Appeals Nos 220 to 223 of 1953
Appeals from the Judgment and decrees dated April 141943 of the Bombay High Court in Appeals Nos 183 184 185 and 186 of 1942 arising out of the judgments and decrees dated February 16 1942 of the Court of the 1st Class Sub Judge Poona in Suits Nos
90037 39235 87536 and 120233
V P Rege and Naunit Lal for the appellants
N C Chatterjee K V Joshi and Ganpat Rai for respondents Nos
1 to 6 In all the Appeals
478 1959
March 26
The Judgment of the Court was delivered by GAJENDRAGADKAR J
These four appeals represent the last stage of a long and tortuous litigation between the appellants Waghmares also called Guravs who claim the rights of hereditary worshippers in the Shree Dnyaneshwar Maharaj Sansthan Alandi and respondents 1 to 6 who are the trustees of the said Sansthan
Alandi  which is a small town situated on the banks of the river Indrayani at a dis tance of about 14 miles from Poona is regarded as a holy place of pilgrimage by thousands of Hindu devotees
In the last quarter  of the 13th century Shree Dnyaneshwar Maharaj the great Maharashtra Saint and Philosopher lived at Alandi
He was a spiritual teacher and reformer by his saintly life and his inspiring and illuminating commentary on the Bhagvad Gita known as Dnyaneshwari he helped to create a popular urge and fervour for religious and social revolution which led to the foundation of a devotional cult the followers of this cult are known as Warkaris in Maharashtra
They refuse to recognise any barriers of caste or class and amongst them prevails a feeling of real and genuine spiritual brotherhood
Every year in the months of July and November thousands of them proceed on pilgrimage on foot and accompany the annual palanquin procession from Alandi to Pandharpur
Pandharpur is the chief centre of pilgrimage in Maharashtra and it is regarded by devotees as the Banares of Southern India
About 1300 A D Shree Dnyaneshwar Maharaj took Samadhi at Alandi and since then Alandi also has become a place of pilgrimage
In or about 1500 A D a big temple was erected in front of the idol of Shiva called Siddeshwar where the said Shree Dayaneshwar Maharaj took his Samadhi
In due course the Mahratta Kings and the Peshwas of Poona granted the village of Alandi in inam for the upkeep of the temple and the Samadhi
About 1760 A D Peshwa Balaji Baji Rao framed a budget called Beheda or Taleband in order to regulate the management and worship of the shrine and provided for proper 479 administration of its annual revenue amounting to Rs 1725
The appellants claim that their ancestors were then in possession of the temple and management of its affairs especially the worship of the shrine
The budget framed by the Peshwa shows that out of the sum of Rs 1725 an amount of Rs 361 was assigned to the worshippers for some of their services
After the fall of the Mahratta power the management of Alandi passed into the hands of the East India Company which continued the old arrangement without any interference
In 1852 under orders from the Government of Bombay the Collector of Poona drew up a yadi or memorandum appointing six persons as Punchas trustees with directions to them for the management of the temple in accordance with the old tradition and practice as well as for the administration of the revenue of the village subject to the control and sanction of the Collector
This arrangement came to be described as  the scheme of 1852
In 1863 the Religious Endowment Act was passed and inconsequence in 1864 the Government of Bombay withdrew their superintendence over the affairs of the Alandi Sansthan and the trustees continued to manage the affairs of the temple without any supervision on the part of the Government
It was during this period that the appellants  ancestors began to assert that they were the owners of the shrine while the trustees insisted on treating them as the servants of the shrine
This conflict inevitably led to several disputes between the worshippers and the trustees
Matters appear to have come to a crisis in 1911 when the trustees dismissed eleven Guravs from the temple service on the ground that they were found guilty of gross misconduct
The Guravs nevertheless asserted that they were the owners of the shrine and that the trustees had no authority or power to dismiss them
Taking their stand on their ownership of the shrine some of the dismissed Guravs filed Civil Suit No 485 of 1911 in the Court of the Subordinate Judge Poona against the trustees and this was the beginning of the long drawn out litigation which followed between the parties
In that suit the Guravs 480 claimed a declaration that they were the owners of the temple and not the servants of the temple committee and as owners they were entitled to perform the worship at the shrine and to appropriate the offerings made to the idol of the Saint
This claim was resisted by the trustees who pleaded that the Guravs were merely the servants of the temple committee and not the owners at all
On April 20 1917 the learned trial judge dismissed the suit because he held that the Guravs were not the owners of the shrine and were not entitled to the declarations claimed by them
Against this decision the Guravs preferred several appeals but these appeals were dismissed on August 3 1921
While dismissing their appeals the High Court incidentally expressed the view that it was open to the Guravs to come to terms with the temple committee and that the terms on which the Guravs could be reinstated can be decided appropriately in a suit filed under section 92 of the Code of Civil Procedure
It was also observed by the High Court in its judgment that the temple committee did not dispute the fact that the Guravs were the hereditary pujaris and that they had some rights in that capacity
No doubt the committee claimed that under the scheme framed in 1852 it was competent to dismiss hereditary servants for a substantial cause such as gross misconduct
It appears that instead of adopting the course indicated in the judgment of the High Court and filing a suit under section 92 of the Code the Guravs chose to take the law into their own hands and obtained forcible possession of the temple premises on July 25 1922 and began to perform the puja and to take the offerings placed before the deity as they had been doing prior to their dismissal
This was followed by a suit filed by the trustees on September 12 1922 Suit No 1075 of 1922 under section 9 of the Specific Relief Act
