MADHU SUDAN MANDAL Vs. RADHIKA PROSAD DAS

JUDGEMENT

(1.) This is an appeal on be-half of the defendant in a suit for declaration of title to land, for cancellation of a permanent lease and for recovery of possession. The plaintiff, who sues as shebait of Issur Radha Damudor Thakur, alleges that the disputed property is part of the endowment of the idol and was wrongfully granted in putni on the 9th September 18l8 by Utsabananda Das, who was at that time the shebait. Utsabananda died in 18S5 and was succeeded by Gur Das who retired on the 17th November 1903 in favour of the plaintiff. The plaintiff contends that the lease was granted for a small premium of Rs. 91 and at an inadequate rent of Rs. 67-2-7 per annum, that the alienation was without legal necessity and in no way beneficial to the endowment, and that, consequently, it is not binding upon the endowed property in his hands. The defendant resisted the claim on the merits and pleaded the bar of limitation. The Courts below have concurrently decreed the suit. On the present appeal, that decree has been assailed on the ground, that the suit is barred by limitation. The case for the appellant in. substance is that at the date of the commencement of the suit, the plaintiff had no subsisting title, because the title had been extinguished by adverse possession at a time when the Limitation Act of 1859 was in force and possibly at an earlier period when Regulation III of 1793 was in operation. In support of this view, reliance has been placed principally upon the cases of Luchmee Bukhsh Runjeet Ram 13 B.L.R. (P.C.) 177 : 20 W.R. 375; Fatimatulnissa v. Sundar Das 27 I.A. 103 : 27 C. 1004 : 4 C.W.N. 565; Jagamba v. Ram Chandra 31 C. 314 and Damodar Das v. Lakhan Das 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632. On behalf of the respondent, it has been contended in answer to this argument, that a lease granted by a shebait in excess of his authority does Dot hold good beyond the term of his office, and that each succeeding shebait acquires a new cause of action which he can enforce within the statutory period calculated from the date when he assumes charge of the office. In support of the contention that a lease granted by a shebait in excess of his authority does not continue in operation beyond the term of his office, reliance has been placed upon the cases of Radha Vallab v. Jagat Chandra (1826) 4 Mac. Sel. Rep. 151; Arruth Misser v. Juggurnath 18 W.R. 439; Bunwaree Chand Thakoor v. Mudden Mohan 21 W.R. 41; Ramchandra v. Kashinath 19 B. 271 and Prosunno Kumar Adhikari v. Saroda Prosunno Adhikari 22 C. 989. Reference has also been made to the observations of the Judicial Committee in the case of Abhiram Goswami v. Shyam Charan 36 C. 1003 at p. 1013 : 36 I.A. 148 : 4 Ind. Cas. 449 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 234 : 19 M.L.J. 530. In support of the view that each succeeding shebait acquires a fresh cause of action, reliance has been placed upon the cases of Prosunno Moyee Dossi v. Kunjo Beharee Chowdhry (1864) W.R. 157; Burm Suroop Doss v. khashee Jha 20 W.R. 471 Ram Churn Tewary v. Protap Chandra Dutt Jha 2 C.L.J. 448; Mahomed v. Ganapati 13 M. 277 and Vedapuratti v. Vallabha 13 M. 402. It has been conceded, however, by the learned Vakil for the respondent, in the course of the able argument which he has addressed to us on this part of the case, that the contrary view has been taken by this Court in the case of Nilmony Singh v. Jagabandhu Roy 23 C. 536 at p. 545. The question raised is not free from difficulty, and, if it hail not been, as we shall presently show, concluded by the decision of the Judicial Committee in the case of Damodar Das v. Lakhan Das 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 a good deal could have been reasonably urged in support of the view that each succeeding shebait acquires a fresh cause of action with reference to the terms of Section 14 of Regulation III of 1793 and Section 2 of Act XIV of 1859. In the case before the Judicial Committee, debutter property was divided between two persons each of whom claimed to be entitled to the office of rnohunt. This distribution continued in operation for more than 12 years during their life-time. After the death of the senior chela, the successor- in-office commenced an action for recovery of the property. It was contended that time ran as against him from the date when he obtained possession of the office, and this view was accepted by the Subordinate Judge. When the matter was brought up to this Court on appeal, reliance was placed in support of this view upon the decision in Arruth Misser v. Juggurnath 18 W.R. 439. This Court, however, held, on the authority of the decision in Nilmony Singh v. Jagabandhu Boy (16) that adverse possession had commenced from the date of the distribution of the property and has not been interrupted by the death of the original mohunt and the succession of the new mohunt to the office. In this view, the decision of the Court of first instance was reversed and the suit dismissed. When the case was taken on appeal to the Judicial Committee, reliance was again placed upon the decision, on the one hand in Arruth Misser v. Juggurnath 18 W.R. 439 and, on the other hand in Nilmony Singh v. Jagabandhu Roy 23 C. 536 at p. 545. Their Lordships of the Judicial Committee held that adverse possession had commenced and had continued uninterrupted from the time of the original distribution of the property, and, in this view, affirmed the decree of this Court. In our opinion, in view of this decision, it is now impossible to maintain the position that each succeeding shebait acquires a fresh start for the purpose of limitation. This conclusion may be supported on the analogy of the principle recognised under the Limitation Act of 1859 that adverse possession which bars a widow also bars the reversionary heir: Nobin Chunder v. Issur Chunder 9 W.R. 505 approved in Amirto Lal v. Rajonee Kant 2 I.A. 113 : 23 W.R. 214 : 15 B.L.R. 10 and Hari Nath v. Mathur Mohun 21 C. 8 : 20 I.A. 183. The learned Vakil for the plaintiff contends, however, with great earnestness that this view of the law may prove disastrous ten charities, because if a dishonest trustee continues in office for 12 years after an improper alienation for value, the trust would be left without a remedy. But there is no real hardship, for, as soon as a breach of trust is committed, it is open to the beneficiaries or the persons interested in the maintenance of the debutter, to take suitable steps for a declaration that the alienation is invalid, for the enforcement of the trust, and, if need be, for the removal of the trustee: if they sleep over their rights, they cannot be allowed to contend that each successive trustee should get a fresh start from the date of his appointment; in other words, there is no period of limitation for setting aside improper alienations for value made by a trustee.

