Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 2033 (BOM)

Thakurjee Deosthan v. Viran

2014-09-19

Z.A.HAQ

body2014
Judgment Z.A. Haq, J. 1. Heard Shri S.D. Paliwal, the learned Advocate for the appellant, and Shri D.C. Chahande, the learned Advocate for respondent nos.5-A and 6, Shri J.H. Dongre, the learned Advocate for respondent nos. 1A to 1C, 1D, 1F, 2B(IV), 2C, 2F, 7-A (a), 7-A (b) and Shri V. A. Dhabe, the learned Advocate for respondent no. 4 (J). 2. This appeal is filed by the original plaintiff-Deosthan challenging the judgment and decree passed by the subordinate Courts dismissing the civil suit filed by the appellant-plaintiff for recovery of the possession of the suit lands. 3. The case of the appellant-plaintiff is that Biharilal was managing the properties of the appellant-Deosthan as Manager. Biharilal had sold Khasra no. 210 and Khasra no. 216 to the original defendant nos.1 and 2 by the registered sale-deed dated 21st January, 1956 (Ex.no. 63). Biharilal sold Khasra no. 249 and Khasra no. 251 to Shri Gyaniram (father of the defendant nos. 3 to 6) by the registered sale-deed dated 15th April, 1953 (Exh. no. 64). Biharilal sold Khasra no. 207 to the defendant no. 7 by the registered sale-deed dated 09th July, 1953 (Exh. no. 65). The defendants are in possession of the above mentioned fields from the date of the respective sale-deeds. Biharilal adopted Saratchandra on 16th February, 1956. The date of birth of Saratchandra is 10th February, 1950 and he was minor at the time of his adoption. Biharilal died on 19th June, 1966. At that time, Saratchandra was minor and Chandrakalabai widow of Biharilal managed the affairs of Deosthan till Saratchandra attained majority on 10th February, 1968. After attaining majority, Saratchandra requested the defendants to deliver possession of the suit lands, however, the defendants did not accede to his request and therefore the civil suit was filed. The defendants filed joint written statement opposing the claim of the plaintiff. They denied the adoption of Saratchandra by Biharilal and his capacity to file and maintain the civil suit. The defendants contended that there was no rule of succession of Manager of the plaintiff-Deosthan. The defendants stated that Biharilal was not able to manage the suit lands profitably and, therefore he had sold the suit lands. The defendants contended that the civil suit was filed beyond the prescribed limitation and was liable to be dismissed as barred by limitation. The defendants contended that there was no rule of succession of Manager of the plaintiff-Deosthan. The defendants stated that Biharilal was not able to manage the suit lands profitably and, therefore he had sold the suit lands. The defendants contended that the civil suit was filed beyond the prescribed limitation and was liable to be dismissed as barred by limitation. The defendants alternatively claimed that they acquired the title in respect of the suit lands by adverse possession. The learned Trial Judge proceeded with the trial and after recording the evidence, by the judgment dated 30th April, 1974 concluded that the plaintiff did not have the right to file the civil suit against the defendants. The learned Trial Judge concluded that the plaintiff-Deosthan is the family temple and Biharilal was adoptive father of Saratchandra. The learned Trial Judge recorded the finding that the sale-deeds executed by Biharilal in favour of the defendants are binding on the plaintiff and the defendants acquired the title over the suit lands by adverse possession. The learned Trial Judge concluded that the civil suit was filed beyond the prescribed period of limitation. The learned Trial Judge dismissed the civil suit. The appellant being aggrieved by the judgment and decree passed by the trial Court filed the appeal before the District Court. The learned Assistant Judge by the judgment dated 8th November, 1976 concluded that the plaintiff has failed to prove that Saratchandra was the adopted son of Biharilal and the plaintiff is not entitled to maintain the civil suit. The learned Assistant Judge recorded that the civil suit is filed beyond the prescribed period of limitation and the defendants have perfected the title by adverse possession and the plaintiff is not entitled for the decree for possession in respect of the suit lands from the defendants. The learned Assistant Judge dismissed the appeal. 