PERIA NACHI MUTHU GOUNDER AND ORS.

RAJA THEVAR (DEADJ AND ORS.

February 8, 1985

[V.D. TULZAPURKAR AND V. KHALID, JJ.J

Limitation Act, 1908, Art. f34 B-Creation of trust of properties endowed to a diety by executing a Deed of Settlement-Revocation thereof by a registered i)eed of Cancellation by Sett/or-Trust properties mortgaged and subsequently sold- Wrongful alienation of trust properties 6ither partly or wholly by a Trustte does not amount tO a deemtd resignation by the Tru.Jtee-Suit by heirs of the sett/or for recovery of alienated propertit.J-Limitation to commmce from the date of the death of the s1tt/or--He_ld, suit within limit.tio11.

Muthammal, the abaolute owner of the suit properties, executed a Deed of Settlement dated May 17, 1'25 (fa. A-3) whereby she endowed the suit properties to a temple of her family diety. She constituted herielf as the first trustee for her life and after that, her hu!band and mother were to be the trustees and after their demise, the respondent!' 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 morta:aa:es were executed by her in respect of the properties and later on the properties were sold by her to the father of appellants No•. 1 and 2. She ied on October 7, 1960. The respondents-plaintiffs, claiming to be the trustees of the endowment, filed a suit on August 29, 19f12 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 pOs'!'!ession and the suit being barred under Article 144 of the Act. Ibe trial court held that the Deed of Settlement itself was not a genuine deed, but e1yen 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 diety, the original settler having disvested herself of the ownership completely and conequently the Deed of cancella .. tion was ineffective in law. rhe suit was regarded as one falling under Art. 134B of the Act and the suit having been filed within ,12 years from the death of the settlor was held to be within time and the respond•nts- Plaintiffs' suit was decreed.

In the second appeal filed by the appellant&, Ill• HitJ1 C9urt conftr med the first Appellate Court's decree.

8H'J StlPRl!ME COURT RllPORTS

(1985) 2 s.c.11.

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 settler as a Trustee and such resignation, if not overt and express, must bC deemed to have takeri 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 properties 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 spe(; ifically raised on the basis that there was any deemed resignation on the part of the settler 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. A.lternatively, it was contended that even otherwise by the mere execution of a Deed of Cancellation and indulgence in alienations of properties by the settler in favour of the appel1ants' 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 irretrevably.

The starting point of limitation for the suit must be held to be the date on which the settlor 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 settler and the respondents-plaintiffs' suit would be within time. [814E]

Where a trustee wrongfully alienates some trust property and even if the entire trust property is alienated, he cloes not cease to be a trustee.

By wrongfully executing a Deed of Cancellation the settler cannot effectively revoke the settlement and if such settler happens to be the trustee he shall continue to be the trustee of the settlement. [813 B-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, 192S was valid and complete in all respects whereunder the settler bad 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 diety 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 settler having resigned _inasmuch as the temple which was a village temple was alread~ in existence,

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P.N. Mtl11ro v. RAJU mEVAR (Tu!zapurkar, J.) Sit

to which only properties bad been endowed and the temple was a public religious institution to which the endowment had been made and as such the fact that certain expense, s of the temple were contributed by devotees or members of the public would bar dly be indicative of the fact that the settlor bad resigned from the position as a trustee qua the endowed pro~ perty.

Similar, would be the position with regard to the fact that some persons were performing the Puja which \vould 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 appe Uants by themselves are insufficient to warrant the inference that there was a deemed resignation. [814CD]

SrinNas v. Ramaswam , [1966] 3 S.C.R. 120, referred to.

CIVIL APPBLL.\TB 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.

K. S. Ramamurthi and M. K. D. Namboodri for the Respon dents .

The Judgment of the Court was delivered by

TULZAPURKAR, J. The only quostion 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 (Ex.

A3) whereby she endowed the suit properties to a temple in the village, the diety therein being her family diety. She constituted her self 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

!930, 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 Octobhr 1960. The plaintiffs claiming

812 SUPRBME doURt RePORts [!985] 2 s.c.lt.

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 diety, the original settlor having divested herself of the ownership completely. In other words, the deed of cnce!lation was in effective in law. The suit was regarded as one falling under Art. 134 B 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. I 44 or Art. 134 B 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 paries agreed that the suit would be governed by Art I 34 B 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

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time but he contended that there was a resignation on the part of , , Muthammal as a Trustee and such resignation, if not overt and G 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 21-1-1930 and thereafter she had alienated the proper- '"' ties in favour of the appellants' father and she even left the vill.igo for quite a few years. And since the suit which was filed in the year !962 was filed long after the expiry of 12 yeaJIS from such deemed .1\ . resignation it was barred. In this behalf counsel re.lied upon a

i>.N. Mi:JTBU v. RAJu THEVAll (Tulzapurkar, J.) 81~

decision of this Court in Srinivas v. Ramaswami,(1) where a view 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 limi ta ti on 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 their attention on this aspect of thematter 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 and indulgence in alienations of propetties by Mutbammal 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 bad 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 •!lat by wrongfully executing a Deed of Cancellation the settlor cannot affectively revoke the settlement and if such settlor happens to be the trustee be shall continue to be 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 Mutbammal had divested herself of the properties which she had endowed to the temple and both the can cellation Deed as well as the alienations were ineffective and wroagful 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 diety in the temple was done by some other person and even some devotees had contPibuted to the expenses of the temple. The fact tliat the Muthammal had left the village for few years is neither here not there. And


l!i4 stJi>tulMB couRt RBP<iRts (1985] 2 s.c.R.

the other two aspects, in our view, are reclly equivocal and would not be conclusive of the matter on the point of Muthammal having resigned inasmuch 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 rdigious institution to which the endow ment had been made by Muthummal 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 bad resigned from the position as a turstee 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's case

(supra) that there could conceivably be a deemed resignation or a deemed removal but for that purpose some aditional 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 t!iemselves are insufficient to warrant tho 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 tci be 1egarded as having comenced 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. ·

I 'Y

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