KAMRUDDIN HAJI ABDUL HAMID v. HUSENSHAH JAMALSHAH — 1971 DIGILAW 26 (GUJ)

A. A. DAVE, J. M. SHETH, J. ( 1 ) THIS is an appeal against the judgment and decree passed by the learned District Judge Surat in Regular Civil Suit No. 24 of 1954 filed by the present appellant (plaintiff No. 4) and four other plaintiffs (plaintiffs Nos. 1 2 3 and 5) who have died during the pendency of the suit as realtors after obtaining the necessary permission of the Charity Commissioner under sec. 50 of the Bombay Public Trusts Act 1950 (Which will be hereinafter referred to as the Act ). [his Lordship after narrating the facts of the case and holding that the appeal does not abate further observed. ] ( 2 ) THE interesting question of law that arises in this appeal is whether the present suit is time barred as has been held by the learned trial Judge. The second interesting question that arises is whether deceased defendant No. 3 had become an owner by adverse possession. ( 3 ) THE learned trial Judge has decided these two points in favour of defendant No. 3 and against the plaintiff. According to the learned trial Judge the Mujawars or the Vahivatdars of the said Wakf property viz. father of defendants Nos. 1 and 2 and defendants Nos. 1 and 2 who are managing these properties had no right to alienate these properties by sale or mortgage and therefore the sale deeds passed by them are void and inoperative and defendant No. 3 cannot acquire any interest in the suit properties by these sale deeds. According to the learned trial Judge these sale transactions being void from their inception adverse possession of defendant No. 3 the aliened started from the very date of the alienation and after completion of twelve years from that date defendant No. 3 obtained prescriptive title. Defendant No. 3 had therefore become an owner by adversely possessing the suit properties for a period over twelve years the adverse possession having commenced from the respective dates of alienations in question. The learned trial Judge further found that the suit is at any rate time barred as on the evidence he recorded a finding that the plaintiffs to the suit (realtors) came to know about these transfers more than twelve years prior to the date of the suit. The learned trial Judge further found that the suit is at any rate time barred as on the evidence he recorded a finding that the plaintiffs to the suit (realtors) came to know about these transfers more than twelve years prior to the date of the suit. The suit having not been filed within twelve years from the date of their knowledge of these transfers in view of the provisions of Article 134a of the Indian Limitation Act 1908 which governed the period of limitation for the suit in question the suit was time barred. ( 4 ) IT is contended on behalf of the appellant as well as on behalf of the Charity Commissioner before us that the suit is not time barred. One of the contentions taken up by Mr. Desai learned Government Pleader appearing for the Charity Commissioner respondent No. 4 was that in view of the provisions of sec. 52a of the Act which was incorporated in the Act during the pendency of this suit no question of limitation arose. That sec. 52a was added by Bombay Act No. 23 of 1955 by sec. 7 of that Amending Act. The present suit was filed on 19th August 1954 That sec. 52a reads as under:-NOTWITHSTANDING anything contained in the Indian Limitation Act 1908 no suit against an assignee for valuable consideration of any immoveable 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. THIS section is more or less on the lines of sec. 10 of the Limitation Act 1908 which did not cover a case of an assignee for valuable consideration. That section read:-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. PROVISIONS of that section could be pressed into service if there was an express trust and the assignee was not an assignee for valuable consideration. PROVISIONS of that section could be pressed into service if there was an express trust and the assignee was not an assignee for valuable consideration. Shebaith or Mutawalli was not a trustee in the English sense of the term. Realising that difficulty the Legislature by Amending Act No. 1 of 1929 added a proviso or an explanation to that sec. 10. It reads:-FOR the purposes of this section any property comprised in a Hindu Mahomedan or Budhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of any such property shall be deemed to be the trustee thereof. IN view of that amendment such a Mutawalli or a Shebaith will be included within the meaning of the word trustee but that would be only for the purpose of sec. 10 of the Limitation Act 1908 ( 5 ) WE will have to consider in this case whether this sec. 52a of the Act which has been brought in the statute book during the pendency of the suit can govern the present suit. The question that will arise for decision therefore will be whether even if the suit was time barred at the date the suit was filed that bar will go away as during the pendency of this suit this section has been brought in the statute book. ( 6 ) IF we now refer to the scheme of the Act it is significant to note that secs. 17 18 and 19 of the Act deal with Books indices and registers Registration of public trust and Inquiry for registration. In sec. 18 sub-sec. (7) has been added by Amending Act No. 23 of 1955 imposing the duty on the trustee of a public trust to send memorandum in the prescribed form containing the particulars including the name and description of the public trust relating to the immoveable property of such public trust to the sub-registrar of the sub-district appointed under the Indian Registration Act 1908 in which such immoveable property is situate for the purposes of registration. Time is also prescribed for sending such particulars. Sec. 22 of the Act deals with change that may occur in any of the entries recorded in the register kept under sec. 17. Time is also prescribed for sending such particulars. Sec. 22 of the Act deals with change that may occur in any of the entries recorded in the register kept under sec. 17. ( 7 ) BY Amending Bombay Act No. 6 of 1960 a duty is enjoined upon the Deputy Registrar after he makes an order to amend any such entry to forward the memorandum in regard to this amendment to the sub-registrar. Sec. 22a was added by Bombay Act No. 59 of 1954 regarding further inquiry to be made by the Deputy or Assistant Charity Commissioner if in regard to any particular property relating to public trust inquiry was not made. ( 8 ) MATERIAL part of sec. 28 of the Act for our purposes reads:- (1) All public trusts registered under the provisions of any of the enactments specified in Schedule A and Schedule AA shall be deemed to have been registered under this Act from the date on which this Act may be applied to them. The Deputy or Assistant Charity Commissioner of the region or sub-region within the limits of which a public trust had been registered under any of the said enactments shall issue notice to the trustee of such trust for the purpose of recording entries relating to such trust in the register kept under sec. 17 and shall after hearing the trustee and making such inquiry as he thinks fit record findings with the reasons therefore. Such findings shall be in accordance with the entries in the registers already made under the said enactments subject to such changes as may be necessary or expedient. IT therefore indicates that even in cases of public trust registered under the different Acts referred to in the two schedules after following the procedure contemplated in this section entries have to be made in the public register maintained under sec. 17 of the Act. It is significant to note at this stage that the Baroda Wakf Nibandh which came into force in the year 1942 A. D. is not one of the Acts referred to in these schedules A and AA. ( 9 ) ANOTHER important section to be noted is sec. 30. 