This suit terminated in a decree in favour of the committee on November 4 1922
In pursuance of this decree the committee recovered possession of the temple on November 16 1922
Thus the Guravs had occupied the temple precincts for about three and a half months
481 When the Guravs were thus dispossessed by the committee in execution of the decree obtained by it some of them proceeded to file Suit No 19 of 1922 in the District Court of Poona this suit purported to be one under section 92 of the Code but it claimed the same reliefs as had been claimed by the Guravs in theirs earlier suit of 1911
On April 25 1927 the District A Court dismissed this suit on the ground that the Guravs could not reagitate the same questions over again
it was held that their claim was barred by the deci sion of the earlier Suit No 485 of 1911
Against this decision the Guravs appealed to the High Court First Appeal No 507 of 1927 but the High Court agreed with the conclusion of the District Court and dismissed the Guravs appeal on June 20 1933
It was held by the High Court that the suit as framed was not properly constituted under section 92 of the Code
It was at this stage that a properly constituted suit No 7 of 1934 was filed under section 92 of the Code by the general public of Alandi along with two Guravs in the District Court at Poona
This suit claimed that a proper scheme should be framed for the management of the temple
Even so one of the allegations made in the plaint referred to the Guravs  rights as hereditary worshippers
It was apparently apprehended that this allegation would be treated as outside the scope of a scheme suit under section 92 and so the Guravs took the precaution of filing four separate suits on behalf of four branches in the Waghmare family one after the other
These suits were numbered as 1202 of 1933 392 of 1935 875 of 1936 and 900 of 1937 the plaintiffs in these suits were respectively the members of the third the fourth the first and the second branch of the Waghmare family 
It appears that the hearing of these suits were stayed by an order of the District Judge pending the final decision of the scheme suit which was being tried by him
The scheme suit was taken up for hearing in 1937
As many as 22 issues were framed in this suit and voluminous evidence Was recorded
In the result the learned judge substantially confirmed the original 61 482 scheme of 1852 though he issued certain directions modifying it
This decree was passed on December 11 1937
The trustees felt aggrieved by this decree and challenged its propriety by preferring an appeal No 92 of 1938 in the Bombay High Court
On November 16 1939 the High Court dismissed the appeal though it made some amendments in the scheme framed by the District Judge by consent of the parties
After the scheme suit was thus disposed of by the High Court the four suits filed by the pujaris were taken up for trial by the learned Subordinate Judge First Class Poona
In all these suits the appellants claimed their rights as hereditary vatandar Pujari Gurav Servants of the Sansthan
They alleged that they were under a duty to perform worship according to certain rites in Shree Dayaneshwar Sansthan and that they were also under an obligation to perform other incidental duties enumerated by them in their plaints
Likewise they claimed that for remuneration they were entitled to receive coins and perishable articles offered by the devotees and the committee as well as yearly emoluments from the committee
On these allegations the appellants claimed a declaration about their respective rights and an injunction permanently restraining the trustees from obstructing the appellants in the exercise of the said rights
They also claimed accounts from the trustees in regard to the offerings prior to the institution of the suit as well as those made after the institution of the suit and before the passing of the decree
These allegations were denied by respondents 1 to 6
Their case was that the appellants were the servants of the temple committee and as such had no hereditary rights set up by them
In the alternative it was pleaded by them that even if the appellants had any hereditary rights the same had been lost by their misconduct and had been otherwise extinguished by limitation
Against the appellants  claim pleas of res judicata and estoppel were also raised
On these pleadings as many as 21 issues were framed in the trial court
The trial court found in favour 483 of the appellants on all the issues
The learned judge held that the Guravs had established the hereditary rights set out by them and he was inclined to take the view that the respondents could not deprive the appellants of their hereditary rights of service because of the misconduct of some of their ancestors
He also found that there was no substance in the plea of estoppel or res judicata and that the suits were not barred by limitation
In the result the appellants  suits were decreed on February 16 1942
Thereupon the respondents challenged these decrees by preferring appeals against them in the Bombay High Court
The four suits accordingly gave rise to First Appeals Nos
183 184 185 and 186 of 1942 respectively
In these appeals the High Court agreed with the trial court in holding that on the merits the appellants had established their case and that their claim was not barred either by res judicata or by estoppel
However on the question of limitation the High Court took the view that the appellants  suits were governed by article 120 of the Limitation Act and that they had been filed beyond the period of six years prescribed by the said article
That is why the High Court set aside the decrees passed by the trial court allowed the respondents  appeals and dismissed the appellants  suits
However in view of the special facts of the case the High Court directed that each party should bear its own costs throughout
This judgment was pronounced on April 14 1943
Like the trial court the High Court also dealt with all the four cases by one common judgment
It appears that after this judgment was pronounced by the High Court but before it Was signed the appellants moved the High Court on July 2 1943 for a rehearing of one of the appeals No 186 of 1942
It was urged before the High Court that even if article 120 applied the claim made by the appellant in the said appeal which arose from Suit No 1202 of 1933 could not be held to be barred by limitation
