Karnataka High Court
Basappa vs Shivagangawwa on 12 October, 1987
Equivalent citations: ILR1988KAR1246
JUDGMENT Hiremath, J.
1. This appeal is directed against the Judgment and decree of the Court of the Additional Civil Judge, Bijapur, in RA No. 46/1974 reversing the Judgment and decree of the Court of the Munsiff, Muddebihal, in O.S.No. 108/1959.
2. The original suit was filed by the plaintiffs for recovery of possession of the suit lands bearing R.Sy.No. 102 measuring 5 acres 34 guntas of Nagaral village in Muddebihal taluk of Bijapur District on the ground that it was the property of Maruthi Deity of Nagaral village and it is the trust property and gifted in favour of Thippanna by the trustees Basappa and Narayanappa. This gift was as far back as in the year 1911 by Narayanappa and Basappa. While Narayanappa had pre-deceased Basappa, Basappa died on 1-2-1943. Thereafter, in the year 1955 i.e., in February 1955, the application came to be made to the Charity Commissioner, Bijapur, for permission to file a suit and the permission was granted. Thereafter, the suit came to be filed for the said relief. The trial Court mainly found that the gift in favour of Tippanna by Narayanappa and Basappa was void in as much as it was not permissible to make such gift and since then the possession of Tippanna had become adverse, therefore, the suit filed by the plaintiffs was not maintainable. Thus dismissed the suit.
3. The first appellate Court, however, took the view that the gift in favour of Tippanna was not void but voidable. As such, the alienation could be valid during the life time of the alienors and the cause of action accrued to file the suit only after the death of Basappa in February, 1943 and within 12 years thereafter the steps were taken to initiate the proceedings and therefore, the provisions of Section 10 of the Limitation Act (as amended in the year 1929) come to the rescue of plaintiffs that there could not be bar of limitation to proceed against an alienee of the trust property and so saying, gave a decree in favour of the plaintiffs. It also found that there was no gift as such but there was transfer of the office of Archaka with the condition superimposed and from the income realised from the estate of the temple the transferee must discharge the obligations to the temple of performing pooja.
4. In this Second Appeal, the original defendant No. 1 Basappa son of Tippanna has contended that the first appellate Court was wrong in up-setting the decree of the trial Court and it was wrong in holding that the amended provisions of Section 10 of the Limitations Act are applicable and that there was gift of the property itself which was void at the inception and even during the life time of both Narayanappa and Basappa, adverse possession had commenced on the part of Tippanna. Therefore, the first appellate Court was wrong in upsetting the finding given by the trial Court that the provisions of Section 10 are attracted. During admission, substantial question of law set-down for determination is as follows:
"Whether the lower appellate Court was justified in invoking Section 10 of the Limitation Act without pleading on the point and the facts and circumstances of the case?"
5. Sri Kolar, learned Counsel appearing for the appellant has mainly contended taking me through Exhibit P-61 the Deed of Gift that there was alienation of the property itself thinking that it was the personal property of the alienors or donors and therefore, the first appellate Court was wrong in holding that there was only a transfer of office of Archaka with a condition super imposed. The relevant recitals in this Exhibit 61 are that: Tippanna had no immovable property at some point of time. He had obliged these two donors and therefore, they have gifted away these Devasthan Inama Lands bearing R.S.No. 102 measuring 5 acres 34 guntas which was endowed for performing the pooja of Maruti deity and both of them were enjoying the same with equal rights. On the date of the gift that is 19-12-1911 they have handed over the possession of the same with further direction that he should go on performing the pooja of deity and should enjoy the property in perpetuity and pay 'judy' etc., to the Government. Accordingly, the donee Tippanna appears to have come in possession of the property and was taking usufructs of the same.
