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PETITIONER: PERIA NACHI MUTHU GOUNDER AND ORS.

       Vs.

RESPONDENT: RAJA THEVAR (DEAD) AND ORS.

DATE OF JUDGMENT08/02/1985

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. KHALID, V. (J)

CITATION:  1985 AIR  821            1985 SCR  (2) 809  1985 SCC  (2) 290        1985 SCALE  (1)402

ACT:      Limitation Act  1908. Art.  134 B-Creation  of trust of properties endowed  to  a  deity  by  executing  a  Deed  of Settlement-Revocation  thereof   by  a  registered  Deed  of Cancellation  by   Settlor-Trust  properties  mortgaged  and subsequently sold-Wrongful  alienation of  trust  properties either partly  or wholly  by a  Trustee does not amount to a deemed resignation  by the  Trustee-Suit  by  heirs  of  the Settlor for  recovery of  alienated properties-Limitation to commence from the date of the death of the settlor-Held suit within limitation.

HEADNOTE:      Muthammal, the  absolute owner  of the suit properties, executed a  Deed of  Settlement dated May 17, 1925 (Ex. A-3) whereby she  endowed the  suit properties to a temple of her family deity.  She constituted  herself as the first trustee for her  life and after that, her husband and mother were to be the  trustees and  after their  demise, the  respondents’ heirs were  to be  the trustees.  Five years  later i.e.  On January 28,  1930, she  purported to  cancel and  revoke the trust (settlement),  by getting  the  Deed  of  Cancellation registered. Thereafter,  certain mortgages  were executed by her in respect of the properties and later on the properties were sold  by her  to the father of appellants Nos. I and 2. She died  on October  1, 1960.  The  respondents-plaintiffs, claiming to  be the  trustees of the endowment, filed a suit on  August   29,  1962  for  possession  of  the  properties challenging the  alienations that were made in favour of the appellants’ father.       The  appellants contested the suit and raised the plea of adverse  possession  and  the  suit  being  barred  under Article 144  of the  Act. The trial court held that the Deed of Settlement  itself was not a genuine deed, but even if it were, the suit was barred under Article 144.       In  the appeal by respondents-plaintiff, the Appellate Court held that Deed of Settlement was valid and genuine and in fact it effected a legal endowment in favour of the diet, the  original   settlor  having  disvested  herself  of  the ownership  completely   and   consequently   the   Deed   of Cancellation was  ineffective in  law. The suit was regarded as one  falling under  Art. 134B  of the  Act and  the  suit

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having been  filed within  12 years  from the  death of  the settlor was  held to  be within  time and  the  respondents- Plaintiffs’’ suit was decreed.       In the second appeal filed by the appellants, the High Court confirmed the first Appellate Court’s decree. 810 on appeal  to this  Court, the  appellants, relying  on  the decision  in  Srinivas  v.  Ramaswami,[1966]3  S.C  R-  120, contended that  there was  a resignation  on the part of the settlor as  a Trustee and such resignation, if not overt and express, must be deemed to have taken place by reason of the fact that  she herself  had executed and registered the Deed of Cancellation  (Ex.B-1) on January 21, 1930 and thereafter she  had   alienated  the  proper  ties  in  favour  of  the appellants’ father and she even left the village for quite a few years  and since  the suit  was filed  in the year 1962, long  after   the  expiry  of  12  years  from  such  deemed resignation, it was barred.       The  respondents-plaintiffs, however,  contended  that there was  no plea  of limitation specifically raised on the basis that  there was  any deemed resignation on the part of the settlor  and as  the parties  did not  lead any evidence focussing their  attention on  this aspect of the matter and if there  be some  evidence vaguely  or generally led by the parties  on   this  aspect   the  same  should  be  ignored. alternatively, it  was contended that even other wise by the mere execution  of a  Deed of Cancellation and indulgence in alienations of  properties by  the settlor  in favour of the appellants’ father  no deemed  resignation should be implied for a  wrongful Cancellation Deed, and a wrongful alienation cannot affect  her character  as a trustee of the properties under the  Deed of  Settlement which  was complete and under which she  had divested  herself of  the  ownership  of  the properties irretrievably.  The starting  point of limitation for the  suit must  be held  to be  the date  on  which  the settler died.       Dismissing the appeal, ^       HELD:  1. Limitation in the instant case, will have to be regarded  as having commenced on the date of the death of the settlor  and the  respondents-plaintiffs’ suit  would be within time. [814E]       2.  Where a  trustee wrongfully  alienates some  trust property and even if the entire trust property is alienated, he does not cease to be a trustee. By wrongfully executing a Deed of  Cancellation the  settlor cannot effectively revoke the settlement and if such settlor happens to be the trustee he shall  continue to be the trustee of the settlement. [813 a-F]       In the instant case, there is a clear finding recorded by the  first Appellate  Court, and  the High Court that the Deed of Settlement dated May 17, 1925 was valid and complete in all respects where under the settlor had divested herself of the  properties which  she had endowed to the temple, and both the  Cancellation Deed  as well as the alienations were ineffective and  wrongful and,  therefore, it  could not  be said that  by indulging  in these  acts she had resigned her position as a trustee of the endowment. [813 F-G]       (3) The fact that the settlor had left the village for a few  years is  neither here nor there. The facts regarding performing of  Puja of the deity in the temple by some other persons and  contribution towards the expenses of the temple by some  devotees are  really equivocal  and  would  not  be conclusive of  the matter on the point of the settlor having resigned inasmuch  as the  temple which was a village temple