The High Court was not impressed by this plea and so the motion for rehearing was discharged
Subsequently a Civil Application No 1039 of 1944 484 was made by the appellant in the said appeal seeking to raise the same point over again but this application was rejected by the High Court on September 12 1944
The appellants then applied for leave to appeal to the Privy Council on August 15 1944
Their applications were heard together and were disposed of by an order passed on March 26 1946 whereby leave was granted to them to appeal to the Privy Council and their prayer for consolidating all the appeals was also allowed
These appeals could not however be disposed of by the Privy Council before the jurisdiction of the Privy Council to deal with Indian appeals came to an end and so they ultimately came to this Court and were numbered as Appeals Nos 220 to 223 of 1953
It may be convenient to state that these appeals arise respectively from Suits Nos
907 of 1937 392 of 1935 875 of 1936 and 1202 of 1933
It would thus be seen that the litigation which began between the parties in 1911 has now reached its final stage before us in the present appeals
As we have already indicated both the courts below have found in favour of the appellants on most of the issues that arose in the present litigation but the appellants have failed in the High Court on the ground of limitation
In the trial court the respondents had urged that the present suits were governed by article 124 of the Limitation Act and that since the Guravs had been dismissed from service in 1911 and other Guravs refused to serve in 1913 and 1914 limitatation began to run against them at least from 1914 and so the suits were beyond time
The learned trial judge held that article 124 was inapplicable
He also found alternatively that even if the said article applied the trustees did not have continuous possession of the suit properties from 1911 or 1914 for twelve years and so the suits were not barred by time
According to him the case was really covered by section 23 of the Limitation Act and so the plea of limitation could not succeed
The High Court has agreed with the trial court in holding that article 124 is inapplicable
It has however 485 come to the conclusion that the suits are governed by article 120 of the Limitation Act and according to its findings limitation began to run against the appellants either from September 12 1922 when the trustees filed their suit under section 9 of the Specific Relief Act or in any case from November 1922 when in execution of the decree passed in the said  suit the appellants were driven out of the temple precincts by the trustees
The High Court has also held that section 23 can have no application to the present case
That is how the High Court has reached the conclusion that the appellants  suits are barred by time under article 120
The question which arises for our decision in the present appeals therefore is one of limitation it has to be considered in two aspects Was the High Court right in holding that article 120 applies and that the cause of action accrued more than six years before the dates of the institution of the present suits  Was the High Court also right in holding that section 23 does not apply to the suits  On behalf of the appellants Mr Rege has contended that in substance in their present suits the appellants have made a claim for possession of an hereditary office and as such they would be governed by article 124 of the Limitation Act
In this connection he has referred us to the relevant allegations in the plaint to show that the appellants  prayer for a declaration about their hereditary rights and for a consequential permanent injunction amount to no more and no less than a claim for possession of the said hereditary office
In support of this argument reliance has been placed on the decision of the Bombay High Court in Kunj Bihari Prasadji vs Keshavlal Hiralal 1
In that case the plaintiff had made a claim to the gadi of the Swaminarayan temple at Ahmedabad and had asked for a declaration that the will of the last Acharya which purported to appoint defendant 14 as his adopted son and successor was null and void
As a consequence a perpetual injunction was also claimed restraining the defendants from offering any obstruction to the plaintiff in occupying the said gadi
The 1 Bom
567 486 principal point which was decided in the case had reference to the effect of the provisions of section 42 of the Specific Relief Act
 The plaintiff s suit had been dismissed in the courts below on the ground that he had omitted to ask for further relief as he was bound to do under section 42 of the said Act and the High Court held that the section did not empower the court to dismiss the suit under the said section
In considering the nature of the claim made by the plaintiff Jenkins C J observed that  in the plaintiff s view the suit was not one of possession of land appertaining to the gadi but to determine who was to occupy the gadi and thus as gadinishin become the human agent of the deity
If that was so then the injunction restraining all interference with the occupancy by the plaintiff of the gadi secures in the most complete manner to him the rights he claims 
The learned Chief Justice also observed that  the plaintiff might in terms have asked for possession of the office he said was his  but be asked  how would practical effect be given to an award of possession of office otherwise than by preventing interference with the rights of which it was made up 
Even so having reversed the decree passed by the courts below when the High Court remanded the case for retrial the plaintiff was advised to amend his plaint and to define more precisely the terms of the injunction he sought
It is urged that in the present appeals also by asking for a declaration of their rights and for an appropriate injunction against the respondents the appellants were in effect asking for possession of the hereditary office
It is doubtful if the claims made by the appellants in their respective suits are exactly analogous to the claim made by the plaintiff in Kunj Bihari Prasad s case 1
The appellants have not only asked for an injunction but also for an account of the income received by the trustees from July 23 1933 up to the date of the suit as well as for similar account from the date of the suit until the date of the decree
A claim for accounts in the form in which it is made may not be quite consistent with the appellants  contention that their suits are for nothing more than possession 1 Bom
