PETITIONER: <NAME> Vs. RESPONDENT: INCOME-TAX OFFICER, <NAME>. DATE OF JUDGMENT: 12/01/1951 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> KANIA, <NAME>, SAIYID SASTRI, M. PATANJALI MUKHERJEA, B.K. CITATION: 1951 AIR 97 1951 SCR 127 CITATOR INFO : D 1952 SC 115 (7) D 1954 SC 297 (10) R 1955 SC 3 (5) F 1955 SC 661 (6) RF 1959 SC 149 (52) R 1959 SC 395 (28) RF 1961 SC 65 (5,37) RF 1961 SC 232 (16,37) R 1961 SC 552 (32) RF 1962 SC1006 (34,72,75,80,81) O 1962 SC1563 (15) RF 1962 SC1621 (12,31,44,46,122,165) R 1963 SC 630 (25) R 1966 SC 619 (7) R 1970 SC 470 (33) RF 1971 SC 870 (10) D 1974 SC1105 (12) ACT: Constitution of India, Arts. 14, 31 (1), 32,265--Patiala and East Punjab States Union General Provisions (Administra- tion) Ordinance (XVl of 2005)--Union of States-Law relating to Income-tax--Uniform law introduced in all States from August 20, 1948--Provision that pending proceedings shall be governed by existing law--Assessment at different rates in different States--Equality of law--Infringement of fundamen- tal right--Assessment of income which accrued before August 20, 1948--Legality--Fundamental right not to be deprived of property save under authority of law--Whether applies to taxation--Scope of Arts. 31 (1) and 265--Application under Art. 32 for protection against tax laws--Maintainability. HEADNOTE: Section 3 (1) of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance (No. XVI of 2005) which came into force on February 2, 1949, and re- enacted s. 3 of an earlier Ordinance which was in force from August 20, 1948, provided that as from the appointed day (i.e., August 20, 1948) all laws in force in the Patiala State shall apply muutatis mutandis to 17 128 the territories of the said Union, provided that all pro- ceedings pending before courts and other authorities of any of the Covenanting States shall be disposed of in accordance with the laws governing such proeeedings in force in such Covenanting State immediately before August 20, 1948. In one of the Covenanting States, viz., Kapurthala, there was a law of income-tax in force on the said date, the rate of tax payable under which was lower than that payable under the Patiala Income-tax Act, and in another Covenanting State, Nabha, there was no law of income-tax at all. For the ac- counting year ending April 12, 1948, assessees of Kapurthala State were assessed at the lower rates fixed by the Kapur thala Income-tax Act , in accordance with the proviso in s. 3 of the Ordinance relating to pending proceedings, and the assessees of Nabha were assessed at the higher rates fixed by the Patiala Act as there was no income-tax law in Nabha on August 20, 1948, and no income-tax proceedings were therefore pending in Nabha. The petitioner who was an asses- see residing in Nabha and who was assessed under the Patiala Act applied under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari quashing the assessment on the ground (i) that he had been denied the fundamental right of equality before the law and equal protection of the laws guaranteed by Art. 14 of the Constitution inasmuch as he was assessed at a higher rate than that at which asses- sees of Kapurthala were assessed, (ii) that, as the Ordi- nance bringing the Patiala Income-tax Act into force in Nabha was enacted only on August 20, 1948, it cannot operate retrospectively and authorise the levy of tax on income which had accrued in the year ending April 12, 1948, and therefore he was threatened with infringement of the funda- mental right guaranteed by Art. 31 (1) of the Constitution that no one shall be deprived of his property save under authority of law: Held, (i) that the discrimination, if any, between the assessees of Kapurthala and Nabha was not brought about by the Ordinance but by the circumstance that there was no income-tax law in Nabha and consequently there was no case of assessment pending against any Nabha assessees; and in any case the provision that pending proceedings should be concluded according to the applicable at the time when the right is or liabilities accrued and the proceedings com- menced, was a reasonable law rounded upon reasonable classi- fication of the assessees which is permissible under the equal protection clause; (ii) that, as there is a special provision in Art. 965 of the Constitution that no tax shall be levied or collected except by authority of law, cl. (1) of Art. 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Art. 265 not a right conferred by Part III of the Constitution, it could not be enforced under Art. 129 JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 135 of 1950. Application under Art. 32 of the Constitution for a writ in the nature of a writ of certiorari and prohibition.

Dr. <NAME> (<NAME> and <NAME>, with him) for the petitioner.

<NAME>, Attorney. General for India, (<NAME>, with him) for the respondent.

1951. january 12. The Judgment of the Court was deliv- ered by DAS J -- This is an application under article 32 of the Constitution for appropriate orders for the protection of what the petitioner claims to be his fundamental rights guaranteed by articles 14 and 31. This is said to be a test case, for, on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner.

There is no serious controversy as to the facts material for the purposes of this application. They are shortly as follows: On May 5, 1948, the then Rulers of eight Punjab States including. Patiala and Nabha with the concurrence and guarantee of <ORG> entered into a covenant agreeing to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of Patiala and East Punjab States Union, hereinaf- ter compendiously referred to as the <ORG>. By article III (6) of the covenant the then Ruler of Patiala became the first President or <NAME> of <ORG> and he is to hold the office during his lifetime. Article VI of the covenant is as follows :--

"(1) The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than the 20th of August, 1948, make over the administration of his State to the Raj Pramukh, and thereupon,

(a) all rights, authority and jurisdiction belonging to the Ruler which appertain, or are incidental to the Govern- ment of the Covenanting State shall vest in the Union and shall thereafter be exercisable only as pro- vided by this Covenant or by the Constitution to be framed thereunder;

(b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the Union and shall be discharged by it;

(c) all the assets and liabilities of <ORG> shall be the assets and liabilities of the <ORG>, and

(d) the military forces, if any, of the Covenanting State shall become the military forces of the Union."

Article X provides for the formation of <ORG> to frame a constitution of a unitary type for the <ORG> within the framework of the Covenant and the Constitu- tion of India. <ORG> was also to func- tion as the interim Legislalature of the <ORG> until an elected legislature came into being. The proviso to clause (2) of that Article runs as follows :-

"Provided that until a Constitution framed by <ORG> comes into operation after receiving the assent of <NAME>, <NAME> shall have power to make and promulgate Ordinances for the peace and good government of the Union or any part thereof, and any Ordi- nance so made shall, for the space of not more than six months from its promulgation have the like force of law as an Act passed by <ORG> any such Ordinance may be controlled or superseded by any such Act."

This Union was inaugurated on July 15, 1948, and <NAME> thereafter took over the administration of the different Covenanting States. <ORG> was taken over by <NAME> on August 20, 1948. On the same day <NAME>, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union (Administra- tion) Ordinance, 2005. The following provisions of this Ordi- nance are relevant for our purpose:

"1. (2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh.

