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PETITIONER: YESHWANTRAO LAXMANRAO GHATGE & ANR.

       Vs.

RESPONDENT: BABURAO BALA YADAV AND ORS.

DATE OF JUDGMENT09/02/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KAILASAM, P.S.

CITATION:  1978 AIR  941            1978 SCR  (2) 814  1978 SCC  (1) 669

ACT: Limitation Act (Act IX), 1908--Section 28, and Articles 134, 134A, 134B, 142 and 144--Effect of Section 28. Bombay  Public  Trusts Act, 1950, S. 52A (as  introduced  by Bombay Act 23 of 1955) whether S. 52A, under which there  is no  limitation  for recovery of the properties of  a  Public Trust  in  accordance  with the Act  would  revive  the  ex- tinguished right to the property--Scope of S.52A.

HEADNOTE: Properties 1A to 1H were either purchased or endowed in  the name  of the deity Shri Vithal Rakhumai Dev by one  Ambabai. One  Pandurang  Babaji Pawar was appointed  as  the  manager (Vahivatdar)  and  one Bala Appa Yadav was  appointed  as  a servant of the deity.  On 1-6-1905, Ambabai executed a  sale deed in respect of all the suit properties except property I E  in favour of Pandurang and Bala.  On  23-6-1907,  Ambabai executed  a second will reiterating that Pandurang and  Bala as  the Vahivatdar and the servant respectively.  After  the death   of  Ambabai  on  12-3-1910,  the   properties   were partitioned.   Pandurang  got property at IC  and  Bala  the rest.  Pandurang died on 13-2-1911 and thereafter there were several  transfers of the properties.  The property at  1  E came in possession of plaintiff/appellant No. 1 who  claimed to  be the Vahivatdar and hereditary trustee of  the  deity. Plaintiff  No. 1 treated the property at 1 E as his own  and sold it on 17-9-1947 to original defendant Nos. 2 and 3. The plaintiffs instituted a suit in 1961 under section 50 and 51 of  the Bombay Public Trusts Act, 1950, attacking the  sales made  in  the  years 1905 and 1947 as  being  void  and  not binding on the deity.  The trial Court treating the suit  as one filed by the deity held that the properties were endowed to  the  deity;  the  sale  deeds  were  obtained  by  undue influence,  without  legal necessity and were  not  for  the benefit  of  the  Devasthan and hence  not  binding  on  the devasthan;  the, purchasers’ possession over the  land  sold was  therefore  void  and adverse.   The  suit  was  however dismissed  on the ground that it was barred  by  limitation. In  appeal,  the finding of the trial Court  in  respect  of property at 1 E alone was assailed without success. Dismissing the appeal by special leave, the Court HELD  :  (1)  The  law of  limitation  fixing  a  period  of

