CASE NO.: Appeal (civil) 11768 of 1996 PETITIONER: <ORG> & <ORG>. Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT: 14/02/2001 BENCH: V.N.Khare, S.N.Variava JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T S. N. VARIAVA, J.

This Appeal is against a judgment dated 10th July, 1996. By this judgment a number of Writ Petitions filed before <ORG> have been dismissed. The Petitioners in all the Writ Petitions were doing the business of preparing tanned and finished leather. The question involved in all the four Petitions was whether 'tanned leather' can be subjected to Uttar Pradesh Mandi Fee payable under the provisions of U.P. Krishi Utapadan Mandi Adhiniyam, 1964 (hereinafter for the sake of convenience called the said Act). For an understanding of this question it is necessary to see Section 2 (a) of the said Act which reads as follows : "'Agricultural produce' means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandry or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes Gur, Rab, Shakkar, Kandsari and jaggery".

Schedule G of the said Act deals with "Animal Husbandry". Serial No. 11 thereunder includes 'hides and skins'. The question which had been raised in the Writ Petitions and which is raised here is whether the term 'hides and skins' includes 'tanned leather'. Mr. <NAME> has submitted that admittedly the term 'tanned leather' has not been used either in the Act or in the Schedule. He admits that under Section 2(a), not just the items which have been specified in the Schedule but also an admixture of two or more such items or any of those items in a processed form, would also be included. He, however, submits that tanned leather is not 'hide or skin' and is not derived by processing 'hide' or 'skin'. He submits that 'tanned leather' is a manufactured commodity. He submits that "tanned leather" is an entirely different commodity from 'hide' or 'skin'. In support of his contention that 'tanned leather' is a different commodity from 'hide' and 'skin' he relies upon a Judgment of the Constitution Bench of this Court in the case of <CITATION> reported in 1964 (8) S.C.R.