17 of the Act. It is significant to note at this stage that the Baroda Wakf Nibandh which came into force in the year 1942 A. D. is not one of the Acts referred to in these schedules A and AA. ( 9 ) ANOTHER important section to be noted is sec. 30. Material part of it reads:-ANY person acquiring any immoveable property belonging to a public trust which has been registered under this Chapter or any part of or any share or interest in such property of such trust shall be deemed to have notice of the relevant particulars relating to such trust entered in the register or in the registers maintained under sec. 28b. THIS thus evident that the Legislature by this section intended that persons who acquire immoveable property belonging to a public trust registered under this Chapter shall be deemed to have notice of the relevant particulars relating to such trust entered in the register. ( 10 ) SEC. 66 of the Act deals with Penalty. It reads:-WHOEVER contravenes any provision of any of the sections mentioned in the first column of the following table shall on conviction for each such offence be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table. THE sections included are sec. 18 sub-secs. (1) and (4) sec. 18 sub-sec. (7) sec. 22 sec. 23 (B) sec. 22 (C) secs. 29 32 35 59 and 63. Sec. 22c was renumbered as sub-sec. (1) of that section by Bombay Act No. 6 of 1960. It also enjoins a duty on a trustee to send such memorandum to the sub-registrar as contemplated in sub-sec. (7) of sec. 18 for the purposes of registration. ( 11 ) TAKING into consideration this scheme of the Act it appears that such particulars which were entered in the register maintained under subsec. (7) of sec. 18 relating to property of the public trust memorandum of which were to be sent to the registration officers for registration and the persons who deal with such property were to be deemed to have notice of such property particulars registered therein. Persons on whom duty was imposed to send such memorandum within the specified time were to be liable criminally for contravention of these provisions. The relevant sub-sections of sec. 18 of the Act were added in sec. Persons on whom duty was imposed to send such memorandum within the specified time were to be liable criminally for contravention of these provisions. The relevant sub-sections of sec. 18 of the Act were added in sec. 66 by Amending Act No. 23 of 1955. A person cannot be made criminally liable retrospectively. That by itself is indicative of the position that this Act. as not intended to be given retrospective effect. If a suit is already time barred under the Indian Limitation Act and if the right is extinguished by such provisions that right cannot be revived unless the Legislature has by express or necessary implication intended to give retrospective operation to the Act. From the language used in this section there is nothing to indicate such an intention. Apart from that if we take into consideration the analogy of the provisions of sec. 10 of the Limitation Act and the case law on the point whether that section could be given a retrospective operation the conclusion that we have to reach is that the provisions of sec. 52a of the Act cannot be pressed into service in a pending suit. ( 12 ) IN Mt. Allah Rakhi v. Shah Mohammad Abdur Rahim A. I. R. 1934 Privy Council 77 Their Lordships of the Privy Council observed:-THE provisions of the Limitation Amendment Act of 1929 are not applicable to suits brought before 1st January 1929. IT will not be out of place if we mention other observations made therein regarding the status of Mutawallis. It is observed:-MUTWALLI or Sajjadanashin is merely a Manager of the Wakf property the ownership of which vests in God almighty. Mutwalli or Sajjadanashin is not a trustee as understood in the English system and under sec. 10 as it stood before the amendmentsimilar view has been taken that sec. 10 as amended in 1929 has no retrospective effect by a Division Bench of the Allahabad High Court in Haji Mohammad Obed Ullah Khan v. Kunwar Mohammad Abdul Jalil Khan A. I. R. 1945 Allahabad 121 We need not multiply the cases as a consistent view has been taken by all the High Courts in this behalf. We are therefore of the opinion that the provisions of sec. 52a cannot be pressed into service. We are therefore of the opinion that the provisions of sec. 52a cannot be pressed into service. It is a general principle of law that the statutes are not to operate retrospectively so as to defeat a vested right but such operation may be given by express enactment or by necessary implication from the language employed by the Legislature. On referring to the language as well as the scheme of the Act we do not find anything to indicate that the Legislature intended to give retrospective operation to these provisions contained in sec. 52a of the Act. We therefore reject this argument advanced on behalf of respondent No. 4 Charity Commissioner which was also adopted by Mr. Mangaldas Shah appearing for the plaintiff appellant. ( 13 ) THE next important question for consideration is whether the adverse possession of defendant No. 3 would commence from the date of alienation and defendant No. 3 would acquire prescriptive title after the expiry of twelve years from that date. Another question that is also co related to it would be whether such a suit for recovery of possession is time barred. ( 14 ) MR. Chhatrapati appearing for respondents Nos. 3 (a) (c) (d) and (e) and the heirs and legal representatives of respondent No. 3 (b) urged that this was a case where the manager or Mutwalli had not alienated the suit property as a manager or a trustee. It was a transfer in the negation of the trust. The alienations purported to alienate the property as if the property was owned by him. As an owner he had alienated the suit property. The alienations were therefore void from their inception. The plaintiffs case in the plaint was also that alienations are void. Mr. Chhatrapati submitted that this was not a case where a manager or a trustee exceeded his authority. He illustrated his argument by saying that a trustee or a manager may have authority under the trust to lease the property for a period of three years and he may have leased it for a period over three years and thereby exceeded his authority. It may be that a trustee may have authority