SRI LAKSHMINARAYANAPERUMALSWAMI BY AGENT APPAYYAN ALIAS MUTHUKUMARAN CHETTIAR Vs. KASTHURI NAICKER AND ORS.

JUDGEMENT

(1.) THE appellant is the trustee of the Sri Lakshminarayana Perumalswami temple at Pallapalayam in the Uudmalpet taluq. He was appointed to the office in 1933, displacing the first defendant. He sued in the Court of the D1strict Munsiff of Udumalpet for a declaration that a mortgage created by the first defendant of properties described in the plaint as items 1 and 2, that a sale by the first defendant of item 3 and a sale by the Court of item 4 were not binding on the trust and that he was entitled to recover possession from the alienees. The first and second items were mortgaged by the first defendant to the fourth defendant on the 12 th May, 1928. The first defendant had then been appointed the trustee. The property was mortgaged as belonging to the first defendant and his two brothers, who joined in the mortgage. Two days later the first defendant sold the third item to the fourth defendant, again treating the property as belonging to himself and his brothers. The fourth item was sold in a Court auction on the 10th January, 1921. It had been attached as the private property of the first defendant, who allowed the sale to proceed on that basis. The auction purchaser was one Palani Goundan, who purported to sell the property to the father of the seventh defendant on the 24th September, 1925. During the pendency of the present litigation, the seventh defendant purported to sell it to the eighth defendant.

(2.) THE D1strict Munsiff held that the suit was well founded, except as regards the fourth item. To this extent he dismissed the action. On appeal by the plaintiff, the Subordinate Judge of Coimbatore held that the sale by the Court on the 10th January, 1921 of the fourth item was also not binding on the trust and consequently the plaintiff was entitled to a decree in full. The alienees then appealed to this Court. The appeal was heard by Somayya, J., who considered that the case was governed by the judgments of this Court in Alam Khan Sahib v. : AIR1938Mad415 and Venkatasubramania v. : AIR1938Mad60 . Consequently he dismissed the suit as being barred by the law of limitation. The present appeal is from this judgment.

(3.) WE do not need to pause to consider the correctness of the principle there applied, because in the present case the alienations were made within twelve years of the amendment, which therefore applies. The plaint was filed on the 31st July 1940, seven years after the plaintiff had taken over the office of trustee from the first defendant.