217. In this case the Petitioners were dealers in skins in the State of Madras. They purchased raw skins from places both within and outside the State of Madras, tanned those skins and sold them through their agents in Madras. They were assessed to sales tax under the provisions of the Madras General Sales Tax Act, 1939 and under rules 16(2)(ii) of the Madras General Sales Tax (Turnover and Assessment) Rules. They filed the Petition under Article 32 contending that Section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963 was ultra vires the Constitution. That challenge was upheld on the ground that Section 2(1) discriminated against imported hides and skins and local hides and skins. It was however held that Rule 16(1) did not become invalid because Rule 16(2) had been held to be invalid. Under the Rules tax was levied on sale of hides and skins in raw condition but no tax was levied on sale of hides and skins in tanned condition. Therefore, the Rules themselves made a distinction between hides and skins in raw condition and hides and skins in tanned condition. It was contended that hides and skins whether tanned or untanned constituted one commodity and, therefore, there could be no tax on sales of hides and skins in raw condition when there was no tax on sale of hides and skins in tanned condition. It was held that they were two different commodities and constituted two separate categories for purposes of taxation. It was so held because the two were treated differently in the Rules. Reliance was also placed upon the authority in the case of <CITATION> . reported in 1998 (1) S.C.C. 437. This again was a case under the T.N. General Sales Tax Act, 1959. The question here was whether raw hides and skins and dressed hides and skins were different commodities. The <ORG> following the decision in <ORG> (<ORG>) held that dressed hides and skins were different goods from raw hides and skins. It may be noted that it was so held in the context of the definition as given in Item 7 of the Second Schedule of the said Act, which provided both for raw hides and skins as well as dressed hides and skins. Thus the Act itself made a distinction between raw hides and skins and dressed hides and skins. It is on that basis that the <ORG> held that they were not the same commodity. Mr. <NAME> also placed reliance in the case of <CITATION> reported in AIR 1994 S.C. 64. This was a case under the Central Sales Tax Act and the question for consideration was whether the term "Wheat", within the meaning of Section 14(i)(iii) of that Act, included "flour, maida and suji" which were derived from Wheat. It was held that flour, maida and suji are different and distinct goods from wheat. It was held that flour, maida or suji were not included in the Act and they would not fall within the term "Wheat" as defined in the Act. It must immediately be noted that the Act only contained the term "Wheat". That Act did not cover "Wheat" in its processed form. It is because the Act did not cover "Wheat in a processed form" that the <ORG> held that flour, maida and suji were not wheat. Reliance was also placed upon the judgment of this <ORG> in the case of <CITATION> . reported in 2000 (6) S.C.C. 264. In this case the question was whether fruit drinks "Frooti" and "Appy" fell within the term agricultural produce under the Bihar Agricultural Produce Markets Act, 1960. This <ORG> held that even though these "Frooti" and "Appy" were manufactured out of mango pulp and apple concentrate but after the mango pulp and apple concentrates were processed and beverages were manufactured, the products becomes entirely different from the fruits that is the mango and apple. It was held that even though the basic character of the mango pulp and apple concentrate may be present in beverages, but the end products were not fruits which were specified in the Schedule. On this basis it was held that the products like "Frooti" and "Appy" were not covered by the Item Agricultural produce as defined in <CITATION> of that Act. Mr. <NAME> also relied upon the case of <CITATION> reported in AIR (1992) S.C. 224 for the proposition that there is a difference between 'manufacture' and 'processing'. In this case the question was whether an industry which manufactures sugar from sugar cane was covered by Entry 15 of Schedule I to the Water (Prevention and Control of Pollution) Cess Act , 1977. The relevant Entry under which the industry was sought to be brought in was item 15 of Schedule I which reads as "processing of animal or vegetable products industry". This <ORG> held, in para 13, that the term 'processing' as normally understood would mean that even after processing the product would retain its character. The <ORG> held that 'processing' essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means. The <ORG> held that a 'manufacture' implies a change but that every change was not 'manufacture'. The <ORG> held that for 'manufacture' something more was necessary and that there must be a transformation and a new and distinct article must emerge having a distinctive name, character or use. Based on this authority it was submitted that tanned leather was a different article and a distinctive commodity having a distinctive name, character and use and that tanned leather was a manufactured item. In our view the authority would, if anything be against the Appellants. Tanned leather retains its basic character namely, it remains hide or skin, though there is some change in form and physical appearance. Lastly reliance was placed upon the case of <ORG> and another, etc. v. <ORG>, etc. reported in AIR (1963) S.C. 791. This was a case under the Central Excises and Salt Act and the question was whether the Raw oils which were purified but not deodorised in the process of manufacture of Vanaspati was covered by the expression "non- essential vegetable oils" in Item 12 of Schedule I of that Act. In this case it was held that processing cannot be equated to manufacture. It was held that the word "manufacture" is generally understood to mean as "bringing into existence a new substance" and does not mean merely "to produce some change in a substance". In our view this authority would also show that in fact there is no manufacture but mere processing of hides and skins to bring them into a tanned state. Based upon the above authorities Mr. <NAME> submitted that 'tanned leather' was not an 'agricultural produce' inasmuch as it is a different item or commodity from hide and skin and it is an item which is not a processed form of hide or skin but an item which is manufactured. He submits that for the above reasons the Judgment of the High <ORG> cannot be sustained and requires to be set aside. As against this Mr. <NAME> submitted that definitions and meanings given in other Acts or in the context of other Acts can be of no assistance. He submits that one has to look at the provisions of the said Act itself. He submitted that the term 'agricultural produce' had been given a wide meaning in Section 2 (a) of the said Act. He points out that it is a definition which is not an exhaustive definition but is an inclusive definition. He submits that any item would be an 'agricultural produce' if it is specified in the Schedule or if it is an admixture of two or more items specified in the Schedule or if it is a processed form of any of the items specified in the Schedule. He points out that in <ORG> all Acts are enacted in Hindi even though an equivalent English version is printed. He points out that in the Hindi version the terms used are 'Khal Va Chamra'. He submits that a dictionary meaning of the term 'Chamra' is leather and therefore the Hindi version clearly shows that leather was meant to be included. He admits that if there was a conflict between an Hindi version and an English version then by virtue of Article 384 of the Constitution of India the English version would prevail. He submits that if there is no conflict, then the Hindi version can be looked at in order to determine any ambiguity or to find out if any item is included or not. In support of his submission he relies upon the case of <CITATION> ., etc. reported in 1984 (4) S.C.C. 516. This was a case under the said Act. The question was whether 'Dal' of legume is an agricultural produce and therefore eligible to market fee. In that case it had been argued, as in the present case, that as 'Dal' has not been specified in the Schedule and it was a distinct commodity no market fee could be levied. This <ORG> held that to resolve a controversy of this nature one has to seek light from the definition of expression 'agricultural produce' as set out in Section 2(a) of the Act. This <ORG> held that no resort can be taken to decisions under entirely different statutes, such as the sales tax laws, to find out whether the product were same or two different and independent products commercially so recognised. It was held that it was an indisputable canon of construction that where an expression is defined in the statute, unless there is anything repugnant in the subject or context, the expression had to be construed as having the same meaning assigned to it in the dictionary clause of the statute. It was held that 'Dal' was nothing else but a whole grain split into two folds in its processed form acquired by manufacturing process and that was therefore an agricultural produce. After so holding this <ORG> held as follows : "14. This very conclusion can be reached by a slightly different route. As is well-known, the legislative enactments in the State of <ORG> are enacted primarily in Hindi language and its official and authentic translation in English is simultaneously published. Bearing this in mind, we turn to the notification dated April 11, 1978 specifying legumes therein enumerated as specified agricultural produce for various Market Areas. The heading under which various legumes are enumerated is 'Dwi Daliya Utpadan'. This tongue twister was explained to us to mean that legume itself is Dwi Daliya Utpadan i.e., the whole grain is made of two folds. Ek daliya grain is without a fold. Dwi Daliya is a grain composed of two folds and certainly not many folds. Concise Oxford Dictionary specifies the meaning of legume to be "fruit, edible part, pod, of leguminous plant; vegetable used for food," and 'leguminous' to mean "like of the botanical family of pulse". And in common parlance 'pulse' connotes legume and denotes dal of legume. Reverting however, to the heading under which legumes are enumerated in 1978 notification, it must be confessed that it clearly connotes the meaning to be given to the whole grain and denotes dal i.e. split folds as specified agricultural produce. The Hindi protagonists used the expression 'Dwi Daliya Utpadan' meaning thereby double folded grain called Gram, Peas, Arhar, Moong etc. on a strict construction, the two dals i.e. two parts forming the whole grain both are comprehended in the expression 'Dwi Daliya Utpadan'. Therefore, it is crystal clear that while enumerating legumes in the Schedule and reproduced in the 1978 notification to make them specified agricultural produce, the framers intended to include both the grain as a whole and its split parts the dal. And when the agricultural produce enumerated in the Schedule such as Gram including its processed part is reproduced in the notification as Dwi Daliya Utpadan, the dal of each of the legumes therein mentioned became specified agricultural produce."