4. The appellant being aggrieved by the judgment and decree passed by the subordinate Courts have filed this appeal. By the order dated 4th/5th July, 1991 this Court framed the following points:- (i) Whether the plaintiff proves that there was earlier partition between branch of Hemraj-predecessor of plaintiff's present Manager and Bastaram, his brother? (ii) Whether the plaintiff further proves that the deity in question was the family deity of the branch of the plaintiff's Manager's predecessors; and (iii)Whether the suit filed by the plaintiff's present Manager was within limitation? 5. (ii) Whether the plaintiff further proves that the deity in question was the family deity of the branch of the plaintiff's Manager's predecessors; and (iii)Whether the suit filed by the plaintiff's present Manager was within limitation? 5. The above mentioned issues were referred to the trial Court for recording its findings. The trial Court was also directed to inquire as to whether the respondent no. 2 died and if so, whether the suit abated against him for not bringing his legal representatives on the record within time. The trial Court was directed to send the findings to this Court through the District Court. In pursuance of the order passed by this Court, the trial Court permitted the parties to lead evidence and by the order dated 5th February, 1994 recorded its findings and submitted them to the District Court, Bhandara. The parties were directed to appear before the District Court, Bhandara on 5th March, 1994. The parties appeared before the District Court, Bhandara on 5th March, 1994 and the defendants filed the application praying for time to file their objections. However, the District Court, without certifying the findings of the Trial Court submitted them to this Court along with the covering letter dated 9th March, 1994. This Court by the order dated 6th March, 1998, relying on paragraph no. 470 of the Civil Manual and the judgment given in the case of Ramrao Ramchandra Marathe Vs. Jairam Kondajee Marathe reported in 1962 (64) Bom. Law Reporter 459, sent back the record and proceedings to the District Court directing the learned District Judge to certify the findings recorded by the trial Court on the additional issues which were framed by this Court. The parties were directed to appear before the District Court on 13th November, 1998 and the District Court was directed to certify the findings within three months. After the findings recorded by the trial Court on the additional issues framed by this Court were certified by the District Court and sent to this Court, by the order dated 19th November, 2010 formulated the following substantial questions of law were formulated for consideration:- (i) Whether the plaintiff has the right to sue the defendants? (ii)Whether the suit as filed by the plaintiff was legally maintainable and within limitation? 6. (ii)Whether the suit as filed by the plaintiff was legally maintainable and within limitation? 6. This Court heard the appeal and by the judgment dated 23rd November, 2010 allowed the appeal, the operative order being as follows: (1) Sale-deeds executed by deceased Biharilal vide Exh.64 dated 15.04.1953 in favour of Gyaniram; Exh.65 dated 03/09.07.1953 in favour of Roopchand and sale-deed dated 21.01.1956 at Exh.63 in favour of Laxman and his brother Tularam, are accordingly cancelled and set aside. (2) Prayer of appellant/plaintiff for inquiry under Order 20 Rule 10 of Code of Civil Procedure is granted. (3) Respondents are given time till 15.03.2011 to hand over possession of the suit lands to plaintiff's Manager in accordance with law. (4) If the possession is not delivered by the respondents to the plaintiff's Manager by the said date, the plaintiff's Manager is free to execute the decree in accordance with the law. (5) Second Appeal is allowed with costs throughout. Decree be drawn. 7. The judgment passed by this Court on 23rd November, 2010 was challenged by the respondents in Petition for Special Leave to Appeal (Civil) no. 33288 of 2011. The respondents had withdrawn the Special Leave Petition and it was disposed of accordingly by the Hon'ble Supreme Court by the order dated 16th December, 2011. In the meantime, the respondents had filed M.C.A. No. 1127/2011 praying for recalling the judgment dated 23rd November, 2010 and rehearing the appeal on the ground that the Advocate for the respondents could not remain present and assist the Court when the appeal was decided and as the Advocate for the respondents was not present, it was not pointed out to this Court that the judgment is delivered against dead persons. This Court by the order dated 25th November, 2011 allowed Misc. Civil Application, recalled the judgment dated 23rd November, 2010 and directed that the second appeal be listed for final hearing. 