(2.) It has not been disputed that if the principle of the decision in Damodar v. Lakhan 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 is applied, the claim of the plaintiff is barred by limitation. As already stated, the putni was created on the 9th September 1848, and it is immaterial whether adverse possession is deemed to have commenced from that date or from the time of the death of the grantor in 1855, the title to annul the putni was extinguished in 1837 at the latest. But the learned Vakil for the respondent suggests that the case of a putni may possibly be distinguished from the case of a sale. In our opinion, no substantial distinction in principle can be recognised between the two cases. Nor are we able to accept the view that the decision of the Judicial Committee in Damodar v. Lakhan 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 should not be followed, because it is inconsistent with the earlier decision in Abhiram. v. Shama Charan 36 C. 1003 at p. 1013 : 36 I.A. 148 : 4 Ind. Cas. 449 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 234 : 19 M.L.J. 530. It appears that after the case of Abhiram v. Shama Charan 36 C. 1003 at p. 1013 : 36 I.A. 148 : 4 Ind. Cas. 449 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 234 : 19 M.L.J. 530 which was decided on the 30th July 1908 the Judicial Committee ,took a contrary view in Shyam Chand v. Ram Kanai 14 C.W.N. CCXLIV and on the 15th June 1910 on review, recalled their judgment in that case Shyam Chand v. Ram Kanai 15 C.W.N. 417 : 38 C. 526 : 14 C.L.J. 238 : 10 Ind. Cas. 683 : 13 Bom. L.R. 421 : 9 M.L.T. 448 : (1911) 2 M.W.N. 281 : 8 A.L.J. 528 : 21 M.L.J. 1145 which was finally decided on the 28th February 1911 in accordance with the case of Abhiram v. Shama Charan 36 C. 1003 at p. 1013 : 36 I.A. 148 : 4 Ind. Cas. 449 : 14 C.W.N. 1 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 234 : 19 M.L.J. 530; meanwhile, before the application for review in Shyam Chand v. Ram Kanai 14 C.W.N. CCXLIV judgment was given in Damodar Das v. Adikari Lakhan 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 on the 17th June 191U. This circumstance cannot affect the binding character of the decision in Damodar v. Adikari Lakhan 37 C. 885 : 37 I.A. 147 : 7 Ind. Cas. 240 : 14 C.W.N. 889 : 12 C.L.J. 110 : 20 M.L.J. 624 : (1910) 1 M.W.N. 303 : 8 M.L.T. 145 : 7 A.L.J. 791 : 12 Bom. L.R. 632 and we are bound to follow it in the present case.

(3.) The result is that this appeal is allowed, the decree of the District Judge set aside, and the suit dismissed with costs in all the Courts.