Judgement

Appeal from a judgment and decree of the High Court (March 12, 1912) partly affirming and partly reversing a judgment and decree of the Subordinate Judge of Bhagalpur (April 3, 1911).

The suit was brought by Bhaiaji Thakur, since deceased and now represented by the appellants, under the following circumstances. The sebaiti of a certain Hindu temple was vested in Brahmin families known as Pandas, who were entitled to share in the daily surplus offerings to the idol, after the discharge of the expenses of the worship. One Pratipal Thakur was a sebait and, as such, was entitled to a 3 annas 6 pies share in the surplus offerings. He died in 1851, and was succeeded by his widow Grihimoni Thakurani (hereinafter called Grihimoni). In 1874 she mortgaged to the respondent twenty-one bighas of land appertaining to the temple, and in 1875 sold to the respondents father eleven bighas of land, which had belonged to her husband.

It was found by the Subordinate Judge that the mortgage did not include her share in the temple offerings and that the alienations were not made from necessity. In 1880 the respondent obtained a money decree against Grihimoni upon the mortgage. In execution of that decree there was sold in 1891 the " income of the muth .... to the extent of 3 annas 6 pies, which belongs to the judgment debtor," and it was purchased by the respondent, who was put into formal possession thereof on November 20, 1892. The respondent was by his caste precluded from holding the office of sebait. In 1892 Grihimoni and Bhaiaji Thakur (now represented by the appellants) instituted a suit to set aside the sale, on the ground, among others, that the offerings were not alienable. Two Courts held that Bhaiaji Thakur could not be a party and the High Court allowed the suit to be withdrawn, with leave to bring a fresh suit. In 1895 Grihimoni alone brought a fresh suit to set aside the sale, alleging fraud. This suit was dismissed by the High Court in 1898 on the ground that the sale could only be set aside under s. 244 of the Code of Civil Procedure, 1882. Grihimoni died in 1900 and Bhaiaji Thakur succeeded, as next reversionary heir, to the estate of Pratipal Thakur.

On January 28, 1910, Bhaiaji Thakur instituted the present suit praying for (a) a declaration that he was entitled to the eleven bighas of land and to the 3 annas 6 pies share in the surplus offerings, (b) a declaration that the respondent had no title thereto, (c) a decree for possession, (d) mesne profits and other relief.

Both Courts found in the plaintiffs favour as to the eleven bighas of land and no question arose upon the appeal with regard thereto. With regard to the share in the offerings the respondent pleaded that the suit was barred by res judicata and by limitation.

The Subordinate Judge, by his judgment delivered on April 3, 1911, held that the share of the temple offerings could not be attached or sold in execution; he held that the suit was governed by art. 124 of Sched. I. of the Indian Limitation Act, 1908, but that it was not barred as it was brought within twelve years after the death of Grihimoni. He also held that the suit was not barred as being res judicata having regard to the suits in 1892 and 1895, and made a decree in the plaintiffs favour.

The respondent appealed to the High Court. That Court (Coxe and Imam JJ.) reversed the decree of the Subordinate Judge with regard to the temple offerings. The learned judges held that the dismissal of the suit brought by Grihimoni in 1895 was binding upon the reversionary heirs inasmuch as she fully represented the estate, and a decree against her as sebait would bind her reversionary heirs. They also held that the suit was barred under art. 124, on the ground that the respondent had been in adverse possession of the share of the temple offerings since 1892 and the suit was commenced in 1910. The appeal to the High Court is reported at I. L. R. 39 Calc. 887.

Dunne and Dube, for the appellants. The High Court