Fazl Ali, J.The circumstances which have given rise to this appeal may be briefly stated as follows:

One Rampat Das, who was the Mahant of the Paliganj math, an institution situated in the district of Patna, executed two deeds during his lifetime relating to certain properties which are described in Schedule 2 as follows:

The entire 16 annas of jigar lauds forming revenue free milk at interest situate in Mauza Natauli...having an area of 70 32 acres

2. One of these deeds was a mukarrari or permanent lease granted by Rampat Das to defendant 1 Naurangi Lal on 21st December 1909, under which defendant 1 was to be in possession of the property and was to pay an annual jama of Rs. 125 to Mahanth Rampat Das. The other document was a deed of sale executed by Rampat Das in favour of defendant 3, wife of defendant 2, for a consideration of Rs. 900. Mahanth Rampat Das died in Aswin 1321 Fasli (in 1913) and as he did not leave any disciple behind him there arose a dispute as to the right of succession to the math between one Sant Das who claimed to be a co-disciple of the deceased and the plaintiff, who is admittedly the Mahanth of another institution named Ramdih Baga and who claimed to be the Mahanth of Paliganj on the ground that the math was subordinate to the institution of which he was the head. On 20th February 1916, Sant Das executed a deed of surrender which is Ex. 12 in the case and by which he relinquished his claim in favour of the plaintiff. In this deed it was stated among other things by Sant Das that the Paliganj math was a branch of the Ramdih Baga math and subordinate to it; that the management of the Paliganj math used to be carried on under the orders and permission of the Mahanth of Baga; that the Mahanth of Baga had full power to appoint and dismiss the Mahanth of Paliganj; and that whenever the Mahanth of Paliganj died, the Mahanth of Baga used to appoint another Mahanth there. In 1323 Fasli or 1916 Sant Das died and in the year 1924 the plaintiff, Mahanth Ram Charan Das commenced this litigation.

3. The allegations made by Ram Charan Das in the plaint which was filed on 27th May 1924, related mainly; (1) to the interest which he claimed in the Paliganj math and its properties and his right to institute the present suit; (2) the private character of the late Mahanth Rampat Das and the nature of the alienations which are the subject-matter of the suit and (3) the character of the properties which had been alienated. Thus it was staled in the first instance that the Paliganj math was a branch of and subordinate to the Ramdih Baga math and that under an old coustom the plaintiff, as the Mahanth of Ramdih Baga math, was entitled to take possession of the Paliganj math and of all the properties appertaining thereto as soon as Mahanth Rampat Das died without leaving behind a chela.

4. It was next stated that Rampat Das the late Mahanth of Paliganj was a man of profligate habits, that defendants 1 and 2 had great influence over the said Mahanth and that it was in consequence of certain allurements thrown out by these two defandants that Mahanth Rampat Das had been induced to execute the mukarrari and the sale-deed without receiving any consideration and without there being any legal necessity to justify their execution. Lastly, it was urged that the property in question was not the property of Rampat Das but appertained to Paliganj math and belonged exclusively to three deities installed in the math, namely, Srea Ram Chandraji, Sree Lachmanji and Sree Jankiji. On these allegations the plaintiff claimed khas possession of the property mentioned in Schedule 2 of the plaint as well as mesne profits and he further asked the Court to declare that the aforesaid property belonged exclusively to the three gods and that the mukarrari deed of 21st December 1909 and the sale-deed of 13th February 1911 were "ineffectual and null and void and that the plaintiff was not bound by them in any way".

5. The suit was contested by all the three defendants who traversed almost all the statements in the plaint and even denied the existence of the math at Paliganj. Their principal contentions, however, were that Rampat Das was the absolute owner of the property in suit, that the plaintiff had no right to sue, and that the suit was barred by limitation. It was also pleaded as an alternative defence that both the mukarrari and the sale-deeds were executed for legal necessity and were, therefore, binding on the plaintiff.

6. The learned Subordinate Judge who framed no less than nine issues in the case decided almost all of them in favour of the plaintiff and decreed the suit. His main findings were that the property in suit was debuttar property dedicated for the service of god Vishnu and the plaintiff represented the deity as its shebait, that there was no legal necessity to justify the alienations made by Rampat Das, that the suit was not barred by limitation and that the plaintiff was entitled to bring the suit and recover the property.

7. The learned advocate for the appellants while elaborately criticising the judgment of the learned Subordinate Judge on a number of points has practically conceded that he does not dispute the finding of the trial Court as to the existence of the math at Paliganj, or the existence of the three deities in the math at the time the suit was instituted. He has also not succeeded in showing that the deeds which are subject-matter of the suit were executed for legal necessity or were for the benefit of the math and the deities installed therein.

On the other hand it is difficult to accept the case of the plaintiff that the mukarrari deed and the sale deed were entirely without consideration and were obtained by defendants 1 and 2 by reason of any influence which they had over Mahanth Rampat Das. In fact there are only three main questions which were seriously debated before this Court, and they are these: (1) whether the Paliganj math was subordinate to Ramdih Baga math and whether the plaintiff had locus standi to maintain the present action; (2) whether the property to which the suit relates was the absolute property of Rampat Das or the property of the math or three deities installed in the math and (3) whether the suit was barred by limitation.

9. I shall first deal with the question relating to subordination of the Paliganj math and the right of the plaintiff to institute the present suit. In this connexion the appellants place great reliance upon Ex. X, a will executed by Mahant Ramratan Das who was the previous Mahanth of Ramdih Baga math in favour of the plaintiff. In this document Mahant Ramratan Das refers only to the properties of Ramdih Baga math and two other institutions, namely Dharatnpur and Udaipur maths which are situated in the district of Gaya and Patna respectively and which are described as the maths appertining to Ramdiha Baga math. It is argued from this that if the math at Paliganj had been a branch of or in any way subordinate to the math at Ramdih Baga, it must have been mentioned in this document and the fact that there is no reference to the math at Paliganj shows that the latter was an entirely independant institution.

10. It appears to me, however, that this document is by no means conclusive because it is in evidence that there was no Mahant either at Dharampur or at Udaipur and the properties appertaining to these two maths were therefore under the direct control and management of the math at Rmdih Baga. Thus these two maths obviously stand on a different footing from the math at Paliganj which was presided over by a Mahant of its own. As beyond this Ex. X there is no other documentary evidence to support the case of either party, the issue as to the subordination of the Paliganj math has necessarily to be decided with reference to the oral evidence adduced in the case. It may be mentioned here that though the plaintiff has examined a large number of witnesses the support his case that the institution at Paliganj is subordinate to the institution at Ramdih Baga, there is a good deal in the statement of these witnesses which has little evidentiary value. One cannot for example attach any importance to a mere general statement which has been repeated by almost all these witnesses that the math at Paliganj is subordinate to the math at Ramdih Baga. But a number of witnesses, especially P. Ws. 11, 12 and 13 who are the chelas of the math and whose evidence seems to have impressed the trial Court have sworn that when Rampat Das became the Mahant, Raghunath Das who was then the Mahant of Eamdih Baga had installed Rampat Das as Mahant by giving him a Mahanthi chadar. The comment made on behalf of the appellants on this part of the evidence is that the giving of the chadar does not necessarily show that the Mahant who gives the chadar is the head of a superior institution and reference is made to the evidence of P.W. 3 Ramasray Singh who has stated that there were other Mahants also who have given chadars to Rampat Das. Eeference also is made to the following passage in the will Ex. X to which I have already referred:

Subsequently according to the old usage the Mahants of the neighbouring places gave him chadar after the ceremony of Guru Mahant Raghunath Das.