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was already in existence, 811 to which only properties had been endowed and the temple was a public  A religious institution to which the endowment had been made  and as such the fact that certain expenses of the temple were contributed by devotees or members of the public would hardly  be indicative of the fact that the settlor had resigned from  the position  as a  trustee qua  the  endowed property. Similar,  would be the position with regard to the fact that  some persons were performing the Puja which would not  be   unnatural  in  the  case  of  a  public  religious institution. [813H; 814A-C]       There  could conceivably  be a deemed resignation or a deemed removal  but for  inferring the  same some additional facts would  be required  to be  proved. The  facts on which reliance had been placed by the appellants by themselves are insufficient to  warrant the  inference  that  there  was  a deemed resignation [814C-D]       Srinivas  v. Ramaswami,  [19661 3 S.C.R. 120, referred to.

JUDGMENT:       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1517 of 1971.       From  the Judgment  and Order dated 8-2-71 of the High Court of Judicature at Madras in S. A. No. 887/66.        K.  Ram  Kumar  and  Mrs.  J.  Ramachandran  for  the Appellants.       R.  S. Ramamurthi  and M.  K.  D.  Namboodri  for  the Respondents.       The Judgment of the Court was delivered by       TULZAPURKAR,  J. The  only question  that  arises  for consideration in  this Appeal  is whether  the  Respondents- Plaintiffs’ suit  was barred  by Limitation under Art. 134-B of the Limitation Act.       One  Muthammal, who was the absolute owner or the suit properties executed a deed of settlement dated 17th May 1925 (Ea. A3) whereby she endowed the suit properties to a temple in the  village, the  deity therein  being her family deity- She constituted  herself as  the first  Trustee for her life and after  that her  husband  and  mother  were  to  be  the trustees and  after their demise, respondent’s heirs were to be the  trustees. Five  years later,  i. e.  On 21st January 1930,  she   purported  to   cancel  and  revoke  the  trust (settlement),  by   getting   the   Deed   of   Cancellation registered. Thereafter  certain mortgages  were executed  by her in respect of the properties and later on the properties were sold  by her to the father of the appellants Nos. 1 and 2. She died on 7th October 1960. The plaintiffs claiming 812 to be  the trustees  of the endowment, filed a suit on 22-8- 1962, claiming  possession of the properties challenging the alienations that  were made  in favour  of  the  appellants’ father. The  appellants raised  a plea of adverse possession and the  suit being  barred under  Art 144 of the Limitation Act. On  merits the  Trial Court came to the CONCLUSION that the deed  of settlement  itself was  not a genuine deed, but even if  it were,  the suit  which had  been filed  on  22nd August 1962  was barred  under Act  144. When the matter was taken in  appeal, the Appellate Court took the view that the deed of  settlement was  valid and  genuine and  in fact  it effected a  legal endowment  in favour  of  the  deity,  the original settlor  having divested  herself of  the ownership

