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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, 237 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 32 238 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 239 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 240 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. 241 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 242 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. 243