8. Shri Paliwal, the learned Advocate for the appellant has submitted that after the findings are recorded by the subordinate Courts on the additional issues as per the order passed by this Court, the learned District Judge has found that there was earlier partition between Hemraj and Bastaram. 8. Shri Paliwal, the learned Advocate for the appellant has submitted that after the findings are recorded by the subordinate Courts on the additional issues as per the order passed by this Court, the learned District Judge has found that there was earlier partition between Hemraj and Bastaram. The learned District Judge has relied on the order-sheet of the earlier proceedings (Exh.123) which shows that the partition proceedings started on 28th September, 1875 between Antoo Patil and Hemraj and in those proceedings Bastaram made an application on 21st September, 1876 claiming partition of his six Annas share. On the basis of the endorsements in the order-sheet dated 25th July, 1877 the learned District Judge has recorded that the partition was sanctioned by the Commissioner and it showed further remark that the partition was to take effect from 1st November, 1879 and there was report that the partition was effected under Act No. XIX of 1863 between Antoo Patil, Bastaram Raghunath Marwari and Jismibai w/o Hemraj Raghunath Marwari. The learned District Judge confirmed the findings recorded by the learned trial Judge on the point no. (i) as framed by this Court, independently considering the material on the record. The learned District Judge confirmed the findings recorded by the learned Trial Judge on point no. 2 also and concluded that the original plaintiff proved that the deity in question was the family deity of the branch of the Manager's predecessors. For this, the learned District Judge relied on the admissions of the original defendants in their written statement that Khasra nos.210, 216, 249, 241 and 207 belonged to Thakurji Deosthan at village Sihora and late Shri R.B. Pandit Biharilal was the Manager of the temple during his life time. The learned District Judge considered the Settlement Bandobast for the year 1916 (Ex.47) which showed the entry that Biharilal was "Sarbharakar". The learned District Judge has considered the certified copy of Khewat for 1915-1916 (Ex.48) showing endorsement "On behalf of Thakurji Deosthan-Sarbharakar Biharilal Malguzar". The learned District Judge has considered the copy of Khewat for the year 1917 to 1937 (Ex.50), Jamabandi (Ex.52), Khasra of five years from 1942-1943 to 1946-1947 (Ex.53) and the reference of Revenue Case No. 55/1-A-10/1950-1951 of the Collector, Bhandara incorporated in the document (Ex.59). The learned District Judge has considered the copy of Khewat for the year 1917 to 1937 (Ex.50), Jamabandi (Ex.52), Khasra of five years from 1942-1943 to 1946-1947 (Ex.53) and the reference of Revenue Case No. 55/1-A-10/1950-1951 of the Collector, Bhandara incorporated in the document (Ex.59). After considering all the above mentioned documents, the learned District Judge recorded the finding that the deity in question is the family deity of the branch of the plaintiff's Manager's predecessors. The learned District Judge has recorded that the civil suit is governed by the Article 96 of the Limitation Act, 1963 and the period of limitation would run from 19th June, 1966, the date of death of the earlier Manager Biharilal and the date of appointment of the subsequent Manager and it is recorded that the suit is filed on 8th February, 1971 i.e. within 12 years of appointment of Shri Saratchandra as the Manager of the Deosthan. In the findings recorded by the learned District Judge on 4th February, 1999 the following point is shown:- "(IV) Whether the respondent (defendant) no. 2 is dead? If so, whether the suit abated against him for not bringing his heirs on record within time?" However, no finding is given by the learned District Judge. 9. Shri Paliwal, the learned Advocate for the appellant has submitted that the concurrent findings of fact recorded by the subordinate Courts that the suit field belonged to the Deosthan have not been challenged by the respondents. It is submitted that once it is held that the suit property belonged to the Deosthan, as a general principle of Hindu Law, it has to be held that the property given for maintenance of religious worship and charity is unalienable. In support of his submission, he relied on the Commentary of Mulla's Hindu Law. The learned Advocate has pointed out from the findings recorded by the learned District Judge, the discussion in this regards. The learned District judge