It is thus to be seen that the <ORG> derived support for its conclusion by looking at the Hindi version of the said Act on the ground that it was well known that in the State of U.P. enanctments were in Hindi language. Reliance was also placed upon the case of <CITATION> . reported in 1985 (2) S.C.C. 485. This was also a case under the said Act. The question before the <ORG> was whether 'Khandsari sugar' manufactured by an open pan process was an agricultural produce within the meaning of the said Act. In this case also based upon a Sugarcane (Control) Order, 1966 and U.P. Khandsari Sugar Manufacturer's Licensing Order, 1967, both of which define 'khandsari sugar' it had been contended that 'khandsari sugar' was a distinct and a separate commodity from 'khandsari' as defined in Section 2(a) of the said Act and therefore no market fee could be levied on 'khandsari sugar'. This contention was negatived and it was held that 'khandsari' was a genus and 'khandsari sugar' was a species and in the market both were merely known as 'khandsari'. It was held that the word 'khandsari' was wide enough to cover 'khandsari' produced by any process regardless of its quality or variety. It may be mentioned that a challenge to Section 2 (a) on the ground that it was discriminatory and violative of Article 14 was also repelled. Reliance was also placed upon the case of <CITATION> . reported in 1993 Supp (3) S.C.C. 361(II). This again was a case under the said Act. The question was whether 'gur-lauta', 'raskat', 'rab- galawat' and 'rab-salawat' were 'agricultural produce' under the said Act. In this case it was noted that sugarcane was an agricultural produce out of which juice was extracted. The juice was then thickened by dehydration and when it reached a particular pigment it took the form of 'rab' which is a semi-solid form of the sugarcane juice. After boiling this 'rab' was put in a crystalliser where it was allowed to get cooled and crystals were formed which were then rotated in the crystalliser. The crystallised rab was then put into centrifugal machines in which through the process of infusion of sulphur, the sugarcane juice was cleaned and whitened. The 'rab' which was not put into the centrifugal machine but which was dehydrated and allowed to be hardened by the open pan process became 'gur', which was sold for home consumption. The 'rab' which was not allowed to be hardened was also sold in semi-solid form but certain persons who wanted to make further profits put this 'rab' into centrifugal machines and by the process of infusion of sulphur they obtained 'khandsari' in the dry powder/crystallised form and the waste of 'rab' which was obtained in the liquid form known as 'molasses'. 'Molasses' was further utilised by many people by boiling in the open pans and the same was again re-processed by cleaning and dehydrating and later by sulphitation was taken in powder form. This then was also sold in the market as inferior quality called 'rab-galawat'. It was held that there was a further inferior quality of rab called 'rab-salawat'. The contention was that 'gur-lauta', 'raskat', 'rab-galawat' and 'rab-salawat' were all different commodities which were not the same as 'gur' or 'rab' and that therefore no market fee could be levied on those commodities. This <ORG> held that a wide interpretation had to be given to Section 2(a) of the said Act as the meaning was exhaustive and not restricted to the items included in the Schedule. It was held that items which came into being in a processed form would be included. It was held that these items were 'agricultural produce' and market fee could be levied on these items. Mr. <NAME> then relied upon the case of State of Tamil Nadu etc. vs. <ORG> etc. reported in 1989 (1) S.C.C.