2. * *

3. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances, Acts, Rules, Regulations, Notifica- tions, Hidayats and Firrnans-i-Shahi having force of law in Patiala State on the date of commencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such covenanting State immediately before that date shall be repealed:

Provided that proceedings of any nature whatsoever pending on such date in the Courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other Ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being m any such Covenanting State."

Section 6 provides for the adaptation of the laws etc. enforced under section 3 and, amongst other things, any reference in these laws etc. to the Patiala State and the like was to be construed as a reference to the State of the Union. A notification (No.35 dated 27-5-05/11-9-1948) was issued over the signature of the <ORG> Secretary notifying that the Patiala Income-tax Act of 2001 and the Rules there- under had come into force in the various Covenanting States from August 20, 1948, thereby repealing the law or laws in force in that behalf in those States before that date, except as to pending proceedings. It may be mentioned here that prior to that date there was no law in the Nabha State imposing income-tax on the subjects of that State. On November 14, 1948, the Commissioner of Income-tax issued a Notification (No. 4, dated 29-7-2005) intimating that persons belonging to the Cove- nanting States of Nabha and Nalagarh would be assessed to income-tax under the Patiala Income Tax Act, 2001. It was mentioned that persons of those States whose income reached the taxable limit ' 'should henceforward keep regular and proper accounts for purposes of audit by <ORG>" on February 2, 1949, Ordinance 1 of 2005 was repealed and replaced by Ordinance No. XVI of 2005 promul- gated by <NAME> and called the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2006. Section 3 (1) runs as follows:

"3. (1) As from the appointed day, all laws and rules, regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply mutatis mutandis to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect;

Provided that all suits, appeals, revisions applica- tions, reviews, executions and other proceedings, or any of them, whether Civil or Criminal or Revenue, pending in the <ORG> and before authorities of any Covenanting States shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immedi- ately before the appointed day."

By section 2 (a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948. There was a section providing for adaptation similar to section 6 of the Ordinance 1 of 2005. There was another Ordinance to which reference has to be made, namely, Ordinance No. 1 of 2006 called the Finance Ordinance promul- gated on April 13, 1949, which came into force on that very date. Section 5 of that Ordinance introduced several amend- ments to the Patiala Income Tax Act, 2001. It recast  sections 3 and 34 of that Act and introduced a new section as section 23B . Section 6 of that Ordinance runs thus:

"6. For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005,-

(a) income-tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and

(b) rates of super tax shall, for the purposes of sec- tion 55 of the Patiala Income Tax Act, 2001, be specified in Part II of the Second Schedule to this Ordinance."

It is in this setting that the facts leading to the present petition have to be considered.

The petitioner is a resident of <ORG> in the district of Mohindargarh now in <ORG> but which formerly formed part of the Nabha State. The petitioner has been carrying on his business at <ORG> for a number of years under the' name and style of <NAME>. He never paid any income-tax as no such tax was imposed by any law in the Nabha State. On October '20, 1949, the petitioner was served with a notice under sections 22(2) and 88 of the <ORG> Income Tax Act, 2001, requiring him to submit a return for the Income Tax year 2006 (13-4-1949 to 12-4- 1950) disclosing his income during the previous year (13-4-1948 to 12-4-1949). The petitioner, on December 4, 1949, filed his return for the year 2006 and on February 14, 1950, he was assessed to income-tax. On May 23, 1950, the petitioner received a notice under section 34 calling upon him to file his return for the year ending the last day of Chet 2005, i.e., for the year 13-4-1948 to 12-4-1949. In this return he had to specify his income of the previous year, namely, 2004 (i.e., 13-4-1947 to 12-4-1948). It ap- pears that the petitioner along with other assessees of <ORG> and <NAME> submitted a petition before the Income Tax Officer on July 9, 1950, asking him not to proceed with the assessment for the year 2005 but on July 13, 1950, the Income Tax Officer assessed him to the best of his judgment under section 34(4) read with section 22(4) of the Income Tax Act. The petitioner along with other asses- sees similarly situated moved the Income Tax Commissioner and <ORG>, New Delhi, but without any success. No formal appeal under the <ORG> Income Tax Act appears to have been filed by the petitioner against assess- ments for either of the two years 2005 and 2006. On August 10, 1950, the petitioner filed his present petition before this Court under article 32 of the Constitution praying that a writ in the nature of a writ of certiorari be issued for quashing the assessments of the petitioner's income accrued in the years 2004 and 2005 and other ancillary reliefs. During the pendency of this petition the income-tax authori- ties have issued a notice under section 46 intimating that penalty will be imposed if the tax was not paid up. The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaran- teed to him by article 14 of the Constitution. His griev- ances are formulated in paragraphs 10 and 11 of his peti- tion. It is said that while the people of Kapurthala which is included in <ORG> have been asked to pay income-tax for the period prior to August 20, 1948, at the old rate fixed by the Kapurthala Income Tax Act which was lower than the rate fixed by the <ORG> Income Tax Act, 2001, the people of Nabha who had not to pay any income-tax prior to August 20, 1948, at all have been made liable to pay at the higher <ORG> rate and that such discrimination offends against the provisions of article 14. This charge is refuted by paragraph 10 of the affidavit of <NAME>, the Additional Director of Inspection (income Tax), New Delhi, who was formerly the Commissioner of Income Tax, Punjab and <ORG>, which has been filed in opposition to the present petition. It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending on August 20, 1948, were assessed under the Kapurthala Income Tax Act at rates fixed thereunder but that for the assess- ment year 2006 the provisions of the <ORG> Income Tax Act and the rates prescribed thereunder were uniformly applied in all areas of the <ORG>, including Kapurthala This alle- gation which is not denied in the affidavit filed by the petitioner in reply must be taken as correct. The assess- ment of Kapurthala assessees for the year 2005 at the old Kapurthala rate was obviously made under the proviso to section 3 of Ordinance No. 1 of 2005, which was reproduced in the proviso to section 3(1)of the Ordinance No. XVI of 2006 and both of which required all pending proceedings to be completed according to the law applicable to those pro- ceedings when they were initiated. No case of assessment was pending as against any Nabha assessee on August 20, 1948, for there was no Income Tax Act in Nabha prior to that date and, therefore, there could be no occasion for completing any pending proceedings against any of such assessees. In the premises, there can be no grievance by them on the score of discrimination. The discrimination, if any, was not brought about by the two Ordinances, but by the circumstance that there was no Income Tax Act in Nabha and consequently there was no case of assessment pending against any Nabha assessees. In any case the provision that pending proceed- ings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law rounded upon a reasonable classification of the assessees which is permis- sible under the equal protection clause and to which no exception can be taken. In our opinion the grievance of the alleged infringement of fundamental right under Article 14 is not well-founded at all.

