TMI Blog1939 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... over possession of the property known as Nos. 101 and 102 in Devaraja Mudali Street. It was the respondents' case that this property was dedicated by their grandfather in 1890 to the deity Sri Tholasingaperumal Swami of the Sri Parthasarathi' Temple, Triplicane, and that he constituted himself the trustee of the property. The grandfather died in the month of December, 1892, leaving a widow and an adopted son Venkataraghavalu Chetti, the father of the first and second respondents. All the properties owned by the grandfather came into the hands of the adopted son, who by a deed of mortgage dated 28th September, 1916, mortgaged the property in suit for ₹ 10,000 to the appellants, treating it as his own property. On the 10th January, 1921, he mortgaged the same property to the appellants to secure a further advance of ₹ 15,000. He was unable to discharge these mortgages and the appellants filed a suit to enforce them. A mortgage decree was passed on the 7th March, 1924. On the 11th October, 1924, with the consent of the Court the mortgaged property was conveyed to the appellants absolutely, the consideration being the satisfaction of the mortgage decree. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father at the same time made a similar application in respect of the property known as Nos. 27 and 28, Mundakanniamman Temple Street and although the document has not been produced it is not disputed that he also signed a similar deed in respect of that property. 6. The grandfather died leaving a will dated 26th November, 1892. The appellants claim that the will shows that there was not an absolute dedication of the property to the deity, but that the property was only charged for the purpose of providing funds for specified religious services. It is therefore necessary to examine in some detail the provisions of the will on which this argument is based. In the first paragraph of the will the testator sets out and describes his immovable properties. The second paragraph reads as follows: The Deputy Collector's Office Certificate bearing No. 2826 for the houses and bazaars having door Nos. 101 and 102 in Devaraja Mudali Street, and the Deputy Collector's Office Certificate bearing No. 2825 for the garden having door Nos. 27 and 28 in Mundakanniammal's Street, Mylapore, out of the above immovable properties were issued in the name of Triplicane Singaperumal on 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joyed by the testator's heirs , etc. The testator then directs that if his adopted son should prove to be wise and behaved properly the estate should be delivered to him upon his attaining 25'years of age. If at that time he was in wicked ways he should only be paid ₹ 15 per mensem for his maintenance. In paragraph 7 the testator gives these directions: My wife Lakshmamma should enjoy for her life the balance left after deducting taxes and other charges from the income of the houses and bazaars having Nos. 133 to 139 in Devaraja Mudali Street and she may appropriate as she pleases the jewels which she is at present wearing. 8. There are other provisions but these have not been stressed in the arguments. 9. The suit was tried by Wadsworth, J., who held that the testator before his death had made an absolute dedication of the property in suit and that the will so far as the dedicated property is concerned should only be read as containing directions for the guidance of future trustees in the administrations of the trust. The plea of limitation was raised by the appellants before the learned Judge but rejected. The appellants admit that if the property has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and a deed was drawn up and executed by the grandfather as the trustee of the property vested in the deity by which he covenanted for himself, his heirs, executors, administrators, personal representatives, and assigns to pay the land-tax to the Secretary of State for India. These documents clearly show that the grandfather had divested himself of all personal interest in the property and obtained from the Secretary of State recognition that the title was in the deity. This is not a case of a colourable transaction. It is true that here we do not know whether the grandfather utilised the income for the trust purposes but this does not matter as there was complete divestiture. 13. Mr. Venkatarama Sastri on behalf of the appellants has contended that in view of the provisions of the will the proper construction to be placed on the application to the CollectoV and the. A form certificate is that there was merely an intention to dedicate. He has argued that a contrary construction would mean that there would be nothing left for the heirs and the testator could never have intended this. I am unable to agree that this would be the case. Of the seven shops and houses known as Nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been in the predicament which they are now in. 14. The point of limitation does not require much discussion as there is the authority of this Court which bound the learned Judge and binds us. The appellants say that the article of the Limitation Act which applies in this case is Article 134 as it stood before its amendment by the Indian Limitation Act, 1929, which came into force on the 1st January of that year. Before the amendment the article provided that the period of limitation for a suit to recover possession of immovable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration was twelve years from the date of the transfer. The amending Act makes the period run from the date when the transfer becomes known to the plaintiff. It is conceded that if the article as it now stands applies the suit was in time but it is said that it cannot apply and that the mortgages stand as the suit was filed more than twelve years after the mortgages had been entered into. The mortgages were simple mortgages and the mortgagees were not put in possession until the 11th October, 1924, when the property was con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