to alienate the property for legal necessity and he may have alienated the property even though really there was no such legal necessity. It may be that a trustee may have authority to alienate the property for legal necessity and he may have alienated the property even though really there was no such legal necessity. It is only in such cases when the transactions are not void but are voidable and such transfers require to be set aside these relevant provisions of the Limitation Act viz. Articles 134a 134 and 134c which were brought in the statute book by Act No. 1 of 1929 will govern the period of limitation. He emphasised on the language used in the first column of Article 134a given in the first Schedule of the Limitation Act 1908 It is:to set aside a transfer of immoveable property comprised in a Hindu. Mahomedan or Budhist religious or charitable endowment made by a manager thereof for a valuable consideration. IN such a suit period of limitation prescribed is twelve years and the period of limitation commences from the date the transfer becomes known to the plaintiff. It is urged by Mr. Chhatrapati vehemently that the suit contemplated therein is a suit to set aside a transfer of immoveable property comprised in a Hindu Mahomedan or Buddhist religious or charitable endowment which is made by a manager for a valuable consideration. It postulates that the sale or transfer is effective till it is set aside. It will not cover a case like the present case where the alienations are void from their inception. ( 15 ) SIMILARLY Mr. Chhatrapati states that the language of Article 134b points to the same conclusion. It refers to a suit by such manager to recover possession of immoveable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. In that case the period prescribed is twelve years and the time begins to run from the death resignation or removal of a transferor. It is urged by him that the fact that the limitation is to run from the death resignation or removal of a transferor postulates that the transfer was to remain effective during the life time of the transferor or during the period of his remaining in office i. e. till his resignation or removal. It is urged by him that the fact that the limitation is to run from the death resignation or removal of a transferor postulates that the transfer was to remain effective during the life time of the transferor or during the period of his remaining in office i. e. till his resignation or removal. It could not be reasonably deduced from this language used that the Legislature intended to cover cases where such alienations are void and time would begin to run even against the transferor himself from the date of the transfer the transfer being void from its inception. It was therefore urged by him that the article that would apply to such a suit would be residuary Article 144 which prescribes the period of twelve years and the possession of the aliened would become adverse from the date of the alienation. In both the cases viz. alienations under Ex. 112 and 114 dated 1-5-1920 and 28-9-1937 have taken place more than twelve years prior to the filing of the suit on 19-8-1954. That being the position the suit is time barred and defendant No. 3 has become an owner of the suit property by adverse possession meaning thereby he has acquired prescriptive title. He has also submitted before us that that would be the position even under the relevant provisions of the Baroda Limitation Act 1930 Relevant sections are secs. 117 and 118. We will deal with that latter contention a little later on. We will deal with the first contention regarding this adverse possession and limitation first. ( 16 ) IT cannot be gainsaid in view of these two documents Ex. 112 and 1145 that the alienations are not made by the alienors i. e. father of defendants Nos. 1 and 2 and defendants Nos. 1 and 2 respectively professing to transfer property of the trust as managers or trustees or in any other capacity related to the trust. They have claimed this property as belonging to them and have alienated the property as owners. It is therefore evident that the transfer is in negation of the trust itself. One cannot escape from that conclusion. ( 17 ) SOME of the decisions of the High Courts do lend support to the arguments advanced by Mr. Chhatrapati. They have claimed this property as belonging to them and have alienated the property as owners. It is therefore evident that the transfer is in negation of the trust itself. One cannot escape from that conclusion. ( 17 ) SOME of the decisions of the High Courts do lend support to the arguments advanced by Mr. Chhatrapati. In Hemanta Kumari v. Ishwar Sridhar Jiu A. I. R. 1946 Calcutta 473 B K. Mukherjea J. speaking for the Division Bench has observed:-WHEN an endowed property is alienated by a manager the possession of the aliened becomes adverse as soon as he is without any title to the property. If the transfer is void ab initio the possession of the transferee is adverse from the very date of transfer. If it is not void but is only voidable at the instance of the succeeding manager possession cannot be adverse until the office of the alienating Mohant ceases. THE alienation is void ab initio when the manager acts in negation of the trust. It is also observed therein that in cases of endowed property mortgaged by she bait not as she bait but as secular owner in 1905 and purchased in execution of mortgage decree by mortgagee in 1908 and possession obtained suit for recovery of possession by present she bait in 1940 would be barred by limitation the suit is governed by Article 144 and not Articles 134a to 134c. ( 18 ) IN Anisur Rahman v. Shaikh Abdul Hayat A. I. R. 1965 Patna 390 a Division Bench of the Patna High Court also took a similar view observing:-TRANSFER which is void ab initio is in the eye of law no transfer at all and hence will not come within the scope of Article 134b. Moreover that Article refers to transfer made by a manager of an endowment. If a person transfer property treating it as his own private property it is difficult to hold that merely because he happens to be the manager of the endowment on the date of the transfer and the property is the property of the endowment such transfer should come within the scope of that Article. Thus the applicability of either Article 144 or Article 134b would depend on whether the transfer which is sought to be set aside is void ab initio or only voidable at the instance of the succeeding manager. Thus the applicability of either Article 144 or Article 134b would depend on whether the transfer which is sought to be set aside is void ab initio or only voidable at the instance of the succeeding manager. Where the transfer is void ab initio Article 144 would apply. THE aforesaid Calcutta decision and the decisions of the Orissa and Madras High Courts in A. I. R. 1961 Orissa 102 and A. I. R. 1963 Madras 213 were relied on and the decision of the Calcutta High Court in A. I. R. 1961 Calcutta 411 was distinguished. This decision of the Patna High Court is on the facts similar to the facts of the present case. Para 5 of the judgment mentions