property is not found in the list of particulars of the property belonging to the Devasthanam and that the allegation that they have made a search of the property is absolutely false and is a make-believe averment. It was further pleaded that the suit was filed at the instance of certain enemies of the defendants. Venkatachala Gounder and his wife Amma Muthu Ammal enjoyed the property in their own right and she sold the property for a valuable consideration to the first defendant's father as belonging to her. From the time of the sale, the first defendant's father and after him, the other defendants have been in open, exclusive and continuous enjoyment of the property to the knowledge of all concerned. There has been transfer of patta in the name of the defendant's father immediately after the sale and they have been paying taxes, kists, putting up constructions and obtaining licenses, etc. The case of the community people is that their suit is in time and they never claimed any exemption or was there a need for any explanation, since according to them, the property was in continuous possession of the community people. The appellants are atleast de facto trustees and in the absence of any de jure trustees, they are entitled for recovery of possession of the temple property. Their argument is that Muthuswamy Padayachi was the trustee by virtue of Ex.A.1 and as he was from their community, the appellant community people are entitled to claim that they are deemed to be the trustees in management of the trust.
40. Order VII, Rule 6 of the Code of Civil Procedure says that where a suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which such an exemption is claimed. By an amendment in the year 1976, a proviso was added to the effect that the court can permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the ground set out in the plaint. The appellant in the Executive Officer's suit has specifically claimed exemption under Section 10 of the Limitation Act. Article 96 of the Limitation Act provides a period of 12 years for recovery of possession of the immovable property. Section 27 of the Act says that upon determination of the period, the right to enjoy the property is extinguished. Section 10 of the Act, dealing with suits against trustees, says that if the property has become vested in trust for the purpose of following such property, the suits shall not be barred by any length of time, provided the property had not been assigned for valuable consideration. The trial court, on the issue of limitation, held that insofar as the Executive Officer's suit is concerned, it is filed in time, though however, holding that the suit was filed by an improper person. But, insofar as the Community's suit is concerned, the trial court held that their right of management had been extinguished.
41. Insofar as the Executive Officer's suit is concerned, the only plea raised by the appellant is the saving clause under Section 10 of the Limitation Act. Admittedly, the same cannot be availed of since the property had been transferred for a valuable consideration. There is no dispute on those transfers made from the year 1929 onwards except stating that they are void transfers. In SUBBAIYA VS. MOHD. MUSTAFA (A.I.R. 1923 P.C. 175), a similar argument was raised namely that upon the death of the trustee, the succeeding trustee would be at liberty to institute proceedings to recover the estate and the statute would only run against him as from the time when he assumes office. This argument was repelled by the Privy Council holding that such an argument has no relation to the case where property has been acquired under an execution sale and possession retained throughout. Therefore, the suit is barred under Article 134 or Article 144 of the First Schedule to the Limitation Act. The former fixes the period as 12 years where the suit is to recover possession of the immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or the mortgagee for valuable consideration. The latter assigns the same period for recovery of possession of immovable property or any interest therein, not thereby otherwise specially provided for. The Privy Council, after referring to Section 10 of the Limitation Act, held that where it is sought to follow trust property, as in the present case, on the ground that the person in possession knew that it was trust property, the claim is not barred, excepting in a case of assigns for valuable consideration, and the exception shows that in that event, the claim may be defeated by adverse possession.
42. In GURUSHIDDASWAMI VS. D.M.D. JAIN SABHA , it was held that in order that a suit may have the benefit of Section 10 of the Limitation Act, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word 'assigns' is sufficiently wide to cover a lease as well. It was further held that the expression 'valuable consideration' has a well known connotation in law and it is not synonymous with adequate consideration. In JOSEPH COSTA VS. STANISLAUS COSTA , a Division Bench of this court has taken the view that as against the bonafide purchasers for valuable consideration, the plaintiffs have no right to follow the trust property. In the case on hand, Ex.B.3, sale deed mentions that the suit property was originally given in trust for Sree Ardhanareeswaraswamy and the same was subsequently cancelled and that there is no encumbrance or transfer. Ex.A.2, cancellation deed also refers to the fact that the endowment has not been carried out as the trust was not given effect to and that there was no possibility to revive the endowment. Apart from the statement in the plaint to the Executive Officer's suit that the alienations were null and void, there were no allegations of lack of bonafides or that the transfer were not for valuable consideration. However, in the Community's suit, there is an allegation that the defendant's father, in order to grab the property, created the documents. There is no specific plea that it was not for valuable consideration. Even the alleged plea in the plaint of the Community's suit has not been established or supported by any oral evidence. Nobody spoke about the fact of lack of consideration.