724. He clarified that this was a case under the Central Sales Tax Act and that he was not saying that this would therefore be an authority for considering the definition of the term "agricultural produce" under the said Act. He submitted that in this case certain opinions of <ORG> as well as glossary of terms published by <ORG> had been reproduced. He stated that he was merely bringing those portions of the judgment to the attention of the <ORG>. In this behalf he showed to the <ORG> the paragraphs 6, 9, 10, 11 and 13, which read as follows : "6. Turning to coloured leather, we may, at the outset, refer to a very important circumstance referred to by the respondents. When the CST Act came into force on April 1, 1957, a question was raised regarding the meaning of the expression 'hides and skins in dressed state' used in Section 14 . The matter was referred to the leather development wing of <ORG> which gave the following opinion :

Hides and skins are obtained from either slaughtered or dead animals. The raw hides and skins thus obtained are known to be in the Green State. These are easily putrescible; if proper precautions are not taken they would easily rot and decay. Since tanneries are not always located very near the source of raw hides and skins, the question of preserving them for a temporary period till they reach a tanning centre assumes importance. Raw hides and skins are 'cured' by either wet salting, dry salting or drying. In the 'cured state' the raw materials can be preserved for a temporary period. In the third stage of temporary preservation, the hides and skins are 'pickled'. During the next stage they are tanned in which state they can be preserved almost indefinitely. These tanned hides and skins are processed further to yield Dressed Hides and Skins which are ready for use. 'Dressed' or finished material could also be preserved almost indefinitely.

From the above, it will be seen that the expressing 'Hides and skins in the raw or dressed state' refers at one end to the raw material obtained from the slaughtered or dead animals and at the other to the tanned and finished material; the expression, therefore, seems to include the other intermediate stages indicated in the previous paragraphs. Dressing, according to the authoritative interpretations, would mean the conversion of tanned hides and skins by further suitable processing into leathers of different types which are ready for use (vide SBT/18(495)/14) of November 11, 1957).

9. Can it then be said that the view expressed above is clearly wrong? We think not; on the contrary, it is seen to be quite correct. The statutory expression refers to "hides and skins in a dressed state". The guidelines issued for identification of 'finished' leather for exports by <ORG> (<ORG>) refer to as many as 19 operations or processes undergone during manufacture of 'finished leather' but 'dressing' is not one of them. A glossary of terms relating to hides, skins and leather published by the <ORG> in 1960 contains the following definitions:

CRUSTS: (Crust Leather) - Tanned hides and skins without any finish.

CURRYING: A series of dressing and finishing processes applied to leather after tanning in the course of which appropriate amounts of oils and greases are incorporated in the leather to give it increased tensile strength, flexibility and water resisting properties.

DRESSED HIDES: Tanned hides, curried or otherwise finished, for various purposes, such as belting, harness and saddlery, travel goods and for upholstery.