the relevant facts. It is observed therein at pages 391 and 392:-A careful scrutiny of the deed of alienation shows that the alien or did not purport to alienate Wakf property. Nowhere in the document is there a recital to the effect that the property is Wakf property or else that the alien or was only a Mutwalli with limited rights over the same. On the other hand the three executants of the document namely Abdul Rahman Ataur Rahman and Bibi Kulsum purported to convey the property which was their own. Hence in view of the decision that it is a Wakf property it must be held that the alienation was void ab initio because no Mutwalli can treat the Wakf property as his own property and sell it to a third party in direct contravention of the terms of the Wakf deed. On the question of limitation the leading decision is that of Mukherjea J. (as he then was) is well known Calcutta case Shrimati Hemanta Kumari Bose v. Shree Ishwar Sridhar Jiu A. I. R. 1946 Cal. 473. IF we refer to the two sale-deeds Ex. 112 and 114 the position is the same as in the Patna case. On the question of limitation the leading decision is that of Mukherjea J. (as he then was) is well known Calcutta case Shrimati Hemanta Kumari Bose v. Shree Ishwar Sridhar Jiu A. I. R. 1946 Cal. 473. IF we refer to the two sale-deeds Ex. 112 and 114 the position is the same as in the Patna case. ( 19 ) IN V. Rajaram v. Ramanujam Iyengar A. I. R. 1963 Madras 213 a Division Bench of the Madras High Court has observed:-ALIENATION of property belonging to a trust a charity by the manager or trustee professing to act in that capacity would not be void ab initio unless the alienation was of the entire institution itself alongwith the endowed properties But where the alienation is made of endowed property by the trustee or manager without disclosing that he was acting in that capacity but claiming such properties as his personal properties the alienation would certainly be void as the very act of the alienation was in derogation of the trust. TWO decisions of that very High Court in A. I. R. 1938 Madras 60 and A. I. R. 1938 Madras 415 and the unreported decision in Second Appeal No. 774/57 (Madras) decided by a single Judge and the aforesaid Calcutta decision have been relied upon. ( 20 ) IT is further observed thereinin a case where a person purchases property from the manager of a choultry treating the property as the personal property of that individual (manager) he certainly professes to hold the property not as aliened from the manager but as aliened from the individual. In that case adverse possession starts from the very date of the alienation where transfer of possession was had. THESE decisions no doubt lend support to the argument advanced by Mr. Chhatrapati. It is significant to note that in this decision of the Madras High Court the relevant alienations were of a period over twelve years prior to the date of coming into force the Amending Act of 1929. At page 214 the observations made are:-WE now come to the category of alienations namely those made by Nachiappa the grandfather of the appellant upto 1907. Mr. At page 214 the observations made are:-WE now come to the category of alienations namely those made by Nachiappa the grandfather of the appellant upto 1907. Mr. Ramaswami Iyengar learned counsel for the appellant attempted an argument that in respect of these alienations they must be held to be voidable and consequently so long as Nachiappa was alive adverse possession did not run and cause of action for avoiding these alienations would only start on the death of Nachiappa and the period of limitation for such suits would not have run out till 1931 and consequently in 1929 when Article 134b was introduced a fresh period of limitation from that must necessarily arise. The whole argument proceeds on the central assumption that these alienations were voidable and were not void. A long line of cases has clearly expressed the distinction between alienations made by the trustee of a charity like a chatram in his professed capacity as trustee and alienations of trust property made by the trustee treating the property as his personal private property. IT is thus evident that in that case the aforesaid alienations were made more than twelve years prior to the introduction of Article 134b in the Limitation Act 1908 At the same time it cannot be gainsaid that the principle enunciated in this decision does lend support to the argument advanced by Mr. Chhatrapati. . ( 21 ) IN Ram Lal v. Khushi Ram A. I. R. 1949 East Punjab 233 a Division Bench of the East Punjab High Court has taken a contrary view. It is observed therein:-WHERE the property was Wakf and the alien or was the manager the fact that while selling the property the alien or described it as his private property would not take the case out of the purview of Article 134b. The relevant words in the Article are transfer by a previous manager and to hold that if the manager while making the transfer denies that the property is Wakf the article cannot apply would be to read in the article words like manager as such which do not exist. DECISIONS in A. I. R. 1937 Lahore 9 and A. I. R. 1941 Madras 449 (Full Bench) are relied upon. We need not refer to other decisions wherein also a contrary view has been taken. DECISIONS in A. I. R. 1937 Lahore 9 and A. I. R. 1941 Madras 449 (Full Bench) are relied upon. We need not refer to other decisions wherein also a contrary view has been taken. We need not dilate on this point further as in our opinion this question is covered by the authority of the Supreme Court in Civil Appeal No. 801 of 1963 decided on 16th December 1965 The very decision in second appeal No. 774/57 of Madras High Court relied upon in V. Rajaram (supra) was under appeal. Gajendragadkar C. J. speaking for the Supreme Court has made important observations as regards this question. He has dealt with the alienations covered by Ex. A-3 A-6 and A-12 dated 7-10-1917 2 and 2-7-1926 respectively. The suit was brought by the alienees on 13-9-1954. The High Court had held that the properties belonged to the Temple and they were not personal properties of the alien or as suggested by the alienees. The High Court held that the properties covered by the aforesaid three sate deeds fell within the purview of Article 134b and the appellants (plaintiffs alienees) title in respect thereof was open to challenge. In the result the appellants claim in regard to these properties was rejected. Against that decision of the High Court appeal was preferred to the Supreme Court. Mr. Tatachari for the appellants urged before the Supreme Court that Article 134b would not apply to the present case because the alienations evidenced by those deeds showed that the alienors purported to transfer the properties not as Poojaris or managers of a temple but in their individual character as owners of the said properties. The documents recited that the properties belonged to the alienors as their separate secular properties though burdened with an obligation to render service to the Matam and that shows that the transfer was effected not by the Poojaris of the temple but by