Judgment

JUDGMENT: - 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.

2. One Muthammal, who was the absolute owner of the suit properties executed a deed of settlement dt. 17th may 1925 (Ex. 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 fife and after that, her husband and mother were to be the- trustees and after their demise, respondents 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 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 Art. 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 completely. In other words, the deed of cancellation was ineffective in law. The suit was regarded as one falling under Art. 134-B of the Limitation Act and since the suit had been filed within 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.

3. Though initially the parties were at variance on the question as to whether it was Art. 144 or Art. 134B 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. 134B. Before us also counsel for both the parties agreed that the suit would be governed by Art. 134B 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?

4. 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 her self had executed and registered the Deed of Cancellation (Ex. B-1) 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 decision of this Court in Srinivas v. Ramaswami (1966) 3 SCR 120: where a view has been taken that deemed resignation or deemed removal of the prior manager could be the commnencement 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 deeme