11. It is thus argued that the giving of a chadar is nothing more than the mere giving of a customary present to a new Mahant by the neighbouring. Mahants and although the order in which the chadar is given may indicate the order of seniority among the Mahants who give the chadar, it does not necessarily indicate that one math is subordinate to another math. There is no doubt some force in this argument, but it must also be remembered that throughout the evidence of the plaintiffs witnesses a distinction has been drawn between a Mahanthi chadar and a chadar ordinarily presented by the neighbouring Mahants. The suggestion throughout is that the giving of the Mahanthi chadar is an indispensable part of the ceremony of installation and that particular chadar is given only by the Mahant of the superior math whenever one math is subordinate to another. This point is made clear in the evidence of P.W. 3 himself on whose evidence reliance has been placed on behalf of the appellants as will appear from the following passage:

Raghunath Das, Mahant of Baga gave the Mahanthi Chadar to Rampat Das. There were other mahanths also who gave him chadar, The practioe is that at the Bhandara of the late Mahant of Paliganj Mahanthi chadar is first given to his successor by the then Baga mahanth and then by the other Mahants present on the occasion.

12. The fact that the Mahanthi chadar was given by the Mahant of Ramdih Baga to Rampat Das on the occasion of his being installed as a Mahant has been deposed to by several witnesses examined on behalf of the plaintiff and there is nothing in their cross-examination to show that this statement was seriously challenged. Ramkishun Singh, P.W. 12, for example, who alleges himself to be a chela of Agar Das and who is one of the witnesses specifically referred to by the trial Court as an important witness on the point has not been cross-examined at all with regard to this ceremony. The same remark applies to the evidence given by Sheoshankar Sah, P.W. 13. In my opinion the evidence of the plaintiffs witnesses taken as a whole is sufficient to establish that the math at Paliganj is connected with and subordinate to the math at Ramdih Baga. It may be mentioned in this connexion that the plaintiff relies also on the statement made by Sant Das in the deed of surrender Ex. 12 executed by him in favour of the plaintiff as well as on certain plaints filed by one Gosain Madhavanand against him in the year 1925 in which it was stated that Mahant Ram Charan Das (the plaintiff) had become and was the Mahant of the math of Paliganj. It may be stated, however, that the plaintiff himself says in his evidence that

all the statements made in the bazidawa executed by Sant Das are not true.

and the plaints filed by Madhavanand ware filed after the institution of the present suit. In these circumstances it is obvious that no great reliance can be placed on the statements made in these documents.

13. A question here arises as to whether the mere fact that the math at Paliganj is in some way or other subordinate to the math at Ramdih Baga entitles the plaintiff to become the Mahanth of Paliganj in the circumstances of the present case. The point which is made out against the plaintiff is that although he sets up a specific custom in para. 5 of the plaint he has, as has been pointed out by the learned Subordinate Judge, entirely failed to establish the custom.

14. There is, however, abundant evidence to prove that the plaintiff is in actual possession of the math at Paliganj and has been recognized all round as the Mahanth of this math. The learned Subordinate Judge obviously refers to this fact when he styles him as the de facto Mahanth of Paliganj, an expression which has been severely criticized by the learned advocate for the appellants. The learned Subordinate Judge has possibly not used a very happy expression, but it is clear that the question of subordination is considered to be material chiefly because the locus standi of the plaintiff to bring the present suit has been questioned and in my opinion it is enough for this purpose to show that the plaintiff is not claiming the property in suit as his own property but as the property of the math or the idols installed in the math and that he being in the actual possession of the math is as competent to maintain the suit as any person who may sue as the next friend of the idols or the juridical person known as the math.

15. The next important question to be decided is whether the property in suit was the absolute or personal property of Rampat Das or it was the property of the idols or the math. It may be mentioned here at the very outset that there is no document on the record to show how the property was acquired in the first instance by the predecessor-in-interest of the late Mahanth and if it was endowed property, when and by whom it was endowed. The oldest and the most important documents which are available are Exs. B and C and it is to be considered what light they throw upon the question. Ex. C is a rubkar of the Special Deputy Collector in connexion with certain resumption proceedings under Regn. 2 of 1819. In these proceedings a question arose whether certain lands appertained to village Sarauti or Narauli. The Special Deputy Collector after considering the evidence before him came to the conclusion that the lands appertained to Narauli and had been dealt with already in a separate proceeding and so the matter was dropped. In the course of the enquiry-it was stated before him by certain persons that one Sevakram Vairagi who lived in village Pali held 100 bighas of khairat lands which were revenue free. The rubkar also refers to one Sham Das said to be a chela of Sevakram and one Udho Das who is said to have held the land before Sham Das. It further appears that the Special Deputy Collector had before him two documents one of which was a register received from the Board which was probably the same paper as Ex. B with which I shall presently deal and another was a register of Nawab Hushair Jang Bahadur compiled down to the year 1180. It is said that this latter document showed that the 100 bighas of village Narauli were recorded under head "khairat villages" held by Sevakram Vairagi from the time of Nawab Surajuddaula. The other document, namely, the Boards register showed that the lands were khairat lands of Sevakram Vairagi in the possession of Udho Das.

16. Exhibit B purports to be an extract from Boards register with entries from 1168 Fs. (corresponding to 1761) up to 1222 Fs. (corresponding to 1815) and it is perhaps the same document as has been referred to in Ex. C as the register received from the Board. In several columns of this register the lands are shown to have been held as khairat lands and in two columns we find the words "under bishun pirit." In the column for remarks there is a note according to which lands of village Narauli stood recorded as khairat lands and between the years 1179 and 1196 they were in charge of various persons on after another whose names occur in the document in the following order.

Then there is a note

that at present Udho Das disciple of Naga Kesho Das is appropriating the proceeds of the village.

17. It may be mentioned that these two documents Exs. B and C were tendered in evidence on behalf of the defendants, but in the course of the argument both the parties have tried to rely upon them an support of their respective claims. The learned Counsel for the plaintiff lays particular stress upon the fact that the lands of village Narauli are described either as khairat or bishun pirife and that the various persons whose names are mentioned in the remarks column in connexion with this property are said to have bean merely in charge of the property, the proprietor being certain other persons. Pritna facie this is undoubtedly one of the strongest arguments in support of the plaintiffs case, but at the same time it is difficult to hold in view of certain entries in the document that there was either a Mahanth or a math at Pali about the period to which these documents relate.

18. It is significant that there is no reference either to a math or to a Mahanth at Pali in any of these documents and besides if it is true that there was a permanent Mahanth and a math, it is difficult to understand why the same property should have been in charge of Sevakram Pauhari for a short period and then while Sevakram was evidently still alive it should have been in charge of Naga Jittu and again it should have reverted to Sevakram Pauhari. Again, the terms "khairat" and "bishun pirit" although they strongly indicate that there was an endowment for certain religious or charitable purposes are strictly speaking not entirely conclusive in favour of there plaintiff. The term khairat" simply means charity" and the term "bishun pirit" "means love of God Vishnu" and it is suggested by the learned advocate for the appellant that these terms simply indicate that the lands were given away by the proprietor out of love of God Vishnu to a pious hermit who was himself a devotee of the deity. I should, however, like to say that if the case was to be decided on the construction of these two documents alone, I would have been inclined to hold that the lands in question were endowed property and were not the personal property of Rampat Das. I say so because the manner in which Sevakram Pauahri, Naga Jittu and Keshab Das are shown to have been in charge of the disputed property is not altogether consistent with the theory that it was the private property of any of these persons and also because I find that in a number of cases the words "bishun pirit," "sheo pirit" and "sheot-tar" have been held to indicate strongly that the property with reference to which one or other of these terms was used was not the private property] of a Mahant or shebait.

19. In this particular case, however, it is urged that the question has to be decided with reference to the entire evidence on the record including a number of documents produced on behalf of the defendants. The, defendants, it may be mentioned here, have produced a series of documents in which the Mahant for the time being who held the property in suit was described as the malik of the same. The more important of these documents are the Register D, Ex. H; notices under the cess Revaluation Act, Ex. E; notices under the Public Demands Recovery Act, Exs. F and G; Cess chalans, Ex. D; survey parcha, Ex. R-24 and survey khewat of village Narauli Ex. 1. These documents support the defendants case to a certain extent but, as the learned Subordinate Judge has pointed out, they cannot be held to show conclusively that the property in suit is not debuttar property. There is one matter, however, which requires consideration. On reference to the survey papers it appears that in respect of certain properties the name of the Mahanth is entered in the proprietors columns whereas in respect of certain other properties, the names of certain deities are entered in the column. The learned Subordinate Judge argues that the fact that some of the properties at least are entered in the name of the idols is sufficient to show that all the properties in the possession of the late Mahanth were debuttar properties. This does not appear to me to be a very sound argument and its force is considerably weakened when we consider it with reference to a particular passage in the plaint as well as Schedule 1 attached to the plaint. The passage in question occurs in para. 7 of the plaint and runs thus:

That the properties noted in the said Schedule 1 were in existence at the time of the death of Agar Das which took place in the month of Baisakh [1309] Fasli and Mahant Agar Das had then sir possession as shabait.

