Judgment.- The plaintiffs in O.S. No. 250 of 1945 are the appellants. The suit which has given rise to this second appeal was instituted by them for the recovery of 1 acre and 34 cents of wet lands comprised in Survey No. 347 of Vadakku Veeravanallur, Tirunelveli District, and for past and future mesne profits. The first plaintiff is the Muppidari and Moonru Ugamkonda Amman Temple situated in the village of Vadakku Veeravanallur and plaintiffs 2 to 4 are the trustees thereof. The facts leading upto this appeal may be briefly stated. The first plaintiff is a communal temple and owned the suit property. This temple was being managed by three trustees of Illathu Pillaimar community by name Pichandia Pillai, Ramaswami Pillai and Sankaralingam Pillai. A promissory note was executed by them in favour of One Kandaswami Pillai who was no other than the sister’s husband of one of the executants, Ramaswami Pillai. Kandaswami Pillai assigned this promissory note to one Shanmughasundaram Pillai who was another brother-in-law of Ramaswami Pillai. This Shanmughasundaram Pillai filed a suit in the Court of the District Munsif of Ambasamudram in S.C. No. 116 of 1932 on the foot of this promissory note and obtained an ex parte decree. Sometime thereafter, the decree-holder assigned the decree to the first defendant who brought the suit property to sale in execution of the decree and purchased it himself. Having obtained the usual sale certificate he took delivery of the property on the 25th February, 1937. Subsequently he settled a portion of the property on the 2nd defendant temple and retained the other portion to himself. It is to recover possession of this property that the plaintiffs have filed the suit. The suit was contested on several grounds, the chief of them being that as the debt was incurred by the then trustees for purposes binding upon the temple and had ended in a decree, it was not open to the present trustees to challenge the validity of the decree or of the sale proceedings and that in any event, the suit as framed was not competent as a suit to recover possession of the property without having the decree and the consequent sale being set aside and lastly that it was also barred by limitation. The trial Court decreed the suit holding that though the three trustees may be assumed to be de jure trustees and therefore competent both to borrow money on behalf of the institution for purposes binding upon the temple and to represent the temple in various proceedings referred to above, the debt borrowed under the promissory note was not for purposes binding upon the trust, and that the then trustees were guilty of fraud and collusion in allowing a decree to be passed ex parte and in allowing the suit properties to be sold for a grossly inadequate price of Rs. 1,200. In the opinion of the trial Court, there was no necessity to borrow any money at the time when the suit promissory note was executed as the temple was deriving annually an income of Rs. 600 and the expenditure did not exceed Rs. 250 and that even if there was such a necessity and the promissory note executed was binding upon the temple there was no justification to allow the properties to be sold when the trustees could have easily satisfied it out of the income of the temple and that further the properties which was worth at least Rs. 2,500 was allowed to be sold for a very low price. On appeal, the lower appellate Court disagreed with all the findings of the trial Court except on the question of the capacity of the then trustees either to borrow moneys or to represent the temple in the various proceedings referred to above and dismissed the suit. The appellate Judge thought that the plaintiffs were not able to establish that there was no justifying necessity for the borrowing and that at any rate, as the suit was not brought for setting aside the decree and the sale within the time prescribed either under Article 12 or under Article 95 of the Limitation Act, the suit should fail. In this second appeal filed by the aggrieved plaintiffs the reasoning of the lower appellate Court in support of its conclusions is canvassed. Several contentions have been raised by Mr. Ramamurthi on behalf of the appellants in support of the appeal and I shall now deal with them seriatim. In this second appeal filed by the aggrieved plaintiffs the reasoning of the lower appellate Court in support of its conclusions is canvassed. Several contentions have been raised by Mr. Ramamurthi on behalf of the appellants in support of the appeal and I shall now deal with them seriatim. The first point raised is that the decree is not valid and binding upon the trust as there was no legal necessity for the then trustees to have borrowed any money under the promissory note and that this defence was not raised by the defendants in that suit. He also argued that the defendants trustees were guilty of fraud and collusion in allowing an ex parte decree to be passed. The evidence in this case which is uncontradicted is that the temple was in enjoyment of an annual income of Rs. 600, while its expenditure amounted only to about Rs. 250. This evidence has been accepted by both the courts and this concurrent finding is not shown to be in any way wrong. The point therefore, for consideration, is whether on this material it can be said that there was any justifying necessity for the trustees to borrow money under the promissory note. It was maintained by the learned counsel for the respondents that the plaintiffs who attacked the validity of the decree have to establish that there was no legal necessity for the borrowing and it is not for the defendants to show that there was legal necessity for the borrowing. I