N: Criminal Appeal No. 317 of 1986 From the Judgment and order dated 27.2.1986 of the Patna High Court in C.W.J.C. No. 33 of 1986.

With W.P. (Criminal)No. 316 of 1986.

R.K. Garg and Miss Rani Jethmalani for the Appellant/ Petitioner. D. Goburdhan for the Respondents.

907 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.

Criminal Appeal No. 317 of 1986 arises out of the judgment and order of the High Court of Patna and the Writ Petition No. 316 is in respect of the same detenu.

Both these challenge the order of detention dated 2nd January, 1986 passed by the respondent no.1.

The District Magistrate Dhanbad in respect of the petitioner under section 3(2) of the , hereinafter called the 'Act ' on the ground that the petitioner 's activities were prejudicial to the maintenance of public order.

Several criminal cases had been filed against the petitioner between 3rd January, 1983 to 18th February, 1985.

On or about 2nd January, 1985 the order of detention was passed on an incident relating to the exchange of fire between two rival groups.

The order states the grounds as follows: 1.

On 24.12.1985, between 10 and 10.30.

A.M. the subject alongwith Ramashish Bangali, Gulam, Rambriksha armed with Rifle, gun etc.

came in Car No. BHG 9372 on Katras Coal Dump and started indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine business of coal to establish his criminal superiority in full view of the shopkeepers customers and passers by of the area.

Birendra Pratap Singh and his associates who were there also returned the firing in same manner.

As a result of this firing one innocent namely Brahamdeo Mishra was killed.

The exchange of indiscriminate firing in the main market area of Katras created great panic and alarm in the area.

The normal tempo of life was completely disturbed.

The people started running helter and skelter for their lives.

Shopkeepers put down their shutters.

Doors and windows were closed.

The vehicular traffic came to halt.

This refers to Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/32 IPC/27 Arms Act.

Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject.

KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147, 341/353/307 I.P.C.

In this case subject and his associates tried to set free 908 the trucks and driver from the police custody by force and when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives, C.S.No. 5/83 has already been submitted in this case.

Katras P.S. Case No. 303/83 u/s 147/148/452/323 IPC.

In this case subject and his associates went to the tailoring shop of Saukat Ansari and asked him to keep his cloths ready by 9.10.83 and on his refusal, he assaulted him in presence of customers and others C.S.No.

196/83 has already been submitted in this case.

Jogta P.S. Case No. 22/84 dated 11.3.84 u/s 147/148, 307/326/353/333/324/325 I.P.C./27 Arms Act.

In this case subject and his associates opened fire on police party who went to apprehend Raghunath Singh absconder under NSA.

As a result of this indiscriminate firing by him and his associates one Police officer namely Shri R.K. Verma, received serious head injury and is still incapable to work.

Charge sheet No. 25/84 has already been submitted in this case.

Jogta P.S. Case No. 9/85 dated 18.2.85 u/s 369, 307/323/ 324/ 176/34 I.P.C./27 Arms Act.

In this case Sisir Rajan Das, who was coming in a religious procession on the eve of Shivratri and was dancing in the role of Shiva was compelled by his associates to dance before the marriage party of subject 's sister.

Sri Sisir Rajan Das, however, acceded to their request and started dancing.

When he was dancing some of the members opened fire on him as a result of which he fell down.

The subject and his associates however put his body in his car and fled away.

Neither Shri Das nor his body could be traced out till date.

909 Charge sheet No. 20/85 has already been submitted in this case.

(Emphasis supplied) 5.

Jogta P.S. Case No. 68/85 dated 1.12.85 u/s 341/34 IPC.

In this case subject threatened Sri Krishana Ballav Sahay, General Secretary, Colliery Shramik Sangh, Sijua, to do away with his life if he takes out any procession or oppose him.

It is the case of the detenu that the order of detention was made on one incident relating to exchange of fire between two rival groups.

A criminal case had been registered in relation to the said incident pursuant to which the petitioner was already in custody.

The order of detention though dated 2nd January, 1986 was served on or about 11th January, 1986.

It is the case of the appellant/petitioner that the detenu was not served with all the documents referred to and/or relied on.

The detenu was served with order of approval of the said order of detention by the Government of Bihar.

The petitioner/appellant made representation on 22nd January, 1986 and the petitioner/ appellant was informed that the said representation was rejected.

Thereafter the petitioner 's appellant 's matter was referred to the Advisory Board.

The petitioner/appellant states that he desired that he should be heard in person by the Advisory Board.

The petitioner/appellant submits that he was produced before the Advisory Board but he was not given any hearing.

By letter dated 22nd February, 1986 the petitioner/appellant was informed that the Advisory Board had confirmed the order of detention.

The petitioner/ appellant thereafter filed a writ petition in the High Court of Patna which was dismissed without any speaking order.

The grounds of challenge are all stated in the writ petition as well as special leave petition.

The petitioner/ appellant was in detention when the petitioner/appellant was served with the order of detention.

There were criminal cases against the petitioner.

There was a murder case in respect of Crime No. 331 of 1985.

In the said case investigation was in progress and the defence of the petitioner in the murder case was that he was falsely implicated and was not at all concerned with the murder.

When the order was passed, the petitioner had not surrendered but when the order was served, the petitioner had already surrendered in respect of the criminal charge against him.

At the relevant time the petitioner was undertrial in the said criminal case.

910 It is the contention of the petitioner/appellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail.

The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under section 3(2) of the Act.

In the affidavit of the District Magistrate, the detaining authority, it has been stated that the activities of the petitioner 's brother and the petitioner have disturbed the normal tempo of life in Katras and Jogta Police Stations in Dhanbad area.

The series of offences against the detenu and the manner of their perpetuation, which have been noted before, indicate a calculated move to create panic and fear in the mind of the people.

It further appears from the affidavit f f the District Magistrate filed before the High Court of Patna that the petitioner was absconding from the very day of the issuance of the detention order.

There is a statement in the order as follows D "Subject is already in jail.

He is likely to be enlarged on bail.

Hence detention order served in jail.

" According to the District Magistrate when police pressure to apprehend him became heavy, the detenu opted to surrender before the Sub Divisional Judicial Magistrate on 10th January, 1986 in substantive case to frustrate the service of the detention order.

It has been further stated that the service of the detention order had been properly made.

Grounds were all indicated.

All the documents which formed the basis of detention were supplied to the detenu.