20. Then follows Schedule 1 with a list of certain properties. It has been pointed out that a number of properties which must have been in existence at the time of the death of Agar Das have not been included in this schedule. Curiously enough these are some of the very properties which have been entered in the Record-of-Rights not in the name of the deities but in the name of the Mahanth who was in charge of the math for the time being. Thus it is urged with some force on behalf of the defendants that the statement made in the plaint read with Schedule 1 must be taken to imply that the properties which were omitted from the schedule were not the properties of the deities but of the Mahanth and as the property in suit is entered in the Record-of-Eights in the same way as those properties which have been omitted from Schedule 1, it would show that the property in dispute also was not the property of the deities but was the property of the Mahanth. The learned advocate for the defendants has given us a list of some of the properties which have been omitted from Soh. 1 and they are these:

1. Mauza Kanaiyan (vide Exs. V and 2).

2. Mauza Soharaiy (vide Ex. U).

3. Mauza Paliganj [(vide Ex. V (l)].

4. Mauza Ballipakar (vide Ex. W).

5. Mahal Jagir Gosain Sham Das [vide Ex. 2(1)].

6. Mauza Kalopur (vide Ex. 0).

21. Learned Counsel for the respondents has shown that in some instances the omission may be explained but he admits that some of the properties ought to have been included in Schedule 1, and he says that it was due probably to the plaintiffs ignorance of affairs of the Paliganj math that those properties were omitted. Now this may be a true explanation, but prima facie it appears to be rather improbable that the plaintiff who instituted the suit about ten years after the death of Mahanth Rampat Das, and whose duty as the head of a superior institution was to be in touch with the affairs of the subordinate math, should really have been so ignorant of the properties which appertained to the math especially when on his own case he had been in possession of the math for a number of years prior to the institution of the suit. At the same time it is obvious that para. 7 of the plaint as well as Schedule 1 attached thereto have very little bearing on the main case set out by the plaintiff in the plaint and might have very well been struck out as irrelevant or superfluous.

22. It is also to be considered that, pleadings in this country are generally defective and carelessly drawn and it is not always conducive to justice to draw an adverse inference against a party because he has omitted to mention certain facts in his pleadings which ought to have been mentioned.

23. Turning now to the other evidence in the case it may be said at once that but for certain recitals in the sale deed Ex. Q and the mukarrari deed Ex. P., which are sought to be impugned in the suit, the other evidence adduced in the case does not render much assistance. The deeds Exs. Q and P are of some help to the plaintiff because it is recited in both these documents that the amounts paid to Mahanth Rampat Das under them were required by him for meeting necessary expenses in connexion with the math. Prom these recitals it is argued that if the property in suit was not one of the properties of the math or the idols installed in the math, it was not necessary for Mahanth Rampat Das to say that he was alienating this property for the expenses of the math. This is no doubt an argument which requires consideration, but at the same time one cannot forget that the recitals may have been introduced into these documents at the instance of the defendants to protect them in future litigation. In any case these recitals only go to show that the Mahanth meant to apply the proceeds of the property for the support of the math, bub as has been pointed out in more than one case this fact by itself, though it may be an important item of evidence, will not be conclusive proof that the property was necessarily debutfcar property or the property of the math.

24. Thus the exact position in this case is that the oral evidence adduced by the parties is of very little value and none of the documents produced by them can, if considered individually, be held to be conclusive. The plaintiff has also laid himself open to attack by omitting certain properties from Schedule 2 of the plaint which should have been included there. Nevertheless, after making due allowance for every fact, it appears to me that the cumulative effect of Exs. B and C and the recitals in Exs. P and Q cannot be altogether ignored, and on the whole I am inclined to hold in agreement with the lower Court that the property in dispute belonged to the idols installed in the math as mentioned in the plaint and was not the private property of the plaintiff. I am confirmed in this view by the fact that according to my reading of Exs. B and C there was neither a Mahant nor a math at Paliganj when these documents were prepared, although there was an endowed property and it was characterized as bishun pirit.

25. I shall now pass on to what I consider to be the most serious question in this case, namely, whether the plaintiffs suit is barred by limitation. It will be remembered hero that the mukarrari lease in respect of the disputed property was executed by Mahanth Rampat Das on 21st December 1909 and the sale deed was executed by him on 13th February 1911. The present suit, on the other hand, was brought on 27th May 1924, that is to say more than 12 years after the dates of the lease as well as the sale deed. Belying on this fact the learned advocate for the appellant contends, in the first place, that the present suit is barred under Article 134, Lim. Act, and that the plaintiff can recover the property neither from the mukarraridar nor from the vendee; and, in the second place, that in any case the suit having been brought more than 12 years after the date of the sale as a result of which the math completely lost possession of the disputed property, the right of the plaintiff to recover the property is barred under Article 144, Lim. Act. The respondents reply to this argument is that in view of Vidya Varuthi v. Balusami Ayyar AIR 1922 P.C. which was decided by the Privy Council some time in the year 1921, Art, 134, Lim. Act, must be held to be wholly inapplicable to the case, whereas for the application of Article 144 the terminus a quo will be not the data of the sale deed but the date on which the plaintiff became the Mahanth of Paliganj math which was admittedly within 12 years of the suit. Now there is no doubt that in view of the decision in Vidya Varuthis case AIR 1922 P.C. 123. Article 134 cannot be applied to this case and if Rampat Das had executed only a mukarrari deed and not the sale deed, and if the plaintiff had brought the suit to recover the property from the mukarraridar, the contention advanced on his behalf -would be unanswerable. The critical question, however, which is to be determined in this case is whether it can be held in view of the decision in Vidya Varuthis case AIR 1922 P.C. 123 that the plaintiff is entitled to recover the property which had in consequence of the sale-deed of 13th February 1911 passed out of the possession of Paliganj math more than 12 years before the suit. The question is not free from difficulty and it is necessary to consider the state of law as it was when Vidya Varuthis case AIR 1922 P.C. 123 was decided as well as certain subsequent decisions.

26. Before referring, however, to what are considered to be the leading cases on the point I should like to observe that a mere cursory reading of the numerous decisions on this question will show that there were at least two questions of considerable difficulty which presented themselves to the Courts which had to deal with the question of limitation in connexion with endowed property belonging to a math or an idol. The first question was on what legal principle an idol or a math, which was assumed to be a legal entity and a juridical person capable of possessing and acquiring property, could escape the rigid rules of the law of limitation. The fact in favour of the idol or the math undoubtedly was its permanent disability or incapacity to act otherwise than through human agency, which is sometimes characterized as being tantamount to perpetual minority, but one of the difficulties which had to be met here was that it was possible in any case for one of the numerous worshippers of the idol or persons interested in the institution to take timely measures to protect its rights and to question improper alienations made by those who were in charge of the endowed property for the time being. Another difficult question which engaged the attention of the Courts in this country was as to what was the precise legal status of a shebait or a mahant, who was in charge and in possession of endowed property. On this last question a series of answers were furnished from time to time most of which will be found to have been collected together in the following passage which I quote from a decision of the Madras High Court in Deivasikamani Nataraja Desihar v. Valliammal Aahi [1918] 52 I.C. 914:

On the first point in Bam Prakash Das v. Anant Das AIR 1916 P.C. 256 and Basudeo Roy v. Jugal Kishwar Das AIR 1918 P.C. 256 the Judicial Committees of the Privy Council have laid it down that the mahanth of a mutt is a trustee of the mutt properties. In Baluswami Aiyer v. Venkataswamy Naicken [1916] 40 Mad. 745 it was held that a Mahanth was a trustee and not a life tenant as regards the properties of the mutt. In Obla Venkatachalapathi Aiyer v. Thirugnana Sambanda Pandara Sannadhi [1917] 42 I C. 273 a doubt was raised whether this proposition had not been broadly expressed in Baluswamy Aiyer. v. Venkataswamy Naiaken [1916] 40 Mad. 745. In Kailasam Pillay v. Nataraja Tamtiran [1909] 33 Mad. 265 this question was again discussed and Benson and Wallis, 33. said that it, could not be predicated that a mahauth was a trustee in all cases, but it must depend on the constitution of the particular institution. Sankaran Nair, J., said that in the absence of evidence to the contrary the Mahanth was not a trustee, and that he was not a life tenant either. In Muthu swamier v. Muthanithi Sivamiyar [1913] 38 Mad. 356 it was said that the position of a mahanth was analogous in many ways to that of the estate of a Hindu female hair and in Vidyapurna Tirtha Swami v. Vidyanithi Tirtha Swami [1908] 27 Mad. 435 it was not a mere trustee but was a corporation sole.