relying on the judgment given by the Judicial Committee in the case of Hanoomam Persaud vs. Mussamat Babooee reported in (1856) 6 M.I.A. 393 has held that shebait has no power to alienate debutter property except "in a case of need or for the benefit of the estate". The learned District judge relying on the judgment given by the Judicial Committee in the case of Hanoomam Persaud vs. Mussamat Babooee reported in (1856) 6 M.I.A. 393 has held that shebait has no power to alienate debutter property except "in a case of need or for the benefit of the estate". The learned Advocate has submitted that in case of alienation of debutter property, the burden lies on the alienee to prove the existence of legal necessity and to show that he has made proper and bona fide inquiries and was satisfied about the existence of such necessity, before purchasing the debutter property. In support of this contention, reliance is placed on paragraph no. 412A of Mulla's Hindu Law. Relying on the Commentary of Mulla's Hindu Law the learned Advocate has submitted that Saratchandra the subsequent Manager has the right to file the Civil Suit to claim back the properties of the Deosthan which were illegally sold. It is submitted that Saratchandra attained majority on 10th February, 1968 and the Civil Suit is filed on 8th February, 1971 i.e. within three years and therefore, the suit is within limitation. It is submitted that though in the plaint, there is no prayer seeking declaration that the sale-deeds are void, it is pointed out from paragraph no. 3A of the plaint, the pleadings that the sale-deeds in respect of the suit fields are void. The learned Advocate has submitted that the findings of fact recorded by the subordinate Courts after the additional issues are framed, have not been challenged by the respondents. It is submitted that the respondent no. 4 died on 18th April, 2008 and the notices were issued to the legal representatives of the respondent no. 4 and the respondent no. 4 (J) (legal representative of the respondent no. 4) has filed the objection dated 12th August, 2014 to the findings recorded by the learned District Judge on 4th February, 1999. It is submitted that the respondent no. 4 had not filed objection to the findings recorded by the learned District Judge on 4th February, 1999 for more than 15 years and it is not open for the respondent no. 4(J) who has come on the record as legal representative of the respondent no. 4 to file objection at the belated stage. 4 had not filed objection to the findings recorded by the learned District Judge on 4th February, 1999 for more than 15 years and it is not open for the respondent no. 4(J) who has come on the record as legal representative of the respondent no. 4 to file objection at the belated stage. It is submitted that in view of these facts and the findings recorded by the subordinate Courts, the appeal has to be allowed and the decree has to be granted as prayed for in the civil suit. 10. Shri J.H. Dongre, the learned Advocate for the respondents has submitted that the sale-deeds which are the subject matter of the civil suit are of 9th July, 1953 and the adoption of Saratchandra is dated 16th February, 1956. It is submitted that the adoption-deed (Ex. 58) incorporates the clause that earlier transactions made by Biharilal are binding on Saratchandra. It is submitted that Saratchandra has no right to file the civil suit challenging the sale-deeds which were executed by Biharilal who was competent to execute the sale-deeds. The learned Advocate has submitted that the plea of partition is taken by the appellant before this Court and there are no pleadings about partition in the plaint and, therefore, the claim as made by the appellant relying on the alleged partition of 1877 cannot be considered. It is submitted that Deosthan may be a Trust as contemplated by provisions of Indian Trusts Act, however, the appellants have not placed any material on the record to show that the Deosthan is registered as Trust. The learned Advocate has submitted that the nomenclature "Deosthan" is not sufficient to consider the Deosthan as Trust and therefore, the provisions of Article 96 of the Limitation Act would not be applicable and the civil suit will be governed by Article 65 of the Limitation Act, 1963. It is submitted that the cause of action, if any, for filing the civil suit had arisen in 1953 and 1956 i.e. the date of registration of the sale-deeds and the civil suit having not been filed within three years from the date of registration of the sale-deeds, it is barred by limitation. It is submitted that the appeal be dismissed. 