His representation, was duly considered and rejected.

The grounds stated that there was indiscriminate firing on 24th December, 1985 on Katras Coal Dump and the petitioner started indiscriminate firing to kill Birendra Pratap Singh a rival of his calendestine business of coal to establish the criminal superiority in full view of the shopkeepers, customers and passers by of the area.

The acts alleged created a terror and not only law and order problem but problem of public order.

In those circumstances it appears that the grounds for forming the satisfaction for the need for the detention were there, and there was rational nexus between the object of the order as contemplated by the Act and the materials on record.

The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu vs State of Maharasthra & Ors., W.P. (crl) No. 2 96/86 with SLP (crl) No. 1265/86 dt.

25.9.86 and Raj Kumar Singh vs The State of Bihar & Ors.

Crl A. 353/86 with W.P. (crl) 27/86 dt.

Judged on the basis of 911 the said principles there is no ground for interference with the order of detention as passed.

It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the petitioner was taken into custody.

From the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decisions, in Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; and Ramesh Yadav vs District Magistrate Etah and others, though there was a statement to the effect that the petitioner was in jail and was likely to be enlarged on bail.

But on what consideration that opinion was expressed is not indicated especially in view of the fact that the detenu was detained in a murder charge in the background of the facts mentioned before.

His application for bail could have been opposed on cogent materials before the Court of Justice.

In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody of that there was any real danger of his release.

Nor does it appear that before the service there was consideration of this aspect properly.

In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.

It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection.

There must be awareness of the facts necessitating preventive custody of a person for social defence.

If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised.

In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail.

There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order.

A bald statement is merely an ipso dixit 912 of the officer.

If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.

Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.

In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors.

At least the records of the case do not indicate that.

If that is the position, then however disreputable the antecedents of a person might have been without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.

Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.

It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority.

The order of detention, therefore, is set aside.

The writ petition and the appeal are allowed to the extent indicated above.

This, how ever, will not affect detenu 's detention under the criminal cases.

If, however, the detenu is released on bail in the aforesaid criminal cases, the matter of service of the detention order under the Act on the aforesaid materials may be reconsidered by the appropriate authority in accordance with the law.

There is no statement in the petition that the detenu is on bail.

There will, therefore, be no orders for release of the detenu.

M.L.A. Petition and Appeal allowed.

Summary: The respondent passed an order of detention in respect of the appellant under section 3(2) of the , on the ground that the appellant 's activities were prejudicial to the maintenance of public order.

Summary: Several criminal cases were pending against the appellant when the aforesaid order was passed.

Summary: The appellant had already surrendered in respect of a criminal charge against him before the order was served.

Summary: He filed a writ petition in the High Court challenging the detention order, but it was dismissed without any speaking order.

Summary: Aggrieved by the order of the High Court, the appellant filed the present criminal appeal by special leave as also a writ petition challenging the aforesaid order of detention on the ground that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail.

Summary: The service of order of detention on the appellant/ petitioner while he was in jail was futile and useless since such an order had no application under section 3(2) of the Act.

Summary: Allowing the writ petition and the appeal in part, ^ HELD: 1.

Summary: The continued detention of the detenu under the Act is not justified.

Summary: The order of detention therefore is set aside.

Summary: However, this will not affect detenu 's detention under the criminal cases.

Summary: If however, the detenu is released on bail in the criminal cases already pending against him, the matter of service of the detention order under the Act may be reconsidered by the appropriate authority in accordance with law.

Summary: [912 E F] 906 2.

Summary: In our constitutional framework, the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection.

Summary: There must be awareness of the facts necessitating preventive custody of a person for social defence.

Summary: [911 F G] In the instant case, when the actual order of detention was served upon the detenu the detenu was in jail.

Summary: There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release was taken into consideration by the detaining authority properly and seriously before the service of the order.

Summary: If there were cogent materials for thinking that the detenu might be released, then these should have been made apparent.

Summary: In the affidavits on behalf of the detaining authority though there are indications that transfer of detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of relevant factors.

Summary: If that is the position then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody.

Summary: Therefore, though the order of preventive detention when it was passed was not invalid, and on relevant considerations the service of the order was not on proper consideration.

Summary: The order of detention is, therefore set aside.

Summary: [911 G H; 912 A D] Rameshwar Shaw vs District Magistrate, Burdwan & Anr., ; and Ramesh Yadav vs District Magistrate Etc.

Summary: and others, , relied upon.


Civil Appeals Nos.

1264 67/71 etc.

From the Judgment and Order dated 26.12.69 of the High Court of Andhra Pradesh at Hyderabad in W.P. Nos. 3956, 3971, 3983, 3899, 4421, 4474, 4537, 4544, 4570, 4825 and 4933/68.

D.K. Sen, Gopal Subramonium and R.N. Poddar for the Appellant.

Ex parte for the Respondents.

The Judgment of the Court was delivered by TULZAPURKAR, J.

In these 11 appeals only that part of the judgment of the Andhra Pradesh High Court is assailed by the Union of India where the challenge to the validity of section 28 of the Gold Control Act, 1968 has succeeded.

The challenge to the other provisions of the Act at the instance of persons engaged in gold trade, i.e, manufacturers, shroffs and dealers in gold was rejected by the High Court.

Section 28 of the Act runs thus: "28.

Money lending business not to be carried on in licensed premises No licensed dealer shall unless authorised by the Administrator so to do, (a) carry on business as a money lender or banker on the security of any article, or ornament, or both, (b) permit any other person to carry on money lending, banking or any other business, in the same premises in which he carried on business as such dealer.

" The High Court has struck down the aforesaid provision only on the ground that it suffers from the vice of excessive delegation of legislative power inasmuch as no criteria or guide lines have been 954 provided by reference to which the power conferred on the Administrator to refuse permission or grant permission should be exercised and that the section confers an arbitrary, uncanalised power upon the Administrator with the result that the licensed dealer is at his mercy while seeking permission to carry on money lending or banking business on the security of any article, ornament or both in the same premises in which he carried on business as such dealer.

The High Court 's reasoning in this behalf is to be found in its judgment at page 87 of the paper book and it runs thus: "The Administrator as is evident from this provision, is given unlimited authority or power to refuse permission or to grant permission.

No rules have been framed prescribing the conditions or circumstances under which the Administrator could refuse permission or grant permission.

