JUDGMENT
Ganapatia Pillai, J.
1. The appellant in this appeal is the plaintiff in the suit out of which it arises. The suit was brought by the appellant against a number of defendants who are all respondents here for the main relief of recovery of possession of properties alleged to belong to a choultry. There were two schedules attached to the plaint. Schedule A contained the site and the building of the choultry founded by one Veerappa the paternal grandfather of the plaintiff. Schedule B to the plaint contains a list of properties, all lands, endowed by this Veerappa for the maintenance and upkeep of the said choultry founded by him. Veerappa executed a gift deed in 1887 for the creation of this endowment and also provided by that deed for succession of managers for the institution. He indicated that he would be manager during his lifetime, and after him his son and sons heirs should manage the endowment, receive income from B Schedule lands and keep up the charity by maintaining the services to be performed therein. The alienations as a result of which the B Schedule properties went out of the hands of the trust can be classified under three heads: (1) alienations by Nachiyappa, the paternal grandfather of the plaintiff, between the years 1898 to 1907. It may be noticed here that Nachiyappa died only in 1919. The second class of alienations is covered by two Court sales in O.S. No. 1011 of 1901, D.M.C., Kulitalai, and O.S. No. 1251 of 1904 of the same Court. The third category of alienations are two sales by Veerappa, the father of the plaintiff, who was impleaded as the 38th defendant to the suit. It may be noticed here that he died during the pendency of the suit in the lower Court, and consequently, an amendment of the plaint was sought and the relief of recovery of possession of the properties alienated by Veerappa was added to the plaint.
2. It is common ground that all B Schedule properties are absolutely dedicated to the charity namely the said chatram, various pleas were taken by the defendant which it is unnecessary for the present purpose to detail. Out of the numerous issues framed in the suit the learned Subordinate Judge proceeded to consider issue 10 and additional issue I as preliminary issues. These issues read as under :
Issue 10: Whether the suit is barred by limitation for all or any of the reasons set forth in the written statements what is the correct age of the plaintiff?
Additional issue 1: Whether the claim for possession is barred by limitation?
Reading both these issues it will be seen that in effect the suit was resisted on the ground that the claim for recovery of possession was barred by limitation. The learned Subordinate Judge considered that the claim for recovery of possession of the lands contained in B Schedule was barred by limitation because in respect of alienations by the grandfather Nachiyappa who died in 1919, suits to set aside such alienations ought to have been instituted within 12 years from the date of the alienation itself, and the last such alienation being in 1907, by the time of the death of Nachiyappa, all such suits would have become barred. In the case of alienations which were the result of Court sale he followed the same rule, and held that the suit was barred by limitation because the claim to recover such property became barred 12 years after the alienee or purchaser in Court sale took possession. In respect of the alienations made by Veerappa the father of the appellant, the learned Judge held that since Veerappa himself had lost his right to file the suit to recover the properties the successor was barred.
3. Mr. Ramaswami Ayyangar counsel for appellant was on very firm ground when he attacked the last finding of the learned Judge namely the alienations made by the 38th defendant (father of the appellant). Under Article 134-B of the Limitation Act time begins to run to recover possession of immoveable property alienated by a previous manager of a Hindu, Mohamedan or Buddhist religious or charitable endowment only from the date of death resignation or removal of the transferor. Out of the two alienations made by Veerappa one was made after Act I of 1929 became law. It is by that Act that Article 134-B came into force on the 1st January, 1929. The other alienation by Veerappa was in 1928 and certainly when the amending Act of 1929 was passed introducing Article 134-B and providing a period of limitation of 12 years from the death of the previous manager, limitation could not begin to run so long as Veerappa was alive. The learned Judge was therefore obviously wrong with reference to the alienations made by Veerappa when he held that the plaintiffs suit was barred by limitaion. However he was correct when he said the suit was premature at the time when it was instituted because Veerappa was then alive, because the cause of action for bringing the suit would come into existence only on the death or resignation of Veerappa. But on the date when he dismissed the suit certainly Veerappa was dead and the plaintiff had a clear cause of action under Article 134-B of the Limitation Act. The suit would therefore be remanded for the purpose of determination of this question namely the right of the plaintiff to avoid alienations made by his father and to recover properties comprised in items 10 and 11 in paragraph 7 of the plaint. Those alienations are, dated 4th January, 1929 and 4th Febrauary, 1928 (Exhibits B-65 and B-74). When the suit is remanded for the determination of the claim of the plaintiff in regard to these two alienations certainly it goes without saying that all other relevant issues touching this question will also have to be decided by the learned Subordinate Judge as till now no trial on those issues has been had.