Dr. <NAME> appearing in support of the petition next contends that the administration of Nabha <ORG> having been taken over by the Raj Pramukh only on August 20, 1948, and the Patiala law including the Patiala Income Tax Act, 2001, having been brought into operation on and from August 20, 1948, the assessment of the tax on the petitioner's income which accrued prior to August 20, 1948, was wholly illegal and not authorised by the said Ordinances and the <ORG> by insisting on collecting the tax so illegally assessed was threatening to invade the petitioner's fundamental right to property guaranteed by article 31(1) of the Constitution.

Article 31(1) runs as follows:

"(1) No person shall be deprived of his property save by authority of law."

It will be noticed that clause (1) reproduces subsection (1) of section 299 of the Government of India Act, 1935, without the words "in British India." Reference has 'next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance." That article provides that no tax shall be levied or collected except by authority of law. There 'was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collection of taxes amounts to deprivation of property within the meaning of article 31(1 ), then there was no point in making a sepa- rate provision again as has been made in article 265. It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain. Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made inde- pendent provision giving protection against taxation save by authority of law. When Dr. <NAME> was asked if that was not the correct position, he did ,not advance any cogent or convincing answer to refute the conclusion put to him. In our opinion, the protection against imposition and collec- tion of taxes save by authority of law directly comes from article 265 , and is not secured by clause (1) of article 31.  Article 265 , not being in Chapter IIi of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32. It is not our purpose to say that the right secured by article 265 may not be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be rounded on arti- cle 32 read with article 31(1) to this Court is misconceived and must fail.

The whole of Dr. <NAME> argument was rounded on the basis that protection against imposition and collection of taxes save by authority of law was guaranteed by article 31(1) and his endeavour was to establish that the Pepsu Ordinances could not, in law, and did not, on a correct interpretation of them, impose any income-tax retrospective- ly; that the Income Tax Officer on an erroneous view of the law had wrongly assessed the tax on income accrued prior to August 20, 1948, and that consequently the petitioner was being threatened with deprivation of property otherwise than by authority of law. In the view we have taken, namely, that the protection against imposition or collection of taxes save by authority of law is secured by article 265 and not by article 31(1 ), the questions urged by Dr. <NAME> do not really arise and it is not necessary to express any opinion on them on this application. Those questions can only arise in appropriate proceedings and not on an applica- tion under article 32. In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under article 14 or under article 31(1) and we accordingly dismiss the petition with costs.

Petition dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.


ORDER

1. Both these appeals are preferred by the <ORG> against the judgment and order of <ORG>. The question referred in both these appeals are identical. They read as follows:

(1) Whether, on the facts and in the circumstances of the case, <ORG> was right in law in holding that the distributions received by the assessee from various discretionary trusts were assessable only in the hands of the assessee of the respective trusts under Section 164 of the Income Tax Act, 1961 and not in the hands of the assessee.

(2) Whether, on the facts and in the circumstances of the case, <ORG> was right in law in holding that the amount received by assessee from various discretionary trusts is exempt from tax inasmuch as the amount was paid out of dividends, received by the trusts which were exempt under Section 80-K of the Income Tax Act, 1961.

The first question was answered by <ORG> in the affirmative, i.e. , in favour of the assessee and against the <ORG>. It is , however, agreed now before us by counsel for both the parties that the judgment of <ORG> has to be reversed following the decision of this Court in <CITATION> . . Accordingly, the first question is answered in the negative, i.e. , in favour of the <ORG> and against the assessee.

2. So far as the second question is concerned, <ORG> has declined to answer that question in view of its answer to Question 1. Inasmuch as we have reversed <ORG>'s answer to Question 1, Question 2 now requires to be gone into and answered. Accordingly, the matters are remitted to <ORG> to consider and answer Question 2 alone in accordance with law.

3. Appeals are allowed in part and the matters are remitted to <ORG>. No costs.


JUDGMENT <NAME>, J.

1. The suit that has given rise to this appeal relates to certain lands lying in the town of Madura in the Madras Presidency which admittedly belong to an old math situated within the Mysore State, The origin, development, and raison d'etre of these maths have been discussed in a number of cases decided in <ORG> to some of which their Lordships propose to refer in the course of this judgment. In their general characteristics they are almost identical with similar institutions in Northern India and in the Bombay Presidency. The heads of these foundations bear different designations in respect of the rights and incidents attached to the office; the difference arises from the customs and usages of each institution. The superior of this particular math has been called in these proceedings matathipathi and sometimes pandara sannadhi, which their Lordships understand connote the same idea of headship. At the time this action was brought, the 26th defendant held the office of matathipathi. He has since died and the present appellant is the head of the institution. In 1891 one <NAME> was the matathipathi and he on March 17 of that year granted to the 2nd plaintiff, a near relative, a permanent lease of the lands in the suit, on a small quit rent of Rs. 24 a year. Shortly after the grant of the lease <NAME> died, and was succeeded by one <NAME>, who held the office until 1906, On his death the now deceased defendant No. 26 became the bead. In 1902 the 2nd plaintiff sub-leased the lands to the 1st and 2nd defendants for a period of ten years.

2. Since 1905 the math has been under the management of the Mysore State under a power of attorney, executed at first by the matathipathi Samudra and afterwards by his successor, in favour of the <ORG> and his successors in office. About the same time the 2nd plaintiff conjointly with his son (the 3rd plaintiff) assigned their right and interest in the lands in suit to the 1st plaintiff. It is in evidence and, so far as appears from the judgments of the two Courts in India, does not appear to be contradicted, that it was only in 1908 that the representative of the <ORG>, acting under the power granted by the matathipathi, became aware of the transaction of 1891 under which the plaintiffs claim title. The sub-lease created in 1902 by the 2nd plaintiff in favour of the 1st and 2nd defendants was to have expired in 1912. But before its expiry they obtained a lease for seventeen years from the representative of the <ORG>. They are <ORG> in possession of the lands in suit under this lease. The plaintiffs are and were at the time they brought their suit on March 5, 1918, in <ORG> of Madura, admittedly out of possession. The present action is for declaration of title and for ejectment and possession, principally directed against the matathipathi as the head of the math and the 1st and 2nd defendants lessees holding possession under him. The other defendants have been joined as parties apparently in consequence of certain rights they possess or exercise under those defendants.

3. The plaintiffs base their title on two grounds : First, that the permanent lease under which they claim was created under circumstances that would ?rind not only the grantor but all his successors; and secondly, that even it the lease was not valid they had acquired a title under the Indian Limitation Act .