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limitation for the initiation of any suit or proceeding is a procedural law and not a substantive one.  If the claim  was not  barred  and the right to the property  was  not  extin- guished  when  Section  52A came into  force,  then  a  suit instituted,  thereafter could not be defeated under  any  of the Articles of the Limitation Act, 1908 or even of the  new Limitation Act of 1963.  In express terms, Section 52A over- rides  the  provisions of the Limitation Act  including  the provisions  in Section 28 of the Limitation Act, 1908.   The overriding  effect  of  Sec.  52A will  have  its  play  and operation,  only if, by the time it came into force  Section 28  had  not  extinguished  the right  to  the  property  in question.  Section 52A cannot have the effect of reviving an extinguished and lost claim and giving life to a dead horse. [917 D-F] Mahant  Biseshwar  Dass v. Sashinath Jhan and  Ors.   A.I.R. 1943  Pat.  289 and Balram Chunnilal and ors. v.  Durga  Lal Shivnarain, A.I.R. 1968 Madhya Pradesh, 81; approved. Mst.  Allah Rakhi and Ors. v. Shah Mohammad Abdur Rahim  and Ors., A.I.R. 1934 PC 77, referred to Dev  Chavate and Anr. v. Ganesh Mahadeo Deshpande and  Anr., A. 1. R. 1970 Bombay, 412, distinguished. 815 (2) The effect of Section 28 of the Limitation Act, 1908  is not only to bar the remedy but also to extinguish the right. [817 B] (3)  In  the instant case, the effect of Section 28  of  the Limitation  Act  was  that the right  to  the  property  was extinguished  resulting in conferment of a title by  adverse possession  on  the persons in possession of  the  concerned properties.   By such adverse possession those who had  come in   possession   of  these  properties  had   acquired   an indefeasible title under the Indian Limitation Act, 1908 and the claim had become barred long before the year 1955.   The lost  right to this property long before 1947 could  not  be saved and revived in the year 1955 or 1961 by Section 52A of the Bombay Public Trust Act. [817 A, B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 968 of 1968. Appeal by Special Leave from the Judgment dated 21-7-1966 of the  Bombay High Court in Appeal No. 86 of 1966 in F.A.  No. 102 of 1963. R. B. Datar and (Miss) Farhat Quadiri for the Appellant. A.  G. Ratnaparkhi for Respondents 1 (a) to 1 (c), 5, 6  (a) to 6 (g). Sharhad Manohar and Randhir fain for Respondents Nos. 2-3. K. L. Hathi and M. N. Shroff for Respondent No. 7. The Judgment of the Court was delivered by UNTWALIA, J. This is a plaintiffs’ appeal by special  leave. The Trial Court dismissed the suit and the Bombay High Court maintained the dismissal in appeal by the plaintiffs. The  facts are a bit complicated.  For the disposal  of  the present  appeal,  only  a few of them need be  stated  in  a narrow  compass.  One Ambabai, wife of  Chintamanrao  Ghatge purchased lands mentioned at items 1A to 1E in the plaint on the.  3rd  of December, 1896 in the name of the  deity  Shri Vithal Rakhumai Dev.  Lands at IF, 1G and 1H were endowed by Ambabai  to  the deity by a deed of  endowment  executed  in January or February 1905.  Udder this deed of endowment, one Pandurang  Babaji  Pawar  was appointed  as  the  Vehivatdar (Manager)  and  one  Bala Appa Yadava  was  appointed  as  a servant  of the deity.  On the 1st of June,  1905,  however,

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Ambabai  executed  a sale deed in respect of  all  the  suit properties  except  property 1E in favour of  Pandurang  and Bala.   On the 23rd of June, 1907 Ambabai executed a  second Will  and  in that also she reiterated  that  Pandurang  was being  appointed  as Vahivatdar and Bala a  servant  of  the deity.  Ambabai died on the 12th of March, 1910.  After  her death   Pandurang  and  Bala  partitioned   the   properties purchased by them by the sale deed dated 1-6-1905. Pandurang got  property  at IC and the rest went to  Bala.   Pandurang died  on the 13th of February, 1911.  Thereafter  his  widow Radhabai  sold  the property at1C to one  Chinto  Deshpande. Chinto  sold it to original defendant no. 2. Property at  1E came in possession of the original plaintiffs-plaintiff  no. 1  being Yeshwantrao Laxmanrao.  He claimed to be a  Manager and  hereditary  trustee of the deity.   Original  plaintiff no.. 2 who died during the pendency of the suit and on whose death  his legal, representative was substituted claimed  to be  the hereditary Pujari of the deity.  Property at 1E  had come  in  possession of the plaintiffs long  time  back  and plaintiffs no.  1 treated the said property as his own. 816 There  were  several other transfers inter  se  between  the defendants   and  ultimately  in  one  form  or  the   other defendants  1 to 6 came to hold one kind of interest or  the other  in  the  various  suit  properties.   The  plaintiffs instituted the suit in the year 1961 with the permission  of the  Charity Commissioner, Maharashtra defendant no. 7.  The suit  was instituted under sections 50 and 51 of the  Bombay Public  Trusts  Act,  1950-hereinafter called  the  Act,  to recover possession of the suit properties from defendants  1 to 6. Property at 1 E have been sold by plaintiff no.  1  on the 17th of September, 1947 to original defendant nos. 2 and 3. The sales made in the year 1905 as also in the year  1947 were  attacked as being void and not binding on  the  deity. Although  specifically  the  deity was not  impleaded  as  a plaintiff  in the suit, as observed by the  District  Judge, Sitara  who  tried the suit in the first in-stance,  to  all intents  and purposes the suit was by the deity and the  two Plaintiffs.   Defendants  contested  the  suit  on   several grounds.   Several  issues  were framed  and  tried  by  the learned District Judge.  He held that the properties in suit were  bequeathed  by Ambabai to the deity.   The  sale  deed dated  1-6-1905  was obtained by undue  influence.   It  was without  legal necessity and was not for the benefit of  the Devasthan.  It was, therefore, held to be not binding on the Devasthan.   Then purchasers’possession over the  land  sold was, therefore, held to be void and adverse.  Same were  the findings of the Trial Court in respect of the property at  1 E.  The suit was, however, dismissed on the ground  that  it was barred by limitation. On  appeal by the plaintiffs, only limited submissions  were made  by them in the High Court.  The finding of  the  Trial Court  that  the  respective  purchasers  were  in   adverse possession  of the properties at 1A to 1D and IF to  1H  was not  attacked.  The finding of the Trial Court, however,  in respect of property at 1E was assailed but without  success. The High Court dismissed the appeal. Mr.  R. B. Datar, learned counsel for the appellants put  in great  industry  in arguing this appeal and took us  to  the various  facts and facets of the case.   Having  appreciated them  all,  the  points  which  ultimately  crystallized  in argument are the following               (1)  Section 52A was introduced in the Act  by               Bombay Act 23 of 1955 and in view of the  said               provision of law, there was no limitation  for

