The main legal point established is that the Indian Limitation Act does not create an obligation to sue where none existed, and trustees are not entitled to retain possession of trust properties if not entitled to the character of a trustee.

1. This is an appeal by some of the defendants against a decree in favour of the plaintiffs in a suit brought by certain trustees as Hukdars of a temple to recover possession of the temple properties from the defendants (appellants) to whom the trustees had made over the management of the temple under an agreement Exhibit I, dated 21st June 1901. Four question? were argued before us. In the first place it was said that the suit is bad for non-joinder, as, though all the Hukdars including the 9th and 10th defendants were impleaded, the plaintiffs in paragraph 16 of the plaint stated that these defendants had lost the office owing to their neglect to discharge its duties, and that they were joined merely because they asserted a right to it. At the trial this contention was abandoned by the plaintiffs, and a decree was passed in favour of the 9th and 10th defendants with their consent as well as of the other defendants. In these circumstances, I do not think the decision in Kohilasari Dasi v. Mohunt Rudranand Goswatni (1906) 5 C.L.J. 527 cited for the appellants has any application. In that case the plaintiff presisted both in the Original and the Lower Appellate Courts in denying the joint trusteeship of his minor brother whom he had made defendant; and it was only after this issue had been finally decided against him, that he applied in the second appeal that a decree might be passed in favour of himself and this defendant jointly. Here the contention was abandoned during the trial and the title of the defendants 9 and 10 as trustees was admitted.

2. The second contention was that the suit was barred by limitation under article 91 of the Indian Limitation Act as the plaintiffs did not sue within three years to set aside the transfer, Exhibit I. The High Court having already held that this transfer was void, Exhibit G, and this being so, it does not require to be set aside. The Limitation Act merely prescribes within what periods suits must be brought and cannot be construed as of itself creating an obligation to sue where none existed. In Malkarjun v. Narhari (1899) I.L.R. 25 B. 337 their Lordships of the Judicial Committee clearly distinguished between sales which were a nullity and sales which were only voidable and valid until set aside. At p. 350 after pointing out that the words " to set aside an adoption " in one of the articles were incorrect as an adoption may be declared invalid but cannot be set aside, their Lordships observed that there is no such difficulty in the case of suits to " set aside a sale " in the same Act " because a sale valid until set aside can be legally and literally set aside; and anybody who desires relief inconsistent with it may and should pray to set it aside." See also Sidhu Sahu v. Gopi Charan Das (1912) 17 C.L.J. 233. This is a more recent decision of their Lordships than Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 Mad. 271 which is relied on by the appellants. In that case two persons Nataraja and Chockalingam shared the management of a religious endowment, and successively transferred their respective rights of management by registered instruments to a third party in 1868 and 1869, Chockalingam who was a minor being represented by his mother. In 1892 Velu the son of Nataraja sued to recover the trusteeship joining Chockalingam as defendant as he was apparently unwilling to sue. Their Lordships held that article 124 of the Indian Limitation Act was applicable and that, as the defendants had held adversely to the plaintiffs father, Nataraja, for more than twelve years the plaintiffs suit was barred. They did actually rule as contended by the appellants, that the suit was barred under article 91 of the Indian Limitation Act because Nataraja had failed to set the transfer aside in three years which is what is now contended. Adverting to the case of the defendant Chockalingam who was a minor at the date of the sale of his share, their Lordships, with a view of showin