DRESSING LEATHER: Vegetable tanned hides which may be dressed to suit the purpose for which they are to be used, such as for harness, saddlery and other mechanical purposes.

LEATHER: The skin or hide of animals prepared by tanning, which still retains its original fibrous structure more or less intact, but from which hair or wool may or may not have been removed and which has been treated so as to be imputrescible even after treatment with water.

10. The earlier glossary of such terms published by <ORG> defines 'dressing' as a "general term for the series of processes employed to convert certain rough tanned hides and skins and/or crust leather into leather ready for use". Also, "Leather" is defined as "a general term for hide or skin which still retains its original fibrous structure more or less intact, and which has been treated so as to be imputrescible even after treatment with water". The hair or wool may or may not have been removed. Certain skins, similarly treated or dressed, and without the hair removed, are termed 'fur'. The Dictionary of Leather Terminology published by <ORG>, describes leather as "the hide and skin of any animal or any portion of such skin, when tanned, tawed or otherwise dressed for use".

11. The above definitions show that hides and skins acquire the name of 'leather', even if the hair or wool has not been removed therefrom, as soon as they receive some treatment which prevents them from putrefaction after treatment with water. Dressing is a stage much later than tanning. Indeed, from the definitions quoted above, it will be seen that it is practically the same as giving finishing touches to the leather and making it suitable for the manufacture of particular types of goods.

13. The same conclusion is further borne out by the literature referred to before us by <NAME>. Volume 7 of <ORG>, under the word "dress", explains that the verb has various applications which can be deduced from its original meaning and that "it is thus used not only of the putting on of the clothing but of the preparing and finishing of leather ". Volume 17, under the head "leather" details the various processes applied in the treatment of hides and skins at all stages, pre-tanning, tanning and post-tanning. Dyeing or colouring is a process which follows tanning but precedes "finishing: (i.e. dressing) in order to make it suitable for the purpose which it is required in commercial usage. Part V of the "Wealth of India", a publication of <ORG> (1966), dealing with leather under "Industrial Products" explains that "hides and skins are liable to putrefaction and loss unless suitably treated and converted into leather". Structurally, hides and skins have a thick middle layer called corium, which is converted to leather by tanning. The operations involved in leather manufacture however fall into three groups. Pre- tanning operations includes soaking, liming, de- liming, bating and pickling, and post-tanning operations are splitting and shaving, neutralising, bleaching, dyeing, fat-liquoring and stuffing, setting out, samming, drying, staking and finishing. These operations bring about Chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations. These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed 'leather' even as soon as the process of tanning is over and the danger of their putrefaction is put an end to. The entry in the CST Act , however, includes within its scope hides and skins until they are 'dressed'. This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles. In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commodity. The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done."

Mr. <NAME> submitted that tanned leather would be covered by the definition of the term "Agricultural produce" as defined in Section 2(a) of the Act. He submitted that it was merely a processed form of "hide and skin". He submitted that cases relied upon by the Appellants were of no help as all of them were under taxing statutes and were merely interpreting terms in the context of the definitions given in those statutes. We have considered the arguments of both the parties. In our view it is clear that the interpretation has to be on the basis of the expression 'Agricultural produce' as set out in Section 2(a) of the said Act. In so determining decisions based on different statutes such as Sales Tax Laws can be of no assistance. All the cases relied upon by Mr. <NAME> are cases under the taxing statutes where the interpretation has been given on the basis of the terms as defined in those statutes. A perusal of Section 2(a) of the said Act makes it clear that an agricultural product would be a product which is specified in the Schedule or one which is admixture of two or more items and would also include any such item in a processed form. In our view it makes no difference, for the purposes of the said Act, that the concerned item is a different commodity from the one which is included in the Schedule. It is possible that by virtue of an admixture of two or more items or by virtue of processing a different commodity or item may come into existence. Even though a different commodity may come into existence, it would still be an 'Agricultural produce'. This is best illustrated by <ORG> which is in Schedule A, Item VIII at Serial No. 14. From <ORG>, "rab" and "gur" are manufactured. They are already different commodities or items. Yet they are all included. The specific inclusion of items like "gur, rab, shakkar, khandsari and jaggery" is to make it clear that merely because it becomes a different item or commodity it is not excluded. We see no reason to go into the difference between 'manufacturing' and 'processing'. In the strict sense of the terms there may be a difference. However, we are not required to go into these differences as, in our view, it is very clear, from what has been set out by the Appellants themselves in their affidavit that for hide and skin to be converted into leather or tanned leather all that is required is a process. It is a process of cleaning, curing and adding preservatives. That it is a process has been held by this Court in the case of <CITATION> , etc. (<NAME>). We are also of the view that the finished product i.e. 'tanned leather' even though it may have changed in physical appearance or chemical combination and even though it may commercially be a different item still remains a 'hide' or a 'skin'. For this reason we are of the opinion that there is no illegality or infirmity in the judgment of <ORG>. Even otherwise our above view is supported by the Hindi version of the definition. As has been set out in the case of <ORG> (<NAME>), it is well known in U.P. all legislations are in Hindi. Of course an English version simultaneously published. Undoubtedly if there is conflict between the two than the English version would prevail. However, if there is no conflict then one can always have assistance of the Hindi version in order to find out whether the word used in English includes a particular item or not. In the Hindi version the word used is 'Chamra'. There can be no dispute that the term 'Chamra' would include 'leather' in all its forms. In this view of the matter the Appeal stands dismissed. There will, however, be no order as to costs.