43. In WAKF BOARD, ANDHRA PRADESH VS. BIRADAVELU RAMANNA REDDY [2000 (2) LAW WEEKLY 127], it was held that alienation by the Paish Imam of the mosque who was rendering prayers cannot be said to be alienation by the previous manager of the mosque and Article 96 of the Limitation Act cannot be of assistance to the Wakf Board. It was held that the nature of the suit must be such that the plaintiff therein must seek to recover possession of the property alienated by the previous manager such as Muthavalli. But, a Paish Imam of the Inam land granted for rendering prayers at mosque cannot be treated as the previous manager of the Mosque and his alienation cannot be said to be the alienation by the previous Manager. The allegation in this case that the purchasers belong to the Padayachi community and therefore, they must be treated as managers of the trust has no substance.
44. Thus, we find that the trust was not given effect to and that the property was not divested to the trust and that there was no performance of the trust and that the alienations were made by one of the donors of the trust and that the purchaser was the defendant's father and that alienations and leases were for valuable consideration and that there is no contra evidence on this aspect. Hence, the plaintiffs' case is clearly barred by the period of limitation. In the Executive Officer's suit, it is claimed that after he was appointed as the Executive Officer some time in the year 1970, he made enquiries and came to know that the property in possession of the defendants is trust property and the various documents obtained were colourable and not binding on the plaintiff temple. Plaintiffs specifically state that they came to know of the fact that the suit land belongs to the temple in May, 1970. In the cause of action, May 1970 is mentioned as the date on which the plaintiffs became aware of the knowledge of the transfer to the defendants. In the Community's suit, on the other hand, it is claimed that only after coming to know of the Executive Officer's suit and the contention of the first defendant, they made enquiries as to the existence of the deed and its terms and then only it came to their light that the plaintiffs community is the one entitled to the management and possession of the property. On these facts, it is clear that the suits are barred by limitation.
45. Adverse Possession :
From the documentary evidence let in on behalf of the defendants, we find that subsequent to the sale in the year 1929, the properties were transferred in the name of the defendants and they had been paying land revenues and house taxes as evidenced by Exs.B.5 to B.12; the defendants have been taking loans subjecting the property to mortgage and leases have been executed in reference to this property as evidenced by Exs.B.13 to B.42; patta has been obtained and kists have been paid for this property as evidenced by Exs.B.43 to B.56; house taxes were paid as evidenced by Exs.B.57 to B.60; building permissions were obtained and license fees for running the factories were paid as evidenced by Exs.B.61 to B.78; the inspection reports of the factories and the proceedings of the District Revenue Officer in reference to the transactions and renewal licenses by the Collector are evidenced by Exs.B.75 to B.91; there were subsequent sales and leases through Exs.B.92 to B.99; the panchayat resolutions to permit the industries are Exs.B.100 and B.101; the property was a subject matter of litigation as per Exs.B.103 and B.104.
46. The defendants have specifically pleaded to the effect that the property was purchased for valuable consideration and that they had been in possession of the same from 22.7.1929 onwards continuously on their own right; they have made several alienations to third parties and the third parties have put up constructions more than 12 years back; there is a rice mill, expeller, boiler and 75 H.P. motor, saw mill and several other structures in the said building; the land and the building have been used as an industrial concern ever since its purchase in the year 1929; the first defendant's father had been selling portions of the property, mortgaging them in favour of the Government as well as financial institutions for putting up construction; the plaintiffs know about these alienations and enjoyment by the defendant's father and the first defendant from 1929 and they did not raise any objection; on the other hand, they pleaded, the officers of religious endowments made enquiries about the sale deeds in favour of the first defendant's father and after finding out that the sale deed was validly effected by Amma Muthu Ammal, dropped the idea of taking any proceedings against the first defendant's father; therefore, it is pleaded that it is false to say that the plaintiffs came to know of these facts only in the year 1970; the property was not listed as one of the properties belonging to the Devasthanam; there have been litigations between the first defendant's father and his uncle; their continuous enjoyment has been crystal clear by all these unquestionable documentary and oral evidence; their possession has been recognised by various orders of the Government, licenses issued, patta granted and receipt of kists, etc. They contend that the plaintiffs' suit is barred by limitation and adverse possession and their right, it any, is extinguished as per Section 27 of the Limitation Act.
