Judgement

Appeal (No. 92 of 1932) from a decree of the High Court (April 8, 1930) reversing a decree of the Subordinate Judge of Patna (September 6, 1927).

On December 21, 1909, Rampat Das, the mahant of a math, executed a mukarrari lease to respondent No. 1 of certain property appertaining to the math, and put him into possession ; on February 13, 1911, Rampat Das executed a sale deed of the same property, subject to the lease, to respondent No. 3, the wife of respondent No. 2. In or about July, 1913, Rampat Das died. After a dispute as to the office the appellant became mahant.

On May 27, 1924, the appellant, as mahant, instituted the present suit against the three respondents claiming possession of the property and mesne profits.

Both the mukarrari lease and the sale deed purported to have been executed in order to meet the expenses of the math, but that was negatived by concurrent findings of the Courts in India.

Upon the present appeal the sole question was whether the suit was barred by limitation as pleaded by the defendants. Both Courts held, and it was not disputed upon the present appeal, that the article of the Limitation Act applicable was art. 144 and not art. 134.

The trial judge rejected the plea of limitation, holding that both under the mukarrari lease and the sale adverse possession time began to run only upon the death of Rampat Das.

An appeal to the High Court was allowed by a judgment delivered by Fazl Ali J., Wort J. agreeing. The learned judge held that the property was to be deemed to have been vested in the math or idols, in the absence of a deed of trust, and that consequently the decision in Damodar Das v. Lakhan Das (( 1910) L. R. 37 I. A. 147.) applied, with the result that the suit was barred. In his view the authority of that case was not affected by Vidya Varuthi Thirtha v. Balusami Ayyar. (( 1921) L. R. 48 I. A. 302.) He was of opinion that, as the vendee and the mukarraridar were of the same family, adverse possession under the lease began when possession was obtained under the sale deed. The appeal is reported at I. L. R. 9 Pat. 885.

1932. Dec. 2. Parikh for the appellant. Possession did not become adverse under either deed until the death of Rampat Das, and consequently the suit was not barred as to either transaction. The judgment of the High Court was based upon such cases as Damodar Das v. Lakhan Das (( 1910) L. R. 37 I. A. 147.) and Gnanasambanda Pandara Sannadhi v. Velu Pandaram (( 1899) L. R. 27 I. A. 69.), which followed Vurmah Vahia v. Ravi Vurmah Mutha. (( 1876) L. R. 4 I. A. 76.)

But in those cases the alienations were void and no property passed, as they were attempts to deal with the office of the shebait or mahant and with the whole endowment. Here the transactions were voidable and not void ; they were effected by the mahant as manager, and if they had been for necessity, as they purported to be, they would have been valid. In Vidya Varuthi Thirtha v. Balusami Ayyar (L. R. 48 I. A. 302.) it was held that the mahant is not in the position of a trustee, but of a manager, and that a permanent lease by him, even if not for necessity, is valid during his lifetime. For the purpose of this case no distinction can be drawn between the sale and the permanent lease. The judgments in Subbaiya Pandaram v. Mohamad Mustapha Maracayar (( 1923) L.

R. 50 I. A. 295.) and Nainapillai Marakayar v. Ramanathan Chettiar (( 1923) L. R. 51 I. A. 83, 89.) draw no such distinction. That there is a distinction between Vidya Varuthis case (L. R. 48 I. A. 302.) and cases such as Damodar Dass case (L. R. 37 I. A. 147.) has been recognized by the Patna High Court in Ramrup Gir v. Lal Chand Marwari. (( 1922) I. L. R. 1 Pat. 475.) On appeal to the Privy Council (( 1925) L. R. 53 I. A. 24.) in that case it was not necessary to determine whether adverse possession began at the date of the alienation or when the alienating mahant died.

Wallach for the respondents. The distinction between the class of case of which