<NAME>, J.

1. The plaintiffs seek a declaration of their right to officiate, in alternate years, as priests in a certain temple and to receive, in those years, the offerings of worshippers in the temple. They seek also to be awarded certain temple lands belonging to their share. The Subordinate Judge awarded the claim; but his decision has been reversed by the Assistant Judge on the following grounds: (1) that <ORG> have no jurisdiction to entertain the first part of the claim; (2) that the grant of a declaratory decree would be opposed to Section 42 of the Specific Relief Act, as certain further relief was not asked for, and (3) because the Subordinate Judge had mistaken the nature of the claim to the land, the suit not having been one for partition, and the evidence being insufficient to establish the plaintiffs' title. As to the first objection taken by the Assistant Judge to the Subordinate Judge's decision, we observe that, in <NAME> v. <NAME> 14 Beng. L.R. 166, Couch, C.J. described the right of a plaintiff to perform the worship of an idol as "property," subject to partition, the joint owners being entitled to perform the worship in turn; and in <CITATION> . 3 Calc. 390, it is held by <ORG> that a refusal to deliver up an idol, so as to prevent the priest from performing his turn of worship, gave the aggrieved party the right to sue for damages. In <NAME> v. <ORG>, it was held that an, action would be to obtain a binding declaration of a person's right to perform the duties of a pujari and to receive the proceeds of the mandir. This last decision, we think, governs the present case, in which there is no question as to the right of either the plaintiffs or the defendants to recover the offerings from the worshippers, it being apparently admitted that the person performing the service h&$ the fight to the fees. The case is not one, therefore, to which the decision in <CITATION> . 2 Bom. 470--could be applied. Nor is the decision in <ORG> v. Krishnaji Sadashiv I.L.R. 10Bom. 233 applicable, for it cannot be said that the office in question is a mere dignity unconnected with any emoluments.

2. The second objection taken by the Assistant Judge was not suggested by defendant No. 1, either in the original suit or the appeal. If the claim was really open to the objection, the plaintiffs ought to have been allowed the opportunity of amending their plaint when presented, and should now be allowed that opportunity, if necessary.

3. As to the third objection, we think that the Subordinate Judge's decision as to the land is not open to the comment that it is based on "theoretical considerations" or on "inferences raised as to the most scientific boundary," and that it ought not to have been reversed on that ground. The plaintiffs' title to a specific portion, amounting to a half of the temple lands, is admitted. The real question is as to the actual boundary between the plaintiffs' land and the defendants' land. That question is one of evidence, and should be so dealt with.

4. We reverse the decision of the lower <ORG>, and remand the case for a re-hearing of the appeal on the merits. Costs to abide the result.


<NAME>, J.

1. The facts of this case are shortly as follows: One <NAME> died intestate on 17th March 1876, and his estate is now being administered by the <ORG>. The accounts taken in the administration suit do not disclose assets sufficient to pay all the creditors in full, and this suit has been brought by the plaintiff <NAME>, in the nature of a supplemental suit to the original administration suit, with the view of obtaining a declaration that <NAME> was at the date of his death entitled to a one-fifth share in the property comprised in a certain Indenture of Settlement made by his father <NAME>, and dated 21st February 1848, and that his (<ORG>) representatives in estate are now, as such and subject to the liquidation of <ORG> debts, entitled to the said one-fifth share, thus seeking to make available a very considerable estate for distribution amongst the general body of creditors.