567 487 of the hereditary office  but in dealing with the present appeals we are prepared to assume that they have in substance claimed possession of the office
The question which then arises is Does this claim for possession attract the application of article 124 of the Limitation Act  Article 124 governs suits for possession of an hereditary office
The period of limitation prescribed by the article is twelve years and the said period begins to run when the defendant takes possession of the office adversely to the plaintiff
This is explained to mean that the hereditary office is possessed when the profits thereof are usually received or if there are no profits when the duties thereof are usually performed
It is clear that before this article can apply it must be shown that the suit makes claim for possession of an office which is hereditary and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff
Unlike article 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office
What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period
As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office the receipt of the profits by itself may not amount to the possession of office
The cause of action for possession in suits falling under article 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question
Claims for possession of hereditary offices which attract the application of this article are usually made by holders of the said offices against persons who claim adverse possession of the said offices in other words in suits of this kind the contest is usually between rival claimants to the hereditary office in question
In the present appeals the claim for possession is 488 made by the appellants against the trustees of the Sansthan
It is significant that the persons who are actually performing the duties of the worshippers are not impleaded  and they do not claim to hold office as hereditary officers either
They have been appointed by the trustees as servants of the institution and they perform the duties of worship as such servants
The trustees on the other hand cannot be said to have taken possession of the office themselves adversely to the appellants
They do not take the profits themselves nor do they perform the duties associated with the said office
They have in exercise of their authority and power as trustees dismissed the appellants  predecessors from office and have made fresh appointments of servants to perform the worship at the Sansthan and in making the said appointments have in fact destroyed the hereditary character of the office
The dispute in the present appeals is between the worshippers who claim hereditary rights and the trustees of the institution who claim to have validly terminated the services of some of the predecessors of the appellants and to have made valid appointments to the said office
It is therefore impossible to accept the argument that the claim made by the appellants in their respective suits attracts the provision of article 124
It is conceded by Mr Rege that if article 124 does not apply the suits would be governed by article 120 which is a residuary article
It may prima facie appear somewhat strange that whereas a suit against a person claiming to hold the hereditary office adversely to the plaintiff is governed by a period  of twelve years a claim against the trustees like the respondents in the present appeals who have dismissed the hereditary worshippers should be governed by a period of six years
It may be possible to suggest that there is a substantial difference in the nature of the two disputes  but apart from it it is well known that the artificial provisions of limitation do not always satisfy the test of logic or equity
Mr Rege however argued that in determining the scope of article 124 we need not consider the provisions of col 3 to the said article
His contention appears 489 to be that once it is shown that the suit is for possession of an hereditary office article 124 must apply though the claim for possession may not have been made against a person who has taken possession of the office adversely to the plaintiff
He also urged alternatively that the trustees should be deemed to have taken possession of the office adversely to the appellants
We have already held that the conduct of the trustees shows that they have not taken possession of the office adversely within the meaning of col 3 of article 124 and we do not think it is possible to ignore the provision of col 3 in deciding whether or not article 124 applies
It is true that in Jalim Singh Srimal vs Choonee Lall Johurry 1 while holding that the adjustment on which the plaintiff s claim was based in that case was in time both under articles 115 and 120 Jenkins C J has observed that the function of the third column of the second schedule is not to define causes of action but to fix the starting point from which the period of limitation is to be counted  but this observation does not support the appellants  case that article 124 would govern the suit even though the third column is wholly inapplicable to it
That obviously is not the effect of the observations made in Jalim Singh s case 1
The question about the nature and scope of the provisions of article 124 has been considered by the Madras High Court in Thathachariar vs Singarachariar 2
 If we take into consideration the terminology used in the three columns of article 124  observed Srinivasa Aiyangar J in that case  it is clear that the nature of the suit intended to be covered by that article must be a suit filed by a plaintiff who claims the office from a person who at that time holds the office himself 
In our opinion this view is correct
We may also refer to another decision of the Madras High Court in which this question has been considered
In Annasami vs Adivarachari 3 a Full Bench of the Madras High Court was dealing with a suit in 1 2 AIR 1928 Mad 377
3 ILR 62 490 which the plaintiff had claimed an injunction restraining the trustee and the archakas of the Sri Bhuvarabaswami temple at Srimushnam from interfering with the performance of the duties of his office of mantrapushpam of the temple
This suit had been filed in 1929
The office of mantrapushpam was a hereditary office and the plaintiff had succeeded to it on the death of his father in 1906
The emoluments of the office consisted of a ball of cooked rice per them and twelve annas per month