A dealer is at the mercy of the Administrator and is help less against the arbitrary exercise of the power by the Administrator when he chooses to negative the request.

It is clear that Section 28 confers an arbitrary and uncanalised power without any criteria for guiding the discretion of the Administrator.

Further, the section does not provide nor is any rule brought to our notice which enjoins upon the Administrator to give a hearing to dealer who seeks permission under this Section and give reasons in case he decides to refuse the permission.

" Incidentally the High Court also proceeded to draw analogy from the reasoning adopted by this Court in its decision in Harakchand Ratanchand Banthias vs Asst.

collector of Central Excise Poona, II Division while declaring sec.

27(6) of the Act, as it stood prior to its amendment by the Amending Act No. 26 of 1969, constitutionally invalid on the ground of conferal of a very wide and vague power upon the Administrator to grant or renew a license to a dealer.

For the reasons which we shall indicate presently it is impossible to the reasoning given by the High Court for striking down sec.

28 in the manner done and in our view the analogy drawn by the High Court from the reasoning adopted by this Court while dealing with unamended sec.

27(6) of the Act is clearly inapplicable.

It is true that no express rule prescribing the conditions or circumstances under which the permission can be granted or refused (1) 955 has been framed nor any particular guide line has been expressly indicated in sec.

It cannot be disputed that sec.

28 is part and parcel of the entire scheme of Gold Control as envisaged by the Act and the object of the enactment and the scheme affords sufficient guidance to the Administrator in the matter of exercising his discretion under that section.

The main object in putting the Act on the Statute Book as indicated by its long title is "to provide, in the economic and financial interests of the community, for the control of the production, manufacture, supply, distribution, use and possession of, and business in, gold ornaments and articles of gold and for matters connected therewith or incidental thereto.

" In Harakchand Banthria 's case (supra) this Court has further pointed out that even though import of gold into India had been banned considerable quantities of contraband gold were finding their way into the country through illegal channels affecting the national economy and hampering the country 's economic stability and progress, that the Customs Department was not in a position to effectively combat the smuggling over the long borders and coast line, that therefore anti smuggling measures had to be supplemented by a detailed system of control over internal transactions and that the Gold (Control) Act, 1968 was passed for this purpose.

In other words, the several restrictions that have been put on the activities of the traders doing business in gold will have to be viewed from the aforesaid perspective.

It is also clear that the restrictions which have been imposed in sec.

28 are meant to prevent the circumvention of other provisions of the Act.

Therefore, in our view the objective, the policy and the Scheme of the Act together with the necessity to ensure prevention of circumvention of the other provisions of the Act afford more than sufficient guidance to the Administrator in the matter of exercising the power of discretion conferred on him under sec.

In fact, sec.

5(1 of the Act requires that the Administrator should have regard to the policy and purposes of the Act in making his orders.

Moreover against his order under that section a revision lies to Central Government which implies that he will have to make judicious use of his power or discretion and any improper exercise is liable to be corrected by a higher authority.

If that be so it cannot be said that unfettered or uncanalised or arbitrary power has been conferred upon the Administration under sec.

Moreover, regard must be had to be the nature of the restrictions imposed by the Section.

It does not impose any blanket or 956 absolute prohibition upon a dealer from carrying on money lending, banking or any other business in the same premises in which he carries on business as a dealer but he is prevented only from carrying on business as money lender or banker on the security of any article, ornament or both unless authorised by the administrator.

Even the restriction in the case of a third person in carrying on business as a money lender, banker or any other business in the same premises is not absolute in as much as the Administrator can authorise the third person to carry on the business in the licensed premises of the dealer and while implementing such limited restrictions or granting relief against the same he will be guided by the policy and purposes of the Act and by the prime consideration that circumvention of the other provisions of the Act shall not be premitted.

Having regard to this position which obtains in the case sec.

28 cannot be struck down on the ground of excessive delegation of legislative power and its validity has to be upheld.

We may indicate that the same provision (section 28) was challenged before the Patna High Court in Bihar State Bullion Merchants ' Association vs Union of lndia(1) and the Gujarat High Court in Ramanlal Purshottamamdas Chokshi vs Union of India & Others (2) and these High Courts have upheld its validity.

We approve the view taken in those cases As regards the analogy drawn by the High Court from the reasoning adopted by this Court in Harakchand Banthia 's case (supra) while declaring unamended sec.

27(6) of the Act invalid we would like to point out that while conferring power on the Administrator in the matter of granting or renewing a license to a dealer the unamended sec.

27(6) in several of its clauses referred to certain concepts which Administrator was required to take into account, and these concepts were regarded as indefinite, uncertain and vague.

For instance under clause (a) the Administrator was required to have regard to the number of dealers existing 'in the region ' in which the applicant was intending to carry on business as dealer but the word 'region ' was no where defined in the Act; similarly clause (b) required the Administrator to have regard to the anticipated demand ', as estimated by him for the ornaments in that region but the expression 'anticipated demand ' was really vague and incapable of assessment leading to a great deal of uncertainty; similarly the expression (1)AIR 1971 Patna, 240.

(2)14 Guj.

L.R. 112. 957 'suitability of the applicant ' in cl.

(e) and 'public interest ' in cl.

(g) A did not provide any objective standard or norm and because such indefinite, uncertain and vague expressions or concepts had been used in some of the clauses under sec.

27(6) this Court struck down sec.

27(6) on the ground that it conferred a very wide and vague power on the Administrator.

It may be mentioned that after this provision was struck down by this Court Parliament has carried out the necessary amendment in the Act.

No such vague or indefinite expressions or concepts are to be found in sec.

28 by reference to which the Administrator is required to exercise his power.

In the absence of parity of situation or circumstances the doctrine of parity of reasoning cannot be invoked.

In the result we set aside the impugned judgment of the High Court and declare sec.

28 of the Act valid.

The appeal succeeds but since the respondents have not appeared there will be no order as to costs.

S.R. Appeal allowed.

Summary: Section 28 of the Gold Control Act, 1968 bars money lending business to be carried on in licensed premises, either by the licensed dealer or by any other person unless authorised by the Administrator to do so.