2. The suit purports to be brought by the plaintiffs "on behalf of themselves and all the other unsatisfied creditors of <NAME>, deceased."

3. It is contended by Mr. <NAME>, who appears for the first defendant, that the suit cannot be entertained, inasmuch as the provisions of Section 30 of the Civil Procedure Code have not been complied with.

4. That section reads thus: "Where there are numerous parties having the same interest in one suit, one or more of such parties may, with the permission of the <ORG>, sue or be sued, or may defend in such suit, on behalf of all parties so interested, but the <ORG> shall in such case give, at the plaintiff's expense, notice of the institution of such suit to all such parties either by personal service or (if from the number of parties or any other cause such service is not reasonably practicable) then by public advertisement, as the <ORG> in each case may direct."

5. Mr. <NAME> for the plaintiffs admits that no such permission has been obtained, and argues that it was unnecessary. "Parties," says Mr. <NAME>, "does not mean persons in the position of creditors, but means only parties' necessary to the suit, without whose presence on the record the suit would be defective."

6. I am unable to put so limited a construction upon the word "parties." I think it means "persons." It appears to me that the provisions of the section would be unintelligible unless the word received that meaning.

7. The section appears to be taken from Rule 9, Order XVI of the rules and orders made under the provisions of the Supreme <ORG> of Judicature Act, 1875. That rule says: "Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorised by the <ORG> to defend in such action, on behalf or for the benefit of all parties so interested." The result of this rule was to give legislative sanction to the practice which had long obtained in the <ORG> of Chancery; but there is this distinction between the rule and Section 30: the former contains no provision requiring the permission of the <ORG>, nor any provision as to notice. The provision requiring the authority of the <ORG> for such proceeding, and the clause "but the <ORG> shall give, etc.," to "may direct" are important amendments and certainly necessary in this country, without them many a man might be concluded by a suit of which he never may have heard (Broughton's Civil Procedure Code, 133).

8. Mr. <NAME> in support of his argument referred to the case of <CITATION> . 8 Cal. 32 decided by <ORG> of this Court, and though I am not prepared to say that I should consider every judgment of <ORG> binding upon me when sitting on the Original Side, yet every such judgment should receive respectful consideration and careful attention, and should be followed unless I am very clearly of opinion that the conclusion arrived at is an erroneous one.

9. In that case a deed of <ORG> had been executed making an endowment of certain land, the profits whereof were to be appropriated to the maintenance of a <ORG>. The defendant No. 1 was appointed <NAME> under the deed of <ORG>; he borrowed Rs. 575 from defendant No. 2, giving, by way of security, a mortgage of part of the endowed property; he subsequently borrowed Rs. 650 from defendant No. 3, and concluded an <ORG> settlement with him; defendant No. 2 brought a suit upon the mortgage bond, obtained a decree, took out execution, and brought to sale the endowed property comprised in the mortgage which defendant No. 3 purchased. The plaintiffs, who were followers of the Mussulman religion living in the village where the <ORG> was situated, alleging a right and interest in protecting the musjid, filed a plaint asking for declarations that the property mortgaged to defendant No. 2 was <ORG> property, that the auction-purchase thereof made by defendant No. 3 and the <ORG> and mortgage were invalid; and that another <NAME> might be appointed. <NAME>, J., after dealing with various points, which it is not necessary here to notice, says at page 40: "We now come to deal with the other prayers in the plaint, which do hot fall within the provisions of Section 14 of the Religious Endowments Act. These prayers are that the property mentioned in the schedule to the plaint may be declared to be <ORG>; that the mortgage, and the <ORG> and the sale under the mortgage may be set aside; and that a competent person may be appointed by the <ORG> as <NAME>. Now, so far as regards these prayers we think that the plaintiffs were not authorized to institute this suit by reason of their having an interest created by their being followers of the Moslem religion, and living in the vicinity of the <ORG>, and being in the habit of attending the musjid. That interest is common to them with all the Mahomedan residents in the vicinity, and we think that this is a case which falls within the provisions of Section 30 of the Code of Civil Procedure. It may be quite possible that if these plaintiffs had applied to the <ORG> under the provisions of Section 30 , they would have obtained permission to institute this suit, but not having obtained that permission, they certainly were not entitled to institute this suit."

