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PETITIONER:

JAGADGURU GURUSHIDDASWAMI

Vs.

RESPONDENT:

DAKSHINA MAHARASHTRA DIGAMBARJAIN SABHA.

DATE OF JUDGMENT:

14/10/1953

BENCH:

MUKHERJEA, B.K.

BENCH:

MUKHERJEA, B.K.

MAHAJAN, MEHR CHAND

JAGANNADHADAS, B.

CITATION:

1953 AIR 514 1954 SCR 235

ACT:

Religions endowments-Permanent lease by head of math-

Demise by lessee by way of gift-Decree obtained by

succeeding head against heirs of lessee for recovery of

possession-Whether binding on donee-Fresh suit against

donee-Maintainability-Limitation -Limitation Act (IX of

1908), s. 10A, Art. 134B-"Valuable considerations meaning

of.

(1) [1911] 1 Ch. 92 at p. 98,

236

HEADNOTE:

In 1887 the head of a math granted a permanent lease of

property belonging to the math. In 1910 the lessee's

successor in interest made a gift of the leased premises to

a Jain Sabha for constructing a school thereon with the

condition that if the school was removed from the site or

ceased to exist, the site should revert to the donor. In

1925 the plaintiff became head of the math and in 1932 he

instituted a suit for ejectment against the heirs of the

lessee alleging that the lease was not binding on the math

and obtained a decree for possession. The Jain Sabha

however was not effectively made a party to the suit and was

dismissed from it. In 1943 the plaintiff instituted a suit

against the Jain Sabha for possession; and it was contended,

inter alia, on his behalf, that the Jain Sabha as a sub-

lessee under the defendants in the earlier suit was bound by

the decree obtained therein:

Held, (i) that the rule of law that a sub-lessee would

be bound by a decree for possession obtained by the landlord

against the lessee was not applicable to the present case,

because (a) the suit of 1932 was not a suit by a landlord to

evict his lessee but was a suit based on title to eject the

heirs of the lessee on the ground that they were

trespassers, and (b) because the lands were not given to the

Sabha by way of sublease, but by way of gift;

(ii) the suit was not saved by s. 10 of the Limitation

Act as the lease was for valuable consideration and the

defendant was not therefore precluded by reason of the fact

that the property was to his knowledge trust property, from

relying on the provision of the law which prescribes the

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time within which such a suit should be brought.

The expression " valuable consideration " has a well-

known connotation in law and is not synonymous with "

adequate consideration."

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 187 of

1952.

Appeal from the Judgment and Decree dated the 19th day

of October, 1949, of the High Court of Judicature at Bombay

(Bavdekar and Dixit JJ.) in Appeal from Original Decree No.

275 of 1946 arising out of the Judgment and Decree dated the

17th day of December, 1945, in Special Civil Suit No. 21 of

1944 of the Court of Civil Judge (Senior Division), Hubli.

M. C. Setalvad, Attorney-General for lndia (J. B.

Dadachanji, with him) for the appellant.

G. R. Madhavi (K. R. Bengeri, with him) for the

respondent,

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1953. October 14. The Judgment of the Court was delivered

by

MUKHERJEA J.-This appeal is directed against a judgment

and decree of a Division Bench of the Bombay High Court

dated October 19, 1949, affirming, in appeal, those of the

Civil Judge, Hubli, passed in Special Suit No. 21 of 1924.

The facts of the case lie within a short compass and the

whole controversy, so far as, this appeal is concerned,

centres round the short point as to whether or not the

plaintiff 's suit is barred by limitation. Both the courts

below have decided this point against the plaintiff and he

has come up on appeal before us.

To appreciate the contentions that have been canvassed

before us, a brief resume of the material facts will be

necessary. The plaintiff appellant is the spiritual bead or

Mathadhipati of a Lingayet Math known as Murusavirmath

situated within Hubli Taluka in the district of Dharwar. On

November 13, 1887, Gurusidhwaswami, who was the then head of

this religious institution, granted a permanent lease of a

tract of land belonging to the Math and forming part of R.