persons who claimed that the properties belonged to them. It was therefore submitted that such a case would fall outside the purview of Article 134b and must be governed by Article 144 of the First Schedule to the Limitation Act. The relevant observations made are:-MR. It was therefore submitted that such a case would fall outside the purview of Article 134b and must be governed by Article 144 of the First Schedule to the Limitation Act. The relevant observations made are:-MR. Tatachari also argues that in applying Article 144 we must assume that the possession of the alienees was adverse to the temple from the respective dates of the alienations when they were put in possession of the properties covered by the transactions in question. In support of this argument Mr. Tatachari has relied on the statement of the law made by Mr. Justice Mukherjea in his lectures on the Hindu Law of Religious and Charitable Trust (Mr. Justice B. K. Mukherjea on Hindu Law of Religious and Charitable Trust II Edition (1962) p. 282 ). Says Mr. Justice Mukherjea `if the transfer (of debater property) is not of particular items of property but of the entire endowment with all its properties the possession of the transferee is unlawful from the very beginning. The decisions in Gnanasambanda Pandara Sannadhi v. Velu Pandaram and another (27 I. A. 69) and Damodar Das v. Adhikari Lakhan Das (371 I. A. 147) are illustrations of this type of cases. He also added that transfer would similarly be void and limitation would run from the date of the transfer if the manager transfers the property as his own property and not as the property of the deity. The same statement has been made by the learned author in two other places in the course of his lectures. THE argument is that in cases falling under Article 134b the transfer made by the manager of a Hindu endowment is challenged by his successor on the ground that it was beyond the authority of the manager and such a challenge necessarily postulates that the transfer was effected by the manager as manager purporting to deal with the property as belonging to the religious endowment. Where however the transfer is made by the manager not as manager but as an individual and he deal with the property not on the basis that it belongs to the religious endowment but on the basis that it belongs to himself considerations which would govern the application of limitation are substantially different and in such a case the transfer being void ab initio the possession of the transferee is adverse from the date of the transfer. That is how Mr. Tatachari has attempted to avoid the application of Article 134b in the present case. There can be no doubt that if the assumption made by Mr. Tatachari is well founded the appellants title to the three transactions in question would have to be upheld. HIS Lordship Gajendragadkar C. J. referred to the view that prevailed prior to the decision of the Privy Council in a well known case in Vidya Varuthi Thirtha v. Balusami Ayyar and others (48 Indian Appeals 302 ). He also referred to the aforesaid Privy Council decision referred to by Mukherjea J. in support of his conclusion in the aforesaid Calcutta decision and distinguished them and referred to other Privy Council decisions also and observed as under:-THUS on the question raised by Mr. Tatachari before us there does appear to be some divergence of opinion in the Calcutta High Court itself. No other decision has been cited before us which has accepted the proposition that if any part of the property belonging to a Hindu religious endowment is transferred by its manager the transfer is void and the possession of the transferee becomes adverse to the endowment from the very beginning. In fact as we have already indicated in the case of Gnanasambanda (supra) what had been transferred unauthorisedly was the religious office itself and all the properties appertaining thereto. It is open to doubt whether the said decision could lead to the inference that if a part of the property is transferred by the manager of a religious endowment on the basis that it belongs to him and not to the religious endowment the transfer is void ab initio with the result that the possession of the transferee is adverse to the religious endowment from the very beginning and the succeeding managers right to challenge the said transfer would be lost if his predecessor who made the transfer lives for more than 12 years after effecting the transfer. IN the words of Sir John Edge who spoke for the Privy Council in Naina Pillai Marakayar and others v. Ramanathan Chettiar and others (51 Indian Appeals 83 at p. 97) in the case of a she bait a grant by him in violation of his duty of an interest in endowed lands which he has no authority as she bait to make may possibly under some circumstances be good as against himself by way of estoppel but is not binding upon his successors. It is not easy to see why the successors right to challenge an unauthorised alienation made by his predecessor should be affected adversely if the alienation is made by the predecessor on the basis that the property belonged to him and not to the religious endowment. After expressing such an opinion in the aforesaid terms it is observed:-HOWEVER we do not think it necessary to decide this point in the present case because in our opinion the plain words of Article 134b do not permit such a plea to be raised. IT cannot therefore be gainsaid that on the point referred to by us earlier the Supreme Court has finally not decided that point as the Supreme Court found that this question could be viewed from another angle that in view of the provisions of Article 134b the aliened in such a case could not have been said to have perfected his title by prescription. The important observations in this behalf are very relevant and material for our purposes. They are:-COLUMN 1 of Article 134b provides for suits brought inter alia by the manager of a Hindu religious or charitable endowment to recover possession of immoveable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration. The period prescribed for such suits is 12 years and the time from which the period begins to run is the death resignation or removal of the transferor Confining ourselves to the first column of Article 134b at this stage the question which we have to decide is does this article permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment and those made by him an the basis that the said property is his own private property ? If the property is transferred by the manager on the basis that it belongs to the endowment Article 134b clearly applies but does it make any difference to the application of Article 134b if the transfer is made on the other basis that the property belongs not to the endowment but to the manager himself ? In either case the successor who challenges the alienation will have to prove that the property in fact belongs to the religious endowment. Once that is proved is it necessary for him also to show that the transfer was made on the basis that the property belonged to the religious endowment? In our opinion such a limitation cannot