JUDGMENT
Pandrang Row, J.
1. This second appeal arises out of a suit for a declaration that the alienation of the plaint properties in 1894 by the former manager of the temple of which the plaintiff is the present pujari and manager is invalid and not binding on the plaintiff and for recovery of possession of he suit properties with mesne profits. The trial Court decreed the suit in favour of the plaintiff declaring that the alienation referred to in the plaint is not binding on the plaintiff and that the plaintiff as the present pujari-manager of the temple is entitled to recover pessession of the plaint properties, and also that the defendants are entitled to get Rs. 750 from the plaint properties, with interest there on at 6 per cent, per annum. This decree of the trial Court was confirmed in appeal by the Subordinate Judge of Coimbatore. The present second appeal was by the 4th defendant and on his death during the pendency of the appeal his legal representatives have been brought on record as appellants.
2. Two points only have been argued in this appeal, namely, (1) that the plaintiff’s suit to recover possession of the properties in question is barred by limitation under Article 144 and (2), that the plaintiff is estopped from questioning the validity of the permanent lease sought to be avoided in the plaint. Both the Courts below have found’ against these contentions, and it is not as if these points are being raised for the first time in second appeal.
3. As regards the first point, it is agreed on both sides that the Article applicable to the present suit is Article 144, and the question, therefore, resolves itself into one of the date when the possession of the defendants became adverse to the plaintiff. The alienation on the strength of which the defendants came into possession is a permanent lease dated August 24, 1894, which was executed by the plaintiff’s father who was the former pujari and manager of the temple. It is contended that either this permanent lease is valid and binding on the plaintiff, or if it is not valid and binding, the possession that was derived thereunder by the defendants was adverse from the very date of the lease, and as that was nearly 30 years before suit, the suit is barred. It has been found by both the Courts below that while the consideration for the permanent lease recited in the document is Rs. 800, there was necessity only so far as Rs. 400 is concerned, and that there was no necessity in respect of the remaining Rs. 00. This is, therefore, a case in which the question of necessity did arise and had to be decided. There was some necessity but not a necessity which justified the transaction so as to make it binding on the endowment For all time. In my opinion, the former pujari and manager had the power to grant a permanent lease for necessity; in other words, there was no complete absence of power in him to grant a permanent lease which he actually granted though in the absence of complete necessity it cannot be regarded as being valid ab initio but only voidable. Whether there was sufficient necessity or not for it is a matter that could be decided only when the alienation is sought to be avoided and when the Court pronounces an opinion upon it; till then it cannot be said whether it is valid or invalid. Where the validity of the alienation was in doubt till the matter was actually agitated in Court, it cannot be said that it was void ab initio like an obviously; illegal alienation or any alienation opposed to public policy. It is enough in this connection to refer to the decision reported in Khadar Masthan Rowther v. Sengammal 55 Ind. Cas. 655 : 43 M 433 : 38 M.L.J. 198 : 11 L W 197 : (1920) M W N 185 : 27 M L T 286, which appears to be in point. The permanent lease of 1894 cannot be said to have been void ab initio; it was only voidable; and as it could not have been avoided by the person who granted it as he would have been estopped from contending that the lease was not valid, the opportunity to avoid it arose only on the death of the grantor of the lease, that is to say, on the death of the plaintiff’s father which took place in March 1915. If so, the suit is within time, and I find accordingly that the suit is not barred by limitation.
4. As regards the other point of estoppel, there is no doubt that for three years the plaintiff accepted certain sums of money from the defendants. The defendant’s case was that the payments were accepted as rent and that the acceptance of rent is an indication that the plaintiff affirmed or elected to treat as valid the permanent lease granted by his father. The finding of both the Courts below, however, is not to this effect. The mere fact of receipt of money will not show that the money was received as rent or that there was any intention of the person receiving it to affirm or ratify the permanent lease granted by his predecessor in office. It would appear, as was found by the Courts below, that the monies were received by the plaintiff in ignorance of the purpose for which they were paid. He is only a pujari and it is likely that he received the monies under the impression that they were paid to him because he was actually doing worship in the temple, and there is no clear evidence that the monies were either paid as rent under the permanent lease or were received as such. The receipts themselves do not show that they were paid as rent. In these circumstances I see no reason to differ from the concurrent finding of the Courts below to the effect that there is no estoppel in the way of the plaintiff which prevents him from questioning the validity and binding nature of the parmanent lease of 1894.
5. It follows from the above that the second appeal must fail and it is accordingly dismissed with costs.
6. (Leave to appeal is asked for but is refused.)