27. The difficulties which I have indicated above naturally produced a certain amount of conflict in the decisions of the various Courts especially with reference to the question of limitation and there is no doubt that in some cases as least (though their number is not very large) the view was taken that having regard to the peculiar status of the owner of the endowed property as well as that of a shebait or a mahanth who was in charge of such property the period of limitation should be held, to run not from the date of the alienation but from the date on which the mahanth or shebait who had made the improper alienation was succeeded in office by another mahanth or shebait. One of the earliest cases in which this view was put forward with great lucidity is the case of Mahanth Burm Suroope Dass v. Khasheo Jha [1873] 20 W.R. 471 in which Glover and Morris, JJ., supported their decision with these observations:

As against the owner of the estate, it would be enough, no doubt, to prove an adverse possession for more than 12 years, to establish a title in the party in possession, and to extinguish it in the owner but so far as the case has been made clear to us the plaintiffs vendor was not the owner of the land: he was the mahanth for the time being in charge of the endowment, and had only a life-interest in the property. In that event he could not create a title superior to his own, or, except under most extraordinary pressure and for the distinct benefit of the endowment bind his successors-in-office. A purchaser from the mahanth of an endowment of the kind alleged in this case would only take an interest commensurate with the mahanths life, and if ha retained poesession after the mahanths death the suceessor to the grade would have a cause of action against him from the date of the election. If this were not so, any mahanth who was inclined to commit waste on an endowment and who lived long enough might ruin the property entrusted to his charge and leave his successor remedyless if more than 12 years had elapsed since the alienation.

28. Again in the celebrated case of Vidya purna Tirthaswami v. Vidyanidhi Tirthaswami [1903] 27 Mad. 435 which was decided by two very eminent Judges of the Madras High Court, Sir Subrahmania Ayyar observed:

In Prosunno Kumari Dabya v. Golab Chand Baboo [1875] 2 I.A. 145 the Judicial Committee observe thus: It is only in an ideal sense that property can be said to belong to an idol and the possession and management must in the nature of things be entrusted with some person as shebait or manager. It would seem to follow that the parson so entrusted must of necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its, property at least to as great a decree as the manager of an infant heir, words which seem to be almost an echo of what was said in relation to a church in a judgment of the days of Edward I: A church as always under age is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age: Pollock and Maitlands History of English Law, Vol. 1, 483: a principle which it were to be wished the law had held fast to in the matter of the application thereof to a greater extent than is now the case in connexion with the law of limitation for suits.

29. In the same case the other learned Judge Sir Bhashyam Ayyangar suggested that the period of limitation to recover endowed property should be extended to 60 years. It should be remarked, however, that no question of limitation arose in that case and Bhashyam Ayyangar, J., himself proceeded on the assumption that the period of limitation under the existing law was 12 years from the date of alienation or adverse possession.

30. The next case of importance which may be cited in this connexion is the case of Rampadarat Singh v. Mahanth Basdeo Das AIR 1922 Pat. 178 , where it was held by a Division Bench of this Court in the year 1919 that the limitation for a suit for possession of endowed property by a successor-in-office to a Mahanth who alienated the endowed property ran from the date of the Litters death as the Mahanth had a life-estate in the endowed properties and limitation did not begin to run until his death.

The only other case of importance that may be cited is that of Rama Reddy v. Rangadasan AIR 1926 Mad. 769 where the view has been put forward that a person who acquires title from the trustee of a temple cannot acquire any title adverse to the idol:

for the idol is an infant for all time and the succeeding trustee can recover the property for the idol at any time: see also Mahomed v. Ganapati [1889] 13 Mad. 277 and Vedapuratti Vallabba [1890] 13 Mad. 402.

31. I should observe that although I have mentioned these cases to show that the view put forward on behalf of the plaintiff is not entirely unsupported by authority, yet I must also at the same time make it absolutely clear that about the time when Vidya Varuthis case AIR 1922 P.C. 123 was decided, the view which prevailed in all the High Courts in India was that at least where a Mahanth or Shebait completely transferred endowed property to a stranger, the period of limitation would begin to run from the date of alienation and not from the date on which the succeeding Mahanth or shebait came into office. That this was so will appear from the large number of decisions in which this proposition was enunciated and applied and of which I shall, at present refer only to the following cases: Nilmony Singh v. Jagabandhu Roy [1896] 23 Cal. 536, Behari Lal v. Muhammad Muttaki [1898] 20 All. 482. Dattagiri Guru Shankargiri v. Duttatraya Krishna Sinde [1902] 20 All. 482. Narayan Manjaya v. Shri Bamchandra Devasthan [1903] 27 Bom. 373 . Pandurang Balaji v. Dhyanu [1911] 36 Bom. 135. Purna Chandra v. Kinkar Manjhi [1911] 9 I.C. 133. Rameshwar Malia v. Jiu Thakur [1915] 43 Cal. 34. Chidambaranatha Thambiran v. P.S. Tsallasiva Mudaliar [1917] 42 I.C. 366. Sagun v. Kaji Hussen [1903] 27 Bom.500 Jnananjan Banerjee v. Adoremoney [1909] 3 I.C. 93. Shadi v. Abdur Rahman [1919] 51 I.C. 755. Narsya Udpa v. Venkataramana Bhatta [1912] 16 I.C. 53. Madhu Sudan Mandal v. Radhika Prosad Das [1912] 16 I.C. 927. Monmotho Nath Laha v. Annada Prosad Roy [1918] 44 I.C. 567. Basdeo Ban v. Ram Saran [1918] 45 I.C. 292. Ramacharya v. Shrinivasacharya [1918] 46 I.C. 19 and Deivasikamani Nataraja Desikar v. Valliammal Achi [1918] 52 I.C. 914. I should like to observe here that in the majority of these cases the decisions proceeded on the view that those who had alienated endowed property were in possession as trustees and therefore Article 134, Lim. Act, applied. In fact this was for some time the prevailing view in all the High Courts except the Madras High Court; where the opinion was not so unanimous and where the matter being ultimately discussed by a Full Bench in Kailasam Pillay v. Nataraja Thambiran [1909] 33 Mad. 265, Benson and Wallis, JJ., said that could not be predicated that a Mahanth was trustee in all cases, but it must depend on the constitution of the particular institution, while Sankaran Nair, J., said that in the absence of evidence to the contrary the Mahanth was not a trustee and that he was not a life-tenant either. By the year 1916, however, the Madras High Court also seems to have adopted the view that the head of a math stood in relation to the math in the position of a trustee as will appear from the decisions in Baluswami Aiyer v. Venleataswamy Naiaken [1916] 40 Mad. 745, and in Deivasikamani Nataraja Desikar v. Valliammal Achi [1918] 52 I.C. 914.