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             recovery  of the properties of a Public  Trust               in accordance with the Act.               (2) A suit for the recovery of the  properties               was not barred- in the year 1955 when  section               52A came into force.               (3)  That  in any view of  the  matter,  claim               regarding 1E of the property was obviously not               barred in the year 1955 and could not be  held               to  be so in suit instituted in the year  1961               after coming into force of section 52A. Learned  counsel  for  the  respondents  combated  all   the submissions made on behalf of the appellants. In our judgment, there is no substance in any of the  points urged  on behalf of the appellant.  The possession-  of  the purchasers was adverse in respect of all the properties at 1 A to 1 D and 1 F to 1 H from the very 817 beginning.  By such adverse possession those who had come in possession of these properties had acquired an  indefeasible title  under  the Indian Limitation Act, 1908.   It  is  not necessary to decide in this case as to which of the articles in the first Schedule of the said Limitation Act applied  to this case.  Whether it was Articles 134, 134A, 134B, 142  or I,"  the claim had become barred long, long before the  year 1955.   The effect of section 28 of the Limitation  Act  was that  right  to the property was extinguished  resulting  in conferment  of a title by adverse possession on the  persons in possession of the concerned properties.  It is well-known that  the effect of section 28 of the Limitation Act is  not only  to  bar the remedy but also to extinguish  the  right. The  right  to the property itself was dead  and  gone.   It could  not be revived by a provision like the one  contained in section 52A of the Act.               Section 52A reads as follows               "Notwithstanding  anything  contained  in  the               Indian  Limitation Act, 1908, no suit  against               an assignee for valuable consideration of  any               immovable  property of the Public trust  which               has been registered or is deemed to have  been               registered  under this Act for the purpose  of               following  in his hands, such property or  the               proceeds  thereof, or for an account  of  such               property  or proceeds, shall be barred by  any               length of time." It is a well established proposition of law that the law  of limitation fixing a period of limitation for the  initiation of  any  suit or proceeding is a procedural law  and  not  a substantive  one.   Section  52A  had,  by  no  stretch   of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse.  If the claim was not barred  and the right to the property was  not  extinguished when  Section  52A came into force, then a  suit  instituted thereafter  could not be defeated under any of the  Articles of the Limitation Act of 1908 or even of the new  Limitation Act of 1963.  In express terms it over-rides the  provisions of the Limitation Act_ including the provision in section 28 of  the  Limitation  Act, 1908.  But  then  the  over-riding effect of section 52A will have its play and operation, only if,  by  the  time it came into force, section  28  had  not extinguished the right to the property in question.   Other- wise  not.  In Mahant Biseshwar Dass v. Sashinath  Jhan  and others(1)  a Bench of the Patna High Court pointed out  that where  the  right  of the plaintiff  bad  become  barred  by limitation  before the Amending Act of 1929 was  passed  the mere  institution  of the suit after 1929  cannot  have  the

