Jagadguru Gurushiddaswami v. Dakshina Maharashtra Digambar Jain Sabha

Judgment

S.O.R. I assets which were the subject-matter of partition bet- 1953! ween the partners. Even if the partition be not treat- Sir K ikabhai ed as a sale it was a transfer of property, the property Premchand of the firm being transferred to the individual partners thereof and each partner obtaining an absolute inter-. Commissioner of est in the shares thus transferred to him by the firm Income-tax · to the exclusion of the other partners therein. So far c;entral), as the firm was concerned it was certainly a transfer ombay. of the property to the individual partners and even as Bhagwati J. regards the partners themselves it was a transfer of the interest of the partners inter se in the shares respectively transferred absolutely to each of them. If it were necessary to do so I would certainly say that the case was erroneously decided. [See also the judgment of Fletcher Moulton L. J. in In re. Spanish Prospecting Co., Ltd.(')].

The result therefore is that the answers given by the High Court to both the questions referred to it were correct and the appeal must be dismissed with costs. Appeal allowed. Agent for the appellant: Rajinder Narain. Agent for the respondent: G. H. Rajadhyaksha. JAGADGURU GURUSHIDDASWAMI DAKSHINA MAHARASHTRA DIGAMBAR JAIN SABHA. [MEHR CHAND MAHAJAN, MuKHER.JEA, and JAGANNADHADAS J,J,] Religions endowinent.1-Perm<me11t lease by head of math- Demise by lessee by wa11 of gift~ Decree obtained by s1wceedin.g head aga.inst heirs of lessee for recovery of possession-Whether binding on donee-Fresh wit against donee-Maintainnbility-Limitati011. -Liniitation Act (IX of 1908), s. JOA, Art. ]34B-"Val11able consideration" menning of. (J) [1911] 1 Ch. 92 atp. 98, Oct. 14. [1954) In 1887 the head of • math granted • permanent lease of pro· party belonging to the math.

In 1910 the lessee's successor in Jagadguru interest made a gift of the leased premises to a Jain Sabha for Guri1shiddaswa1ni constructing a school thereon with the condition that if the school was re1noved from the site or ceased to exist, the site should Dakshina revert to the donor. In 192[) the plaintiff became head of the rna.th Mqharaehtra and in 1932 he instituted a suit for eject1nent against the heirs of Digambar Jain the lessee alleging that the lease was not binding on the math and Sabha. obtained a decree for possession. The Jain Sabha ho\\'0Ver was not effectively made a party to the suit and was dismissed from it. In l943 the plaintiff instituted a suit against the .lain Sabha for possession; and it was contended, inte1· alia, on his behalf} that the Jain Sabha ai:i a sub-lessee under the defendants in the earlier suit was bound by the decree obtained therein:

Helcl, (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 !act that the property was to his,knowledge trust property, from relying on the provision of the law 'vhich prescribes the tin1e \vitbin which such a suit should be brought. The expression "valuable Consideration" has a \Yell-known connotation in la.~v and is not synonymous 'vith "adequate consideration.'' CIVIL APPELLATB ,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, Attornr,y-General for India (.I.· B. Dadachanji, with him) for the appellant. G. R. Madhbhavi (K. R. Bengeri, with him) for the respondent, S.C.R, 1953. October 14. The Judgment of the Court was delivered by Jagadguru M J Th. l . d. Gurushiddaswami UKHERJEA .- is appea is irec e agams judgment and decree of a Division Bench of the Dakshina Bombay High Court dated October 19, 1949, affirm- Maharashtra ing, in appeal, those of the Civil Judge, Hubli, passed Digambar Jain in Special Suit No. 21 of 1924. Sabha.

The facts of the case lie within a short compass and Mukherjea J. 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 head or Mathadhipati of a Lingayet 1Vlath known as 11furusavirmath 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 paia 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 leasehold property, which is described in Schedule l(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 l(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 l(b) plot by private purchase. On April 8, 1910, Bharamappa SUPREME COUP.T REPORTS [1954]

1s53 made a gift of the entire premises consisting of J plots 1 (a) and 1 (b) to the Dakshina Maharashtra aga guru 0 bh b d 1 Gurushidfia8wami igam ar ain ~:ia a, a reg1stere o y, .i:or t ie purpose of building a school upon it for the education of Dakshina Jain students. On August 31, 1920, Gangadhar Mahara•htra Swami died and for some time after his death the Digmnbm· Jain affairs of the Math were in the hands of a committee of Sabha. O N 2 management. n ovem er 5, 1925, the present Mukh,,jrn .T. plaintiff Gurusidhwaswami became the head of the Math. On August 27, 1932, the plaintiff instituted a suit, being Suit No. 80 of 1932, agaiilst 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 lastMahant. 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 claitn 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 pf the plaintiff, but on tl:le question of limitation the S:O.R. SUPRE~1:E OOUR'f REPORTS decision was adverse to him. The result was that the · plaintiff's suit was dismissed. Thereupon the plaintiff 1 ad " ag fl"'" took an appeal to the High Court of Bombay and the Gurushiddaswami learned Judges, who heard the appeal; concurred in the decision of the court below and dismissed the appeal Dakshina and the suit. It is the propriety of this decision that Maharashtra has been challenged before us in this appeal.

Diga;!~~ain Both the courts below have held that a suit of this de::rnription is governed by article 134-B of the Limita- Mukhcrjca J. tion 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 groui1d 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 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 Attor· ney-General cannot succeed.

It may be. assumed I [1954] as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor ~ Jahgadddguru . against the lessee, no matter whether the sub-lease r:turus i aswami was created before or after the smt, provided the evic- Dakshina tion is based on a ground whieh determines the sub- Maharashtra lease also('). But there seem to be two insuperable Digambar Jain difficulties in the way of applying that principle to the Sabha. facts of the present case. In the first place, the suit Mukherjea,J. 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 determination of tenancy. Tjie 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 cmpmensurate 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 ?therwise treated the lease as subsisting and in 1932 he br9ught 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 (I) Vide Sailendrq v. Bijan, 49 C.W.N, 133; Yuaufl v, Jyotish Olurndra, I.L.R. 59 Cal. 739. i S.C.R. defendant Jain Sabha was at all a sub-lessee under Bharamappa or his heirs. We have gone carefully J aga guru through the document executed by Bharamappa m Gzemshiddasu'""" favour of the Jain Sabha. Both in form and in substance it is a deed of gift and not a sub-lea.se.

Dakshina The gift, it seems, was made for a specific purpose, Mahara"iltra namely, for construction of a school building upon the Diyainbar Jain Sabha. site which was to be used for the education of the boys and girls of the Jain community, and it was for this Mukher}ea J. 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 sub-lease. 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 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 Attorney- General 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 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 SUPREME COURT RE:Pokrs [1954 J 1_9:5~ Attorney-General contended mther strenuously'.that .Jagadgurn ~he transfer here was not forvalmtble consideration Gun,,hiddaswami nmsrnuclt tts the rent reserved for l1 large tract of land which had immense potential vttlue was Rs. 50 only Da/,,,h;.,w for the first six ymtrs and then again it wtts to be i·cduo- MahamshtM eel to Hs.

25 which would continue all through. \\Te Diga1nbar Jain d · t 1 bl Sabha. es1re o pom out t at t 1c cxprcss10n va ua c cons1- dcration" has a well known connotation in law and it Jtukl"'jcaJ. 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 regttrcl to the state of affairs prevailing at the time when the transaction took phtce. 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 a.ppellant: Bajindcr Narain. l Agent for the respondent: Naunit Lal.