4. Their case throughout his been that <NAME> was a "trustee" and that all his successors are "trustees," that the lands were granted on a "specific" trust, and that consequently under Article 134 of Schedule 1 of the Indian Limitation Act (IX of 1908) they have acquired a good title against the <ORG>. The matathipathi controverted both allegations. He denied that the alienation by <NAME> was of such a character as would bind the <ORG>; he further denied that he and his predecessors were "trustees" of the <ORG> or that the 2nd plaintiff or his assignee had acquired any right to the <ORG> lands by adverse possession. On these contentions, two points arose for determination which are embodied in the first two issues.

5. The Subordinate Judge, after giving the substance of the 2nd plaintiff's evidence and of the other witnesses, formulates the position which the pleader took up.

He contends, says the learned judge, that the plaint property is trust property set apart for the worship of the titular deity of the <ORG>, that the head of the <ORG> is a trustee merely, and that the permanent lease to second plaintiff is an alienation of <ORG> property and that 26th defendant at this distance of time could possibly have no right to such property. The alienation being ab initito void, the 26th defendant had no right to plaint property as he succeeded only in 1906 and first plaintiff had perfected his title by adverse possession for over twelve years.

6. The Subordinate Judge negatived that contention; he held upon the admissions of the 2nd plaintiff that the property in suit was "ordinary math property " and was not set apart on any specific trust; that the head of the math was not a bare trustee, " as it was admitted that the income was at his absolute disposal and that "none had a right to question him about it. " He found also that the 2nd plaintiff took the lease with full knowledge of the character of the endowment and had learnt on inquiry that " he could not safely purchase it."

7. With regard to the question of estoppel arising from the alleged acceptance of rent by the 26th defendant as the plaintiffs contended, the Subordinate Judge held : "In fact the 1st plaintiff never paid money as rent and the 26th defendant or his agent never accepted payment with knowledge that the payment was as rent for plaint property. In these circumstances, I find that these defendants are not estopped from denying plaintiff's title. I find this issue against plaintiffs." He accordingly dismissed the suit save and except in respect of a money claim against the 1st and 2nd defendants.

8. The plaintiffs appealed to <ORG>, which reversed the trial judge's order and decreed the claim. The learned judges do not negative the finding of the first <ORG> that the 2nd plaintiff took the lease with notice. But they considered that the matter in dispute fell within art. 134 referred to above. They summed up their conclusion in the following words: "that the lessor intended to grant, and the lessee intended to acquire, an interest greater than the transferor was competent to alienate, and all the requirements of art. 134 have been complied with,"

9. The findings of the learned judges on the issue relating to the limitation and the acquisition of right by adverse possession require notice. They deal first with the question of justifiable necessity, which they decide against the plaintiffs. They say "there is no doubt that the head of a math cannot in the absence of necessity bind his successors in office by a permanent lease at a fixed rent for all time." And then add: "There is no allegation, much less proof, of any such necessity. The first contention must be rejected." They then proceed to discuss the nature of the endowment in question and the position of its head. Their finding on this point is important; they say as follows :

In connection with the second point a question arises as to the nature of the endowment and the position of the head of the <ORG> in relation to it. The exact terms of the original grant are not in evidence. It was conceded in argument that the grant was made by one of the Naicken dynasty of Madura. The case for the appellants is that the endowment was for a specific purpose, i.e., for the worship of Gopalakrishnaswami, who is described by defendants' 1st witness as the 'titular deity of the <ORG>.' The evidence does not support this contention and it has been found against in the lower Court. A statement made by a local agent of the <ORG> during the <ORG> inquiries is relied upon for the appellants. It was apparently unsupported by any documentary evidence. The description of the in am as given at the close of the inquiry is that it was granted 'for the support of Vyasaraya matam' (Exhibit L.). Compare also description in Exhibit F. The evidence for the defendants is that the income from this property is not appropriated to any particular purpose but forma part of the general finds of the <ORG>. I think the grant must be held to have been made for the general purposes of the <ORG>.

10. They thus concur with the first <ORG> that there was no "specific trust" which was the foundation of the plaintiff's case. But after examining some of the judgments of their own <ORG>, they apparently felt constrained to hold that the decision of this <ORG> in <NAME>, Parkash Das v. <NAME> (1916) L.R. 43 I.A. 73 had crystallized the law on the subject, and definitely declared the mahant to be a "trustee." It is to be observed that in that case the decision related to the office of mahant, but in the course of their judgment their Lordships conceived it desirable to indicate inter alia what upon the evidence of the usages and customs applicable to the institution with which they were dealing, and similar institutions, were the duties and obligations attached to the office of superior; and they used the term "trustee" in a general sense, as in previous decisions of the <ORG>, by the way of compendious expression to convey a general conception of those obligations. They did not attempt to define the term or to hold that the word in its specific sense is applicable to the laws and usages of the country. As pointed out by their predecessors in <CITATION> (1867) 11 Moo. I.A. 405, 428 : "The only law as to these mahants and their..functions, and duties, is to be found in custom and practice, which is to be proved by testimony." Generally speaking, however, the duties and obligations resting on the superior indicated in <NAME> Parkash Das v. <NAME> (1916) L.R. 43 I.A. 73 do not seem to vary. In this particular institution the position of the matathipathi in relation to the math was clearly established by testimony and concurrently found by both <ORG>s. But the learned judges misapprehended their Lordships' judgment and proceeded to hold that as <NAME> who granted the permanent lease was a "trustee," his act fell under art. 134. To this article their Lordships will presently refer. Before doing so, however, they consider it necessary to observe that there are two systems of law in force in India, both self-contained and both wholly independent of each other, and wholly independent of foreign and outside legal conceptions. In each there are well-recognized rules relating to their religious and charitable institutions. From the year 1774 the <ORG>, British and Indian, has affirmed time after time the absolute enjoyment of their laws and customs so far as they are not in conflict with the statutory laws, by Hindus and Mahommedans. It would, in their Lordships' opinion, be a serious inroad into their rights if the rules of the Hindu and Mahommedan laws were to be construed with the light of legal conceptions borrowed from abroad, unless perhaps where they are absolutely, so to speak, in pari materia. The vice of this method of construction by analogy is well illustrated in the case of <NAME> v <NAME> (1904) I.L.R. 27 Mad. 435 where a mahant's position was attempted to be explained by comparing it with that of a bishop and of a beneficed clergyman in England under the ecclesiastical law. It was criticised, and rightly, in their Lordships' opinion, in the subsequent case, which arose also in the Madras High <ORG>, of <CITATION> . (1909) I.L.R. 33 Mad. 265 To this judgment their Lordships will have to refer further later on.

11. It is also to be remembered that a "trust" in the sense in which the expression is used in English law, is unknown in the Hindu system, pure and simple (<NAME>, "Hindu Law" p. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institution of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmans, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a "juristic entity," vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same "juristic" capacity, and gifts are made to them eo nomine. In many cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of math were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the institution, but always subject to certain obligations and duties, equally governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Galled by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is ho a "trustee," in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration.