be read in the words used by the said article. Article 134b applies to all cases where it is shown that the immoveable property was comprised in the endowment and that it has been transferred by a previous manager for a valuable consideration The successor has to prove three facts (1) that the property belongs to the religious endowment (2) that it was transferred by a previous manager and (3) that the transfer was for a valuable consideration. The character of the representations made by the previous manager in regard to his relation with the property which is the subject matter of transfer. is irrelevant for the purpose of Article 134b All transfers made would fall within Article 134b if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment. Therefore we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of Article 134b inasmuch as they are effected by the alienors on the representations that the properties transferred belonged to them as their separate properties. On the findings recorded by the High Court it is clear that the properties belonged to the temple that they have been transferred by persons who must be deemed to be the previous managers of the temple and that they have been transferred for valuable consideration. The present suit has been brought against respondents Nos. 1 to 3 who are appointed trustees of the temple by respondent No. 4 and so all the ingredients prescribed by the first column of Article 134b are satisfied. The present suit has been brought against respondents Nos. 1 to 3 who are appointed trustees of the temple by respondent No. 4 and so all the ingredients prescribed by the first column of Article 134b are satisfied. That is why we must reject the ingenious argument urged before us by Mr. Tatachari that Article 134b does no apply to the present casein view of this decision of the Supreme Court it does not remain open to us to consider whether the view taken by the Calcutta High Court and other High Courts was the correct view. ( 22 ) IT is contended by Mr. Chhatrapati that it was not necessary for the Supreme Court to consider any such question regarding application of Article 134b of the Limitation Act in that suit as the suit was not filed for recovery of possession of the trust property. The suit was filed by an alienee of the trust property for a declaration. He therefore submitted that that decision should not be taken into account. In our opinion this argument is not well founded. Even the obiter dicta of the Supreme Court will be binding on this Court Apart from that the real question that arose for decision in that suit was whether the alienee had acquired prescriptive title. It was the contention of the alienee who was the plaintiff that he had acquired such prescriptive title by holding the property adversely to the trust and the property having been alienated by the alien or not as a manager of the temple but as a property belonging to him adverse possession started from the date of the transfer itself. It was 9 absolutely necessary for the Supreme Court to decide this question. ( 23 ) IT has been contended by Mr. Chhatrapati that in the present case father of defendants Nos. 1 and 2 and defendants Nos. 1 and 2 who are the alien or alienors as the case may be could not be said to be the managers. They were merely Mujawars who are supposed to perform the duties of lighting a lamp etc. as a servant. They cannot be said to be the Vahivatdars or the managers. 1 and 2 and defendants Nos. 1 and 2 who are the alien or alienors as the case may be could not be said to be the managers. They were merely Mujawars who are supposed to perform the duties of lighting a lamp etc. as a servant. They cannot be said to be the Vahivatdars or the managers. He invited our attention to the decision of a single Judge of the Bombay High Court in Mahomed Oosman v. Essack Saleh Mahomed Vanjara 39 Bombay Law Reporter 502 wherein a question arose whether the post of a Mujawar was a hereditary post. In that connection the observations made are:-THE office claimed by plaintiffs is not known to the law the word Mujawar being used to designate a caretaker servant or sweeper attached to a shrine. IT was further observed:- assuming that the office claimed was known to the law it was not shown to be an integral part of the machinery for administering the Wakf and the plaintiffs were not entitled to hold it by heredity or otherwise. IT is significant to note that in the instant case in plaint para 1 no doubt it is stated that in the house situate in city survey No. 93 defendants Nos. 1 and 2 who are Mujawars of the Dargah (belonging to the Wakf ) reside. In para 2 it is stated that defendants Nos. 1 and 2 were allowed to continue as managers or Vahivatdars of the Wakf after the death of their father Jamalshah who was a Fakir and who was first appointed as Mujawar of the Shitab Peer Dargah by the beneficiaries of the Wakf. It is further stated therein Defendants Nos. 1 and 2 are residing in the house adjoining the Dargah as Mujawars in their capacity as managers or trustees of the Wakf without paying rent. They are letting the properties belonging to the Wakf and recovering rents thereof. They do the Divabatti of the Dargah and perform the Uras anniversary of Pir Shitab Peer. In para 4 also it is stated that Jamalshah had taken certain loans from the father of defendant No. 3 and this Jamalshah was looking after the said Dargah Wakf. It is further stated therein that defendants Nos. They do the Divabatti of the Dargah and perform the Uras anniversary of Pir Shitab Peer. In para 4 also it is stated that Jamalshah had taken certain loans from the father of defendant No. 3 and this Jamalshah was looking after the said Dargah Wakf. It is further stated therein that defendants Nos. 1 and 2 and their father had no right to alienate city survey No. 95 of which they were merely managers without obtaining the permission from the competent court. Defendant No. 3 claimed city survey No. 95 included in the two sale deeds executed by the Mutwallis of the Dargah as his property. In para 8 also it is stated that the vendors of the plaintiffs i. e. defendants Nos. 1 and 2 and their father were Vahivatdars thereof. No doubt the recital made in that para is on the basis of a mention made in Special Civil Suit No. 65 of 1952. It is thus evident that in the plaint clear averment is made that defendants Nos. 1 and 2 and their father were the managers or Vahivatdars. They have been also described sometime as Mutwallis. ( 24 ) DEFENDANT No. 3 in his written statement Ex. 8 did not specifically deny this material fact. He merely stated that he had no personal knowledge about it. At the same time it is significant to note that in para 5 he has stated as under:-THIS defendant asserts that city survey Nos. 93 and 95 as well as the property to the west of it now owned by Shah Nemchand Gandabhai were the private properties of Jamalshah Hasamshah alias Kasamshan and his heirs and that they managed these properties as absolute owners and dealt with them and alienated them as owners. IT therefore means that the fact that these persons managed these properties is