32. It must not, however, be supposed that in all cases the Courts proceeded on the view that a Mahanth was a trustee or that Article 134, him. Act, was the only article applicable. In fact in a number of cases it was clearly held that where the alienee of an endowed property was in adverse possession of the alienated property for more than 12 years a suit to recover such property would be barred under Article 144 of the. This view was enunciated with great force and clearness in the well-known case of Nilmony Singh v. Jagabandhu Roy [1896] 23 Cal. 536, as will appear from the following extract from the judgment:

The idol is a juridical parson capable of holding property. and the possession of the defendants who profess to derive title, not from the idol, but ignoring its rights must be taken to have become adverse to the idol from the dates of the two alienations which are both more than twelve years before the date of the present suit. It is true that the idol, to use the language of their Lordships of the Judicial Committee in the case of Prosunno Kumari Debya v. Golab Chand Baboo [1875] 2 I.A 145, can hold property only in an ideal sense, and that its acts relating to any property owned by it must be done by or through its manager or shebaits, but that does not show that each succeeding manager gets a fresh start as far as the question of limitation is concorned, upon ground of his not deriving title from any previous manager. The succeeding shebaits as was observed in the case just referred to formed a continuing representation of the idols property. If we are to hold otherwise, it would lead to a most anomalous result, for than it would follow that, although after any alienation of the idols property, ten successive shebaits may not take any step to recover the idols property, the eleventh shebait, it may be after a hundred year a or more, would still be in time to institute a suit for recovery of possession. Such a result the legislature could not have contemplated. In our opinion under Article 144 the suit is barred by limitation.

33. This case, it may be observed, played an important part in moulding the course of subsequent decisions and that, no doubt, is partly due to the fact that one of the parties to the judgment in that case was no less eminent a Judge than Sir Guru Das Banerjee. I may also state here that although this decision was criticized in Vidya Varuthis case AIR 1922 P.C. 123 so far as it contained an observation that a shebait was a trustee for the purpose of Article 134, yet the reasoning found in the passage quoted above is still considered to be applicable where the alienation made by a mahanth or shebait in by way of a complete transfer.

34. Another decision of far-reaching importance was the decision of the Privy Council in Gnanasambanda Pandara Sannadhi v. Velu Pandaram [1899] 23 Mad. 271. In that case the hereditary managers of the property with which a religious foundation was endowed had purported to sell and assign the management an& lands of the endowment to the representative of another institution and upon a suit being brought by the son of the vendor to recover the hereditary managership and possession of the lands of the endowment, it was held that the suit was barred under Limitation Act 15 of 1877 and that if there was any difficulty about the application of certain other articles of the Limitation Act, Article 144 would apply to the claim for the property. The same view as to the applicability of Article 144 was reaffirmed in the case of Damodar Das v. Lakhan Das [1910] 37 Cal. 885 which was decided by the Privy Council in the year 1910. The facts in that case were that a mahanth who was in possession of two maths and of the property annexed to them died, leaving two chelas between whom arose a controversy as to the right of succession to the maths and the properties annexed to them. That controversy was settled by an arrangement embodied in an ekrarnama executed by the senior chela in favour of the junior chela by which one of the maths was allotted in perpetuity to the elder chela and his successor, while the other math and the properties annexed to it were allotted to the younger chela and his successors. Less than 12 years after the death of the senior chela but considerably more than that period after the date of the ekrarnama the successor of the senior chela brought a suit against the junior chela to recover possession of the properties annexed to the math whish has been allotted to him under the ekrarnama. The suit was dismissed by the Calcutta High Court on the ground of limitation, the High Court relying largely on the decision in Nilmony Singh v. Jagabandhu [1896] 23 Cal. 536 as well as Gnanasambanda Pandara Sannadhi v. Velu Pandaram [1899] 23 Mad.271. Thereupon there was an appeal to the Privy Council which affirmed the judgment of the High Court and made these observations:

The learned Judges of the High Court have lightly held that in point of law the property dealt with by tha ekramama was prior to its date to be regarded as vasted not in the mahanth, but in the legal entity, the idol, the mahanth being only his representative and manager. And it follows from this that the learned Judges were further right in holding that from the date of the ekrarnama the possession of the junior chela, by virtue of the terms of that ekrarnama, was adverse to the eight of the idol and of the senior chela, as representing that idol, and that, therefore, the present suit was barred by limitation.

35. Thus just about the time when Vidya Varuthis case AIR 1922 P.C. 123 was decided the position was that all the High Courts had become practically unanimous in the view that the starting point for the period of limitation in a suit to recover the property of an idol or a math was the date of the alienation and not the date on which the successors of the alienor assumed office, and this view had been affirmed in at; least two decisions of the Judicial Committee. So far again as the decisions of the High Courts are concerned this view was not convened only to cases where the endowed property had bean sold but was also held to be applicable to cases where such property had been permanently leased out to a stranger. The Privy Council, however, hold in two successive decisions in the year 1909 and 1911 respectively that Article 134 did not apply where the property had been given in permanent lease and, therefore, the period of limitation should not be computed from the data of the lease. One of these was the case of Abhiram Goswami v. Shyama Charan Nandi [1909] 36 Cal. 1003 where it was pointed out that the words "purchased for valuable consideration" in Article 134, Schedule. 3, Lien. Act, 1877 meant that ownership of the property sold had been absolutely transferred from the vendor to the purchaser in consideration of a price, but a lease in perpetuity left some interest in the lessor and consequently the lessee could not be deemed to be a purchaser for valuable consideration. On this view it was held that Article 134 did not bar a suit in that particular case even though it was brought more than 12 years after the date of the lease. This case was followed by the Privy Council in a subsequent decision in Iswar Shyam Gkand Jiu v. Bam Kanai Ghose [1911] 38 Cal.526, in which the facts were very similar to those in the previous case and where also it was held that the lessees not being the purchasers of an absolute title could not be deemed to be purchasers within the meaning of Article 134, Act 15 of 1877 and therefore, the suit to recover leased property though brought more than 12 years after the lease was not barred. In that case Lord Macnaghten delivering the judgment observed:

Whataver might have been the inclination of there opinion if the matter had been res intagra, it seems to their Lordships that they would not be justified in reviewing on an ex parts application the considered judgment of the Board delivered after full argument. They will, therefore, simply follow the decision in Abhiram Goswami v. Shyama Gliaran Nandi [1911] 36 Cal. 526.

36. Then came the decision in Vidya Varuthis case AIR 1922 P.C. 123. There again the question of limitation arose in connexion with a mukarrari lease and what was to be decided was whether the property of a math which had been permanently leased out in the year 1891 by its former head could be recovered in a suit instituted in the year 1913 by one of his successors. It may be mentioned that by this time the Limitation Act had been amended as noticed in the judgment of the Privy Council itself and the words "purchased from the trustee or the mortgagee" had been substituted by the words " transferred for a valuable consideration," Nevertheless, it was held that Article 134, Lira. Act, did not apply though on this occasion the decision was based mainly on the view that the endowments of a Hindu math are, generally speaking, not conveyed in trust nor is the head of the math a trustee save as to any specific. property proved to be vested in the head for a specific and definite object. This conclusion was arrived at by Mr. Ameer Ali who delivered the judgmenh in that case after an elaborate review of a number of decisions and on a consideration of some of the principles underlying both Hindu and Mahomedan jurisprudence. As to the position of the Mahanth or a shebait although it was conceded that in particular cases where there was evidence of there being an express and specific trust ha might be regarded as a trustee, yet it was held that:

generally speaking, called by whatever name the Mahanth was only a manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruot depending on usage and custom, In no case was the property conveyed to or vested in him, nor is he a trustee in the English sense of the term, although in view of the obligations and duties rested on him he is answarable as a trustee in the genoral sense for maladministration.

37. Again the question as to whether Article 144, Lira. Act, applied to the case was dealt with as follows:

In view of the argument it is necessary to discover when, according to the plaintiff, his adverse passions began. He was let into possession by Mahant No. 1 under a lease which purported to be a permanent lease, but which under the law could enure only for the grantors lifetime. According to the wall settled law of India (apart from the question of necessity, which does not here arise) a Mahanth is inoompetent to creatce any interest in respect of the math property to enure beyond his life. With regard to Mahanth No. 2, he was vested with a power similarly limited. Ha permitted the plaintiff to continue in possession and received the rent during his life. Such receipt was with the knowledge which must be imputed to him that the tenancy created by his predecessor ended with his predecessors life, and can, therefore, only be properly referable to a new tenancy created by himself. It was within his power to continue such tenancy during his life, and in these circumstances the proper inference is that it was so continued, and consequently the possession never became adverse until his death.

