PERIA NACHI MUTHU GOUNDER AND ORS. versus RAJA THEVAR (DEAD) AND ORS.

Citation: [1985] 2 S.C.R. 809 · Decided: 08-02-1985 · Supreme Court of India · Bench: V.D. TULZAPURKAR · Disposal: Dismissed

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Judgment (excerpt)

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') 
809 
PERIA NACHI MUTHU GOUNDER AND ORS. 
v. 
RAJA THEVAR (DEADJ AND ORS. 
February 8, 1985 
[V.D. TULZAPURKAR AND V. KHALID, JJ.J 
Limitation Act, 1908, Art. f34 B-Creation of trust of properties endowed to 
a diety by executing a Deed of Settlement-Revocation thereof by a registered i)eed 
of Cancellation by Sett/or-Trust properties mortgaged and subsequently sold-
Wrongful alienation of trust properties 6ither partly or wholly by a Trustte does 
not amount tO a deemtd resignation by the Tru.Jtee-Suit by heirs of the sett/or for 
recovery of alienated propertit.J-Limitation to commmce from the date of the 
death of the s1tt/or--He_ld, suit within limit.tio11. 
Muthammal, the abaolute owner of the suit properties, executed· a 
Deed of Settlement dated May 17, 1'25 (fa. A-3) whereby she endowed 
the suit properties to a temple of her family diety. She constituted herielf 
as the first trustee for her life and after that, her hu!band and mother were 
to be the trustees and after their demise, the respondent!' heirs were to 
be the trustees. Five years later i.e. on January 28, 1930, she purported to 
cancel and revoke the trust (settlement), by getting the Deed of Cancella-
tion registered. Thereafter, certain morta:aa:es were executed by her 
in respect of the properties and later on the properties were sold by her to 
the father of appellants No•. 1 and 2. She ~ied on October 7, 1960. The 
respondents-plaintiffs, claiming to be the trustees of the endowment, filed 
a suit on August 29, 19f12 for possession of the properties challenging the 
alienations that were made in favour of the appellants' father. 
The appellants contested the suit and raised the plea of adverse 
pOs'!'!ession and the suit being barred under Article 144 of the Act. Ibe trial 
court held that the Deed of Settlement itself was not a genuine deed, but 
e1y·en if it were, the suit was barred under Article 144. 
In the appeal by respondents-plaintiff, the Appellate Court held that 
Deed of Settlement was valid and genuine and in fact it effected a legal 
endowment in favour of the diety, the original settler having disvested 
herself of the ownership completely and con~equently the Deed of cancella .. 
tion was ineffective in law. 
rhe suit was regarded as one falling under 
Art. 134B of the Act and the suit having been filed within ,12 years from 
the death of the settlor was held to be within time and the respond•nts-
Plaintiffs' suit was decreed. 
In the second appeal filed by the appellant&, Ill• HitJ1 C9urt conftr· 
med the first Appellate Court's decree. 
A 
B 
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D 
E 
F 
G 
H. 
A 
B 
c 
D 
E 
F 
G 
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8H'J 
StlPRl!ME COURT RllPORTS 
(1985) 2 s.c.11. 
On appeal to this Court, the appellants, relying on the decision in 
Srinivas v. Ramaswami, [1966] 3 S.C R. 120, contended that there was a 
resignation on the part of the settler as a Trustee and such resignation, if 
not overt and express, must bC deemed to have takeri place by reason of the 
fact that she herself had executed and registered the Deed of Cancellation 
(Ex.B-1) on January 21, 1930 and thereafter she had alienated the proper-
ties in favour of the appellants' father and she even left the village for 
quite a few years and since the suit was filed in the year 1962, long after 
the expiry of 12 years from such deemed resignation, it was barred. 
The respondents-plaintiffs, however, contended that there was no plea 
of limitation spe(;ifically raised on the basis that there was any deemed 
resignation on the part of the settler and as the parties did not lead any 
evidence focussing their attention on this aspect of the matter and if there 
be some evidence vaguely or generally led by the parties on this aspect the 
same should be ignored. A.lternatively, it was contended that even other-
wise by the mere execution of a Deed of Cancellation and indulgence in 
alienations of properties by the settler in favour of the appel1ants' father 
no deemed resignation should be implied for a wrongful Cancellation Deed, 
and a wrongful alienation cannot affect her character as a trustee of 
the properties under the Deed of Settlement which was complete and 
under which she had divested herself of the ownership of the properties 
irretrevably. 
The starting point of limitation for the suit must be held 
to be the date on which the settlor died. 
Dismissing the appeal, 
HELD : 1. 
Limitation in the instant case, will have to be regarded 
as having commenced on the date of the death of the 

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