4. In regard to the alienations which are listed as items 8 and 9 in paragraph 7 of the plaint namely the Court sales the conclusion of the learned Subordinate Judge cannot be assailed. The Privy Council had to deal with the same question in Mahanth Sudarsan Das v. Mahanth Ram Kirpal Das (1950) 1 M.L.J. 243 : L.R. 77 I.A. 42 : (1949) I.L.R. 29 Pat. 279 (P.C.). The headnote of that case correctly reproduces the rule laid down by the Privy Council. We extract it below:
The words used in Article 134-B are incapable of applying to an execution sale of debutter property and where land devoted to charitable purposes is so sold under an execution decree against the trustee of the charity, the ensuing possession of the purchaser is adverse from the date of sale. Adverse possession against the charity starts under Article 144,fro m whatever date after the sale the purchaser obtained effective possession of the disputed property an d not from the date of the death of the trustee {the rest of the headnote is omitted as unnecessary.)
5. We now come to the category of alienations namely those made by Nachiyappa the grandfather of the appellant up to 1907. Mr. Ramaswami Ayyangar learned Counsel for the appellant attempted an argument that in respect of these alienations they must be held to be voidable and consequently so long as Nachiyappa was alive adverse possession did not run and cause of action for avoiding these alienations would only start on the death of Nachiyappa and the period of limitation for such suits would not have run out till 1931, and consequently in 1929 when Article 134-B was introduced a fresh period of limitation from that date must necessarily arise. The whole argument proceeds on the central assumption that these alienations were voidable and were not void. A long line of cases has clearly expressed the distinction between alienations made by the trustee of a charity like a chatram in his professed capacity as trustee and alienations of trust property made by the trustee treating the property as his personal private property. This principle is well-established and it may not be necessary for us to refer to all the decisions except three of them. Venkatasubramania v. Sivagurunatha A.I.R. 1938 Mad. 60; Alam Khan Sahib v. Karuppannaswami (1938) 1 M.L.J. 13 : A.I.R. 138 Mad. 415; Hemanta Kumari v. Iswar Sridhar Jiu A.I.R. 1946 Cal. 473. We may also refer to the unreported decision of Subramanyam, J., of this Court is S.A. No. 774 of 1957. We do not propose to analyse the facts of these cases as the distinction which is. brought out in them can be expressed succinctly in the following language. Alienation of property belonging to a trust, a charity, by the manager or trustee professing to act in that capacity would not be void ab initio unless the alienation was of the entire institution itself along with the endowed properties. But where the alienation is made of endowed property by the trustee or manager without disclosing that he was acting in that capacity but claiming such properties as his personal properties the alienations would certainly be void as the very act of the alienation was in derogation of the trust. Irrespective of the period of limitation itself within which the suit had to be filed for recovering property alienated by a trustee or manager treating it as his personal property, if the alienee has remained in possession for 12 years from the date of alienation he acquires title to the property by adverse possession. That conclusion is based upon the princiaple that a person in possession without lawful title always acquires title by adverse possession provided the other requisites for establishing adverse possession are present. In a case where a person purchases property from the manager of a choultry treating the property as the personal property of that individual (manager) he certainly professes to hold the property not as alienee from the manager but as alienee from the individual. In that case adverse possession starts from the very date of the alienation where transfer of possession was had. A suit to recover possession of such property after the alienee had perfected title by adverse possession would fail on the ground that the defendant had acquired title by adverse possession. Here all the alienations coming under the first group indicated by us are alienations made by Nachiappa treating the properties as his personal properties but Mr. Ramaswami Ayyangar brings to our notice the alienation under Exhibit B-54 which he says does not fall under this category. The argument which he advances for this alienation is that the vendee is directed to pay every year a small sum of money for the upkeep of the choultry as a condition of the sale. We do not think this would be sufficient to avoid describing this alienation as one made by Nachiappa in his capacity as manager of the chatram. Indeed on reading the document we are satisfied that he purported to execute it in his personal capacity because he executes it not only for himself but also as guardian of his minor son. Therefore the disposal of the suit in respect of the first category on the ground of limitation was correct. Equally, the disposal of the suit with reference to the second category namely alienations under the Court sale Nos. 8 and 9 in paragraph 7 of the plaint will also stand. There will be a remand of the suit for disposal of the other questions remaining with reference to the alienations Nos. 10 and 11 in paragraph 7 of the plaint. We do not provide for costs of the appeal. Nor do we think should respondents get their costs. Both parties in the appeal will bear their own costs. The costs of the trial after remand will be provided for by the learned Subordinate Judge. To the extent to which the order of remand directs retrial of the suit on the issues relevant to the two alienations made by the father of appellant the decree of the lower Court is set aside. We excuse payment of the Court-fee due on the appeal memorandum because we are remanding the suit partly for retrial.