11. Shri Dhabe, the learned Advocate for the respondent no. It is submitted that the appeal be dismissed. 11. Shri Dhabe, the learned Advocate for the respondent no. 4 (J) has submitted that the sale-deeds are not challenged by the appellants and the suit is only for possession of the lands. The learned Advocate has submitted that in view of the Clause in the adoption-deed (Ex.58), Saratchandra has no right to file the civil suit and the transactions made by Biharilal are binding on him. It is submitted that the suit lands are not the property of the Deosthan but were property of the joint family and Biharilal being the Karta of the joint family has sold lands in that capacity. It is submitted that the Deosthan is the private temple and there being nothing on record to show that the lands were transferred to the Deosthan, the Civil Suit for possession is not maintainable at the behest of the Deosthan. The learned Advocate has relied on the judgment in the case of Commissioner of Endowments and others Vs. Vittal Rao and others reported in AIR 2005 SC 454 . It is submitted that it was incumbent on the appellant to show that there was clear intention to dedicate the suit lands for charitable purposes and relinquishment of right of ownership of the earlier owners of the land to establish the endowment as public trust. It is submitted that while deciding the issue as to whether the public trust is established or not, the history of institution, conduct of the parties and user of the properties has to be seen and mere user of the private property for a particular purpose for long time will not by itself establish that the public trust is created. In support of this submission, the learned Advocate has relied on the judgment given in the case of Kuldip Chand and another Vs. Advocate-General To Government of H.P. and others reported in (2003) 5 SCC 46 . It is submitted that the appellants have not placed any material on the record to show that there is endowment in favour of the Deosthan and the lands are transferred to the Deosthan and therefore, the appellant cannot file the civil suit for possession of the suit lands. It is submitted that the appellants have not placed any material on the record to show that there is endowment in favour of the Deosthan and the lands are transferred to the Deosthan and therefore, the appellant cannot file the civil suit for possession of the suit lands. The learned Advocate has submitted that the respondents are in possession of the suit lands on the basis of the registered sale-deeds, and the sale-deeds are not challenged and there cannot be a decree for possession against the respondents. It is submitted that the adoption of Saratchandra is not legal and he cannot make any claim on the basis that he is adopted son of Biharilal and after the death of Biharilal he became the Manager of the Deosthan. Shri Dhabe, the learned Advocate has submitted that the respondents are in possession of the suit lands on the basis of the registered sale-deeds executed by Biharilal, and from the date of sale deeds, the respondents are in peaceful and uninterrupted possession of the suit lands as owners of the suit lands and suit having not been filed within 12 years from the date of registration of the sale-deeds, the civil suit for possession is barred by limitation. It is submitted that the findings given by the trial Court on the issues framed by this Court, were challenged by the defendants before the District Court by filing an objection on 16th December, 1998. The cross-objection (Ex. 4) before the District Court is not considered by the District Court and it has resulted in the erroneous findings. The learned Advocate has submitted that the trial Court has committed an error in permitting the parties to lead evidence on the point of partition when there are no pleadings of the appellants. It is submitted that the findings recorded by the learned District Judge in paragraph no. 25 of the order dated 04th February, 1999 are illegal and cannot be upheld. The learned Advocate has submitted that the respondents are in possession of the suit lands for about 06 decades pursuant to the registered sale-deeds and it would not be proper to dislodge them from the suit lands. The learned Advocate has prayed for dismissal of the appeal. 12. This Court by the order dated 19th November, 2010 has formulated the following substantial questions of law:- (i) Whether the plaintiff has right to sue the defendants? The learned Advocate has prayed for dismissal of the appeal. 