Judgement

Appeal (No. 48 of 1919) from a judgment and decree of the High Court (October 19, 1916) reversing a decree of the temporary Subordinate Judge of Ramnad.

The suit was instituted in 1913 by the present respondents for possession of land in Madura forming part of the endowments of a math situated in Mysore State. The defendants were the present appellant, the head of the math (referred to as the pandara sannadhi or matathipathi), certain lessees from him, who were in possession, and others. The plaintiffs claimed under a permanent lease granted to them in 1891 by a former head of the math. They also claimed that they had acquired a good title under the Indian Limitation Act they relied on arts. 134 and 144 of the Schedule and s. 28. (Indian Limitation Act, 1908, Sch. I., art. 134, provides that for a suit “to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration,” the period of limitation shall be 12 years from “the date of the transfer.” By s. 28 “At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”)

The facts are stated at the beginning of the judgment of the Judicial Committee.

Both Courts in India held that the lease of 1891 was not made for necessity, and that the land in suit was part of the general endowment of the math, not being subject to any specific trust. The Subordinate Judge dismissed the suit. He held that the head of the math was not a " trustee " of its endowed property, and that consequently art. 134 of Sch. I. did not apply ; he was also of opinion that there had not been adverse possession so as to bring art. 144 into operation. The High Court allowed an appeal. A decree was made declaring that the first plaintiff was a permanent lessee of the land in suit and for possession and mesne profits. The judgment was delivered by Burn J. (Sudasiva Ayyar J. agreeing). The learned judge was of opinion that expressions in the judgment of the Board in Ram Parkash Das v. Anand Das (( 1916) L. R. 43 I. A. 73, 76, 90.) constrained the Court to hold that the head of the math was a trustee of the properties, and that consequently art. 134 applied. The appeal to the High Court is reported at I. L. R. 40 M. 745.

1921. Feb. 18, 21. Clauson K.C. and Kenworthy Brown for the appellant. Both Courts in India found that the permanent lease was not made for necessity, and that the property in suit was not subject to any specific trust, but formed part of the general endowment of the math. Art. 134 does not apply. The head of a math is not a "trustee" of its general endowments Kailasam Pillai

v. Nataraja Thambiran. (I. L. R. 33 M. 265.) The Board gave no decision to the contrary in Ram Parkash Das v. Anand Das. (( 1916) L. R. 43 I. R. 73, 76, 90.) The expressions in the judgment upon which the High Court based its decision were intended to convey merely that the head of a math was in a fiduciary position with regard to its property, not that he was a " trustee " in the full sense in which that word is used in English law. The terms of art. 134 show that the word is there used in the latter sense ; and s. 10 of the Act makes that clear. The case in the course of which the judgment of the Full Bench in Kailasam Pillai v. Nataraja Thambiran (I. L. R. 33 M. 265.) was rendered, came before the Board on appeal in Nataraja Thambiran v. Kailasam Pillai. (( 1920) L. R. 48 I. A. 1.) Although the decision of the Full Bench was not approved in terms, the decree based upon that decision was affirmed. The respondents acquired no title under art. 144 by adverse possession. When the head of a math grants a permanent lease there is no adverse possession during his life Muthusamier v. Sreemethanithi. (I. L. R. 38 M. 356.) Consent to the lessees possession by the succeeding head must be referred to a new lease ; con