admitted even by defendant No. 3 in his written statement. ( 25 ) IN para 7 of the written statement he has stated that he does not admit that they are staying there in their alleged capacity as Mujawars or managers of the alleged Wakf. In short his contention was that these people were managing these properties and were staying there not as Mujawars or Mutwallis of the Wakf but as owners of the properties. In short his contention was that these people were managing these properties and were staying there not as Mujawars or Mutwallis of the Wakf but as owners of the properties. It is significant to note that in special suit No. 65 of 1952 which was filed by these very defendants in respect of this property the Court has found while deciding issue No. 4 that it is proved that the suit properties were of the ownership of the Dargah of Shitab of Pir and that the vendors of the plaintiff and his father were the Vahivatdars thereof. We cannot refer to the evidence led in that case which has been referred to in that judgment but we can refer to the findings arrived at in that suit which was filed by some of the plaintiffs. It is significant to note that these very beneficiaries i. e. realtors with the permission of the Charity Commissioner had filed alongwith this civil suit No. 23 of 1954 for removal of these defendants Nos. 1 and 2 the Mutwallis or the trustees and by the judgment Ex. 127 such an order regarding the removal has been passed on 9 and by Ex. 128 new trustees have been appointed in their place and the scheme is framed. It cannot therefore be gainsaid that these persons were the managers or Vahivatdars of this Wakf when these alienations came to be made. This argument advanced by Mr. Chhatrapati therefore cannot be accepted as well founded. ( 26 ) IT has been next contended that the suit was already time barred in respect of both the alienations under the Baroda Limitation Act. It is significant to note that Baroda Limitation Act which amended the old Baroda Limitation Act of Samvat year 1952 came into force on 1-10-1930. First alienation under challenge is of the year 1920 A. D. Before twelve years passed from the date of that alienation this Baroda Limitation Act 1930 had already come into force. There could not therefore be any question of the suit having been time barred prior to the coming into force of that Baroda Limitation Act. The second alienation under challenge is of the year 1937 A. D. In Baroda Limitation Act of 1930 which came into force on 1-10-1930 there are two sections-sec. 117 and 118-material for our purposes. Sec. 117 was on similar lines as sec. 134a. The second alienation under challenge is of the year 1937 A. D. In Baroda Limitation Act of 1930 which came into force on 1-10-1930 there are two sections-sec. 117 and 118-material for our purposes. Sec. 117 was on similar lines as sec. 134a. The significant difference was that there was a clear mention in it that it related to a suit for recovery of possession of any immoveable property belonging to a public trust or charitable trust or religious trust which has been purchased for consideration from the Vahivatdar of such trust or institution and the period prescribed was a period of twelve years and the limitation was to start from the date of the knowledge of the transfer. While under the Limitation Act Article 134a reference is in regard to a suit for setting aside the transfer of immoveable property comprised in a Hindu Mohammedan or Buddhist religious or charitable endowment made by the manager thereof for valuable consideration. The period of limitation is twelve years and_the period begins from the date when the transfer becomes known to the plaintiff. Similar to sec. 134b there as sec. 118 of the Baroda Limitation Act. It could not therefore be said in the instant case that the position was different in Baroda. It could not be said that the suit in respect of both the properties was time barred under the Baroda Limitation Act prior to the merger of the Baroda State with the Bombay State. ( 27 ) THE real question in our opinion is as to when the adverse possession starts. That question has been decided by the Supreme Court in the aforesaid decision. If it could be said that defendant No. 3 has become an owner by adverse possession for a period over twelve years from the date his adverse possession starts the suit will be barred. It has been held in the aforesaid decision of the Supreme Court that in such a case even though the transferor did not profess to transfer the property as the property of the Wakf but on the contrary professed to transfer it as an owner of that property the adverse possession does not start from the date of the transfer but it starts from the date of the death resignation or removal of that person. In the instant case the alien or Jamalshah who was the manager of the Wakf at the time of the alienation in question died in the year 1923 A. D. Even in the Sanad Ex. 132 he was shown as Vahivatdar. So far as Jamalshah was concerned therefore there could not be any challenge of the position of his managing the Wakf property. Admittedly the suit in regard to that alienation was not filed within twelve years from the date of his death. So far as that property is concerned therefore the alienee has undoubtedly become an owner by adverse possession. The suit in respect of that property which is lot No. A shown in the plaint is clearly time barred. The finding of the learned trial Judge so far as that property is concerned that defendant No. 3 has acquired prescriptive title and has thereby become an owner is correct. ( 28 ) SO far as the alienation under Ex. 114 is concerned the alienation was made by defendants Nos. 1 and 2. We have found them to be the managers of the Wakf at the time the alienation came to be made. They have been removed in the year 1959 from that office. It is therefore evident that as the adverse possession of defendant No. 3 could start from that date it could not be said so far as the property conveyed under that sale deed Ex. 114 which is lot No. B is concerned that defendant No. 3 has become an owner by adverse possession. Adverse possession will start from the date of the death removal or resignation of these managers. They have been removed in the year 1959 i. e. even much after the filling of the suit. It could not therefore be said that defendant No. 3 has acquired prescriptive title over lot No. B which is conveyed under the sale deed Ex. 114 of the year 1937 A. D. ( 29 ) IT is no doubt true that the present suit was not filed by the new Mutwallis or the trustees appointed. The suit has been filed by the realtors under sec. 50 of the Bombay Public Trusts Act 1950 with the necessary sanction of the Charity Commissioner. It was therefore contended on behalf of defendant No. 3 by Mr. The suit has been filed by the realtors under sec. 50 of the Bombay Public Trusts Act 1950 with the necessary sanction of the Charity Commissioner. It was therefore contended on behalf of defendant No. 3 by Mr. Chhatrapati that the suit having not been filed by the manager provisions of Article 134b could not be applied. Provisions of