Judgement

Appeal (No. 13 of 1935) from a decree of the High Court in its appellate jurisdiction (May 13, 1932) which varied a decree of the Court in its original jurisdiction (December 19, 1930).

The material facts are stated in the judgment of the Judicial Committee.

1937. Feb. 4, 5, 8, 9. Rashid for the appellant. On the true construction of the deeds of 1888 and 1896 the properties comprised in them vest absolutely in the Deity. As regards adverse possession by Satya, referring to s. 10, art. 144, of the Limitation Act, Brojo and Pulin were always in possession as shebaits. Satya merely resided with Pulin. Pulin was a shebait and limitation cannot run against a shebait. [Reference was made to Mullas Hindu Law, 8th ed., pp. 492-495.] A shebait cannot give title. Adverse possession would run from the death of the shebait Mahant Ram Charan Das v. Naurangi Lal and Others. (( 1933) L. R. 60 I. A. 124.) There is no distinction between a mahant and a shebait. Where there are two co-owners one cannot be in adverse possession to the other Bhairabendra Narain Roy v. Rajendra Narain Roy. (( 1933) L. R. 60 I. A. 124.) Pulin was in possession as shebait. The idol was in possession through him. Satya was in possession as co-owner with Pulin Jogendra Nath Mukherjee v. Rajendra Nath Battacherjee. (( 1933) L. R. 60 I. A. 124.)

Dunne K.C. and L.P. E. Pugh for the first respondent, Brojo. The first respondents position is that he is a shebait. He is in possession of half the house. He is unwilling to act against the idol. He is ready to carry out the order of the Court. He desires to avoid taking any part in a contest between members of the family.

Wallach for respondents Nos. 3 to 6, the mortgagees. The deeds do not vest the mortgaged properties in the Deity. On the question of limitation, it is assumed against me that Pulin, from whom get my mortgage, was a trustee, and that limitation would not run against him. There is no evidence to show that he took possession as trustee or accepted trusteeship. Pulin and Satya had an undivided interest. Half that was mortgaged. Limitation would apply in the case of Satya. It cannot be said that limitation would run in the case of one half and not the other Jogendra Nath Mukherjee v. Rajendra Nath Battacherjee. (( 1922) 26 C. W. N. 890.) Art. 142 of the Limitation Act would apply.

De Gruyther K.C. and J. M. Pringle for the second respondent, Satya. The construction of the deeds by the learned Chief Justice is wrong. He has made them good in part and bad in part. Taking the documents here as a whole, the grant is for the benefit of the family. As regards limitation, rightly or wrongly the deeds were cancelled in 1904 and there was a partition. Satya is in no sense a shebait. He claimed a quarter share in the suit. Clearly after that not only Satya, but Pulin and Brojo could have set up adverse possession even though Brojo was a shebait. Under s. 10 of the Limitation Act property must be vested in trust for a specific purpose. Referring to art. 134, the question is whether there was an entrustment of anything. There was an amendment of s. 10 in 1929. The words " deemed to be entrusted were introduced and sub-ss. (a), (b) and (c) were added. In 1904 the established law was that if the shebait was present the idol was sufficiently represented. In Kanhaiya Lal and Another v. Hamid Ali (( 1933) L. R. 60.I. A. 263.) the point was different from the one here. The amendment of the Act came into force on January I, 1929. The mortgages here were executed in 1922 and 1924.

Law. Rep. 64 Ind. App. 203 ( 1936- 1937) Iswari Bhubaneshwari Thakurani V. Brojo Nath Dey

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The suit was instituted on January 22, 1929. Pulin was in possession of his share and on behalf of Satya from 1904. Prior to 1929 a shebait was not a trustee. After 1929, by the amendment of s. 10, he is a trustee. Mohini, relying on the amendment, brought this suit alleging that Pulin was a trustee and that there would be no limitation. He is wrong. The