Judgement

Appeal (No. 84 of 1920) from a judgment and decree of the High Court (August 31, 1916) affirming a decree of the temporary Subordinate Judge of Tanjore.

The suit was brought by the appellant in 1913 against the respondents for possession of immovable property which had been dedicated to the endowment of a food chattaram and other charitable objects by deeds of trust executed in 1890 by the appellants grandfather. The first respondent had purchased

00 Law Rep. 50 Ind. App. 295 ( 1922- 1923) Subbaiya Pandaram V. Mahamad Mustapha Maracayar

101

in 1898 at a sale in execution of a decree against the appellants father; the purchaser and the other respondents, who claimed under him, had since been in possession. In 1904, in a suit to which the first respondent had been joined as a party at his own request, a decree had been made declaring the validity of the trust, but no steps had been taken in consequence of that decree prior to the present suit.

The temporary Subordinate Judge of Tanjore dismissed the suit on the ground that it was barred by limitation, and that decision was affirmed, on appeal to the High Court, by Ayling and Srinivasa Ayyangar JJ.

1923. April 27. Kenworthy Brown for the appellant. The purchaser was a party to the suit in which the decree of 1904 was obtained by the appellant and cannot deny the existence of the trust as affecting the property ; the respondents consequently cannot allege that they subsequently held adversely the appellant trustee Nasrat-Ullah v. Mujib-Ullah. (( 1891) I. L. R. 13 A. 309, 315.) Further, the statutory period ran against the appellant only from the time when he became entitled to possession as trustee and that was within twelve years of the suit Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 302,318.); Ishwar Shyam Chand Jiu v. Ram Kanai Ghose. (( 1911) L. R. 381. A. 76.)

De Gruyther K.C., and Dube for the respondents. The decree of 1904 did not prevent the purchasers possession from continuing to be adverse Singaravelu Mudaliar v. Chokka Mudaliar. (( 1922) 43 Mad. L. J. 737) The time limited for executing the decree has long since passed. The period of limitation for the present suit ran against the successive trustees Guanasambanda v. Vein (( 1899) L.

R. 271. A. 69,76.) ; Trimbak v. Narayan. (( 1882) I. L. R. 7 B. 188.) The decisions of the Board referred to by the appellant on this point are distinguishable; they related to mukarrari leases which were valid for the lifetime of the grantor. If s. 10 of the Limitation Act applies, the purchaser was an assignee for valuable consideration and the ordinary rules of limitation apply Chintamoni Mahapatro v. Sarup Se. (( 1888) I. L. R. 15 C. 703.) The suit was barred by art.134 and by art.144; it was also barred by art.11, having regard to ss. 280, 283, of the Code of Civil Procedure, 1882.

Kenworthy Brown in reply. In Singaravelu Mudaliar v. Chokka Mudaliar (3) there had not been, as in this case, a decree declaring that the property was subject to a trust. In Gnanasambanda v. Velu (L.

R. 27 I. A. 69.) the claim was not contrary to the trust, but an adverse claim to be trustee.

June 26. The judgment of their Lordships was delivered by

LORD BUCKMASTER. The real question in this appeal is whether the suit is barred by the operation of the Indian Limitation Act.

It was instituted by the appellant to recover, as against a purchaser under an execution sale and those who claimed under him, certain property which had by two deeds dated February 21, 1890, and December 13, 1894, been devoted to charitable purposes. The first of these two documents declared that the heirs of the settlor in the order of primogeniture should be trustees and conduct the said charities. The settlor died in 1895, leaving him surviving his widow and Arunachellam, his only son. Arunachellam is the father of the present appellant. He was trustee of the charity, and having become involved in debt one of his creditors sued him and obtained a decre