It appears that the plaintiff was a Vadagalai while the archakas of the temple were Thengalais and there was animosity between them and as a result of this animosity the plaintiff bad never been able to perform the duties of his office
It was common ground that the plaintiff was the lawful holder of the office and that he had been receiving its emoluments month by month until 1927
The archakas who resisted the plaintiff s claim did not claim that they were in possession of the office or that they had performed the duties of the said office
The Full Bench held that where a person is admittedly the lawful holder of the office and he is enjoying its emoluments he must in law be regarded as being in possession of the office itself especially where no one else is performing the duties of the said office and so under article 124 it was enough for the plaintiff to show that he had been in receipt of the emoluments of the office to save his claim from the bar of limitation
The Full Bench also rejected the contention that under article 120 the suit was barred because it was held that every time the trustee and the archakas prevented the plaintiff from performing his duties as a hereditary officer a fresh cause of action arose and so there can be no bar of limitation under article 120
It would be noticed that the basis of this decision was that in the eyes of law the plaintiff was in possession of the hereditary office since he was receiving the emoluments of the said office month by month and so every act of obstruction on the part of the archakas and the trustee was in the nature of a continuing wrong which gave rise to a fresh cause of action to the plaintiff from time to time
In other words on the facts the Full Bench held that 491 s23 helped the plaintiff and saved his suit from the bar of limitation
As we will presently point out there is no scope for applying section 23 to the facts of the present cases and so the decision in Annasami Iyengar s case 1 cannot assist the appellants
In this connection it is relevant to consider the decision of the Privy Council in Jhalandar Thakur vs Jharula Das 2 in which it was held that article 124 was inapplicable
The defendant Jharula Das had obtained a decree for money on a mortgage which bad been executed in his favour by Mst
Grihimoni the widow of the shebait of the temple
In execution of the said decree the defendant had caused 3 12 as
share of the judgment debtor including her right in the nett income of the daily offerings made before the idol to be put up for sale and had himself purchased it at the auction sale
As such purchaser he was in possession of the income of the said share
The judgment debtor attempted to challenge the said sale by two suits but her attempts failed and the  auction purchaser continued to be in possession of the income
On the death of Mst
Grihimoni Bhaiaji Thakur who succeeded to the office of the shebait sued the defendant for possession of certain lands and claimed a declaration that he was entitled to receive the 3 12 as
share of the nett income from the offerings to the temple with other reliefs
This claim was resisted by the defendant Jharula Das
In regard to the plaintiff s claim in respect of the said 3 12 as share the High Court had held that article 124 applied and that the claim was barred under the said article
That is why the decree passed by the trial court in favour of the plaintiff in respect of the said income was reversed by the High Court
This decision was challenged by the plaintiff before the Privy Council and it was urged on his behalf that article 124 did not apply
The Privy Council upheld this contention
It was clear that the office of the shebait of the temple was a hereditary office which could not be held by anyone who was not a Brahmin Panda
Jharula Das was not a Brahmin Panda
He was of an inferior caste and was not 1 ILR 2 Cal
492 competent to hold the office of the shebait of the temple or to provide for the performance of the duties of that office
On these facts the Privy Council held that the appropriation from time to time by Jharula Das of the income derivable from the said 3 12 as share did not deprive Mst
Grihimoni and after her death Bhaiaji Thakur of the possession of the office of the shebait although that income was receivable by them in right of the shebaitship
The basis of this decision is that on each occasion on which Jharula Das received and wrongfully appropriated to his own use a share of the income to which the shebait was entitled he committed a fresh actionable wrong in respect of which a suit could be brought against him by the shebait but it did not constitute him a shebait for the time being or affect in any way the title of the office
Thus this decision emphasises that for the application of article 124 it is essential that the defendant to the suit must be in adverse possession of the hereditary office in question
We must therefore hold that article 124 does not apply to the suits filed by the appellants and as we have already observed if
article 124 does not apply article 120 does
The next point which arises for our decision is whether under article 120 the suits are barred by limitation
Under article 120 time begins to run against the plaintiffs when the right to sue accrued to them and that naturally poses the question as to when the right to sue accrued to the appellants
In deciding this question it would be necessary to recall briefly the material facts in regard to the past disputes between the appellants and the trustees
These disputes began in 1911
On January 31 1911 the trustees wrote a yadi memorandum to the Collector of Poona asking his permission to dismiss eleven Guravs from service
They set out in detail several items of misconduct of which the said Guravs were guilty and they expressed their opinion that for the proper management of the affairs of the institution it was necessary to terminate the services of the off ending Guravs exhibit 407
On April 1 1911 the Collector sent a reply to the trustees and told them that as a result of the Government 493 Resolution No 4712 passed on November 291864 it was unnecessary for the trustees to obtain the Collector s sanction because it was competent to the trustees to settle their own affairs without any such sanction
The trustees then met in a committee on September 18 1911 and decided to dismiss from service the said eleven Guravs