38. It may be mentioned here that since this decision the Limitation Act has been again amended and three new Article 134-A, 134-B and 134-C have been inserted specifying the period of limitation for suits:

(a) To set aside a transfer of immovable property cornprisod in a Hindu, Mahomedan or Buddhist religious or charitable endowment, made by a manager thereof for valuable consideration.

(b) By the manager of a Hindu, Mahomedan or Buddhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration.

(c) By the manager of a Hindu, Mahomedan or Buddhist religious or charitable endowment to recover possession of moveable property comprised in the endowment which has been sold by a previous manager for a valuable consideration.

Under Article 134-A the period of limitation prescribed is 12 years from the date when the transfer becomes known to the plaintiff; under Article 134-B the period of limitation prescribed is 12 years from the date of the death, resignation or removal of the tcransferrer; under Article 134-0 the period of limitaltion prescribed is 12 years from the date of the death, resignation or removal of the seller.

39. As the new Act, however, can have no retrospective application the question has been asked and is still being asked whether Vidya Varuthis case A.I.R.1922 P.C. 123 is really in conflict with the line of cases of which Damodar Das v. Lakhan Das [1910] 37 Cal. 885 is typical. This question has been answered variously at different times and before I express my view on the subject I shall very briefly mention what attempts have been already made to reconcile the two decisions. In Ramrup Gir v. Lalchand Marwari AIR 1922 Pat. 243 . Das, J., attempted to explain away the apparent conflict fti the two decisions as follows:

In my opinion the true rule is this: where the property is vested in the juridical person as it was in Damodar Dass case [1910] 37 Cal. 885 and the Mahant is only the representative and manager of the idol, the ant of alienation is a direct challenge upon the title of the idol; and the idol, or the manager of the idol on behalf of the idol, must bring the suit within 12 years from the date of the alienation. But where the title lain the Mahant or the Sheba it, as it was in the two other cases to which I have referred, the act of alienation is not a challenge upon the title of the idol, though the property may be endowed property in the sense that its income has to be appropriated to the purposes of the endowment, and there is no adverse possession so long as the parson making the alienation is alive and the possession of the defendant becomes adverse to the plaintiff only when a new title has come into existence capable of maintaining the suit and which has not approved of or acquiesced in the alienation.

40. This distinction was approved of by a Division Bench of this Court in Jawahir Lal v. Fateh Mahton AIR 1926 Pat. 514 , but it was adversely criticised by Devadoss, J., in Rama Reddys case AIR 1926 Mad. 769 and it was said there that that case was against the principle laid down in the decision in Vidya Varuthis case AIR 1922 P.C.P. 123. The case of Ramrup Gir v. Lalahand Marwari AIR 1922 Pat. 243 again went up before the Privy Council, Lalohand Marwari v. Bamrup Gir AIR 1926 P.C., and their Lordships while reversing the decision of the High Court on fact proceeded to observe as follows:

Whether in other words the case is governed by the decision of which Damodar Das v. Lahhan Das [1910] 37 Cal. 885 may be taken as the leading authority; or by the line of authority of which Vidya Varuths case AIR 1922 P.C. 123 may be taken as typical, their Lordships while not pronouncing upon it have given very careful consideration to this very interesting and difficult question. Upon it they say no more than this: that they must not to be taken to accept the view with reference to it propounded by the High Court. So far as they are concerned the question remains entirely open to be determined when it arises.

41. This observation is enough to show at least that the distinction drawn by Das, J., was not definitely adopted by the Privy Council. It also appears to me to be not entirely in consonance with the reasoning adopted in Vidya Varuthis case AIR 1922 P.C. 123 according to which unless there is a specific trust:

in no case is the property conveyed or vested in a Mahant, nor is he a trustee in the English sense of the term.

42. Another notable attempt to explain away the supposed conflict between the two pronouncements of the Privy Council has been made in the case of Rama Reddys AIR 1926 Mad. 769 , but if I may say so with respect the learned Judges have there virtually burked the whole question by assuming:

that in view of their Lordships decision in Vidya Varuthis case AIR 1922 P.C. 123, the decision in the former cases cannot be considered to be good law.

43. The short answer to this argument however is provided by the observation of the Privy Council itself to which reference has already been made in Lalchand Marwari v. Ramrup Gir AIR 1926 P.C. 9, which clearly shows that the decision in Damodar Das v. Lakhan Das [1910] 37 Cal. 885 is still a leading authority.

44. I shall now refar to a group of cases where the two decisions have been more successfully distinguished and explained. I should, however, like to observe at this stage that the only way to approach the question properly is by clearly and carefully analyzing the points decided in Vidya Varuthis case AIR 1922 P.C. 123 and also by taking care not to read into that decision anything which has not been clearly and expressly decided there. It is clear beyond any dispute that according to that decision Article 134 -does not apply-where the endowed property of a math or temple is improperly alienated unless perhaps where there is evidence that it was the subject-matter of a specific-trust in the sense in which the term it used in English law. Thus it may well be held now that many of the old decisions which proceeded on the assumption that such property was trust property have been overruled and it is no longer possible to apply Article 134 to a case like the present. The question,, however, still remains to be considered whether, Article 144 will apply to such a, case and in my opinion the mere fact that it was attempted to find out in Vidya Varuthis case AIR 1922 P.C. 123 whether in view of the particular circumstances of that case the possession of the lessee-was adverse or not is enough to show that this Article was not held to b&-generally inapplicable. The only question then which is to be considered is as to when in a particular case the possession of an alienee becomes adverse.

45. This is a question of fact which is to be determined with reference to the circumstances of each case and therefore it is not to be forgotten that: (1) Vidya Varuthis case AIR 1922 P.C. 123 related to a permanent lease and (2) that there is an important difference between a permanent lease and a sale especially in relation to the question of adverse possession. It is true that in some of the earlier cases decided by some of the-Indian High Courts it was held that in principle there was little difference between a mukarrari lease and a sale, but-it must be remembered that generally speaking such a view was taken only in connexion with Article 134 with which we are now no longer concerned. It appears to me, however, that it is difficult to ignore the distinction between a permanent lease and a sale while one is considering the application of Article 144. A lease as is well known merely transfers the right to possession and the person who claims to hold a property, under a lease cannot say that his possession is adverse to that of the owner even though the latters ownership is not denied. On the other hand, a sale purports to transfer the right of ownership and a person who takes possession, of a property under a sale by a she bait who had no right to transfer the property may very well sat up his adverse possession against the real owner and his claim to adverse possession would be all the stronger because of the alienation having been made by a person who had no right to alienate the property. That the distinction between a permanent lease and a sale is a real and important one has now been clearly recognized by the Judicial Committee in Subbaiya Pandaram v. Muhammad Mustafa Maracayar AIR 1923 P.C. 175. In that case an endowment had been created in the year 1890 in respect of some property by plaintiffs grandfather and in 1898 part of the property was sold in execution of a decree against the plaintiffs father who was the trustee of the endowment at that time. In 1913 the plaintiffs being appointed trustee sued to recover the property from the defendant who had purchased it at the execution sale. In that case Lord Buck-master, delivering the judgment of the Privy Council observed:

A further argument has been put forward to the effect that the statute of limitation begins to run afresh as each new trustee succeeds to the office, and in support of that view reliance is placed on the case of I shwar Shyam Chand Jiu v. Ram Kanai Ghose [1911] 38 Cal. 529 and on the case of Vidya Varuthi v. Balusami Ayyar AIR 1922 P.C. 123, but these authorities do not assist the appellant. In each case they relate to the affect of an attempt on the part of a trustee to dispose of the property by a permanent mukarrari lease. This he has no power to do though he is at liberty to dispose of it during the period of his life and a grant made for a longer period is good, but good only to the extent of his own life interest. It follows, therefore, that possession during his life is not adverse, and that upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate, and the statute would only run against him as from the time when he assumed the office. Such an argument has no relation to the case where, as hare, property has been acquired under an execution sale and possession retained throughout. Their Lordships are, therefore, of opinion that this suit is barred either under Article 134 or 144, Schedule 3, Lim. Act. This is not, in fact, a transfer by the trustee himself for valuable consideration, though there is little difference in principle between a transfer under an adverse execution and a sale by the trustee himself.