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completely. In other words, the  deed of cancellation was in effective in law. The suit was regarded as one falling under Art. 134  of the  Limitation Act and since the suit had been filed  thin   12  years  from  the  death  of  the  settlor, Muthammal,  it   was  held   to  be  within  time,  and  the plaintiffs’ suit   was  decreed. The  appellants appealed to the  High  Court  and  in  Second  Appeal,  the  High  Court confirmed the first Appellate Courts decree. That is how the appellants have come up in appeal to this Court.       Though  initially the  parties were at variance on the question as  to whether  it was  Art. 144 or Art. 134 of the Limitation Act, 1908 that was applicable to the suit, in the High Court  at the  stage of the second appeal it was common ground that  the suit  was governed by Art. 134 B. Before us also counsel for both the parties agreed that the suit would be governed by Art. 134 but a question raised was as to when did the  period of  12 years  under  that  Art.  commence  ? Whether it  commenced from  the date  of the  death  of  the settlor or her deemed resignation as a trustee ?       Counsel  for the appellants conceded before us that if the period  for the  suit is regarded as commencing from the death of  Muthammal which  occurred on  7-10-1960  the  suit would obviously  be within  time but he contended that there was a  resignation on the part of Muthammal as a Trustee and such resignation,  if not  overt and  express must be deemed to have  taken place  by reason of the fact that she herself had executed and registered the Deed of Cancellation (Ex. B- l)  on  21-1-1930  and  thereafter  she  had  alienated  the properties in  favour of the appellants’ father and she even left the  village for  quite a few years. And since the suit which was  filed in  the year  1962 was filed long after the expiry of  12 years  from such  deemed   resignation it  was barred. In this behalf counsel relied upon a 813 decision of  this Court in Srinivas v. Ramaswami,(1) where a view A  has been  taken that  deemed resignation  or  deemed removal of  the prior  manager could  be the commencement or the starting  point of limitation. On the other hand counsel for the  respondents-plaintiffs urged that there was no plea of limitation  specifically raised  on the  basis that there was any  deemed resignation  on the  part of  Muthammal and, therefore, parties  did not  lead any evidence focusing heir attention on  this aspect of the matter and even if there be some evidence  vaguely or  generally led  by the  parties on this aspect  the same  should be ignored, for in the absence of a  plea being  raised in that behalf such evidence has to be ignored  and would  be of no avail. Alternatively counsel for the respondents plaintiffs contended that even otherwise by the  mere execution  of a  Deed  of  Cancellation  C  and indulgence in  alienations of  properties  by  Muthammal  in favour of  the  appellants’  father  no  deemed  resignation should be  implied for  a wrongful  cancellation deed  and a wrongful alienation cannot affect her character as a trustee of the  properties under  the Deed  of Settlement  which was complete and  under which  she had  divested herself  of the ownership of  the properties  irretrievably;  therefore  the starting point of limitation for the suit must be held to be the date on which Muthammal died.       It can not be disputed that where a trustee wrongfully alienates some  trust property,  and for that matter even if the entire  trust property is alienated he does not cease to be a  trustee. On  parity of  reasoning it  stands to reason that by  wrongfully executing  a Deed  of  Cancellation  the settlor cannot effectively revoke the settlement and if such settlor happens  to be  the trustee  he shall continue to be

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the trustee  of the settlement. In the instant case there is a clear  finding recorded  by the  first appellate court and the High Court that a Deed of Settlement dated 17th May 1925 was valid  and complete in all respects whereunder Muthammal had divested herself of the properties which she had endowed to the  temple and both the cancellation Deed as well as the alienations were  ineffective and wrongful and therefore, it could not  be said  that by  indulging in these acts she had resigned her  position as  a trustee  of the  endowment, One more  aspect   was  relied  upon  by  the  counsel  for  the appellants that  Muthammal had  left the village for quite a few years  and that there was evidence to show that the Puja of the deity in the temple way done by some other person and even some  devotees had  contributed to  the expenses of the temple. The fact that the Muthammal had left the village for few years is neither here not there. And       (1) [19661 3 S.C.R. 120. 814 the other two aspects, in our view, are really equivocal and would not  be conclusive  of the  matter  on  the  point  of Muthammal having resigned in as much as the temple which was a village  temple was  already in  existence to  which  only properties had  been endowed by Muthammal and the temple was a public  religious institution  to which  the endowment had been made  by Muthammal  and as  such the  fact that certain expenses of  the temple  were  contributed  by  devotees  or members of the public would hardly be indicative of the fact that Muthammal  had resigned  from the position as a trustee qua the  . endowed property in question Similar would be the position with  regard to  the fact  that some  persons  were performing the Puja which would not be unnatural in the case of a  public religious institution.  It is true, as has been observed by  this Court  in Srinivas  as case  (supra)  that there could  conceivably be a deemed resignation or a deemed removal but  for that purpose some additional facts would be required to  be proved.  In our  view the aforesaid facts on which reliance has been placed by counsel for the appellants by themselves are insufficient to warrant the inference that there was deemed resignation on her part.       Having  regard to  the above discussion we are clearly of the view that in the instant case limitation will have to be regarded  as having commenced on the date of the death of Muthammal  and  the  respondents-plaintiffs  suit  would  be within time.       As  a last  attempt counsel  for the appellants made a faint request  that if  the materials  were insufficient  an opportunity should  be  given  to  the  appellants  to  lead evidence on  that aspect of the matter and the matter should be remanded back to the Trial Court. We do not think that at this  distance  of  time  we  could  consider  this  request favourably especially when there was no specific plea raised by the  appellants in  the written  statement based  on this aspect of the matter. In the result we confirm the decisions of the  first appellate court and the High Court. The appeal is dismissed. No costs. A. P. J.                                   Appeal dismissed. 815