6. When the suit was filed, the trial Court found that this gift was without any consideration; that the donors though were in possession of the property as Archaks had alienated the same, it was void and therefore, the suit of the plaintiffs was barred by time and also that the donee had perfected his title by adverse possession. Presently, the plaintiffs are heirs of Narayanappa and Basappa. In order to see if Section 10 of the Act as it now stands is attracted or not, it is also necessary to see and determine the nature of the alienation itself. The appellant's Counsel has referred me to the powers of a Shebait or dharmakarta with regard to the endowed property. At page 329 of the Law of Hindu Religious and Charitable Endowments by learned author Sri V.K. Varadachari, it is pointed out that Section 10 of the Limitation Act expressly saves trust properties from the onslaught of adverse possession. It is well settled that properties of religious and charitable endowments are not vested with the Shebait or dharmakarta. They are vested in the idol which has a juridical status and is a juristic personality capable of holding property. But, the idol own's the property only in an ideal sense. It has to be administered and managed by a shebait, who is the human ministrant to the idol. Section 10 of the Limitation Act, prior to the amendment of 1929, was found inapplicable to a shebait or dharmakarta as the property of the endowment is not vested in him. The later amendment was necessitated by the decision of Privy Council in the case of VIDYA VARUTHI v. BALUSWAMI, 1922 PC 44 and ABDUL RAHIM v. NARAYAN DAS, 1922 LR 50 IA 84. The position was when the suit was brought against a person, not being an assign for valuable consideration, endowments of this nature, were not protected. Therefore, the amendment was necessitated which now applies not only to an express trustee but also to a constructive trustee. This position cannot be disputed and the position of shebait of the temple or mohant of the mutt is now well recognised.
7. The first appellate Court referred to various decisions of Privy Council and also some of the High Courts and pointed out that there cannot be two opinions that a shebait or mohant has a right to alienate debutter property and as such alienations would be good and valid till the lifetime of the said shebait or mahant. In the case of Vidya Varuthi, 1922 PC 44 (cited supra) decided by the Privy Council is on the point. Referring to Section 10 of the Limitation Act (as it stood) when the appeal came to be decided, the first appellate Court held that the provisions of the same are attracted to the facts of the ease.
8. It should be noted that the revenue record shows that the property is the property of Maruti deity and Basappa and Narayanappa were in. enjoyment of this property on behalf of deity and were performing pooja. It is also not in dispute that it is one of the properties that came to be alienated, and another property remained in their possession. Later on, after the Bombay Public Trusts Act came into force, defendant No. 1 gave an application before the Assistant Charity Commissioner to include him also as a co-trustee along with plaintiffs. The enquiry was held in Enquiry No. 353/1960 and statement of 4th defendant was recorded and thereafter, the application of 4th defendant was not allowed. It may also be mentioned that the temple came to be registered as a public trust after the Bombay Act, 1950 came into force. The first appellate Court taking this aspect into consideration found that these circumstances and the conduct of even defendant No. 1 showed that he being a de-facto trustee, could not have claimed adverse possession against the trust. There may not be an express trust as understood commonly in respect of property as created by a particular person but the fact that this property is an endowment and is of Maruti deity and that Narayanappa and Basappa were in possession of the same on behalf of deity and performing the pooja and enjoying the usufructs cannot be totally ignored. Keeping in view this aspect, it has to be seen whether there was a gift of the entire property as commonly understood or was there any transfer with a condition super imposed to perform pooja of the office of Archak.
The trial Court did not accept this concept relying on the decision of the High Court of Bombay in the case of RAMACHARYA VENKATARAMANACHARYA v. SHRINIVASACHARYA, AIR 1918 Bombay 183 in which the managers of a temple had made a gift of the temple property to the predecessors of the defendants in consideration of the latter performing certain religious services at the temple. About half a century after the date of the gift the successors of the donors sued the defendants for possession of the property, alleging that they were no longer willing to accept the service of the defendant in connection with the temple. It was held that the defendants were transferees for valuable consideration from express trustees, the performance of services being the consideration for the gift.
9. The trial Court, however, though referred to this position did not hold that the decision attracts the facts of this case. The first appellate Court before whom perhaps this point was not canvassed as contended by Smt. Vijaya Hanumathgad, appearing for the respondents, referred to a decision of the Andhra Pradesh High Court reported in 1972(2) Andhra Weekly Reporter page 316, Devarapalepu Bangaraiah and Ors. v. Sri Ramalingeshwaraswamy Temple and Ors.. The Andhra Pradesh High Court was called upon to consider the scope and interpretations of Section 10 and Article 134B of Limitation Act, 1908. There "was similar condition in the gift deed in respect of donee, in that case before the Andhra Pradesh High Court, and the transferee was directed to render services to temple and utilise the income from the properties transfered. It was held that the transferee continued to be de-facto trustee and cannot set up adverse title against trust, without renouncing trusteeship. In para-24, the learned Judge observed thus:
"The de-facto, trustee i.e., Archaka Lingayya executed a conveyance deed Ex.A-5 on 17-4-1934 for a sum of Rs. 150/-. It was contended in that appeal that transfer in that case was for valuable consideration."