46. This decision was referred to and relied on by Suhrawardy and Mukerjee, JJ., in the case of Manindra Narain Roy v. Sarat Chandra AIR 1926 Cal. 913 , where also the distinction between a permanent lease and a sale was emphasised in the following words:

Vidya Varuthis case AIR 1922 P.C. 123 was that of a permanent lease granted by the head of a math, In that case it was held that the lessee had no adverse possession under Article 144, Schedule to the Limitation Act, until the death of the head who granted the lease, and that if the lessees possession is consented to by the succeeding head that consent is referable to a new tenancy created by him, and there is no adverse possession until his death. The reason given by their Lordships as to why the possession cannot be adverse until the death of the second head is that it is within his power to continue the tenancy during his life and if there is receipt of rent by him the proper inference is that the tenancy has been so continued and consequently the possession of the lessee never becomes adverse till his death. Possession of the lessee cannot be adverse so long as the tenancy continues and it is only if the tenancy comes to an end that the possession of the lessee becomes adverse. What room is there for the application of this principle in the case of a sale The character of the purchasers possession remains the same, whatever the succeeding she bait may choose to do or not to do. There is thus a radical difference between a sale and even a permanent lease in this respect.

47. Again in Majvath Alii v. Mujafar Alii AIR 1924 Mad. 201. Odgers, J. of the Madras High Court commenting on the reasons why the possession of the lessee was no held to be adverse in Vidya Varuthis case AIR 1922 P.C. 123 pointed to the following special features of that case:

There the possession sought to be declared was continued by a series of leases each valid for the lifetime of the grantors. The possession was clearly permissive.

48. It is evident that such a description would not apply to a case where the property has been sold by a shebait who had no right to sell it and the vendee has been in uninterrupted possession of the property for more than 12 years since the date of alienation. In such a case the adverse possession will, in my opinion, begin to run from the date of the alienation, as was held in the case of Damodar Das v. Lakhan Das [1910] 37 Cal. 885 , if the property alienated is debuttar property. This view is supported by the observations made by the Calcutta High Court in the passage to which I have just now referred and it is also supported by two recent decisions of this Court. The earlier of these was decided in the year 1925 and is the case of Rama Reddy Vs. Ranga Dasan and Others, . In that case Ram Kishun Gir, who was a former Mahant of a certain mutt, had sold certain properties belonging to the mutt to one Tilak Singh in the year 1894. In 1921 the plaintiff who had succeeded Ram Kishun Gir brought a suit to recover the property on the ground that his predecessor had no right to sell it in the absence of any legal necessity of the mutt. A question thus arose as to when the cause of action had arisen and when the possession of the vendee had become adverse. The answer to this question which was given by Sahay, J., after reviewing certain authorities, will be found in the following passage in his judgment:

It is clear from the authorities that the plaintiff in the present case could not get a fresh start for the purpose of limitation from the date of his succession as Mahant. The possession of the transferee became advise to the institution from the date of the transfer upon the finding that the transfer was without any legal and justifying necessity.

49. The other case on the point was that of Gopalcharjya Goswami Vs. Bhim Kali Chaudhury and Others, decided by Adami and Macpherson, JJ. In that case, the observations made by Sahay, J., in the case Badri Narayan Singh Vs. Kailash Gir, to which 1 have just referred were approved and it was held that the law as to limitation applicable to the circumstances of that particular case was not as laid down in Vidya Varuthis case AIR 1922 P.C. 123, but as laid down in Damcdar Das v. Lahhan Das [1910] 37 Cal. 885. Again, the case of Damodar Das v. Lahhan Das [1910] 37 Cal. 885 . has been followed both by the Allahabad High Court and the Oudh Chief Court in Chitar Mal Vs. Panchu Lal and Others, , and in Parkash Das v. Janki Ballabha Bar an AIR 1926 Oudh 444, respectively. It was held by the Allahabad High Court in the former case that property can be acquired as against an idol by adverse possession which will run from the date of the alienation inasmuch as an idol does not suffer from any disability under the Limitation Act. While in the latter case the Oudh Chief Court expressed a similar view in the

following passage:

In our opinion an idol installed in a particular asthan is a juridical person capable of holding property and getting it managed through its manager, Shebait or Mahant. such a manager, shebait or Mahanth would represent the idol or the institution for the time being completely, and possession if adverse against the mahant for the time being must be deemed to be adverse against the idol or the institution unless the character of the alienation under which possession was then could be deemed to enure only for the lifetime. of the particular manager, shebait or Mahant The adverse possession in such a case begins to run from the date when the alienee takes possession of the property alienated and each succeeding manager, shebait or mahant cannot get a fresh start so far as the question of limitation is concerned upon the ground of his not deriving the title from any previous manager, the reason being that the suceading minagets,. shebaits or Mahant form a continuing representation of the idol or the institution to which the endowed property has been dedicated.

50. Thus the view now favoured by this] Court as well as the Calcutta and Allahabad High Courts seems to be that the principle underlying Vidya Varuthis case AIR 1922 P.C. 123 is not applicable; where the endowed property has been improperly transferred by a shebaife or Mahant and that the possession of a purchaser would generally become adverse from the date when he takes possession of the property by virtue of his purchase. It appears to me that there is no escape from this view if we recognize (1) that an idol or a math is a juridical person capable of acquiring and possessing property; (2) that Vidya Varuthis case AIR 1922 P.C. 123 has definitely laid down that generally speaking endowed property vests in the idol or the math and not in the shebait or the mahant who are no more than managers of such property and (3) that the authority of the decision in Damodar Das v. Lakhan Das [1910] 37 Cal. 885 remains unshaken by the decision in Vidya Varuthis case AIR 1922 P.C. 123.

51. This view, however, has been com, bated from time to time on one or other of the following three grounds: (1) that the Mahant is to be regarded as a life-tenant in respect of the endowed properties and therefore in a case of improper alienations the period of limitation should run from the date of his death and not from the date of the alienation; (2) that the possession which a purchaser from a Mahant or shebait acquires during his lifetime may be adverse to that particular shebait or Mahant but it does not become adverse, to his successor until his accession to the office, because the latter does not claim through or from the preceding; shebait or mahant and (3) that as the idol and the math cannot act otherwise than through their representative or manager they must be regarded as perpetual infants and limitation should not accordingly run against them until they are capable of asserting their rights.

52. It appears to me that none of these arguments is free from objection or is abased upon any express provision of law. The analogy of alife-tenant is no more than an analogy and has not bean approved of in a Full Bench case of the Madras High Court, Kailasam Pillay v. Nataraja Thambiran [1909] 33 Mad. 365 and by a Division Bench of this Court in Badri Narain Singh v. Mahant Kailash Gir AIR 1926 Pat. 239 . Again, as was held in Vidya Varuthis case AIR 1922 P.C. 123, the Mahants of maths, called by whatsoever names, are only the managers or custodians of the institution and in no case is any property conveyed to or vested in them. This being so the question may well be asked:

How can a Mahant be a life tanant of the math property if in no case the property is conveyed to or costs in him.

53. Again the view, that although the possession of a purchaser of endowed property from a Mahant may be adverse to the vendor, yet it will not be adverse to the succeeding Mahant until he succeeds to the property, is really based upon the idea that every Mahant is a life tenant which, as I have shown, is no longer tenable or on the supposition which must also be abandoned now that each mahant or shebait is a trustee. If in every case the property vests in the idol or the math and they are the real owners of the property and not the mahant or the shebait, it is clear that they must also be deemed to be the read plaintiff in every suit for recovery of property improperly alienated. It also follows that possession in order to be adverse within the meaning of Article 144 must be adverse to the real owner and not to one who is merely a manager or custodian.