Summary: Drawing analogy from the reasoning adopted by the Supreme Court in its decision reported in Harakchand Ratanchand Banthia vs Assistant Collector or Central Excise, Poona, II Division, [1970] I SCR 479=AIR , the High Court of Andhra Pradesh struck down the said provision on the ground that it suffers from the vice of excessive delegation of legislative power in as much, as no criteria or guidelines have been provided by reference to which the power conferred on the Administrator to refuse permission or grant permission should be exercised and that the section confers an arbitrary, uncanalised and unfettered power upon the Administrator with the result that the licensed dealer is at his mercy while seeking permission to carry on money lending or banking business on the security of any article, ornament or both in the same premises in which he carried on business as such dealer.

Summary: Hence the appeal by special leave.

Summary: Allowing the appeal, the Court ^ HELD: 1.1 Section 28 of the Gold Control Act, 1968 cannot be struck down on the ground of excessive delegation of legislative power and its validity must be upheld.

Summary: [957C] 1.3 It is true that no express rule prescribing the conditions or circumstances under which the permission can be granted or refused has been framed nor any particular guide line has been expressly indicated in section 28 by reference to which the power conferred upon him thereunder could be exercised by the Administrator, but that is not decisive of the matter.

Summary: [954H; 955A] 952 1.3 Section 28 of the Gold Control Act, 1968 is part and parcel of the entire scheme of the Gold Control Act the objective, the policy and the scheme of the Act together with the necessity to ensure prevention of circumvention of the other provisions of the Act afford more than sufficient guidance to the Administrator in the matter of exercising the power or discretion conferred on him under section 28.

Summary: The several restrictions that have been put on the activities of the traders doing business in gold will have to be viewed, in the light of the purpose or which the Gold Control Act was passed viz., that even though import of gold into India had been banned considerable quantities of contraband gold were finding their way into the country through illegal channels affecting the national economy and hampering the country 's economic stability and progress, that the Customs Department was not in a position to effectively combat the smuggling over the long borders and coast line that therefore anti smuggling measures had to be supplemented by a detailed system of control over internal transactions.

Summary: In fact section 5 (1) of the Act requires that the Administrator should have regard to the policy and purposes of the Act in making his orders.

Summary: Moreover against his order under that section a revision lies to Central Government which implies that be will have to make judicious use of his power or discretion and any improper exercise is liable to be corrected by a higher authority.

Summary: Therefore, it cannot be! said that unfettered or uncanalised or arbitrary power has been conferred upon the Administrator under section 28.

Summary: 1955B; E G] 1.4 further section 28 does not impose any blanket or absolute prohibition upon a dealer from carrying on money lending, banking or any other business in the same promises in which he carries on business as a dealer but he is prevented only from carrying in business as money lender or banker on the security of any article, ornament or both unless authorised by the Administrator.

Summary: Even the restriction in the case of a third person in carrying on business as a money lender, banker or any other business in the same premises is not absolute in as much as the Administrator can authorise the third person to carry of the business in the licensed premises of the dealer and while implementing such limited restrictions or granting relief against the same he will be guided by the policy and purposes of the Act and by the prime consideration that circumvention of the other provisions of the Act shall not be permitted.

Summary: [956A C] Bihar State Bullion Merchants Association.

Summary: Union of India, AIR 1971 Patna 240; Ramanlal Purshottamdas Chokshi vs Union of India & Others , approved.

Summary: , Annam Ramalingam, etc.

Summary: vs Union of India, Writ Petitions Nos.

Summary: 3956 3873/68 etc.

Summary: dated 26.12.69.

Summary: Andhra Pradesh, reversed.

Summary: 1.5 In Harakchand Banthia 's case the Supreme Court found, the phrases like 'in the region ', the anticipated demand '. 'suitability ' and 'public interest ' as vague, uncertain and therefore declared the unamended section 21(6) of the Gold Control Act as invalid and the Parliament has carried out suitable amendments thereafter.

Summary: No such vague or indefinite expressions or concepts are to be found in section 28 by reference to which 953 the Administrator is required to exercise his power.

Summary: In the absence of A parity of situation or circumstances the doctrine of parity of reasoning cannot be invoked.

Summary: [957A C] Harakchand Ratanchand Banthia vs Assistant Collector of Central Excise Poona 11 Division, [1970] I SCR 479 AIR , explained and held in applicable.


Appeal No. 801 of 1963.

Appeal by special leave from the judgment and decree dated September 2, 1959 of the Madras High Court in Second Appeal No. 774 of 1957.

T. V. R. Tatachari, for the appellants.

P. Raghaviah and R. Ganapathy Iyer, for the respondents.

The Judgment of the Court was delivered by Gajendragadkar, C.J.

The present appeal has been brought to this Court by special leave and it arises from a suit filed by the appellants against four respondents.

The properties involved in the suit consist of agricultural lands situated in Eragudi village, Musiri taluk, Tiruchirappalli district.

According to the appellants, the said lands had been granted in Inam to the ancestor of one Ambalathadum Pachai Kandai Udayavar by the Carnatic Rulers before the advent of the British power in India.

The original grantdeeds are not available; but at the time of the settlement of the Inams in the sixties of the last century, Inam title deeds were issued in favour of the family of Pachai Kandai Udayavar.

The appellants averred that the properties covered by the grant bad been granted in Inam to the original grantee burdened with the obligation of performing certain services in a Matam.

The said properties were alienated from time to time, and as a result of the last alienation, the appellants became entitled to them.

The appellants in the present litigation claimed a declaration about their title to the properties in suit and a permanent injunction restraining respondents 1 to 3, who claimed to be the trustees of an alleged Pachai Kandai Udayavar Temple at Eragudi, from interfering with their possession of the same.

Respondent No. 4 is the Deputy Commissioner, Hindu Religious and Charitable Endowments, L9Sup.

CI/66 9 122 Tiruchirappalli, and he has been impleaded because he has purported to appoint respondents 1 to 3 as trustees of the said alleged Temple on the 7th March, 1951.

This suit (No. 103 of 1954) was instituted on the 13th September, 1954, under section 87 of the, Madras Hindu Religious and Charitable Endowments Act (No. XIX of 1951) (hereinafter called 'the Act '), in the Court of the District Munsif at Turaiyur.

Respondents 1 to 3 who have been appointed as trustees of the said temple by respondent No. 4, obtained a certificate from him that the properties in question belonged to the Temple; and on the basis of the said certificate, they had filed an application before the Magistrate having jurisdiction in the area under section 87 of the Act for possession.

Notice of this application was served on the appellants and they pleaded their own title to the properties.

The Magistrate, however, over ruled the claim made by the appellants and directed them to deliver possession of the properties to respondents 1 to 3.