The High Court came to the conclusion that there was no alienation of property. The property so transferred under the document was only the office of Archaka with the condition super imposed that from the income realised from the estate of the temple the transferee must discharge the obligation and it was observed that the hereditary right of Archakatvam continued by reason of the conveyance under Ex.A-5. In that case undisputedly defendants-1 to 4 were in possession of the property in their capacity as Archak and therefore, their possession of the suit property was only as defacto trustees or inter-meddlers in whichever way they may be described and as such, there is no question of acquiring absolute rights by prescription or deriving any rights other than the rights specifically transferred to them by the hereditary Archaka. It was further held that the bar of limitation does not stand in the way of the plaintiff to recover possession of the property belonging to the temple and ask for account. The first appellate Court mainly relied on this position and, as already stated, even the trial Court while referring to the decision of the Bombay High Court referred to above found that the facts do not attract the facts of this case. At the end of paragraph-57 of its Judgment, the trial Court observed that the gift deed was a deed of conveyance or assignment and it was not for valuable consideration as contended before it.
10. In para-58, however, the trial Court observed that Section 10 of the Limitation Act was rendered inapplicable to the religious charitable trusts and therefore, the Mahants or shebaits could claim adverse possession against the math and the idols themselves as the position stood prior to the amendment of Section 10 of the Limitation Act. It is not challenged now that the provisions of Section 10 of the Act are applicable to a particular matter pending on the date when this amendment came in force. This according to the appellant's Counsel is a general proposition. But, he emphasises that because in 1911 itself there was a gift in favour of Tippanna which was abinitio void as held by the trial Court, the first appellate Court was not justified in finding that it was only invalid during the life-time of the donors as is generally the case in cases of this nature.
11. The respondent's Counsel has referred to a decision of Allahabad High Court in the case of SMT CHANDRAVATI v. SHIVAJI MAHARAJ, in which the learned Judge observed that - the word 'assign' used in Section 10 includes the legal representative of the assigns as well. In this view, where a trustee executed a gift deed of one of the properties of a temple in favour of another and after donee's death, his widow remains in possession of the property, she being not the assignee for valuable considerations, the case would be covered by Section 10 and the property in possession could be recovered at any time by the trustees of the temple. If the argument that where the transfer of trust property by trustee is void, and Section 10 will not apply is accepted, Section 10 would become nugatory in case of transfers of trust property specially without consideration and the very purpose of amendment is frustrated. Where, therefore, a trustee of a temple executes a deed of gift in respect of one of its properties as his own, the possession of the donee or of the legal representative of the donee will not be adverse to the deity as he could not assert any adverse title against the deity during the lifetime of the donor trustee and a suit for possession of the property by successor trustees within 12 years of the death of the donor trustee would be within limitation.
12. The first appellate Court appears to have applied this proposition though it did not specifically refer to the same. In the instant case, it is necessary to note that there was a condition super imposed at the time of transfer that the donee should continue to perform the service of Archak and in my view, the observation of the Bombay High Court referred to above cannot attract in a case of this nature and the observations of the Andhra Pradesh High Court referred to by the first appellate Court are quite apposite and consistent with the policy under which Section 10 came to be amended subsequently so as not to confer benefits on persons who come in possession of the property of a trust or of an endowment without any consideration. The first appellate Court found that the limitation commenced only after the death of Basappa in the year 1943. Even otherwise, Section 10 is amended to remove any confusion or uncertainty that existed prior to the amendment in the year 1929. In a suit for recovery of property alienated in this manner, the provisions of Section 10 are attracted, and limitation cannot run against the person entitled to recover debutter property. In this view of the matter, the first appellate Court was right in finding that the suit is not barred by time and Tippanna had not perfected his title by adverse possession and I do not find any reason to interfere with the Judgment and decree of the first appellate Court in this appeal.
In the result, appeal is liable to be dismissed and the same is dismissed.