54. The third ground, namely, that an idol or a math is under a perpetual disability is entitled to a more serious consideration. There is no doubt that although by a fiction of law an idol as well as a mutt have been held to be juridical persons, yet they suffer from a permanent disability in the sense that they cannot assert their title except through their human representatives. That being so, applying the maxim contra non valentem agere non currit praesoriptio (prescription does not run against a person who is unable to act) they seem to be entitled to some protection if they happen to be represented by a person who cannot or will not act in their interest. This is substantially the view which has been taken by Devadoss, J., in the case of Rama Reddy v. Rangadasan AIR 1926 Mad. 769 and I may say here that even before I had the advantage of reading his decision I was myself strongly inclined to take that view. But on careful consideration it appears to me that however equitable that view may appear to be, it is difficult to adopt it in the present state of the law. That view is necessarily based on the assumption that the idol is a perpetual minor or under a permanent disability. The expression perpetual minor" has been criticized in a recent decision of the Allahabad High Court: Chita Mal v. Panchu Lal AIR 1924 Mad. 201 and the reasoning that an idol is powerless to act has been met by Mookerjee and Beachcroft, JJ. of the Calcutta High Court thus:

But there is no real hardship, for as soon as a breach of trust is committed, it is open to the beneficiaries or the persons interested is the maintenance of the debuttar to take suitable steps for a declaration that the alienation is invalid, for the enforcement of the trust, and, if need be, for the removal of the trustee. If they sleep over their rights, they cannot be allowed to contend that each successive-trustee should get a fresh start from the data of his appointment, in other words, that there, is no period of limitation for setting aside improper alienations-for value made by a trustee: Madhu Sudan Mandal v. Radhika Prasad Das [1912] 16 I.C. 927.

55. However that may be it has been laid down in a series of cases that the only disabilities which save the operation of the Limitation Act are those which are created by the; statute itself, Section 6 of which recognizesonly three classes of persons as being under legal disability, namely, a minor, and insane person and an idiot: see Kuarmani Singha v. Wasif Ali Murza [1915] 18 I. C. 818. Rami Kuar Mani Singh v. Nawab of Murshidabad AIR 1918 P.C. 180. Sarat Kamini Dasi v. Nagendra Nath Pal AIR 1926 Cal. 65 and Deutsch Asiatische Bank v. Hiralal Burdhan & Sons [1918] 47 I.C. 122 This being so, and if being well recognized that the statutes of limitation are in their nature strict and inflexible and are not susceptible of equitable construction it is difficult to bring an idol or a math within the same category as a minor, lunatic or an idiot for whom an express provision has been made in the Limitation Act. Thus although the considerations which have been so forcibly set out in the judgment of Devadoss, J., may be and possibly are strong enough to indicate a deficiency in the existing law of limitation, yet in the present state of the law, I am unable to follow that decision. Besides the weakest point about the decision in Rama Beddys case AIR 1926 Mad. 769 is that the learned Judges who decided that case have not been able to get over She Privy Council decision in Damodar Dass case [1910] 37 Cal. 885 and have merely proceeded on the assumption that it is no longer good law, a proposition which cannot be readily assented to. Thus having regard to the present state of the law, as interpreted by the authorities to which I have referred, and by which I feel myself bound I must hold that in the present case the period of limitation began to run from the date of the sale deed and therefore the plaintiffs suit is barred.

56. I must point out in this connexion that the present case comes well within the rule of Damodar Das v. Lakhan Das [1910] 37 Cal. 885 because it is clearly stated in the plaint that the property in suit belongs exclusively to the three deities installed in the mutt at Paliganj. It may be mentioned here that the finding of the trial Court on this point is expressed in these terms:

I accordingly decide these issues in favour of the plaintiff and hold that the disputed property is the debuttar property dedicated for the service of God Vishnu, Sree Ram Chandraji and others represented by the Mahant, Ramdat Das being the shebait and that he had been in possession of the same as such.

57. In deciding issue 3 which related to the question of estoppel the learned Subordinate Judge further observed:

If the property was the private property of the Mahant and had nothing to do with the mutt or the duties, there would be no necessity whatever for mentioning in these documents that the debts which were to be paid out of the consideration had been incurred in connection with the mutt. That fact in my opinion is sufficient to show that the story that Rampat Das and his predecessor in interest had been representing to the world that the disputed property was their private property and that this misrepresentation misled the defendant in taking the property is not well founded, but even if that ware so, I do not think the plaintiff, who does not claim as the representative of Mahanth Rampat Das but as the shebait of the deities can be estopped under the provisions of Section 115, Evidence Act.

58. It is to be remembered in connexion with this passage that one of the conclusions arrived at by the learned Subordinate Judge was that the plaintiff waft entitled to maintain the suit as the "de facto Mahant and shebait" and that is perhaps why it has been emphasized in the passage that the properties were being claimed by the plaintiff not as a Mahant of the institution but as one representing the deities installed in the math. No doubt the learned Subordinate Judge having in view the distinction drawn by Das, J., in Ramrup Gir y. Lalchand Marwari AIR 1922 Pat. 248 as to endowed property vesting in the idol in certain cases and in the Shebait in others attempted to come to a finding on the lines indicated in that case. But throughout their arguments before us on the question of limitation both parties proceeded on the footing that the property in dispute belonged to the idol and there being no deed of trust before us, we must also hold that this case is no exception to the rule laid down in Vidya Varuthis case AIR 1922 P.C. 123 pointing out that debuttar property or property endowed to the math must always be deemed to be vested in the math or the idol, and in no case in the shebait, manager or the Mahant. In my opinion therefore thia case will be governed by the decision in Damodar Das v. Lakhan Das [1910] 37 Cal. 885 and the plaintiffs suit must therefore be held to be barred.

59. I should like to say here that it is nod without some reluctance that I have arrived at this conclusion and although it appears to me that this is the only conclusion which can be logically arrived at in the present state of the law, yet speaking for myself I am strongly of opinion that there ought to be some clear provision in law to protect property endowed to religious and charitable institutions and to indicate that such property stands on a different footing altogether from private property. It is satisfactory to note in this connexion that the recent amendment of the Limitation Act is a great improvement on the law as it stood before the amendment, and so far as the present case is concerned there is at least this much to be said against the plaintiff that although as the head of a superior institution which he claims to be, it was his duty to be in close touch with the affairs of the Paliganj math and to see that no improper use was made of the property attached to that math, yet he took no steps whatsoever during the lifetime of Rampat Das to question his alienations or the so-called acts of waste said to have been committed by him and he did not bring this suit until about 10 years rafter the death of Rampat Das,

60. It was urged by Sir Sultan Ahmed appearing for respondent that even if it was held that the right of the plaintiff so have the sale deed set aside was barred by limitation, he was entitled at least to a declaration that the mukarrari dead was not binding upon him. Sir "Sultan Ahmed further contended that as soon as the mukarrari lease was held as liable to be set aside, the plaintiff would step into the place of the mukarraridar sand be entitled to has possession of the properties in suit subject to the right of defendant 3 to realize a sum of Rs. 125 annually which ha was entitled to realize under the sale deed from the mukarraridar. This argument proceeds on the assumption that by virtues of the sale deed defendant 3 was entitled only to realise Rs. 125 annually from the mukarraridar and ha did not acquire any further interest in the property. This contention does not in my opinion appear to be supported by the language used in the sale dead which purports to transfer the entire interest to the vendee. But however that may be the defendants case does not rest so much up on the title derived by them under the deeds executed by Rampat Das as upon adverse possession and there is no doubt that as the vendee as well as the mukarraridar are members of the same family their adverse possession began from the date of the sale deed when they got complete possession of the property and the math ceased to have any connexion therewith.

61. I would therefore allow this appeal, Set aside the judgment and decree of the lower Court and dismiss the plaintiffs suit. As to costs I think that this is a case in which each party should bear its own costs throughout as the plaintiffs suit fails only on the question of limitation and defendant 3 appears to have paid rather a low price for the property.

Wort, J.

I agree.