Before this order could be executed and possession delivered to respondents 1 to 3, the appellants instituted the present suit.

Respondents 1 to 3 resisted this suit and contended that the properties in suit had not been granted to the predecessor of Pachai Kandai Udayavar as alleged by the appellants.

Their case was that the said properties had been granted to the Pachai Kandai Udayavar Temple and formed part of its properties.

As trustees appointed by respondent No. 4, they claimed that they were entitled to the possession of the properties.

On these pleadings, four substantive issues were framed by the learned trial Judge; they were : whether the grant of the Inam was a personal Inam; whether the grant of the Inam was a religious endowment; whether plaintiffs have title to the suit properties; and whether plaintiffs have acquired title by prescription ? On the first two issues, oral and documentary evidence was adduced by the parties.

The learned trial Judge examined the whole evidence and came to the conclusion that the grant of the Inam was a personal Inam, and that it was not a grant in favour of the religious endowment within the meaning of the Act.

That is how the first two issues were answered in favour of the appellants.

In consequence, the learned trial Judge also held that the appellants had proved their title to the suit properties.

The alternative plea made by the appellants that they had acquired title to the properties by prescription, was also upheld by the trial Judge.

In the result, the appellants ' suit was decreed on the 14th February, 1955.

123 Respondents 1 to 3 preferred an appeal (No. 129 of 1955) in the Court of the Subordinate Judge at Tiruchirappalli, challenging the correctness of the said decree.

The lower appellate Court considered three main points; they were : whether the grant was in favour of Ambalathadum Pachai Kandai Udayavar; whether there is a temple; and whether the plaintiffs had prescribed their title to the suit properties by adverse possession.

The lower appellate Court made a finding against respondents 1 to 3 on point No. 2.

It held that the evidence adduced by the respondents did not prove the existence of any temple in favour of which the original grant had been alleged to have been made according to them.

On that view, it thought it unnecessary to consider the first point.

In regard to the third point based on the appellants ' claim that they had acquired title by adverse possession, the lower appellate Court found that "it was evident that from the very beginning, Pachai Kandai Udayavar and his family had been claiming beneficial interest in the property and they were not holding the same as managers of the trust.

The alienations must, therefore, be regarded only as repudiation of the trust.

" In the result, the lower appellate Court 's finding was that the appellants had established their claim of prescriptive title.

The appeal preferred by respondents 1 to 3, therefore, failed and was dismissed with costs on March 29, 1957.

This decision was challenged by respondents 2 & 3 before the Madras High Court in Second Appeal (No. 774 of 1957).

Subrahmanyam, J., who heard this appeal, held that the original grant had been made in favour of the Temple.

There was evidence to show that the properties originally granted had been resumed by the Collector; but the learned Judge took the view that the said resumption was only of the melwaram or assessment, and that since the lands had been granted in Inam to the deity and its matam, their title to the lands remained unaffected by the resumption proceedings.

In other words, he negatived the appellants ' claim that the original grant was in favour of their predecessors intitle, though burdened with an obligation to render service to the matam.

The learned Judge reversed the finding of the lower appellate Court that the existence of the Temple had not been proved.

Having thus held that the properties belonged to the Temple, the learned Judge proceeded to consider the question of limitation by reference to the several alienations with which the present litigation is concerned.

In dealing with the question of limitation, the learned Judge took the view that the present suit would be governed 124 by Article 134 B of the Indian Limitation Act.

This article has been introduced in the said Act by Amending Act 1 of 1929 and came into force on 1 1 1929.

It was conceded before the lower appellate Court that the new article was not retrospective in operation and that if the title of the alienees in regard to 'dharmadlayam properties had been acquired by adverse possession prior to 1 1 1929, it would not be affected by the provisions of article 134 B. Thus considered, the alienations in regard to items 1, 2, part of item 3, items 7 & 8, and a portion of the well in item 5 sold under Ext.

A 2 in 1914 were held to be outside the mischief of article 134B.

The possession of the vendees in regard to the properties covered by the said sale deed was held to have conferred title on them.

Similarly, item 4 and a part of item 6 which had been sold in auction in execution of a decree in 1927 (vide Exts.

A 7 and A 8), were also held to be outside the scope of article 134 B, because the said article does not cover auction sales.

That left the alienations covered by Exts.

A 3, A 6 and A 12 to be considered.

These three alienations were effected on the 7th October, 1917, 2nd July, 1926, and 2nd July, 1926 respectively.

The High Court held that the properties covered by these sale deeds fell within the purview of article 134 B, and the appellants ' title in respect thereof was open to challenge.

In the result, the appellants ' claim in regard to the properties covered by these three sale deeds was rejected, whereas their claim in regard to the other ,prop erties.

was upheld.

In consequence the appeal preferred by respondents 2 & 3 was partly allowed and the decree passed by the lower appellate court in regard to Exts.

A 3, A 6 and A 12 was set aside.

This judgment was pronounced on the 2nd September, 1959.

It is against this decision that the appellants have come to this Court by special leave.

Mr. Tatachari for the appellants has raised before us an interesting question of law.

He contends that article 134 B would not apply to the present case, because the alienations evidenced by Exts.

A 3, A 6 and A 12 show that the alienors purported to transfer the properties not as Poojaris or managers of a temple, but in their individual character as owners of the said properties.

The documents recite that the properties belonged to the alienors as their separate secular properties, though burdened with an obligation to render service to the Matam; and that shows that the transfer was effected not by the Poojaris of the temple, but by persons who claimed that the properties belonged to them.

Such a case falls outside the purview of article 134 B and must be governed by article 144 of the First Schedule to the Limitation Act.

125 Mr. Tatachari also argues that in applying article 144, we must assume that the possession of the alienees was adverse to the temple from the respective dates of the alienations when they were put in possession of the properties covered by the transactions in question.

In support of this argument, Mr. Tatachari has relied on the statement of the law made by Mr. Justice Mukherjea in his lectures on.

the Hindu Law of Religious and Charitable Trust.(1) Says Mr. Justice Mukherjea, "if the transfer (of debutter property) is not of ' particular items of property, but of the entire endowment with all its properties, the possession of the transferee is unlawful from the very beginning.

The decisions in Gnanasambanda Pandara Sannadhi vs Velu Pandanam & Another(2) and Damodar Das vs A dhikari Lakham Das(3) are illustrations of this type of cases.

