Authored By : Trevelyan, Beverley

Trevelyan and Beverley, JJ.

1. This suit was brought by the present mohunt of theKaplessar Asthan in the Nepal Terai for the purpose of obtaining possession ofmouzah Mahtour, which is situate in the district of Tirhoot. The plaint asks.

1. That it may be declared that Mahtour forms a, deotarestate belonging to the Kaplessar Asthan.

2. That it may be declared that the deed of sale, dated the5th of March 1881, was altogether invalid and collusive and ineffectual, andthat under it the defendants have acquired no right in that estate.

3. That the Court may be pleased to pass a decree in favourof the plaintiff in respect to the entire mouzah Mahtour. This last prayer weread as a prayer for possession.

2. The defendants plead that the suit is barred bylimitation, and that they have acquired a right by adverse possession. Theyalso plead that mouzah Mahtour is not deotar property, and deny all theallegations contained in the plaint. Lastly, they plead that the deed of saleunder which they claim was executed for legal necessity by the then mohunt ofthe Asthan.

3. The Subordinate Judge has held that the property in suitis deotar property appertaining to the Asthan, but that the suit is barred bylimitation, and that a portion of the money advanced by the defendants wasactually applied for payment of the rents of the Asthan property and of debtsdue by the mohunt. He therefore dismissed the suit.

4. There can be no doubt that this mouzah was deotarproperty. The sanad by which it was given many years ago, viz., 1166 Fusli, toa mohunt named Harjih Gir who was a predecessor of the present plaintiff in themohuntship, distinctly shows that the property was given for the purpose of theAsthan. It was given to the mohunt as such, and the succession was prescribedto be in his disciples. The purposes of the trust were to toed fakirs andmendicants. This was a trust for charitable purposes, the successive occupiersof the mohuntship being the trustees.

5. We also agree with the learned Subordinate Judge in.holding that mouzah Mahtour belongs to the Asthan Harlaki, which is adependency of Asthan Kaplessar. It is clear that the mohunt of Kaplessar was dejure mohunt of Harlaki.

6. A predecessor of the plaintiff in this mohuntship was oneBalraj Gir. He was deposed from the guddi, by order of the Maharajah of Nepal,on the 22nd of February 1873. It is the case of both sides that the Maharajahof Nepal had power to appoint and depose mohunts of the Kaplessar Asthan; andas a matter of fact it is clear that in his name such appointments anddepositions were from time to time made. It is not for us to consider thepropriety of the action of the Maharajah of Nepal.

7. The guddi of this Asthan was held upon a very uncertaintenure, and at the will of the Maharajah or his counsellors a mohunt might atany moment lose his office. On Balraj Girs deposition one Balwant Girsucceeded him. Balwant Gir was succeeded by Sham Gir, but in 1886 an order wasmade for the reinstatement of Balraj. Balraj died before he could bereinstalled, and a sanad was granted to the plaintiff. It appears from theevidence in this case that although Balraj between 1873 and 1886 was neither dejure nor de facto mohunt of Kaplessar, he did not cease to exercise controlover the property belonging to Harlaki. The deed, which is the subject of thepresent suit, was executed by Balraj in 1881 when lie was not demure mohunt ofHarlaki, although, as far as we can see from the evidence, he was de factomohunt and had not ceased to exercise his functions as mohunt. On the 5th ofMarch 1881 he executed a deed of sale of mouzah Mahtour in favour of thedefendants.