In its resolution the committee stated that the Guravs were violent and arrogant and it was likely that they may commit riot at the time when the committee would seek to take charge from them
The committee also apprehended that the rest of the Guravs would make a common cause with those who had been dismissed from service and would refuse to serve the Sansthan
Even so the committee decided to appoint six Brahmins temporarily to perform the service because the committee was prepared to allow the rest of the Guravs to render service to the Sansthan if they were ready to act according to the orders of the committee and were willing to enter into a formal agreement in that behalf
In accordance with this resolution the committee served notice on the eleven Guravs on October 13 1911 terminating their services and calling upon them to hand over to the committee all articles in their charge and forbidding them from entering the temple in their capacity as servants
Notice was likewise served on the rest of the Guravs calling upon them to agree to serve the Sansthan on conditions specified in the notice
These terms were not acceptable to the Guravs and so on behalf of two Guravs Eknath and his brother Ramachandra notice was served on the trustees on October 26 1911 complaining against the trustees  conduct in forcibly removing the Guravs from the temple and thereby wrongfully denying their rights
The notice warned the trustees that unless they retraced their steps and gave possession to the Guravs as claimed in the notice legal steps would be taken against them
This notice was followed by the Guravs  Suit No 485 of 1911
In the suit the plaintiffs claimed declaration about their rights of ownership and asked for consequential reliefs
This claim was denied by the 494 trustees who claimed the right to dismiss the Guravs
It was alleged on their behalf that some of the plaintiffs had been dismissed and others had resigned their employments and so all of them had lost their rights
This suit was seriously contested but in the end the Guravs lost and their suit was dismissed on January 31 1918
The Guravs then preferred appeals in the High Court but these appeals were also dismissed on August 3 1921
We have already pointed out that while dismissing the said appeals the High Court made certain observations about the Guravs  hereditary rights of worship and suggested that these rights could be adjudicated upon in a suit filed under section 92 of the Code
Thus at the time when the Guravs  appeals were dismissed the position was that the claim of ownership set up by them had been rejected but the question as to whether they were entitled to the lesser rights of hereditary worshippers was left open
The Guravs then obtained forcible possession of the temple and that led to the trustees  suit under section 9 of the Specific Relief Act No 1075 of 1922 on September 12 1922
In this suit the trustees specifically alleged that the relationship of the defendants as servants of the Sansthan had ceased as from September 1911 and they averred that the defendants had therefore no right to obtain possession of the temple
The defendants no doubt disputed this claim and pleaded that they were the hereditary vatandar pujari servants but their claim was negatived and a decree for possession was passed on November 4 1922
In execution of this decree the defendants were dispossessed
On these facts the High Court has held in favour of the appellants and rightly we think that it was difficult to accept the respondents  contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911
But the High Court felt no doubt that the cause of action to file the present suits had accrued either on September 12 1922 when the trustees filed their suit under section 9 of the Specific Relief Act or in any event on November 4 495 1922 when the said suit was decreed and the Guravs were consequently dispossessed
In our opinion this conclusion is also right
One of the Guravs who was examined in the present litigation has stated that  if in any year when it is the turn of any takshim to serve if a person outside the Gurav family is appointed by the trustees all the takshims have a right to  object 
There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of the present suits none from the Gurav family has served the temple except for 3 12 months in 1922 when the Guravs had wrongfully obtained possession of the temple
In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshippers of the temple and not its owners
This right was specifically denied by the trustees in their plaint while it was specifically set up in defence by the Guravs in their written statement and the decree that followed upheld the trustees  case and rejected the defendant s claim
On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on November 4 1922 when a decree was passed under section 9 of the Specific Relief Act
If not the plaint in the suit at least the decree that followed clearly and effectively threatened the Guravs  rights as hereditary worshippers and so the cause of action to sue on the strength of the said rights clearly and unambiguously arose at that time
If that be the true position it follows that the present suits which have been filed long after the expiration of six years from 1922 are barred by time under article 120
It is then contended by Mr Rege that the suits cannot be held to be barred under article 120 because section 23 of the Limitation Act applies and since in the words of the said section the conduct of the trustees amounted to a continuing wrong a fresh period of limitation began to run at every moment of time during which the said wrong continued
Does the conduct of the trustees amount to a continuing wrong under section 23  That is the question which this contention raises for our decision
In other words did the 496 cause of action arise de die in them as claimed by the appellants  In dealing with this argument it is necessary to bear in mind that section 23 refers not to a continuing right but to a continuing wrong
It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury
If the wrongful act causes an injury which is complete there is no continuing wrong even though the damage resulting from the act may continue
If however a wrongful act is of such a character that the injury caused by it itself continues then the act constitutes a continuing wrong
In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury
It is only in regard to acts which can be properly characterised as continuing wrongs that section 23 can be invoked
Thus considered it is difficult to hold that the trustees  act in denying altogether the alleged rights of the Guravs as hereditary  worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong
The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants  rights though the damage caused by the said decree subsequently continued
Can it be said that after the appellants were evicted from the temple in execution of the said decree the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment  As soon as the decree was passed and the appellants were dispossessed in execution proceedings their rights had been completely injured and though their dispossession continued it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem
We think there can be no doubt that where the wrongful act complained of amounts to ouster the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of section 23 in such a case
That is 497 the view which the High Court has taken and we see no reason to differ from it
We would now like to refer to some of the decisions which were cited before us on this point
The first case which is usually considered in dealing with the application of section 23 is the decision of the Privy Council in Maharani Rajroop Koer vs Syed Abdul Hossein 1 In order to appreciate this decision it is necessary to refer though briefly to the material facts
The plaintiff had succeeded in establishing his right to the pyne or an artificial watercourse and to the use of the water flowing through it except that which flowed through the branch channel he had however failed to prove his right to the water in the tal except to the overflow after the defendants as owners of mouzah Morahad used the water for the purpose of irrigating their own land
It was found that all the obstructions by the defendants were unauthorised and in fact the plaintiff had succeeded in the courts below in respect of all the obstructions except two which were numbered No 3 and No 10
No 3 was a khund or channel cut in the side of the pyne at a point below the bridge whereas No 10 was a dhonga also below the bridge and it consisted of hollow palm trees so placed as to draw off water in the pyne for the purpose of irrigating the defendants  lands
It was in regard to these two obstructions that the question about the continuing wrong fell to be considered and the Privy Council held that the said obstructions which interfered with the flow of water to the plaintiff s mehal were in the nature of continuing nuisance as to which the cause of action was renewed de die in them so long as the obstructions causing such interference were allowed to continue
That is why the Privy Council allowed the plaintiff s claim in respect of these two obstructions and reversed the decree passed by the High Court in that behalf
In fact the conduct of the defendant showed that whenever he drew off water through the said diversions he was in fact stealing plaintiff s water and thereby committing fresh wrong every time
Thus this is clearly not a case of exclusion or ouster
1 1880 LR 7 IA 240
63 498 Similarly in Hukum Chand vs Maharaj Bahadur Singh 1 the Privy Council was dealing with a case where the defendants  act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of section 23
The relevant dispute in that case arose because alterations had been made by the Swetambaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights
It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark
The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot
This the Digambaris refused to worship as being a representation of a detached part of the human body 
The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong of which the Digambaris were entitled to complain
The question which the Privy Council had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer 2  and held that the action in question was a continuing wrong
There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs
It was action which was of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem
In our opinion neither of these two decisions can be of any assistance to the appellants
On the other hand the decision of the Patna High Court in Choudhury Bibhuti Narayan Singh vs Maharaja Sir Guru Mahadev Asram Prasad Sahi Bahadur3 1 1933 LR 60 IA 313
2 1880 LR 7 IA 240
3 Pat 208
499 as well as that of the Full Bench of the Punjab High Court in Khair Mohammad Khan vs Mst
Jannat support the respondents  contention that where the s impugned act amounts to ouster there is no scope for the application of section 23 of the Limitation Act
We are therefore satisfied that there is no substance in the appellants  contention that section 23 helps to save limitation for their suits
The result no doubt is unfortunate
The appellants have succeeded in both the courts below in proving their rights as hereditary worshippers but their claim must be rejected on the ground that they have filed their suits beyond time
In this court an attempt was made by the parties to see if this long drawn out litigation could be brought to an end on reasonable terms agreed to by them but it did not succeed
In the result the appeals fail and are dismissed
We would however direct that the parties should bear their own costs throughout
Appeals dismissed


Summary:
The appellant Shri Chiranjilal Shri Lal Goenka was involved in several suits one of which was the present appeal
He died on November 25 1985 leaving behind his last Will dated October 29 1982 in which he appointed his younger daughter Mrs Sushila N Rungta as the sole executrix Radhey Shyam the natural son of Shri Mangal Chand Kedia and Mrs Sita daughter of Shri CS Goenka claimed to be the adopted son of Shri CS Goenka
The applicant executrix Radhey Shyam and his wife filed substitution applications under Order 22 Rule 3 CPC setting up rival claims
When the dispute arose as to who should represent the estate of Shri CS Goenka by order dated October 7 1991 this Court brought all the three on record as legal representatives and by a further order dated November 1 1991 by consent of parties appointed a retired Chief Justice of the Bombay High Court as an Arbitrator to settle the dispute as who would be the legal heirs to the estate of late Chiranjilal Shri Lal Goenka
The arbitrator entered upon the reference and on the riling of pleadings by the parties framed diverse issues