" He also added that transfer would similarly be void 'and limitation would run from the date of the transfer, if the manager transfers the property as his own prop" and not as the property of the deity.

The same statement has been made by the learned author in two other places in the course of his lectures.

The argument is that in cases falling under article 134 B, the transfer made by the manager of a Hindu endowment is challenged by his successor on the ground that it was beyond the authority of the manager; and such a challenge necessarily postulates that the transfer was effected by the manager as manager purporting to deal with the property as belonging to the religious endowment.

Where, however, the transfer is made by the manager not as manager, but as an individual, and he deals with the property not on the basis that it belongs to the religious endowment, but on the basis that it belongs to himself, considerations which would govern the application of limitation are substantially different; and in such a case, the transfer being void ab initio, the possession of the transferee is adverse from the date of the transfer.

That is how Mr. Tatachari has attempted to avoid the application of article 134 B in the present case.

There can be no doubt that if the assumption made by Mr. Tatachari is well founded, the appellants title to the three transactions in question would have to be upheld.

It is well known that the law of limitation in regard to suits instituted to set aside unauthorised alienation of endowed property by a Shebait or a Mahant or a manager of a Hindu religious endowment was very uncertain prior to the decision of the Privy Council (1) Mr. Justice B. K. Mukherjea on 'Hindu Law of Religious and Charitable Trust ' II Edn.

(1962) p. 282.

(2) L.R. 27 I.A. 69.

(3) L.R. 37 I.A. 147.

126 in Vidya Varuthi Thirtha vs Balusami Ayyar & Others.(1) That is why subsequent to the said decision, any discussion about the question of limitation relating to such suits necessarily begins with a reference to the principles laid down by the Privy Council in Vidya Varuthi 's case.

In that case, the Privy Council held that the endowments of a Hindu math are not "conveyed in trust", nor is the head of the math a "trustee" with regard to them, save as to specific property proved to have been vested in him for a specific object.

The question which the Privy Council had to consider in that case was whether article 134 applied to a suit in which the validity of a permanent lease of part of the math property granted by the head of a math was challenged.

Article 134 covers suits brought with a view 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.

These words used in column 1 of article 134 necessarily raise the question as to whether the head of a math is a trustee within their meaning; and Mr. Justice Ameer Ali, who spoke for the Privy Council, answered that question in the negative.

In con sequence, the argument that article 134 applied, was repelled, and it was held that article 144 would govern such a case.

In fact, it is substantially because of this decision that Articles 134 A, 134 B and 134 C and Articles 48A and 48B came to be inserted in the First Schedule to the Limitation Act by Amending Act 1 of 1929.

At the same time, section 10 of the Limitation Act was amended by addition of an explanatory clause which provided, inter alia, that for the purposes of section 10, any property comprised in a Hindu religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.

As we have already noticed, these newly added provisions in the Limitation Act came into force on the 1st January, 1929.

Reverting then to the question as to whether a transfer effected by the manager of a temple in regard to properties belonging to the temple falls outside the purview of article 134 B if it is shown to have been made on the basis that the transferor treated the properties as his own, it does appear that the two earlier Privy Council decisions in Gnanasambanda 's(2) and Damodar Das 's(3) cases lend some support to the contention.

In Gnanasambanda 's case, it was held by the Privy Council that where hereditary trustees of a re ligious endowment sold their hereditary right of management (1) L.R. 48 I.A. 3 2.

(2) L.R. 27 I.A. 69.

(3) L.R. 37 I.A. 147.

127 and transferred the endowed property, the sales were null and void, in the absence of a custom allowing them; and that the possession taken by the purchaser was adverse to the vendors and those claiming under them.

In appreciating the effect of this decision, it is necessary to bear in mind that the plea of limitation with which the Privy Council was concerned in that case was based on article 124 of the Limitation Act.

Article 124 relates to suits filed for possession of a hereditary office, and the limitation prescribed for such suits starts when the defendant takes possession of the office adversely to the plaintiff.

It is clear that in that case, what had been sold was the hereditary office, as well as the properties belonging to the endowment; and so, it was plain that limitation began as soon as the purchaser took possession of the office under article 124.

It is true that immovable properties belonging to the temple had also been sold; but the Privy Council expressly ruled that there was no distinction between the office and the property of the endowment.

The one is attached to the other; but if there is, article 144 of the same Schedule is applicable to the property; and that bars the suit after 12 years ' adverse possession.

It may be permissible to state that this latter observation was made in 1899 long before the Privy Council enunciated the true legal position in regard to the status of the managers of Hindu religious endowments in Vidya Varuthi 's case(1).

Similarly in Damodar Das 's case(2), while dealing with the validity of an 'ikrarnama ' of a debuttar property executed by the manager of the property, the Privy Council observed that from the date of the ikranama, the possession of the transferee was adverse to the right of the idol and that led to the conclusion that the suit instituted against the transferee was barred by limitation.

There is no discussion about the status and character of the Chela who made the transfer nor about the right of the succeeding Chela to challenge the validity of the transfer effected by his predecessor which was subsequently recognised by the Privy Council in Vidya Varuthi 's case(1).

These two judgments have, no doubt been incidentally referred to by the Privy Council in Mahant Ram Charan Das vs Naurangi Lal and Others(3), and in Mahadeo Prasad Singh and Others vs Karia Bharti(4) though the decision in the said two cases proceeded in the light of the legal position enunciated by the Privy Council in Vidya Varuthi 's case(4).

(1) L.R. 48 I.A. 302.

(2) L.R. 37 I.A. 147.

(3) L.R. 60 I.A. 124.

(4) L.R. 62 I.A. 47.

128 It would thus be seen that the observations made by Mr. Justice Mukhejea on which Mr. Tatachari relies, really purport to extend the principle which has apparently been mentioned by the Privy Council in Gnanasambanda 's case(1).

It does appear that Mr. Justice Mukhejea had expressed this view as a Judge of the Calcutta High Court in the case of Hemanta Kumari Basu vs Sree Ishwar Sridhar Jiu, (2) and had relied on the two Privy Council 's decisions in Gnanasambanda 's(1) and Damodar Das 's cases In the case of Hemanta Kumari Basa(2), the attention of Mukherjea J. was drawn to the fact that in an earlier decision of the Calcutta High Court in Ronald Duncan Cromartic and Francis Arthur Shephard Sutherland, vs Sri Iswar Radha Damodar few and Others, (4) D. N. Mitter, J., had made observations which were inconsistent with the view which Mukhejea, J. was disposed to take; but the learned Judge commented on the said observations by saying that they were open to criticism.