S. No. 34, in favour of one Pradhanappa and the rent agreed

to be paid by the lessee was Rs. 50 per annum for the first

six years and thereafter at the rate of Rs. 25 annually. On

June 19,1892, Pradhanappa sold a portion of the lease hold

property, which is described in Schedule 1(b) to the plaint,

to a person named Bharamappa. In 1897 Gurusidhwaswami died

and was succeeded by his disciple Gangadhar Swami who did

not repudiate the permanent lease granted by his predecessor

and went on accepting rents from the lessee in the same way

as before. In April, 1905, another part of the land, which

is described in Schedule 1(a) to the plaint, was put up for

sale in execution of a decree against Pradhanappa's heirs

and it was purchased by one Kadayya, and Kadayya in his

turn sold the same to Bharamappa who had already purchased

Schedule 1(b) plot by private purchase. On April 8, 1910,

Bharamappa

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made a gift of the entire premises consisting of plots 1(a)

and 1(b) to the Dakshina Maharashtra Digambar Jain Sabha, a

registered body, for the purpose of building a school upon

it for the education of Jain students. On August 31, 1920,

Gangadhar Swami died and for some time after his death the

affairs of the Math were in the hands of a committee of

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management. On November 25, 1925, the present plaintiff

Gurusidhwaswami became the head of the Math. On August 27,

1932, the plaintiff instituted a suit, being Suit No. 80 of

1932, against the heirs and successors of Bharamappa for

recovery of possession of the land comprised in the

permanent lease on the allegation that there being no legal

necessity for granting the lease, the alienation was not

binding on the Math and became void on the death of the last

Mahant. The Jain Sabha was impleaded as defendant No. 23 in

the suit, but under a wrong name. The suit was dismissed by

the trial judge but on appeal by the plaintiff to the High

Court of Bombay, the trial court's judgment was reversed and

the plaintiff's claim for khas possession was allowed in

respect of the suit land against all the defendants with the

exception of defendant No. 23 who was dismissed from the

suit on the ground of misdescription. The judgment of the

High Court is dated the 26th of November, 1942. On 3rd

December, 1943, the plaintiff appellant commenced the

present suit against the respondent Jain Sabha claiming khas

possession of the land gifted in its favour by Bharamappa,

alleging that as the original permanent lease was not

binding on the Math for not being supported by legal

necessity, the defendant could not acquire any title by

grant from the successor of the lessee. The defendant Sabha

resisted the suit and the two material questions round which

the controversy centred were: (1) whether the original

permanent lease was supported by legal necessity, and even

if it was not, (2) whether the plaintiff's suit was barred

by limitation under article 134-B of the Indian Limitation

Act? The trial judge decided the first point in favour of

the plaintiff, but on the question of limitation the

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decision was adverse to him. The result was that the

plaintiffs suit was dismissed` Thereupon the plaintiff took

an appeal to the High Court of Bombay and the learned

Judges, who heard the appeal, concurred in the decision of

the court below and dismissed the appeal and the suit. It

is the propriety of this decision that has been challenged

before us in this appeal.

Both the courts below have held that a suit of this

description is governed by article 134-B of the Limitation

Act and the period of limitation is 12 years computed from

the date when the previous Mahant died. The plaintiff's

predecessor admittedly died in 1920 and the suit was brought

more than 12 years after that and hence it was time-barred.

To get round the plea of limitation, the learned

Attorney-General, who appeared in support of the appeal, has

put forward a two-fold contention. It is argued in the

first place that the decree for ejectment, which was passed

in favour of the plaintiff and against the heirs of

Bharamappa in the earlier suit of 1932, was binding on the

present defendant on the principle that a decree against a

lessee binds the sub-lessee as well. The defendant,

therefore, was not competent to resist the plaintiff's claim

for possession which was already allowed in the previous

suit. The other ground urged is, that limitation is saved

in this case by virtue of the provision of section 10 of the

Indian Limitation Act.

So far as the first ground is concerned, it may be

stated at the outset that even if the appellant's contention

is right, the present suit would be barred under section 47

of the Civil Procedure Code and the proper remedy of the

plaintiff would be to apply for execution of the decree in

the previous suit. This difficulty, however, is not

insuperable, as under section 47 of the Civil Procedure Code

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the court is empowered to treat a suit as an execution

proceeding, when there is no question of limitation or

jurisdiction standing in the way of the plaintiff. In our

opinion, however, the contention as put forward by the

learned Attorney-General cannot succeed. It may be assumed

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as a proposition of law that a sub-lessee would be bound by

a decree for possession obtained by the lessor against the

lessee, no matter whether the sub-lease was created before

or after the suit, provided the eviction is based on a

ground which determines the sublease also(1). But there

seem to be two insuperable difficulties in the way of

applying that principle to the facts of the present case.