47. The trial court, on the issue of adverse possession, at one stage has held in paragraph 43 of its judgment that by considering the documentary evidence adduced by D.W.2, there cannot be any doubt to say that D.W.2 and his father and their successors-in-interest namely the present defendants in O.S. No.60 of 1973 have been in possession of the lands continuously for more than 12 years prior to 30.9.1951. The trial court also held that possession of the land by Muthuswamy Padayachi, the first defendant and D.W.1 is not as a trustee for and on behalf of the Vanniyakula community. So, if they had been in possession as the purchasers for more than 12 years, they can claim title by adverse possession. However, the trial court held that the defendants have failed to prove that they have exercised their right over the property with the knowledge of the temple authorities and therefore, negatived the claim of title by adverse possession.
48. The above finding of the trial court has been assailed by the respondents and the following decisions are cited in support of their case that knowledge is attributable to the temple. The Privy Council in SECRETARY OF STATE VS. DEBENDRA LAL (A.I.R. 1934 P.C. 23), held that for adverse possession, it was sufficient that the possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due diligence, to be aware of what is happening. If rights of the Crown had been openly usurped, it cannot be heard to plead that the fact was not brought to its notice. The Limitation Act is indulgent to the Crown in one respect only namely it required a much longer period of adverse possession than in case of a subject; otherwise, there is no discrimination in the statute between the Crown and the subject as regards the requisites of adverse possession. It is not necessary, in order to establish adverse possession, that the proof of acts of possession should cover every moment of the requisite period. The possession required must be adequate in continuity, in publicity and in extent to show that its possession was adverse to the competitor. The classical requirement is that the possession should be nec vi nec clam nec precario (the three wrongful modes of obtaining possession - peaceful, open and continuous) and adverse possession need not be shown to have been brought to the knowledge of the Crown. It is sufficient that possession is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises due diligence, to be aware of what is happening. In KSHITISH CHANDRA VS. COMMISSIONER OF RANCHI , the Supreme Court has held that in order to plead adverse possession, it is not necessary that possession must be so effective as to bring it to the specific knowledge of the owner. A Division Bench of this court in SRI MUTHIAH PILLAI VS. VEDAMBAL , held that the concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession, to be adverse, must be possession by a person who does not acknowledge others' right, but denies them. Also, a person who bases his title on adverse possession must show by clear and unequivocal proof that his possession was hostile to the real owner and amounted to denial of his right to the property claimed. The Division Bench further held that it is not necessary that adverse possession should be brought home to the knowledge of the owner. Also, if rights of the owner had been openly usurped and not secretly, he can complain that the fact of adverse possession was not brought to his knowledge.
49. On facts, it is seen that the first plaintiff in the Community's suit namely T.P. Ardhanari Padayachi has filed a complaint before the Commissioner of H.R. & C.E. Department as evidenced by Ex.B.2 stating that after Kumaraswamy Padayachi, the property should be controlled by the Padayachi community; in the suit property, no Nandavanam or Thope was established; the defendant's father had encroached the property, putting up a bus stand, saw mill and industries and had sold the property and entered into lease arrangements and thereby, subjected the property to alienations; if the property was recovered to their possession, he can establish Nandavanam, Thope etc. and he will help the temple and therefore, he sought for suitable action for recovering the suit property. The said application was signed by plaintiff nos.1, 2, 3 and 4. Ex.B.107, a report by the Inspector of H.R. & C.E. Department was submitted to the Assistant Commissioner on the complaint of T.P. Ardhanari Padayachi. He has given a finding that after enquiry and on going through the records, it was found that the subject matter property had been sold by a sale deed dated 22.7.1929 and that from the date of the trust deed, no endowment of Nandavanam had been conducted ever since the document. He further says that there was already an enquiry on 26.5.1970 and the Deputy Commissioner, in his order dated 24.6.1970, has directed to proceed after getting a legal opinion. From the above, it is clear that the plaintiffs in the Community's suit were fully aware of the finding that the trust was not given effect to from the date of its origin and that the properties were subject to alienation as per the report and the orders of the H.R. & C.E. Department. Their plea that they came to know of this alienation only after the Executive Officer's suit is, therefore, clearly a false statement contrary to the documents available in this case.