12. This Court by the order dated 19th November, 2010 has formulated the following substantial questions of law:- (i) Whether the plaintiff has right to sue the defendants? (ii) The suit as filed by the plaintiff was legally maintainable and within limitation? 13. Though, it is submitted by the learned Advocate for the respondents that the cross-objection filed by the respondents to the findings recorded by the trial Court after remand has not been considered by the District Court, the findings recorded by the learned District Judge on 4th February, 1999 show that the contentions of the learned Advocate for the respondents have been considered. 14. This Court by the order dated 4th/5th July, 1991 had framed three points and remitted the matter to the trial Court for recording its findings. The question no. 2 framed by this Court is: "(ii) Whether the plaintiff further proves that the deity in question was the family deity of the branch of the plaintiff's Manager's predecessor?" 15. The subordinate Courts have recorded the findings of fact concurrently on this question in affirmative. The finding on this question is recorded by the learned District Judge in paragraph no. 17 as follows:- "In cross-examination Sharad has testified that at the time of the partition in between Hemraj and Bastaram, the temple was not in existence and about in the year 1890 Jismibai constructed Deosthan. His version also finds corroboration from the testimony of Shrawanlal Thakur, aged about 86 years (PW-1). The said version appears to be probable, as pointed out in Ex.48 that the name of Thakurji Deosthan came into picture in the year 1915-16. By considering the reasonable preponderance of the probabilities of the case, the finding of the learned trial Judge that the deity in question was the family deity of the branch of the plaintiff's Manager's predecessors cannot be said erroneous. Hence, I confirm the finding of the trial court on Point no. 2." 16. In the judgment given by the Hon'ble Supreme Court in the case of Kuldip Chand and another Vs. Advocate-General To Government of H.P. and others reported in (2003) 5 SCC 46 , it is laid down in paragraph no. Hence, I confirm the finding of the trial court on Point no. 2." 16. In the judgment given by the Hon'ble Supreme Court in the case of Kuldip Chand and another Vs. Advocate-General To Government of H.P. and others reported in (2003) 5 SCC 46 , it is laid down in paragraph no. 21 as follows:- "It is beyond any dispute that a Hindu is entitled to dedicate his property for religious and charitable purposes wherefor even no instrument in writing is necessary. A Hindu, however, in the event, wishes to establish a charitable institution must express his purpose and endow it. Such purpose must clearly be specified. For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contradistinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant, there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity. (See Menakuru Dasartharami Reddi v. Duddukuru Subba Rao)." If the case of the appellant is examined in the light of the proposition as laid down by the Hon'ble Supreme Court, the pleadings and proof of the necessary ingredients to show that the Deosthan is established for the charitable purposes and public trust is created, are lacking. The appellant has not been able to show that the suit lands were dedicated for religious and charitable purposes. It is not clear on the record as to who dedicated the suit lands for religious and charitable purposes and/or who created the public trust. Consequently, it is not possible to come to the conclusion that there had been clear and unequivocal manifestation of intention to create a trust and vesting of suit lands in the trustees. It is not clear on the record as to who dedicated the suit lands for religious and charitable purposes and/or who created the public trust. Consequently, it is not possible to come to the conclusion that there had been clear and unequivocal manifestation of intention to create a trust and vesting of suit lands in the trustees. Though the appellant has claimed the possession of the suit lands on the ground that the sale-deeds executed by Biharilal are illegal as the respondents have failed to prove that there was legal necessity to sale the suit lands, the appellant has not placed any material on the record to show as to how the endowment is created and extent/subject of endowment. The appellant has failed to prove the dedication of suit lands in favour of the Deosthan on the basis of which it can be held that the private secular character of the suit lands had extinguished. 