12. The conception of a trust apart from a gift was introduced in India with the establishment of Moslem rule. And it is for this reason that in many documents of later times in parts of the country where Mahommedan influence has been predominant, such as Upper India and the Carnatic, the expression wakf is used to express dedication.

13. But the Mahommedan law relating to trusts differs fundamentally from the English law. It owes its origin to a rule laid down by the Prophet of <ORG>; and means "the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings." When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows, as in the case of <NAME> v. Shah Kubeerood-deen (1840) 2 Moo. I.A. 390 that a dedication to pious or charitable purposes is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. In <NAME> case <ORG> call him "procurator." That case related to a khankah, a Mahommedan institution analogous in many respects to a math where Hindu religious instruction is dispensed. The head of these khankhas, which exist in large numbers in India, is called a sajjadanishin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities and has in most cases a larger interest in the usufruct than an ordinary mutawalli. But neither the sajjadanishin nor the mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a "trustee "in the technical sense.

14. It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that <ORG> in enacting the Indian Trusts Act (II of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments. Section 1 of that Act, after declaring when it was to come into force and the areas over which it should extend "in the first instance," lays down," but nothing herein contained affects the rules of Mahommedan law as to wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments..." Section 3 of the Act gives a definition of the word "trust" in terms familiar to English lawyers. It says:

A 'trust' is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner the person who reposes or declares the confidence is called the 'author of the trust'; the person who accepts the confidence is called the "trustee"; the person for whose benefit the confidence is accepted is called the 'beneficiary'; the subject-matter of the trust is called 'trust-property' or 'trust-money'; the 'benefical interest' or 'interest' of the beneficiary is his right against the trustee as owner of the trust property and the instrument, if any, by which the trust is declared is called the 'instrument of trust.'

15. In this connection it may be observed that in the case of <NAME> v. <NAME> (1920) L.R. 47 I.A. 224, 230 the dedication was specific property created by an instrument called a "trustee-namah." Lord <NAME>, delivering the judgment of the <ORG>, dealt thus with the objection as to the validtiy of the document:

It is argued, said the noble lord, that the 'trustee-nama' must have dealt with an interest in immoveable property, for otherwise the trustees could have no right to maintain the suit; and such an argument at first sight makes a strong appeal to those who are accustomed to administer the English law with regard to trustees. It needs, however, but a slight examination to show that the argument depends for its validity upon the assumption that the trustees of the wakf-nama in the present case stand in the same relation to the trust that trustees to whom property had been validly assigned would stand over here. Such is not the case. The wakf-nama itself does not purport to assign property to trustees.

16. In 1810 in the Bengal Presidency, and in 1817 in the Madras Presidency, <ORG> had assumed control of all the public endowments and benefactions, Hindu and Mahommedan, and placed them under the charge of the respective <ORG>. In 1863, under certain influences to which it is unnecessary to refer, the <ORG> considered it expedient to divest itself of the charge and control of these institutions, and to place them under the management of their own respective creeds. With this object, Act XX of 1863 was enacted : a system of Committees was devised to which were transferred the powers vested in <ORG> for the appointment of "managers, trustees and superintendents"; rules were enacted to ensure proper management and to empower the superior court in the district to take cognizance of allegations of misfeasance against the managing authority. Their Lordships are not giving a summary of the Act, but indicating only its general features. The Act contains no definition of the word "trustee"; it uses indifferently and indiscriminately the terms "manager, trustee or superintendent," clearly showing that the expressions were used to connote one and the same idea of management. After the enactment of 1863, the Committees, to whom the endowments were transferred, were vested, generally speaking, with the same powers as the <ORG> had possessed before in respect of the appointment of "managers, trustees or superintendents."

17. Article 134 of Schedule I to the Indian Limitation Act (IX of 1908) is in these terms : "To recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for valuable consideration," the period prescribed for the institution of the suit is twelve years "from the date of transfer." In the old Act XV of 1877, the words were "purchased from the trustee or mortgagee." The alteration was made with the object of including permanent leases in transactions of the character contemplated in the article.

18. Article 134 is, as pointed out in <NAME> case, (1909) L.R. 36 I.A. 148 controlled by Section 10 of the Indian Limitation Act, which runs thus:

Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

19. The language of Section 10 gives the clue to the meaning and applicability of art. 134. It clearly shows that the article refers to cases of specific trust, and relates to property "conveyed in trust." Neither under the Hindu Law nor in the Mahommedan system is any property "conveyed" to a shebait or a mutawalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in <NAME>. The curator, whether called mutawalli or sajjadanishin, or by any other name, is merely a manager. He is certainly not a "trustee" as understood in the English system.

20. In <NAME> v. <NAME> (1879) I.L.R. 2 Mad. 175, 179 the position of the superior in relation to the properties of the math was laid down in terms which have an important bearing on the present case. The learned judges say there:

The property is in fact attached to the office and passes by inheritance to no one who does not till the office. It is in a certain sense trust property it is devoted to the maintenance of the establishment, but the superior has large dominion over it, and is not accountable for its management nor for the expenditure of the income, provided he does not apply it to any purpose other than what may fairly be regarded as in furtherance of the objects of the institution. Acting for the whole institution he may contract debts for purposes connected with his <ORG>, and debts so contracted might be recovered from the <ORG> property and would devolve as a liability on his successor to the extent of the assets received by him.

21. The origin and nature of these maths were again considered at great length in a case which arose in the same Court in 1886. In that case (Giyana Sambandha v. <NAME> (1887) I.L.R. 10 Mad. 375) the learned judges pronounced that the head of the institution held the mattam under his charge, and its endowment in trust for the maintenance of the math, for his own support, for that of his disciples, and for the performance of religious and other charities in connection therewith according to usage. An almost identical question came up for consideration in 1904 in <CITATION> (1904) I.L.R. 27 Mad. 435 already referred to. In that case the learned judges, after an elaborate examination of English institutions which they conceived to be analogous to Hindu maths, came to the conclusion that, whilst a dharmakarta of a temple who has specific duties to perform might be regarded as a trustee, the superior of a math is not a trustee but a "life-tenant."

22. The same question in another form came up again for consideration in 1909 before a Divisional Bench of <ORG> in the case of <CITATION> . (1909) I.L.R. 33 Mad. 265 The learned judges before whom the point arose considered that the view taken in <CITATION> was in conflict with that propounded in the two earlier cases (1879) I.L.R. 2 Mad. 175 : (1887) I.L.R. 10 Mad. 375 and referred the question to a Full Bench. The reference was in these terms : "Does the head of a math hold the properties constituting its endowment as a life-tenant or as a trustee ?"

