Decided on February 19,1953

Padmanabha Bhatta And Ors. Appellant
H. Ramachandra Rao And Ors. Respondents


Govinda Menon, J. - (1.) THESE two second appeals arise out of O. S. No. 113 of 1944 on the file of the Subordinate Judge's Court of South Kanara. The appellants in each of these appeals are persons who allege themselves to be the owners of the properties which are the subject -matter of dispute. Defendants 10, 11 and 8 are the appellants in S. A. No. 2 of 1949 and defendants 2 and 4 are the appellants in S. A. No. 47 of 1949. The plaintiffs, who are the contesting respondents, are the trustees of the suit temple appointed by the Hindu Religious Endowments Board and they seek to recover possession of the plaint properties from the defendants on the ground that they are temple properties. The appellants in these appeals originally belonged to one family which became divided long ago and they put forward the contention that the properties are not temple properties but belonged to the joint family of which they constituted members, though there was an obligation fastened on them, viz., that with part of the income from the properties certain ceremonies in the temple should be conducted. Both the lower Courts found that the temple is the owner and directed surrender of possession of the properties by the defendants. Hence these second appeals.
(2.) THE first argument put forward is that the plaint temple is not the owner of the properties mentioned in Schedules. A to C and in support of it counsel for the appellants in each of these appeals relied upon certain documents which, according to them, have been misconstrued by both the lower Courts. It is the admitted case that the family of the appellants was at one time the trustee of this Sri Mahalingeshwara Mahadevaru Devastanam and it had also the right of archakatvam i.e., performing the pooja in the temple. Both Messrs. K. Srinivasa Rao and T. Krishna Rao for the appellants contend that the lower Courts are wrong in interpreting the expression "Mahalinga Devaru Uttara" occurring in Exs. P. 1 and P. 2 as meaning absolute ownership of the temple. The learned Judges in the Courts below have understood the expression in these documents as signifying that there have been admissions by the managers of the defendants' family as early as 1858 and 1863 that the plaint properties are the deity's properties. It is now contended that the word "uttara" does not connote any absolute right in the temple but that what is meant is only that the temple has some sort of right over the income of the properties to be utilised for the performance of the religious ceremonies. In Ex. P. 2 Ram Bhatta, the then head and manager of the defendants' family, styles himself as the mokthessor or trustee of Srimath Pervaje Mahalinga Devaru and the property dealt with therein is described as "Mahalinga Devaru's uttara". There is no word mentioned anywhere in the judgment of either of the lower Courts that this expression means anything other than complete ownership of the temple. Both the trial Judge and the appellate Judge have understood the expression as vesting the ownership in the temple. Moreover, Ex. p. 4, the settlement register, describes the temple as "wargdar" or the owner of these properties - The contest in both the lower Courts was that the defendants' family is the owner as contradistinguished with the ownership of the temple. Some recent documents were produced on behalf of the defendants Justifying their contention that the temple cannot be said to have absolute rights over the properties. D.W. 1 who is defendant 1 and one of the chief contesting defendant, did not depose that the expression "uttara" meant anything other than absolute rights. The learned Subordinate Judge in paras. 17 and 18 of the judgment discusses the meaning and import of the expression "uttara" occurring in Exs. P. 1 and P. 2 and nowhere do we find any statement by him that the defendants put forward the contention that the exoression "uttara" meant any thing except "full fee simple". In view of the admissions contained in Exs. P. 1 and P. 2 and the fact that in the settlement register the properties are described as temple properties, whatever might have been the assertions made by the members of the defendants' family who were the trustees of this temple as well as to the effect that they are the owners of the properties, we have no hesitation in agreeing with both the lower Courts that the properties mentioned in Schedules A to C are endowed properties belonging to the temple. Even if the word "Uttara" meant anything other than absolute rights we cannot say that Ex. P. 2, not being a deed of dedication, can be interpreted as limiting the rights which the temple had. Ess. P, I and P. 2 can by no means be called "deeds of dedication". At the time Exs. P. 1 and P. 2 came into existence there was the basic fact that the family was both the trustee as well as the archaka. In Ex. P. 3 also there is the description that the properties granted in mulgeni belong to Mahalinga Mahadevaru. As stated by the learned District Judge, the few documents on the defendants' side in which private ownership of the properties is claimed are of very recent origin and cannot therefore outweigh the effect and importance of the earlier documents. In such circumstances, it seems to us that both the lower Courts were right in coming to the conclusion that the temple is the owner of the properties. The next question that has been elaborately argued relates to the acquisition of ownership in the family by adverse possession. The earliest document by which an arrangement was made for the enjoyment of some of the properties is Ex. P. 1 by which the two branches of the family agreed to keep some properties for the performance of the ceremonies and the festivals in the temple and divided the rest of them among the branches, with a stipulation that since the properties belong to the deity as "uttara" property, the branches to whom the same have been allotted should not alienate them at all. This state of things continued till about the year 1917 when one of the branches divided the properties it got possession of without any reference to the temple and treated them as its absolute properties. The other branch also, later on, divided the properties in the same manner and some of the properties have been alienated to third parties as well. What is now urged is that when in 1863 some properties alone were retained for the performance of the ceremonies in the temple and the others were divided between the two branches and only the manager of one branch was made responsible for the performance of the ceremonies, at least over the properties allotted to the other branch, the persons in possession dealing with them subsequently, must be deemed to have acquired ownership by adverse possession and prescription. Exs. D. 2, D. 3 and D. 4 which are partition deeds In the respective branches dealt with the properties on the footing that the temple has no rights over them at all.
(3.) STRONG reliance was placed upon the decision in - - 'Rajagopala v. Anjaneya', : AIR 1943 Mad 558 (A), where this Court, following - -'Iswari Ehubaneshwari v. , held that if property dedicated for a public charity, of which the father of a joint Hindu family was the trustee for the time being was treated by the father and son together as belonging to the family for more than 12 years, disclaiming thereby the right of the public trust to that Property, then, so far as the son was concerned, his claim was adverse to the trust and as such he had acquired an interest to the extent of one -half, we do not think that the principle enunciated there should be applied to the present case. In the original partition in the family evidenced by Ex, P. 1 there is a clear recital that the property is the deity's uttara property incapable of being alienated; and the subsequent treatment of the property on the footing that it is joint family property would not be an assertion of claim adverse to the trust as such. The trusteeship is vested in the family. There are observations in - - 'Alasinga Bhattar v. : AIR1936Mad294 CO., wherein Venkataramana Rao J. states: "So far as the trust is concerned, whoever manages the office by turns must be deemed to be managing on behalf of all and management by one of them in rotation is not considered to be adverse or exclusive to other co -trustees." At page 299 also the learned Judge observes: "In every case of partition where several branches enjoy the office by turns there is no surrender or renunciation. It is always subject to the implied condition that the resumption of actual management can be availed of either by consent of parties or through Court and there is no question of divesting themselves of all control over the offices." Such being the case, it cannot be contended for a moment that by dividing the trust properties between themselves the members have in any way disclaimed the interest of the trust in the properties.;

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