Thus, on the question raised by Mr. Tatachari before us, there does appear to be some divergence of opinion in the Calcutta High Court itself No other decision has been cited before us which has accepted the proposition that if any part of the property belonging to a Hindu religious endowment is transferred by its manager, the transfer is void and the possession of the transferee becomes adverse to the endowment from the very beginning.

In fact, as we have already indicated, in the case of Gnanasambanda(1) what had been transferred unauthorisedly, was the religious office itself and all the properties appertaining thereto.

It is open to doubt whether the said decision could lead to the inference that if a part of the property is transferred by the manager of a religious endowment on the basis that it belongs to him and not to the religious endowment, the transfer is void ab initio, with the result that the possession of the transferee is adverse to the religious endowment from the very beginning, and the succeeding manager 's right to challenge the said transfer would be lost if his predecessor who made the transfer lives for more than 12 years after effecting the transfer.

In the words of Sir John Edge, who spoke for the Privy Council in Nainapillai Marakayar and of hers vs Ramanathan Chettiar and Others(5), " in the case of a Shebait a grant by him (1) L.R. 27 I.A. 69.

(2) I.L.R. (3) L.R. 37 I.A. 147.

(4) (5) L.R. 51 I.A. 83 at p. 97.

129 in violation of his duty of an interest in endowed lands which he has no authority as Shebait to make may possibly under some circumstances be good as against himself by way of estoppel, but is not binding upon his successors.

" It is not easy to see why the successor 's right to Challenge an unauthorised alienation made by his predecessor should be affected adversely if the alienation is made by his predecessor on the basis that the property belonged to him and not to the religious endowment.

However, we do not think it necessary to decide this point in the present case, because, in our opinion, the plain words of article 134 B do not permit such a plea to be raised.

Column 1 of article 134 B provides for suits brought, inter alia, by the manager of a Hindu 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.

The period prescribed for such suits is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.

Confining ourselves to the first column of article 134 B at this stage, the question which we have to decide is : does this article permit any distinction to be made between transfers effected by a previous manager on the basis that the property transferred belongs to the religious endowment, and those made by him on the basis that the said property is his own private property ? If the property is transferred by the manager on the basis that it belongs to the endowment, article 134 B clearly applies; but does it make any difference to the application of article 134 B if the transfer is made on the other basis that the property belongs not to the endowment, but to the manager himself ? In either case, the successor who challenges the alienation, will have to prove that the property in fact belongs to the religious endowment.

Once that is proved, is it necessary for him also to show that the transfer was made, on the basis that the property belonged to the religious endowment ? In our opinion, such a limitation cannot be read in the words used by the said article.

Article 134 B applies to all cases where it is shown that the immovable property was comprised in the endowment and that it has been transferred by a previous manager for a valuable consideration.

The successor has to prove three facts : (1) that the property belongs to the religious endowment; (2) that it was transferred by a previous manager; and (3) that the transfer was for a valuable consideration.

The character of the representations made by the previous manager in regard to his relation with the property which is the subject matter of transfer, is irrelevant for the purpose of article 134 B. 130 All transfers made would fall within article 134 B if the three essential facts are proved by the successor of the transferor manager of the Hindu religious endowment.

Therefore, we do not think that Mr. Tatachari is justified in contending that the transfers with which we are concerned in the present appeal fall outside the purview of article 134 B inasmuch as they are effected by the alienors, on the representations that the properties transferred belonged to them as their separate properties.

On the findings recorded by the High Court, it is clear that the properties belonged to the temple; that they have been transferred by persons who must be deemed to be the previous managers of the temple; and that they have been transferred for valuable consideration.

The present suit has been brought against respondents 1 to 3 who are appointed trustees of the temple by respondent No. 4; and so, all the ingredients prescribed by the first column of article 134 B are satisfied.

That is why we must reject the ingenious argument urged before us by Mr. Tatachari that article 134 B does not apply to the present case.

We may, in this connection, refer to the decision of the Privy Council in Mahant Sudarsan Das vs Mahant Ram Kirpal Das, and Others.

(1) In that case, the question which arose for the decision of the Privy Council was whether article 134 B applied to a case where debuttar property had been sold in an execution sale, and the Privy Council held that it did not. "To apply article 134 B to an execution sale", observed Lord Radcliffe, "involves a reading of that article which would construe the words "transferred by a previous manager for a valuable consideration" as covering an execution sale under court process, and the word "transferor" as extending to the judgment debtor whose land is sold.

It is not only that the words themselves do not properly bear that meaning.

Apart from that, what is in all essentials the same question was considered on several occasions by courts in India before article 134A and 134B had been added to article 134.

That Article contains the analogous phrase "transferred by the trustee or mortgagee for a valuable consideration", and there was a uniform current of decision to the effect that these words were incapable of applying to an execution sale.

" What was said by the Privy Council about the impropriety of including an execution sale within the meaning of article 134B can, with equal justification, be said about introducing words of limitation in the said article which alone can exclude transfers made by the previous manager of the Hindu religious endowment on the basis that the property transferred belonged to (1) L.R. 77 I.A. 42 at pp.

49 50.

131 him.

Therefore, we must deal with the present appeal on the basis that article 134 B applies to the facts of the present case.

Mr. Tatachari then contends that even on the application of article 134 B, the decision of the High Court is erroneous, because on the facts proved in this case, the High Court should have drawn the legal inference that the transferor had been removed more than 12 years before the suit was filed.

He contends that the question as to whether on facts proved in the present case, an inference can be drawn that the previous manager or trustee had been removed, is a mixed question of fact and law, and the High Court was in error in reversing the decisions of the courts below by holding that the title of the temple had not been lost by adverse possession before the suit was filed.

For deciding this question, it is necessary to refer to some material facts.

The transferor is Pachaikandaswamiar.

The appellants ' case before the trial Court was that Pachaikandaswamiar had resigned his position about 27 years ago, and that even if article 134 B applied, limitation should be held to have commenced from the date when the alienor either resigned his office or was removed from it.

In dealing with this aspect of the matter, the learned trial Judge has examined the oral evidence led on behalf of the parties.