23. The officiating Chief Justice expressed his opinion in the following terms: "I think, then, that it cannot be predicated of the head of a math as such, that he holds the properties constituting its endowments as a life-tenant or as a trustee. The incidents attaching to the properties depend in each case upon the conditions on which they were given, or which may be inferred from the long-continued and well-established usage and custom of the institution in respect thereto." <NAME> substantially agreed in this view. <NAME> pointed out that in the case of these maths (p. 286): " Any surplus that remains in the hands of the pandara sannadhi, he is expected to utilise for the spiritual advancement of himself, his disciples or of the people. But his discretion in this matter is unfettered. He is not accountable to anyone and he is not bound to utilise the surplus. He may leave it to accumulate." And he further added: "It is also true in my opinion that be is under a legal obligation to maintain the math, to support the disciples and to perform certain ceremonies which are indispensable. That will be only a charge on the income in his hands and does not show that the surplus is not at his disposal." In the result, he was of opinion "that in the absence of any evidence to the contrary, the pandara sannadhi (the superior) as such is not a trustee. He is also not a life-tenant for the reasons already given." All three judges agreed in thinking that if any specific property was specifically entrusted to the head for specific purposes he might be regarded as a "trustee" with regard to that property; but that in the absence of any such evidence the superior was not a trustee in respect of any part of the endowment.

24. The point came up for discussion again in a concrete form in 1913 in <CITATION> (1913) I.L.R. 38 Mad. 356, where the exact point for decision was the question of limitation. The facts which gave rise to the litigation were almost identical with the present case before their Lordships, with this difference, that the suit there was brought by the head of the math to recover possession of the leased properties. <NAME> stated thus the question for determination:

The principal question, a question which arises in both the appeals, is whether the suit is barred by limitation. It is conceded for the appellants that the lease is in excess of the powers of the matathipathi, and their contention is that the suit is barred because limitation must run from the date of the alienation in 1872, the lease being void, or at the latest from the death of <NAME> in 1890.

25. The learned judges held in substance that there was no specific trust, that the properties were given or endowed generally for the performance of the worship of the deities in the math and other attendant duties and for the support of the superior and his disciples; that a lease granted by him was valid for his life, and if adopted by his successor would enure during his term of office; but neither the original alienation nor the subsequent adoption would create a bar by adverse possession.

26. These cases deal exclusively with the position of the superior of a math in relation to its endowment. But there are some others respecting the powers of the managers of religious institutions generally. In <NAME> v. <NAME> (1889) I.L.R. 13 Mad. 277 a lease was granted by the dharmakarta of a temple; and the suit to recover the leased lands was brought by his successor in office. The defence was limitation, running from the date of alienation. <NAME> (<NAME> concurring) held as follows:

In the present case, though the plaintiff may in point of time have succeeded the dharmakarta who made the alienation, he does not derive his title from that dharmakarta and is, therefore, not bound by his acts. Subject to the law of limitation, the successive holders of an office, enjoying for life the property attached to it, are at liberty to question the dispositions made by their predecessors ( <CITATION> (1889) I.L.R. 7 Mad. 85, <NAME> v. <NAME> (1885) I.L.R. 10 Bom. 34, Modho Kooery v. <NAME> (1882) I.L.R. 9 Cal. 411, and it is equally clear that time runs against the successor who challenges his predecessor's disposition, not from the date of the disposition, but from the date of the predecessor's death, when only the successor became entitled to possession. Accordingly, <NAME> having died so recently as 1885, the plaintiff's suit cannot be barred by limitation.

27. That was followed in <CITATION> . (1894) I.L.R. 13 Mad. 266 In that case the superior is called the "manager."

28. <CITATION> (1896) I.L.R. 19 Mad. 485 it was conceded that " the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation." But from the long lapse of time between the alienation and the challenge of its validity, coupled with other circumstances, the learned judges came to the conclusion that necessity may reasonably be presumed.

29. From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a "trustee " to whom property has been "conveyed in trust" and who by virtue thereof has the capacity vested in him which is possessed by a "trustee" in the English law. Of course, a Hindu or a Mahommedan may "convey in trust" a specific property to a particular individual for a specific and definite purpose, and place himself expressly under the English law when the person to whom the legal ownership is transferred would become a trustee in the specific sense of the term.

30. But the respondents rely on three decisions of <ORG> in support of their contention that persons holding properties generally for Hindu and Mahommedan religious purposes are to be treated as "trustees." The first is a decision of <ORG> in <CITATION> . (1902) I.L.R. 27 Bom. 363 The facts of that case were peculiar. The math there was an old one and the dedication was recognized and confirmed by <ORG>. The village was granted to a holy ascetic for the maintenance of a charity attached to the math; the governance went by succession to the disciples of the guru (the spiritual preceptor or head). In 1871 the village was divided between two disciples, <NAME> and <NAME>, in equal moieties, and each held his half separately from the other. In the same year one of them, <NAME>, sold the lands in dispute to the defendant. In 1897 <NAME> obtained a <ORG> from <ORG> under Act II of 1863 declaring him to be the absolute owner of his share. He died in August, 1897, after appointing the plaintiff as his successor, who in 1898 brought an action to recover possession of the alienated lands on the ground that <NAME> had no power to alienate them as they were dedicated property. The defence was first that the <ORG> had altered the character of the property, and secondly that the suit was barred. The lower appellate Court found that the lands in suit were private alienable property and that consequently the action was barred. The first finding was strongly challenged by the plaintiff's counsel on second appeal. He contended that as it was dedicated property its holders from time to time "could not allow the <ORG> to treat it as private property," The learned judges of <ORG> refrained from deciding that point; and confined their attention solely to the question of limitation. They proceeded to deal with the case, as they expressly say "on the hypothesis that the lands in suit were held by <NAME> and <NAME> as heads of the math and as trustees therefor." On that hypothesis the conclusion at which they arrived was inevitable. The position of the head of the math in relation to its property under the Hindu law, custom and practice, was not considered; he was simply assumed to be a trustee. The pith of the judgment consists in the following words : "We have then here a suit to recover possession of immoveable property conveyed in trust and afterwards purchased from the trustee for a valuable consideration." "Conveyed in trust" is hardly the right expression to apply to gifts of lands or other property for the general purposes of a Hindu religious or pious institution. The learned judges relied on the two decisions of the Allahabad and Calcutta <ORG> to which their Lordships will presently refer. The case, however, was practically decided on the exposition of the law in the case of St. Mary Magdalen, Oxford v. Attorney-General. (1857) 6 H.L.C. 189 With respect to it they say as follows : "In further support of this conclusion we would also refer to the already cited case of St. Mary Magdalen Oxford v. Attorney-General (1857) 6 H.L.C. 189 for though it is a decision on the English statute, still it contains many points of resemblance to the present, and furnishes us with the clearest exposition of the law applicable to cases of this class. We propose to refer to that case in some detail, as it probably is not within the reach of most <ORG> in this Presidency." They set out the provisions of Sections 2, 24 and 25 of Will. IV. c. 27, and then add, "the section ( Section 25 ), it will be seen, corresponds more or less with our Articles 134 and 144 and Section 10 of the Limitation Act." Speaking with respect, it seems to their Lordships that the distinction between a specific trust and a trust for general pious or religious purposes under the Hindu and Mahommedan law was overlooked, and the case was decided on analogies drawn from English law inapplicable in the main to Hindu and Mahommedan institutions. That case can hardly be treated as authority in the decision of the present controversy.