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effect of reviving that right.  By the Amending Act of  1929 in section 10 of the Limitation Act it was provided that  no suit instituted against a person in whom property had become vested  in  trust for an., specific purpose or  against  his legal representatives or assigns for the purposes  mentioned in  the section would be barred by any length of  time  From the category of assigns, assigns for valuable  consideration were left out.  The question before the Patna High Court  in the case referred to above was whether the amendment brought _About  in  the  year 1929 could revive a  right  which  was extinguished,  dead  and  gone  prior  to  1929.   In   that connection the answer given was in the negative.  The (1) A.I.R. 1943, Patna, 289. 818 view so expressed in the Patna decision is perfectly,  sound and correct, and no decision to the contrary was brought  to our  notice.   Under  section 52A of  the  Bombay  Act  even assignees  for valuable consideration have been roped in  to save the suit from the bar of any period of limitation.  But then on an application of the principle referred to about it is  plain  that  section 52A could not have  the  effect  of reviving an extinguished right. In Mt.  Allah Rakhi and others v. Shah Mohammad Abdur  Rahim and  others(1)  Sir Lord Lancelot Sanderson  delivering  the judgment  on behalf of the Board ruled that in regard to  a, suit brought on 29th January, 1926 "the question whether  it was  then barred by limitation must depend upon the  law  of limitation which was applicable to the suit at. that  time." The  provisions of the Amendment Act of 1929 which had  come into  force  on the 1 st of January, 1929 were  held  to  be inapplicable.   Of  course,  even in the light  of  the  old section  it  was  held  that the  suit  was  not  barred  by limitation  and the decree of the High Court  was  affirmed. Krishnan  J. in the case of Balram Chunnilal and  others  v. Durgalal Shivnarain(2) expressed a view identical to the one expressed by the Patna High Court (vide end of paragraph  36 page 86 column 10. Mr.  Datar placed reliance upon the decision of  the  Bombay High  Court  in Dev Chavata and another  v.  Ganesh  Mahadeo Deshpande  and  another(2)  in order to  take  advantage  of section  52A  of the Act.’ The ratio of the case has  of  be appreciated  in the background of the facts  found  therein. The  principles  of law as enunciated cannot  be  fully  and squarely  applied.  But yet the decision, if we may  say  so with respect, is correct.  This would be on the footing that the  decision  given by the Assistant  Charity  Commissioner under  section  79  read  with section 80  of  the  Act  was conclusive  and  final.  He bad  exclusive  jurisdiction  to decide the question as to whether the suit land belonged  to the  trust.  He had so decided it on November 5, 1954.   The suit  was  filed on July 21, 1955.  In that view,  the  High Court was right in holding that a, suit filed under  section 50  of the Act was not barred under section 52A because  the decision of the Assistant Charity Commissioner given In 1954 had  declared the property to be a trust property and  which decision was final. For  the  reasons  stated  above,  it  is  clear  that   the appellants  could not take advantage of section 52A  of  the Act in respect of the properties at 1A to ID and IF to  1.G. Argument put forward by Mr. Datar to show that the claim was not barred in the year 1955 when section 52A came into force was absolutely devoid of any substance.  It was against  the stand  taken  in the High Court and does not merit  any  de- tailed discussion in our judgment. Coming to property at 1E now, we must confess at the  outset

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that  during the course of argument at one time, we  thought that  this  property having been sold in the  year  1947  by plaintiff no. 1, the right to (1)  A.I.R. 1934 Privy Council,177 (2)  A.I.R. 1968 Madhya Pradesh, 81. (3)  A.I.R. 1970 Bombay, 412. 819 the  property was not extinguished under section 28  of  the Limitation  Act in the year 1955.  Therefore,  although  the suit  was  instituted in the year 1961, beyond 12  years  of 1947,  it would perhaps be saved under section 52A from  the bar  of  limitation.   But  on  a  closer  scrutiny  and  on appreciation of the argument of the other side in the  light of  the finding recorded by the High Court, we did not  feel persuaded to give relief to the appellants even in regard to property at 1E.  The High Court has found that plaintiff no. 1 had acquired, title to property 1E by ’adverse  possession long  before 1947.  He dealt with this property as his  own. Even  when the trust was declared as a Public Trust  by  the Charity Commissioner in or about the year 1954, the property at  1E  was  not  shown as  a  trust  property.   The  sale, therefore,  in the year 1947 by plaintiff no. 1  conveyed  a good  title  to  the  purchaser.  The  lost  right  to  this property long before 1947 could not be saved and revived  in the  year  1955  or 1961 by section 52A  of  the  Act.   We, therefore,  hold in agreement with the High Court  that  the suit  was  barred by limitation in regard to  this  property also. In   the  result,  we  dismiss  this  appeal,  but  in   the circumstances make no order as to costs. S.R.                      Appeal dismissed. 820