17. In my view, the subordinate Courts have committed an error in concluding that Thakurji Deosthan-a religious trust is created and the suit lands were its properties. The learned District Judge has relied on the commentary of Mulla's Hindu Law to hold that the suit lands have to be held as the property of the family deity. However, this finding is given on the pre-supposition that the suit lands have been dedicated for Deosthan and for charitable purposes. Though the entries in the documents (Ex.48, 49, 50, 52, 53 and 59) show the name of "Thakurji Deosthan", the appellant has not been able to establish creation of the endowments, the dedication of the suit lands for religious and charitable purposes, the clear and unequivocal manifestation of the intention to create a trust and vesting of the suit lands in the trustees. 18. In paragraph no. 32 of the findings recorded by the learned District Judge on 4th February, 1999, it has come on record that Shrawan Thakur (PW-1) has stated that the expenditure of the Deosthan was made from the income of the land of Machhera. Gyaniram Turkar (PW-2) has stated that on Diwali, ceremonial Puja was performed for which the expenditure was borne by Biharilal. Dharmaji Hedaoo (PW-4) has stated that Biharilal used to look after the worship of deity and used to manage it. Considering this evidence, the learned District Judge has concluded that the suit lands belonged to the Deothan. Gyaniram Turkar (PW-2) has stated that on Diwali, ceremonial Puja was performed for which the expenditure was borne by Biharilal. Dharmaji Hedaoo (PW-4) has stated that Biharilal used to look after the worship of deity and used to manage it. Considering this evidence, the learned District Judge has concluded that the suit lands belonged to the Deothan. In my view, the evidence is not sufficient to come to the conclusion that the suit lands were dedicated for religious and charitable purposes and the Deosthan was maintained from the income of the suit lands. 19. The learned District Judge has recorded the finding that after the death of Biharilal on 19th June, 1966 Saratchandra became the Manager of the Deosthan, being his heir. This finding is recorded by the learned District Judge to negativate the challenge raised on behalf of the respondents that there is nothing on the record to show the mode of succession. The learned District Judge has relied on the Commentary of Mulla's Hindu Law in which it is stated that shebaitship vests in the founder and his heirs and this principle is applied to the private and public trusts. It is undisputed that on 19th June, 1966 when Biharilal died Saratchandra was minor and he attained majority on 10th February, 1968. It has come on the record that during this period, the widow of Biharilal was managing the affairs of the Deosthan on behalf of Saradchandra. As per the schedule under the Hindu Succession Act, 1956, the widow is the Class-I heir. It goes unexplained on record as to why the widow of Biharilal could not have been considered as the shebait and on what basis Saratchandra became the Manager of the Deosthan. 20. It is the specific submission on behalf of the original defendants that the original plaintiff has not pleaded and has not brought any material on the record to show the mode of succession to the office of Manager of the Deosthan. The succession of Shebaitship has recognition in the form of the property in the Hindu Law. The Hon'ble Supreme Court in the judgment given in the case of Sm. Angurbala Mullick Vs. The succession of Shebaitship has recognition in the form of the property in the Hindu Law. The Hon'ble Supreme Court in the judgment given in the case of Sm. Angurbala Mullick Vs. Debabrata Mullick reported in AIR (38) 1951 SC 293 has recorded that there is nothing in the provisions of the Hindu Women's Rights to Property Act from which an inference can be drawn that the expression "property" as used in Section 3(1) has limited or restricted interpretation and is not applicable to Shebaitship which is recognised as property in Hindu Law. The above proposition of law is based on the provisions of Hindu Women's Rights to Property Act, 1937. After the Hindu Succession Act of 1956, the Hindu Women are conferred with more rights and widow is in the category of Class-I heir. There being nothing on the record on behalf of the original plaintiff to show the succession of Saratchandra to the office of Manager and in view of the facts which have come on the record that after death of Biharilal on 19th June, 1966, till Saratchandra attained majority, the widow of Biharilal was managing the affairs of the Deosthan on behalf of Saratchandra, in my view, the evidence on the record is not sufficient to conclude that the claim as made on behalf of the original plaintiff seeking exclusion of the period from the date of death of Biharilal till Saratchandra attained majority, can be accepted. 