31. The case of <CITATION> (1903) I.L.R. 27 Bom. 373 only followed the view expressed in <CITATION> . (1902) I.L.R. 27 Bom. 363 But the facts, when examined, show a marked difference in the legal position of the parties in the two oases. The mulgeni lease under which the defendant claimed title was granted in 1845, and the suit to set it aside was brought somewhere in 1899. Repeated attempts were made by successive managers of the temple to obtain enhancement of rent, but the suits were invariably withdrawn. There was thus clear acquiescence on the part of successive managers in the validity of the transaction. The case fell within the principle of <NAME> case, (1896) I.L.R. 19 Mad. 485 and might well have been decided without disturbance of Hindu law or usage.

32. The second decision relied upon in support of the respondents' contention is the case of <CITATION> (1898) I.L.R. 20 All. 482 which related to a Mahommedan shrine. The origin and history of these shrines or durgahs, as they are called, is described compendiously in the judgment in <CITATION> (1891) I.L.R. 19 Cal. 203, 220, 222:

The sajjadanashin has certain spiritual functions to perform. He is not only a mutawali, but also a spritual preceptor. He is the curator of the durgah where his ancestor is buried, and in him is supposed to continue the spritual line (silsilla). As is well known, these durgahs are the tombs of celebrated dervishes, who in their life-time were regarded as saints. Some of these men had established khankahs where they lived and their disciples congregated. Many of them never rose to the importance of a khankah, and when they died their mausolea became shrines or durgahs. These dervishes professed esoteric doctrines and distinct systems of initiation...The preceptor is called the pir, the disciple the murid. On the death of the pir his successor assumes the privilege of initiating the disciples into the mysteries of dervishism or sufism. This privilege of initiation, of making murids, of imparting to them spiritual knowledge, is one of the functions which the sajjadanashin performs or is supposed to perform." [The endowment is maintained by grants of lands to the shrines by pious Moslems. The head of the institution, like that of a khankah, is called a sajjadanishin. The governance (tow liat) of the endowment is in his hands; he is a mutawali, with the duty of imparting spiritual instruction to those who seek it. The property of the 'shrine' is wakf 'tied up in the ownership of God.']

33. The appointment of the sajjadanishin is regulated by usage and practice. This is referred to in the same judgment:

Upon the death of the last incumbent, generally on the day of what is called the slum or teja ceremony (performed on the third day after his decease), the fakirs and murids of the durgah, assisted by the heads of neighbouring durgahs, instal a competent person on the guddi generally the person chosen is the son of the deceased or somebody nominated by him, for his nomination is supposed to carry the guarantee that the nominee knows the precepts which he is to communicate to the disciples. In some instances the nomination takes the shape of a formal installation by the electoral body, so to speak, during the lifetime of the incumbent.

34. The duties in connection with the "shrine," apart from giving spiritual instruction, consist in the due observance of the annual ceremonies at the tomb of the Saint, the distribution of charity at fasts and festivals, the celebration of the birthday of the Prophet, and the performance of other rites and ceremonials prescribed either by the religious law or by usage and practice. Ordinarily speaking, the sajjadanishin has a larger right in the surplus income than a mutawalli, for so long as he does not spend it in wicked living or in objects wholly alien to his office, he, like the mahant of a Hindu math, has full power of disposition over it.

35. <CITATION> (1898) I.L.R. 20 All. 482, the plaintiff as sajjadanishin sued to set aside certain mortgages executed by his predecessor in office, and dated his cause of action from the time he was appointed as sajjadanishin. The learned judges, on a misconception of the rules of the Mahommedan law and of the judgment of their Lordships in <NAME> v. Shah <NAME> (1810) 2 Moo. I.A. 390, held that the sajjadanishin was a "trustee." One judge held that the suit was barred either under Article 134 or art. 144; the two others held that Article 134 was applicable as the mortgages were created by a "trustee." Their Lordships hare to differ from that conclusion. In their opinion this case was not, in view of the considerations set forth above, correctly decided.

36. As regards the third case, <CITATION> (1896) I.L.R. 23 Cal. 536, the suit was brought by the plaintiff as the shebait of a Hindu idol to set aside a dar-mukarrari pottah, executed in respect of certain of the debottar lands by two ladies who acted as shebaits during his minority. He alleged that he became entitled to sue for possession of the alienated lands on his appointment to the office of shebait by a decree of the Court. The material defence was that the claim was barred. It should be observed that the dar-mukarrari was created in 1857 and the suit was brought after 18S8. In the judgment of <ORG> the words shebait and trustee are used as synonymous and convertible terms; the expression is always "shebait or trustee." Probably the fact that the shebait has duties and obligations in connection with the dedication, influenced the employment of the word "trustee" in a general sense. Mr. <NAME> uses the expression in the same general sense to connote the same idea. That the learned judge did not regard the shebait as a trustee in the specific sense may be inferred from his indecisive conclusion as to the application of Article 134 to the plaintiff's claim. It is quite clear, however, that the legal position of a shebait is quite different from that of a trustee to whom specific property is "conveyed" on a specific trust. In <NAME> v. <NAME> (1875) L.R. 2 I.A. 145, 151 where the question for determination was whether a particular transaction challenged as invalid had been entered into for such necessity as would make it binding on the dedication, Sir <NAME>, in delivering the judgment of the <ORG>, scrupulously avoided the use of the confusing word "trustee." Dealing with the powers of the shebait, he said as follows:

But, notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is, in their Lordships' opinion, competent for the sebait of property dedicated to the worship of an idol, in the capacity as sebait and manager of the estate, to incur debts and borrow money for the proper expenses of keeping up the religious worship, repairing the temples or other possessions of the idol, defending hostile litigious attacks, and other like objects. The power, however, to incur such debts must be measured by the existing necessity for incurring them. The authority of the sebait of an idol's estate would appear to be in this respect analogous to that of the manager for an infant heir, which was this defined in a judgment of this <ORG>, delivered by Knight <NAME>.... It is only in an ideal sense that property can be said to belong to an idol; the possession and management of it must in the nature of things be entrusted to some person us sebait, or manager. It would seem to follow that the person so entrusted must of necessity be empowered to do whatever may be required for the service of the idol, and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued, for want of the necessary funds to preserve and maintain them.