Issues No 1 and 2 related to the two Wills and were  1 Does the claimant No 1 prove
execution of the Will dated 29th Oct 1982 and prove the same to be the last and genuine Will of Shri GS Goenka
2 If not does she prove the execution of the Will dated 4778 and prove the same 455 to be the last and genuine Will of the late Shri GS Goenka
Simultaneous proceedings in the probate suit were being pursued in Bombay High Court and a Single Judge expressed doubt whether the arbitrator had jurisdiction to decide the probate suit
Similarly on an application made before the arbitrator seeking clarification he too stated that with his appointment as arbitrator all the pending suits in the schedule should be assumed to have been referred for arbitration and that includes the probate suit as well but that he cannot give any clarification in that behalf
An Interlocutory Application was therefore moved in this Court for clarification and it was contended on behalf of the applicant that the probate court had exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will as the executrix and that this issue cannot be referred to arbitration and the arbitrator thereby is devoid of jurisdiction to decide Issue Nos 1 and 2 that had been framed by him and that the applicant had not consented to refer the probate suit for arbitration
The application was contested on behalf of the respondents by contending that proceeding the order of the Court dated November 1 1991 the counsel for the respondents addressed a letter to the counsel for the petitioner including the probate suit for reference to arbitration and this was to obviate the litigation pending in all the courts as to who were the legal heirs of Shri CSGoenka and thereafter this court appointed the arbitrator  that with a view to put an end to the litigation in all the suits pending in different courts this Court appointed the arbitrator to decide all the disputes in pending suits
It is therefore desirable that the arbitrator should decide Issue Nos 1 and 2 that have been framed
Disposing of the Application this Court HELD  1 Section 211 of Code of Civil Procedure 1908 defines legal representatives to mean a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued
Order 22 rule 3 says that if one or two or more plaintiffs dies and the right to sue survives the Court on an application made in this behalf shall cause the legal representatives of the deceased plaintiff 456 to be made a party and shall proceed with the suit
Mutatis Mutandis by operation of Order 22 Rule 11 this rule applies to the appellants at the appeal stage
Similarly Order 22 Rule 4 applies in the case of death of one of several defendants or of sole defendant and in case of a dispute under Rule 5 such a question shall be determined by the Court
460H 461A B 2
Inheritance is In some sort a legal and fictitious continuation of the personality of the dead man for the prepresentation is in some sort identified by the law with him who he represents
The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil he owns exercises and fulfils in the person of a living substitute
To this extent and in this fiction it may be said that legal personality of a man survives his natural personality until his obligations being duty performed and his property duly disposed of his representation among the living is no longer called for
1461D 3
The grant of Probate by a Court of competent jurisdiction is in the nature of a proceeding in rem
So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law
It binds not only upon all the parties made before the Court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith
The decision of the Probate
Court therefore is the judgment in rem
The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate
465D Slieoparsan Singh vs Ramnandan Prasad Singh Cal
694 PC and Narbharam Jivram vs Jayvallabh Harjiwan AIR 1933 Bom
469 approved
465E F 4
It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a corum non judice
A decree passed by such a court is a nullity and is nonest
Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage or execution or in collateral proceedings
The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or 457 waiver of the party
467D AR Antulay vs RS Naik   Bahadur Singh  Anr
vs Muni Subrat Dass  Anr  Smt
Kaushalya Devi and Ors
vs KL
Bansal AIR 1970 SC 838 Ferozi Lal Jain vs Man Mal  Anr AIR 1979 SC 794 and Sushil Kumar Mehta vs Gobind Rain Bohra dead through his Lrs JT 1989 suppl SC 329
In the instant case the applicant had consented to refer for arbitration the dispute in the pending probate proceedings but consent cannot confer jurisdiction nor an estoppel against statute
The other legatees in the Will were not parties to it
The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition suit on grant or refusal thereof it has to preserve the original will produced before it
The grant of probate is final subject to appeal if any or revocation if made in terms of the provision of the Succession Act It is a judgment in rem and conclusive and binds not only the parties but also the entire world
The award deprives the parties of statutory right of appeal provided under section 299
Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties to adjudicate upon the proof or validity of the Will propounded by the executrix the appellant 468D F 6
The executrix was nominated expressly in the Will as a legal representative entitled to represent the Estate of the deceased but the heirs cannot get any probate before the Probate Court
They are entitled only to resist the Claim of the executrix of the execution and genuiness of the Will
The grant of probate gives the executrix the right to represent the estate of the deceased the subject matter in other proceedings
This exposition or the law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on the merits in the probate suit
468G 7
The Arbitrator cannot therefore proceed with the probate suit to decide the dispute in Issue Nos 1 and 2 framed by him
The High Court is to proceed with the Probate suit the Judge to fix the date and proceed day to day till it is concluded and decide the matter within six months
Till 458 then the Arbitrator is not to decide Issue Nos 1 and 2 but at liberty to proceed with the other issues to await the decision of the probate Court and depending upon the result thereon conclude the findings on issue Nos1 and 2 and then make the award and take the proceedings according to law
469H 470A B