10. I cannot see any distinction between the position of the plaintiffs in that case and that of the plaintiffs in this suit. "The other unsatisfied creditors of <ORG> deceased" appear to me to correspond with "all the Mahomedan residents in the vicinity" mentioned by <NAME>, <NAME>

11. I am therefore of opinion that Mr. <NAME>'s objection is a valid one, and that the suit cannot proceed.

12. I have now to consider what I ought to do-whether to dismiss the suit or to yield to Mr. <NAME>'s application to grant permission for its institution nunc pro tunc, and to adjourn the hearing until the requisite notices have been given. I am anxious not to dismiss the suit after so much expense has been incurred, but I do not think I have the power to grant permission at this stage. I would do so if I thought I had the power. I must therefore dismiss.


JUDGMENT

1. In this case the Subordinate Judge has refused to execute a decree passed on the original side of this Court, upon the ground that the decree-holder had fraudulently brought a suit on the original side of this Court when this Court had no territorial jurisdiction to pass a decree in the suit. He has purported to act upon the Full Bench decision of this Court in the case of <CITATION> . What has happened is this: the decree-holder, as plaintiff, instituted a. suit on the original side of this Court for recovery of a sum of money from the judgment-debtors on giving up her charge on a certain property under a mortgage bond which the judgment debtors had executed In the plaint that was filed, it was definitely averred that the money had been advanced in Calcutta and that the mortgagors had agreed to repay the loan with interest in Calcutta, as provided in the deed. In the plaint it was definitely stated that the cause of action for the suit had arisen in Calcutta. As the defendants who were then residing outside the local limits of the ordinary original civil jurisdiction of this Court, the plaintiff asked for and obtained leave to institute the suit under Clause (12), Letters Patent. The suit was not contested and an ex parte decree was obtained which formed the subject-matter of the execution and in connexion with which, the order appealed from has been made by the Subordinate Judge. The Subordinate Judge has, upon certain materials to which he has referred in his judgment, come to the conclusion that there was. nothing to show that there was any contract for the repayment of the money in Calcutta as was the plaintiff's case; and; he has held that there is no satisfactory evidence to show that the money was advanced in Calcutta. On these grounds he has come to the conclusion that the suit was fraudulently instituted on the original side of this Court and the said Court had no territorial jurisdiction to pass the decree,

2. We are clearly of opinion that it was; not within the competency of the executing <ORG> to challenge the validity of the decree which this <ORG> on its original side had made, upon the ground on which the order of the Subordinate Judge has been made. It is quite true that an executing <ORG> is competent to refuse to execute a decree if it finds that the decree was made without jurisdiction. But the limits of the powers of an executing <ORG> in this respect have been very definitely prescribed by the <ORG> decision of this <ORG> in the case of <NAME> (supra) on which the Subordinate Judge purports to have proceeded but which, in our opinion, he ha9 entirely misappreciated. What has been laid down in that case is this:

Where a decree presented for execution was made by a <ORG> which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make a decree, the executing <ORG> is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing <ORG> is authorized to question the validity of a decree.

3. The word "apparently" used in connexion with the proposition laid down by this <ORG>, is a word which must always be very carefully kept in view. What the proposition means is that the executing <ORG> would be competent to refuse to execute the decree only when on the face of the decree it would appear that the <ORG> which passed it had no jurisdiction. When we say 'the decree" we mean the decree and the papers relevant for the purpose of understanding it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the <ORG> jurisdiction to entertain a suit, and if upon the basis of that jurisdiction the decree is passed by the <ORG> without there being a challenge by the defendant as regards the territorial jurisdiction of the <ORG> to pass the decree, it remains open to the defendant to question the jurisdiction of the <ORG> after the decree has been made and in the course of its execution. That was exactly what was intended to he guarded against by the decision which <ORG> passed in the case referred to above.

4. We are of opinion that the learned Judge's order is entirely wrong We accordingly allow the appeal and set aside the order appealed against, and direct that the execution be entertained and dealt with in accordance with law. The appellant is entitled to her costs in this appeal. Hearing fee is assessed at three gold mohurs.

5. The record must be sent down as early as possible.


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.