No evidence of delivering possession of the property of temple.

The Defendant, who has lost his defence before the Courts below, is the appellant herein. The plaintiff approached the Civil Court in O.s.No.600 of 2004 (formerly O.S.No.89/1976 of Sub-Court, Kumbakonam) on the file of the Principal District Munsif, Kumbakonam, for recovery of possession or vacant possession of the suit property with past and future mesne profits with an alternative prayer for redemption of the usufructuary mortgage deed dated 24.1.1928.

2. The short facts of the case of the plaintiff is that the Erst-while trustee of the plaintiff-temple had created an usfructuary mortgage in respect of the suit property on 24.1.1928 for 15 years in favour of one Subbaraya Naidu for Rs.2000/-, who had assigned the same to Arulanandasamy Nadar on 11.7.1935. According to the plaintiff, both the alienations are void abinitio under Section 35 of HR & CE Act, since there was no sanction obtained by the Mortgagor from the Commissioner of HR & CE Department. The above said mortgage was beyond the powers of the trustees and as per Section 34 of the HR & CE Act, any mortgage or sale of any immovable property belonging to a religious trust cannot be created unless sanction by HR & CE department is accorded. It has not been done so in this case. Since mortgage itself is void the assignment is also void. Under Section 109 of the HR & CE Act, the suit is not barred by limitation. The present trustee was appointed only on 15.12.1972 and the suit has been filed within 12 years from the date. As per Article 96 of the Limitation Act, the suit is in time. Hence, the suit for recovery of possession and also for mesne profit.

3. The defendant in her written statement would contend that the original mortgage dated 24.1.1928 was assigned in favour of Arulanandasamy Nadar on 11.7.1935 and after his demise the suit properties fell to the share of the defendants husband Arockiasamy Nadar in a family partition. The said Arockiasamy Nadar died leaving behind the defendant, his sons and daughters as his heirs. The mortgage is fully supported by consideration and executed for legal necessity. The transaction of the trustees was done within the exercise of their powers. Since more than 12 years have elapsed after the death of Rathinam Pillai & Manikkam Pillai (viz. on 2.9.1950 and February 1932 respectively) the succeeding trustee or any other persons can no longer dispute the same. The right of redemption is also bared under Article 61(a) of the Limitation Act since more than 30 years have elapsed from the date fixed for redemption. Article 61(b) of Limitation Act will not apply to this case. The claim of the plaintiff is denied by the defendant. Since the plaintiff is not entitled to any of the debt relief Acts, if for any reason, the document has to be held to be void abinito, as the mortgagee went into possession under the void document and since he, his assignee and his heirs continued in the possession for more than 12 years from the date of mortgage, the defendant and her predecessors in title have perfected title by adverse possession. The suit is barred by limitation. On this score also, the claim of the plaintiff for possession and mesne profits is untenable since the defendant has become the absolute owner and the mortgage deed itself recites that the mortgagee should enjoy the properties in lieu of interest. The suit is bad for non-joinder of the other heirs of Arulanandasamy Nadar. Section 109 of the HR & Ce Act will not apply to this case. Article 56 of the Limitation Act cannot be invoked since the right to sue for possession has become extinguished and become barred under the Old Limitation Act of 1908. Hence, the suit is liable to be dismissed.

4. On the above pleadings the learned trial Judge has framed seven issues and two additional issues for trial. Before the trial Judge, P.W.1 was examined before the remand and P.W.2 was examined after remand and Ex.A.1 to Ex.A.12 were marked before the remand and after remand no documen