He assumed that Pachaikandaswamiar and his son were alive at the date of the suit.

Even so, he found that they had left the village and had taken no part whatever in the management of the worship of the temple.

In fact, almost all the properties belonging to the temple had in course of time, been a alienated and the alienors were no longer interested either in the temple or in staying in the village itself.

Raju lyer, who was examined as a witness by the appellants, stated that he and Amirthalinga lyer had been performing the worship of the temple for the past 27 years, and he added that the alienor and his son had left the village more than 25 years ago, and but for very casual visits to the village, they had never taken any interest in the temple or in the management of its affairs.

In fact, Ranga Raju Raddiar, whom the respondents examined, admitted in reply to the questions put by the Court that since 25 years or so neither Pachaikandaswamiar nor Chinnaswami lyer had performed any pooja in the temple.

He substantially corroborated the statement of Raju lyer that Raju lyer and Amirthalinga lyer` had been performing the worship of the temple.

Another witness, Chandrasekara lyer by name, whom the respondents examined, also admitted that Pachaikanda had sold away all his properties and had left the village.

Besides, when respondents 1 to 3 were appointed as trustees of the temple, a notice was issued by the 132 office of Assistant Commissioner for Hindu Religious Endowments, Tiruchirappalli, on the 19th June, 1948, in which it was specifically averred that there were no legally constituted trustees for Sri Pachaikantha Udayavar Temple, Eragudi, and it was mismanaged; and so, it was proposed to appoint legally constituted trustees for the said temple.

This notice was served on witness Raju lyer and Amrithalinga lyer, Chinnasamy Iyer, and Rangaraja Reddiar, who were performing the worship and acting as de facto managers of the temple.

It is remarkable that this notice describes Amirthalinga Iyer and Chinnasamy lyer as de facto trustees of the temple.

It is on these facts that the learned trial Judge held that the alienor must be deemed to have resigned his office or left it.

The lower appellate Court does not appear to have considered or made any specific or clear finding on this aspect of the matter.

It, however, held that the transferor and his family had been claiming beneficial interest in the properties all along and that they were not holding the same as managers of the trust.

That is why he confirmed the finding of the trial Judge on the question of adverse possession, though on a somewhat different ground.

The High Court has relied on the fact that the alienor is still alive, and so, it thought that the plea of adverse possession could not be sustained.

Unfortunately, the question as to whether the facts proved in this case did not show that the alienor had been removed from office by other persons who were in management of the temple de facto, has not been discussed by the High Court.

In our opinion, all the facts which have been brought on the record in relation to this aspect of the matter, clearly show not only that the alienor disposed of all the property and left the village ' but also that for the last 25 years or so, the management has been taken over by other persons who are acting as de facto managers of the temple.

This evidence appears to us to show that the alienors had been removed from management of the temple, and other persons have taken up the position as de facto managers, and this position has lasted for more than 25 years.

If that be so, there is no escape from the conclusion that more than 12 years have elapsed since the date of the removal of the previous manager who transferred the properties in question; and so, if a suit were brought by respondents 1 to 3 on the date when they were appointed trustees by respondent No. 4, it would be barred under article 134 B.

On that view of the matter, we must hold that the trial Judge and 133 the lower appellate Court were right in decreeing the appellants ' suit in its entirety.

We must accordingly set aside the decree passed by the High Court in regard to the transfers covered by Exts.

A 3, A 6 and A 12, and restore that of the lower appellate Court.

In the circumstances of this case, we direct that parties should bear their own costs.

Appeal allowed.

Summary: The lands in dispute had been granted in inam to a temple.

Summary: By about 1929 the then manager of the temple disposed of all those properties under various sale deeds, resigned his position and left the village.

Summary: He was therefore removed from the management of the temple and other persons had taken up the position as de facto managers from 1929.

Summary: As a result of successive alienations of the properties, the appellants became entitled to them.

Summary: In 1951, the respondents were appointed trustees of The temple and under the Madras Hindu Religious and Charitable Endowments Act, 1951, they applied, to the Magistrate, for possession of the properties and the Magistrate ordered delivery of possession.

Summary: Before the order could be executed the appellants filed the suit in 1954, for a declaration of their title to the properties and for an injunction restraining the respondents from interfering with their possession.

Summary: The trial Court and the lower appellate Court decreed the suit.

Summary: In second appeal, the High Court held that the suit was governed by article 134 B of the Limitation Act,, 1908, which was introduced into the Act on 1st January 1929; and that the appellants ' claim in regard to the properties covered by the sale deeds of 1917 and 1926.

Summary: should be rejected, because, the alienees had not acquired title by adverse possession by 1st January, 1929, and is the alienor was still alive, the plea of adverse possession could not be sustained under that article.

Summary: In appeal to this Court it was contended that article 134 B would not apply to the present case but that article 144 would apply, because, the transfers were effected by the alienor on the 'representations that the properties belonged to him as his separate property; and that even if the article applied, the decision of the High Court was erroneous, because the transferor had been removed from management more than 12 years before the suit was filed.

Summary: HELD : Though article 134 B applied to the facts of the case, since the appellants had acquired title to the properties by prescription, the decree passed by the High Court, in so far as it was against the appellants, should be set aside.

Summary: Column 1 of the article provides for suits brought,, inter alia, by the Tanager of a Hindu religion; or charitable endowment to recover possession of immovable property comprised in the endowment, which has been transferred by a previous manager for valuable consideration.

Summary: The period Prescribed for such suits is 12 years, and the time from which the period begins to run is the death, resignation or removal of the transferor.

Summary: The findings recorded by the High Court in the present case show that all the ingredients prescribed by the first column of the Article namely 121 (i)that the property belonged to the endowment, (ii) that it was transferred by a previous manager; and (iii) that the transfer was for valuable Consideration, were satisfied.

Summary: The character of the representations made by the previous manager in regard to his relation with the property which is the subject matter of transfer, is irrelevant for the purpose of the Article.

Summary: But if a suit had been brought by the respondents on the date when they were appointed trustees, it would have been barred under the Article, because more than 12 years had elapsed since the date of the removal of the previous manager who had transferred the properties; and therefore, the trial Court and the lower appellate Court were right in decreeing the, appellants ' suit in its entirety.

Summary: [129 C D, H; 132 H] Mahant Sudarsan Das vs Mahant Ram Kirpal Das & Ors.

Summary: L. R. 77 I.A. 42, applied.