37. The identical question relating to the powers and position of a shebait was again before the <ORG> in <NAME> case (1909) L.R. 36 I.A. 148, 165 already referred to. With regard to the powers of the shebait, their Lordships say as follows :

The second question is whether, this being so, the mohunt had power to grant a mokarari pottah of the mouzah. It is well settled law that the power of the mohant to alienate debottar property is, like the power of the manager for an infant heir, limited to cases of unavoidable necessity. <NAME> v. <NAME> (1875) L.R. 2 I.A. 145. In the case of <NAME> v. <NAME> (1876) L.R. 4 I.A. 52 a mokarari pottah of debottar lands was supported on the ground that it was granted in consideration of money said to be requited for the repair and completion of a temple, for which no other funds could be obtained. But the general rule is that laid down in the case of <NAME> v. Mathooranath Acharjo (1869) 13 Moo. I.A. 270, 275, that apart from such necessity 'to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty' in the mohant. There is no allegation that there were any special circumstances of necessity in this case to justify the grant of the pottah of 1860, which on the most favourable construction enured only for the lifetime of the grantor, <NAME>, who died in 1891, or of the pottah of 1896, which, at best, could only be deemed operative during the lifetime of <NAME>, who died in 1900.

38. The question came up again for consideration by the <ORG> in the case of <NAME> v. <NAME>. (1917) L.R. 44 I.A. 147,155, 156 The suit was instituted by the head of a math to recover possession of certain land which formed part of the endowment of a Hindu temple attached to the math, and had been granted by his predecessor to the defendant by a perpetual rent-free lease in consideration of a small sum of money paid at the time. The contention in that case was that the alienation was for the benefit of the institution; that contention was overruled, and the decision proceeded on the basis that the shebait was only a manager. Lord <NAME>, delivering the judgment of the <ORG>, further added: "Three authorities have been cited which establish that it is a breach of duty on the part of a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debottar lands at a fixed rent, however adequate that rent may be at the time of granting, by reason of the fact that by this means the debottar estate is deprived of the chance it would have, if the rent were variable, of deriving benefit from the enhancement in value in the future of the lands leased." In that case the leased lands were situated in the street of a village; here they are in the town of Madura.

39. Reverting then to the judgment in <NAME> case (1896) I.L.R. 23 Cal. 536, their Lordships think that the expression "trustee" was loosely and, speaking with respect, wrongly applied to the shebait in order to bring the case under art. 134. It is to be observed that in none of the three cases was there any examination of the laws and usages governing the respective institutions, or of the Madras decisions, in which the subject had been elaborately considered.

40. In the present Case the character of the endowment in relation to the superior is proved beyond contradiction. It has been found concurrently by both the <ORG> in India that the endowment was held by the defendant No. 26 for the general purposes of the institution. Considerable stress was laid on behalf of the respondents on the entry in <ORG> that the dedication was for a specific purpose-namely, the worship of the idol. The <ORG> proceedings did not create any dedication. They were instituted simply with the object of investigating titles to hold lands revenue free as belonging to valid endowments. The gifts were made long before the <ORG> proceedings by the Hindu kings or chiefs who then held the country. The purposes of the dedication must therefore be gathered from established usage and practice, and that has been found by the <ORG> in India. Again, "valuable consideration" forms the essence of both Section 10 of the Limitation Act and of Article 134 of Sch. I. Even if this were a specific trust, which it is not, it would be ridiculous to hold that the rent reserved in the grant to the second plaintiff was "valuable consideration."

41. In the <ORG> below the plaintiffs rested their claim mainly, if not entirely, on art. 134. Before the <ORG> an alternative argument has been advanced. It is contended that the second plaintiff acquired the title he is seeking to establish by twelve years' adverse possession under Article 144. That article declares that for a suit "for possession of immoveable property or any interest therein not hereby (i.e., by the schedule) otherwise specially provided for" the period of limitation is twelve years from the date when the possession of the defendant became adverse to the plaintiff. In view of the argument it is necessary to discover when, according to the plaintiff, his adverse possession began. He was let into possession by <ORG> No. 1 under a lease which purported to be a permanent lease, but which under the law could endure only for the grantor's lifetime. According to the well settled law of India (apart from the question of necessity which does not here arise) a <ORG> is incompetent to create any interest in respect of the math property to endure beyond his life. With regard to <ORG> No. 2, he was vested with a power similarly limited. He permitted the plaintiff to continue in possession and received the rent during his life The receipt of rent was with the knowledge which must be imputed to him that the tenancy created by his predecessor ended with his predecessor's life, and can, therefore, only be properly referable to a new tenancy created by himself. It was within his power to continue the tenancy during his life, and in these circumstances the proper inference is that it was so continued, and consequently the possession never became adverse until his death.

42. There is one other point which deserves notice. The administration of the second mahant lasted until 1906. In 1905, however, the math went under the management of the <ORG> of the Mysore State, under a power of attorney granted by the mahant and his successor, who may conveniently be designated as <ORG>. Certain persons to whom the second plaintiff had sub-leased the lauds for ten years thereupon obtained from the <ORG> during the currency of their term a lease for seventeen years. It is a direct lease from the <ORG> as holder of a power of attorney from <ORG>. The lessees thereunder have been in possession for some years prior to this suit, and the object of the present action is not to keep the plaintiff in possession but to eject these possessors, who hold under a title proceeding from the <ORG> and <ORG>, and to upset the act of administration of <ORG>, on the ground of rights acquired adversely to the math by lapse of time during the incumbency of <ORG>.

43. For the foregoing reasons their Lordships are of opinion that neither Article 134 nor Article 144 applies to this case; that the plaintiffs have acquired no title under either of those articles; that the judgment and decree of <ORG> must therefore be reversed, and the order of the Subordinate Judge dismissing the suit restored with costs here and of the appellate Court.

44. Their Lordships will humbly advise His Majesty accordingly.


ORDER

1. The order under challenge in this appeal by the <ORG> followed the earlier judgment of the same <ORG> in the case of <CITATION>  204 ITR 866. Learned counsel for the <ORG> states that the papers before us suggest that a special leave petition was preferred against that judgment but he has no instructions as to what happened thereafter. Learned counsel for the respondents states that their enquiries with the <ORG> reveal that no appeal against that judgment was preferred by the <ORG>.

2. If the <ORG> did not accept the correctness of the judgment in the case of <NAME> [1993] 204 ITR 866 (Guj), it should have preferred an appeal there against and instructed counsel as to what the fate of that appeal was or why no appeal was filed. It is not open to the <ORG> to accept that judgment in the case of the assessee in that case and challenge its correctness in the case of other assessees without just cause. For this reason, we decline to consider the correctness of the decision of <ORG> in this matter and dismiss the civil appeal.

3. No order as to costs.