8. Although it is unnecessary in the view which we take ofthe facts of this case to determine the question of limitation, we think itdesirable that, as it has been argued, we should express our opinion withregard to it. In the first place it is quite clear to us that there is noquestion of adverse possession. The only way in which it is attempted to set upadverse possession is by adding the tenure of Mahtour by Balraj, after hisdeposition in 1873, to the possession held by the defendants since 1881, thatis to say, by holding that from 1873 the possession of Balraj became adverse.But Balraj continued to hold, not adversely to the endowment, but as de factotrustee thereof. He continued as mohunt, and in his dealing with the propertyin 1881 he acted in that capacity. That being so, it is difficult to see howhis action can in any way be treated as being adverse to the endowment. Aperson who wrongly holds as trustee and pretends to act as trustee cannot beentitled to reprobate the right which he asserts and to contend that he holdsadversely to his cestui que trust. In our opinion this is perfectly clear, andno question of adverse possession arises up to 1881. Although the defendantshad for some time held this land as zur-i-peshgidars they did not assert anyrights adverse to the endowment. Even if the effect of the sale of 1881 were tostart an adverse title, twelve years had not elapsed when the suit wasinstituted.

9. We also think that we must hold that Article 91 of theLimitation Act has no application to the present case. A forcible argument wasaddressed to us on behalf of the respondents in order to induce us to hold thatthat Article applied, and a large number of authorities were cited to us. In noone of them do we find that Article 91 has been applied to an alienation by themanager of an endowment, the manager of an infant heir, a Hindu widow, or anyother of the persons whose powers are placed in the same footing by HunoomanPersaud Pandeys case (6 Moo. I. A., 393), and the cases which follow thedecision in that case. On the contrary, in two cases we find express authoritythat twelve years is the period of limitation in a case of that kind. The caseof Unni v. Kunchi Amma I.L.R. 14 Mad. 26 is a case in many respects similar tothe present, and in a case in this Court, Sikher Chund v. Dulputty Singh I.L.R.5 Cal. 363 (370), a Division Bench considered that Article 91 was inapplicable.If the person who executes the document had no authority in law to execute it,the plaintiff need not sue to set it aside, but may treat it as of no effect.

10. The next question raised is as to the position Balrajoccupied at the time of the execution1 of the deed in question. He was not(sic)a jure mohunt, but he was de facto mohunt of the subordinate AsthanHarlaki to which Mahtour belonged. We see no reason why the observations of thePrivy Council if; Hunooman Perasud Pandeys case with reference to the managerfor an infant heir should not apply equally to a de facto manager of anendowment. The persons with whom the mohunt deals are not bound to look furtherthan the authority which is apparent to them. It is impossible to expect aperson dealing with a mohunt who is in possession of land in British territoryto know much, or indeed to care much, about what action is from time to timebeing taken by the Nepal Raj with regard to the status of the mohunt. At page412 of 6 Moores Indian Appeals their Lordships of the Privy Council say:"Upon the third point it is to be observed that under the Hindu Law theright of a, bond fide encumbrancer who has taken from a de facto manager acharge on lands created honestly for the purpose of saving the estate, or forthe benefit of the estate, is not (provided the circumstances would support thecharge, had it emanated from a de facto and de jure manager) affected by thewant of union of the de facto with the de jure title."

11. The same reasons which would induce the Court to supportthe case of a de facto manager of an infant heir would, in our opinion, justifyit in supporting the case of a de facto mohunt, especially where that mohunthad recently been de jure mohunt, and the alteration of his rights had beeneffected by a foreign Government in the main with reference to territory withinthe jurisdiction of that Government.

12. The only remaining question is whether this deed can hesupported as being based on necessity.

13. [After considering the evidence on this question, whichis not material to this report, their Lordships continued:] We think that thisevidence shows that there was a necessity for the sale. There were in existencebonds which had been given for necessary purposes and which could be enforced,and there was a decree. The family of the defendants had for many years been financingthis Asthan. They acted not only bond fide, but it appears to us they exerciseda good deal of care in the different transactions. There is nowhere in the casefor the plaintiff anything to suggest that his predecessor on the quddi actedimproperly in raising money or otherwise than for necessity.

14. We think therefore that on the merits this appeal failsand must be dismissed with costs.

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Sheo Shankar Gir vs.Ram Shewak Chowdhri and Ors. (22.07.1896- CALHC)