- (1.) THE following short pedigree will be helpful in appreciating the dispute. 1a. It appeared that Barati Lal was possessed of considerable properties and was also religious minded. He erected a temple and for the up -keep of the same set apart the income of some of the properties held by him. One of these properties had been the house for the possession of which the suit out of which the present appeal has arisen was instituted. He made two wills, one in 1908 prior to the acquisition of this house, in which he directed some of his properties to be treated as wakf for the maintenance of the temple and Shivala erected by him. Later after he had acquired the house in dispute he made another will confirming his intention about the wakf made in the will of 1908 and adding to the list of properties the particular house now in dispute. The plaintiffs -appellants allegation has been that Barati Lal not only executed the two documents but also acted upon them and as laid down by him in his two wills the wakf in respect of the house in suit and other properties actually came into existence with his death in 1932. According to them the wakf was acted upon subsequently also by the descendants of Barati Lal including Jot Prasad. In this manner they have contended that the house in dispute was wakf property, that lot Prasad whom, it is further alleged, the testator had nominated as the next Mutawalli after him entered into possession of the house in his above capacity and also continued to hold it as such.
(2.) ON 17th December, 1934, during the lifetime of Brahma Prasad but after the death of Bhagwati, Jot Prasad made a gift of the house in suit in favour of Srimati Bittan Dei, defendant No. 2. In this document he in defiance of the trust treated the house as his own property and made a gift thereof to the lady. It has been found by the courts below that as a consequence of the gift made in her favour Srimati Bittan Dei entered into possession also as donee of the house in dispute. She continued in possession in this manner until she sold it away to respondent No. 1 on 24th January, 1939. Since that date this respondent as a transferee from Srimati Bittan Dei has been in possession of the house. The alienation in favour of Srimati Bittan Dei was gratuitous but the one by her in favour of respondent No. 1 is admittedly for a valuable consideration. This fact will be relevant when considering the effect of Section 10 of the Indian Limitation At on which the appellants have seriously relied. It was noticed earlier that Bhagwati died in 1932, Brahma Prasad in 1935 and Jot Prasad in 1936. Since Brahma Prasad and Bhagwati were already dead when lot Prasad died in 1936 the office of Sarbarakar and Mutawalli of the trust devolved, according to the plaintiffs, on them. They were, however, minors at the time under the guardianship of their mother, nevertheless the office belonged to them ever since. The suit giving rise to this appeal was commenced on 19th January, 1951, a few days before the expiry of twelve years since the making of the alienation by Srimati Bittan Dei in favour of Satya Deo, respondent No. 1. The relief claimed in it is a decree for possession of the house and also for recovery of Rs. 400/ - as mesne profits.
(3.) A number of pleas were taken at the instance of the two respondents against the plaintiffs -appellants claim. They did not admit that any wakf was in fact created or came into existence. They also disputed the allegations, which the plaintiffs made, that the property held by Barati Lal was joint family property as also their allegation that Jot Prasad was incompetent to make a transfer, A plea with which this appeal will be directly concerned, also was that the suit was barred by limitation. The lower appellate court has found that the property in suit was the self -acquired property of Barati Lal. It has, however, agreeing with the trial court, further held that the wakf alleged to have been created by Barati Lal was not acted upon. With these findings and holding that the suit was barred by limitation it confirmed the decree of the trial court dismissing the suit.;