21. It is submitted on behalf of the appellant that Saratchandra attained majority on 10th February, 1968 and the suit is filed on 8th February, 1971 within 12 years of attaining the majority and therefore the suit is within limitation from the date of appointment of Saratchandra as the manager of the Deosthan. The applicability of the Article 96 of the Limitation Act, 1963 is on the pre- supposition that the suit lands are properties of the Deosthan. I have recorded earlier that the evidence on the record is not sufficient to come to the conclusion that the suit lands were dedicated for religious and charitable purposes and the establishment of the endowment is not proved. Consequently, Article 96 of the Limitation Act would not apply. In the present case, the sale-deeds pursuant to which the respondents came in possession of the suit lands are executed in 1953 and 1956, when the Limitation Act, 1908 was in force. Consequently, Article 96 of the Limitation Act would not apply. In the present case, the sale-deeds pursuant to which the respondents came in possession of the suit lands are executed in 1953 and 1956, when the Limitation Act, 1908 was in force. The Limitation Act, 1963 has come into force on 1st January, 1964. The civil suit will be governed by Article 144 of the Limitation Act, 1908 and/or Article 65 of the Limitation Act, 1963. The respondents took the possession of the suit lands pursuant to the registered sale-deeds executed by Biharilal who was competent to execute the sale-deeds. The sale-deeds are challenged on the ground that the suit lands are the properties of the Deosthan and that there was no legal necessity to sell the suit lands. In view of my conclusions that evidence on the record is not sufficient to show that the suit lands were dedicated for religious and charitable purposes by establishing an endowment, the period of limitation to file the suit for possession would start when the possession of the respondents became adverse to the appellant when the sale-deeds are executed and registered and the defendants are put in possession of the suit lands as the owners. The Civil Suit is not filed within 12 years from the date of the registration of the sale-deeds. Therefore, the suit is barred by limitation. 22. Though the original respondents have not filed cross- objection challenging the findings recorded by the learned District Judge on 4th February, 1999, the appellant/plaintiff has to succeed by proving his case. The issue of limitation has to be considered by this Court in the Second Appeal on the basis of the submissions made by the learned Advocates for the respondents. Section 3 of the Limitation Act, 1963 lays down that, subject to the provisions contained in Sections 4 to 24 every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor shall be dismissed, although the limitation has not been set up as the defence. In view of the mandate of the provisions of Section 3 of the Limitation Act, 1963, the Court is under an obligation to consider as to whether the Civil Suit filed by the appellant/plaintiff was within limitation or not. In view of the mandate of the provisions of Section 3 of the Limitation Act, 1963, the Court is under an obligation to consider as to whether the Civil Suit filed by the appellant/plaintiff was within limitation or not. For the purposes of considering the issue of limitation, in the facts of the present case, it is necessary for this Court to examine as to whether the suit lands were dedicated for religious and charitable purposes and as to whether endowment was created by a clear and unequivocal manifestation of the intention to create the Trust. Therefore, all the points are considered though there is no cross-appeal or cross-objection filed by the original respondents in the Second Appeal. The respondent no. 4(J) has filed cross-objection on 12th August, 2014. However, the respondent no. 4 had not filed the cross-objection till his death, the cross-objection filed by the respondent no. 4(J) cannot be considered on the spacious plea that he has filed cross-objection immediately after receiving notice of the Second Appeal. Be that as it may, the non- filing of the cross-objection does not affect the adjudication of the matter on the point of limitation as recorded above. 23. In view of the above, the second appeal is dismissed. In the circumstances, the parties to bear their own costs.