50. It is further seen that there was a Board of Trustees to the temple as evidenced by a copy of Ex.A.12 marked to the Chairman, Board of Trustees, wherein they have been directed to obtain legal opinion to enforce the charities. The then existing Board of Trustees and the previous Board of Trustees of the temple have not been impleaded nor have they stated that they were not aware of the possession and enjoyment of the property by the defendants. It is not out of place to mention that the suit property was just adjoining or opposite the temple and any worshipper or members of the Board of Trustees or even the Executive Officer or in the absence of the Board of Trustees, the Fit Person, should have been aware of the alleged encroachment or occupation by the defendants. The Executive Officer cannot plead that he had no knowledge till he was appointed in the year 1970. We have already found that the Executive Officer is not a competent person to file the suit and that he has not impleaded the Board of Trustees or the Fit Person who are the competent people to initiate such legal proceedings and in the light of the evidence, we are clearly of the opinion that the defendants have perfected their title by adverse possession to the knowledge of the Board of Trustees or the Fit Person, as the case may be.
51. The defendants have pleaded even in their reply notice that Venkatachala Gounder and his wife Amma Muthu Ammal were in possession of the property during their life time and that no Kaingaryam was performed by them; possession of the property was not parted with and there was no transfer of the registry; the pattas stood in the name of Venkatachala Gounder and after him, his wife Amma Muthu Ammal, till the date of the revocation deed and thereafter, Amma Muthu Ammal sold the property for valuable consideration on 22.7.1929; the kist for these lands was always paid by Venkatachala Gounder and after him, his wife Amma Muthu Ammal; possession was also handed over to the first defendant's father; at the time of the sale, Komarasamy Paradesi was alive and no objection was taken by anybody for the reason that the property was treated as the absolute property of the vendors and that no endowment was made either to the alleged Nandavanam trust or any other trust; the document dated 1.11.1897 was never acted upon and it was only nominal; Amma Muthu Ammal, naturally cancelled the same by a document dated 20.7.1929; as the document was not acted upon from the beginning, the property was held by her and her husband as its real owners paying kist and enjoying the same in their own right; after the transfer for consideration in favour of the first defendant's father in the year 1929, he and subsequently his sons were in open and exclusive possession of the suit property in their own right by erecting buildings and making alienations; this was to the knowledge of everyone, including the trustees of the Ardhanareeswarasamy Temple and therefore, the defendants have claimed that the predecessors of the defendants, the defendants themselves and their successors have perfected their title by adverse possession.
52. P.W.5, whose evidence alone was believed by the trial court, has admitted in his cross-examination that for the past 35 years, there were no plants in the suit property and the buildings were there for the past 30 years. The claims of the plaintiffs that the Executive Officer came to know of the facts only in May, 1970 and that the community people came to know about it only after filing of the said suit are, therefore, clearly false. It is very difficult to believe that all these activities like construction of rice mill, petrol bunk, saw mill and bus stand just opposite or near the temple would not have been noticed by either the worshippers or the trustees or the Fit Person so as to claim that they had knowledge of the alienation only in the year 1970 after its encroachment. On the evidence let in by the defendants that enquiries were conducted earlier by the Department, it is seen that apart from the exhibits referred to above, there is Ex.B.108 which is a copy of the letter written by the Inspector, H.R. & C.E. Department to the Trustees of the Ardhanareeswaraswamy Temple directing them to obtain registration copy of the gift deed, conduct the enquiry and pass orders on 26.5.1970 for proper action.
53. In this context, we have to state that the allegation by the defendants that the suit is speculative and instituted at the instance of the Executive Officer with an ulterior purpose has got some force. The Executive Officer, as P.W.1, in his evidence, has gone to the extent of saying that he had enquired the attestors and the scribe who are dead and gone very long prior to his appointment; if he enquired while they were alive, definitely his statement that he came to know of the alienation only in the year 1970 would have been proved false. It is further established that the Executive Officer, who filed the suit, was living as a tenant in the premises belonging to T.P. Ardhanari Padayachi and even after his transfer, his sister is living in that premises and hence, the allegation that the suits were filed at the instance of the plaintiffs in O.S. No.462 of 1973 has much force. The answer of the learned counsel for the appellant, that though the Executive Officer had no competency, he had to file the suit only because the trustees could not take action, could only be termed as an argument out of desperation in order to get over his incompetency to file the suit.
54. For all these reasons, the appeal is dismissed, the cross appeal is allowed and the transfer appeal is dismissed. However, there will be no order as to costs. Consequently, the connected C.M.Ps. are closed.