Article 134a would apply and the suit should be held time barred even in respect of this second lot of property alienated under Ex. 114. In our opinion this argument on close scrutiny cannot be accepted as a well founded argument. The crux of the question is as to when it could be said that the adverse possession of defendant No. 3 started. If it could not be said that the adverse possession of defendant No. 3 started from the date of the transfer but it started from the date of the death removal or resignation of the previous managers i. e. defendants Nos. 1 and 2 and if from such dates twelve years have not passed and consequently defendant No. 3 has not become an owner of that property by holding it adversely to the trust for a period over twelve years those new trustees or Mutwallis or the managers could file a suit for recovery of possession and defendant No. 3 could not successfully resist their right to recover possession in view of the interpretation put on Article 134 B of the Limitation Act by the Supreme Court in the aforesaid decision. If the right of such new trustees is not lost it is difficult to hold that such realtors who are entitled to file such a suit under sec. ( 30 ) FOR recovery of possession to protect the interest of the trust their suit should fail on the ground that it is time barred. They are filing the suit not on their behalf but they are filling the suit for Wakf itself. They are mere beneficiaries. They are given a right to file such a suit with the necessary sanction of the Charity Commissioner in view of the provisions of the Act. 50 In Bishwanath v. Shri Thakur Radha Ballabhji A. I. R. 1967 Supreme Court 1044 at page 1046 the Supreme Court has made some observations which in our opinion are relevant for our purposes. They are given a right to file such a suit with the necessary sanction of the Charity Commissioner in view of the provisions of the Act. 50 In Bishwanath v. Shri Thakur Radha Ballabhji A. I. R. 1967 Supreme Court 1044 at page 1046 the Supreme Court has made some observations which in our opinion are relevant for our purposes. They are:-THE second question turns upon the right of a worshipper to represent an idol when the She bait or manager of the temple is acting adversely to its interest Ganpati Iyer in his valuable treatise on Hindu and Mohammedan Endowments 2 Edition at para 226 had this to say in regard to the legal status of an idol in Hindu law:-THE ascription of a legal personality to the deity supposed to be residing in the image meets with all practical purposes. The deity can be said to possess property only in an ideal sense and the theory is therefore not complete unless that legal personality is linked to a natural person. IT would be futile to discuss at this stage the various decisions which considered the relationship between the idol and its She bait or manager qua the management of its property as the Privy Council in Jagadindra Nath v. Hemanta Kumari Debi (1904) 31 Ind. App. 203 at pp. 209 210 (P. C.) has settled the legal position and stated thus:-THERE is no doubt that an idol may be regarded as a juridical person capable as such of holding property though it is only in an ideal sense that property is so held. DEALING with the position of the She bait of such an idol the Privy Council proceeded to state: -. . . IT still remains that the possession and management of the dedicated property belong to the She bait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the She bait not in the idol. THEREAFTER other decisions have been referred to and the important comments made by B. K. Mukherjea in his book The Hindu Law of Religious and Charitable Trust 2 Edition have been referred to. Every such right of suit is vested in the She bait not in the idol. THEREAFTER other decisions have been referred to and the important comments made by B. K. Mukherjea in his book The Hindu Law of Religious and Charitable Trust 2 Edition have been referred to. It summarizes the legal position by way of the following propositions among others at page 249:- ` (1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency and that agent is the She bait who is in law the person entitled to take proceedings on its behalf. The personality of the idol might therefore be said to be merged in that of the She bait. (2) Where however the She bait refuses to act for the idol or where the suit is to challenge the act of the She bait himself as prejudicial to the interests of the idol then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol. This view is justified by reason as well by decisions. IT is thus evident that in such a case even though defendants Nos. 1 and 2 were not removed from the manager ship or Mutwalliship the beneficiaries were entitled to file a suit for recovery of possession of the property wrongly alienated by such managers. Under sec. 50 of the Act such a right has been recognised. So far as this case is concerned in the revision application this position has been accepted. We have already referred to that decision. It is therefore evident that such a suit for recovery of possession by these realtors is maintainable. Such right is given to them to protect the interest of the Trust. Such a suit can be filed either by the realtors who have been given such permission by the Charity Commissioner or the Charity Commissioner himself can file such a suit. It is therefore evident that such a suit for recovery of possession by these realtors is maintainable. Such right is given to them to protect the interest of the Trust. Such a suit can be filed either by the realtors who have been given such permission by the Charity Commissioner or the Charity Commissioner himself can file such a suit. The question therefore that arises for decision is whether such a right for recovery of possession can be defeated on the ground of bar of limitation when such a suit could not be defeated on that ground if that would be filed by the new trustees who have been appointed later on. In our opinion such a suit cannot be defeated on the ground that it is barred by limitation. It could be defeated only if we are able to come to the conclusion that defendant No. 3 has acquired prescriptive title. We cannot record that finding in his favour in view of the aforesaid decision of the Supreme Court. We are therefore of the opinion that the present suit is not time barred so far as the property referred to as lot No. B in the plaint which is the subject-matter of alienation under Ex. 114 is concerned. We are therefore of the opinion that the trial Court has committed an error in coming to the conclusion that the suit is time barred in respect of that property and defendant No. 3 has become an owner by adverse possession in regard to that property. No doubt these findings of ours are on the assumption that the suit property is the Wakf property. If we do not confirm the finding arrived at by the trial Court in that behalf defendant No. 3 would be the owner of the property as he acquired title from the persons who would be the owners. . . . . . . . . . . . . . . . . . . (The rest of the judgment is not material for the reports.) .