In the first place, the suit of 1932 was not by a landlord

or ex-landlord against his tenant for evicting him from the

leasehold premises basing his claim on the ground of deter-

mination of tenancy. The Mahant, who created the permanent

lease in 1887, might not have been able to derogate from his

grant and the lease might be taken to be valid so long as

the alienating Mahant lived. As soon as he died, it was

open to his successor to repudiate the lease and recover

possession of the property on the ground that the alienation

was not binding on the endowment. In the present case the

immediate successor of the alienating Mahant consented to

the lessee's continuing in possession of the property and

thereby he might be treated as creating an interest in the

lessee commensurate with the period of his lifetime or the

tenure of his office. After his death, however, his

successor did not accept any rent from the lessee or

otherwise treated the lease as subsisting and in 1932 he

brought the suit for recovery of possession of the property

against the successors of the original lessee on the footing

that they did not acquire any title by the grant which,

being unsupported by legal necessity, was not binding on the

Math. This was not a suit by a landlord against his tenant;

it was a suit by the holder or manager of the Math to

recover possession of Math property which was improperly

alienated by his predecessor on the ground that the

defendant became a trespasser as soon as the previous Mahant

died and the plaintiff was entitled to recover possession on

proof of his title.

Quite apart from this, the other difficulty is equally

formidable for it does not appear to us that the

(1) Vide Sailendra v. Bijan, 49 C.W.N. i33; Yusuff v.

Jyotish Chandra,

I.L.R. 59 cal. 739.

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defendant Jain Sabha was at all a sub-lessee under

Bharamappa or his heirs. We have gone carefully through the

document executed by Bharamappa in, favour of the Jain

Sabha. Both in form and in substance it is a deed of gift

and not a sub-lease. The gift, it seems, Was made for a

specific purpose, namely, for construction of a school

building upon the site which was to be used for the

education of the boys and girls of the Jain community, and

it was for this reason that the deed provided that on the

contingency of the school being removed from the site or its

ceasing to exist, the land would revert to the donor. The

attaching of a condition like that to a deed of gift could

not, in our opinion, convert it into a sublease. It is

clear, therefore, that the suit of 1932 was not a suit for

eviction instituted by a lessor against his lessee, nor

could the present defendant be regarded as a sub-lessee

under the defendants in the earlier suit. It may be

unfortunate that by reason of a pure misdescription, the

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earlier suit was dismissed against the Jain Sabha, but that

is altogether irrelevant for our present purpose. In our

opinion, the first contention of the AttorneyGeneral must

fail.

As regards the other ground raised by the Attorney-

General, we are of opinion that the point is without any

substance, and section 10 of the Indian Limitation Act is of

no assistance to the plaintiff in the present it case. In

order that a suit may have the benefit of section 10, it

must be a suit against a person in whom the property has

become vested in trust for any specific purpose or against

his legal representatives or assigns, not being assigns for

valuable consideration. It may be taken that the word

"assign" is sufficiently wide to cover a lessee as well; but

the difficulty is, that as the lease was for valuable

consideration, the case would come within the terms of the

exception laid down in section 10 and consequently the

defendant would not be precluded by reason of the fact that

the property was to his knowledge a trust property, from

relying on the provisions of the statute which limit the

time within which such suits must be brought. The

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Attomey-General contended rather strenuously that the

transfer here was not for valuable consideration inasmuch as

the rent reserved for a large tract of land which had

immense potential value was Rs. 50 only for the first six

years and then again it was to be reduced to Rs. 25 which

would continue all through. We desire to point out that the

expression " valuable consideration " has a well known

connotation in law and it is not synonymous with "adequate

consideration". It may be that judged by the standard of

modern times, the rent reserved was small, but as has been

found by both the courts below the consideration was not in

any sense illusory having regard to the state of affairs

prevailing at the time when the transaction took place.

This is a concurrent finding of fact which binds us in this

appeal. The result is that, in our opinion, both the

contentions raised by the learned Attorney-General fail and

this appeal must stand dismissed with costs.

Appeal dismissed.

Agent for the appellant: Rajinder Narain.

Agent for the respondent: Naunit Lal.

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