do not think I can agree with this contention. It is now settled that when the validity of a transaction with a limited owner is in question, on the ground of want of justifying necessity it is for the person relying on the transaction to allege that there was an actually special and unavoidable necessity and prove it. This proposition has been well established by a series of decisions. The leading case on this subject is Hunoomanpersaud Pandey v. Mst. Babooee1. In this context I may extract a passage from the “Principles of Hindu Law” by Mulla at page 188 (10th Edn.): “Those who deal with a person who has only a limited interest in the property and who propose to dispose of a larger interest, are prima facie bound to make out the facts which authorise such a disposition. Babooee1. In this context I may extract a passage from the “Principles of Hindu Law” by Mulla at page 188 (10th Edn.): “Those who deal with a person who has only a limited interest in the property and who propose to dispose of a larger interest, are prima facie bound to make out the facts which authorise such a disposition. The power of a widow or other limited heir to sell or mortgage the estate inherited by her is a limited and qualified power. If the sale or mortgage is impeached, the burden lies on him to prove (a) either that there was legal necessity in fact; or (b) that he made proper and bona fide inquiry as to the existence of the necessity, and did all that was reasonable to satisfy himself as to the existence of the necessity.” In Tirupathi Raju v. Venkayya2, a Full Bench of this Court took the view that the burden of proving that the compromise with a widow was valid and binding upon the reversioners, was on the person who wanted to rely on the compromise and that the interposition of a compromise decree would not make any difference as to the onus of proof in such cases. The principle stated above governs equally the case of a person who deals with trustees of charitable or religious institutions. In this connection the observations of Sir John Edge in dealing with the position of a shebait and the manager of a trustee of a temple in Nainapillai Marakayar v. Ramanathan Chettiar3, are apposite: “They can doubtless sell or mortgage the endowed lands of the temple, if there is an actual special and unavoidable necessity of the temple to do so, but that necessity would have to be proved by those who alleged that it existed.” It follows that it is for a person in the position of the defendant to urge and establish that the promissory note was supported by consideration which was utilised for a justifying necessity. But even otherwise, there is ample material on which a Court could come to a conclusion that there was absolutely no necessity for the then trustees to borrow any money for any of the purposes of the temple. But even otherwise, there is ample material on which a Court could come to a conclusion that there was absolutely no necessity for the then trustees to borrow any money for any of the purposes of the temple. The established facts in this case are that the temple was in enjoyment of a large income far in excess of its requirements and that there was no necessity to borrow any money for the purpose of the temple. Therefore the trial Court was justified in finding that there was no necessity for the borrowing and that the then trustees were guilty of fraud and collusion in allowing a decree to be passed. The lower appellate Court, while agreeing with the trial Court, with regard to the income and the expenditure of the temple, took a different view as regards the necessity on the erroneous view that the plaintiffs had to prove that at the time when the promissory note was executed the trustees had ready money in their hand which obviated the necessity to incur liability for the purpose of the temple. As supporting this view, it relied upon a decision of this Court in Venkata Balaguru- murthi Chettiar v. Balakrishna Odayar1. I do not think that that ruling lends any support to the view taken by the lower appellate Court. In that case, it was found that large sums of money had come into the hands of the trustees in the normal course of events. However, on account of misunderstandings amongst the trustees one of them withheld money of the temple without making it available for the purpose connected with the worship of the temple. Therefore, the other trustees, in order to carry on the daily routine had to borrow the money. That has no analogy to the facts of this case. There is nothing on record to show that any portion of the income was not available for spending on the temple. In those circumstances, I must give effect to the contention of Mr. Ramamurthi that the debt or the decree based thereon, and the resulting sale are not valid and binding upon the temple. There is another ground on which the validity of the decree and the resultant sale are assailed. It is argued that even if money was really borrowed for a purpose binding upon the temple no decree could be passed against the temple. There is another ground on which the validity of the decree and the resultant sale are assailed. It is argued that even if money was really borrowed for a purpose binding upon the temple no decree could be passed against the temple. In support of this contention Mr. Ramamurthi cited to me a number of decisions. It is not necessary for me to refer to all of them. Suffice it to refer to a few of them. In Sriramulu v. Pundarikakshayya2, it is remarked at page 300 as follows: “It has been held in a series of cases that an executor or a trustee cannot by borrowing money from a person make him a creditor of the estate in his hands, even though the money was applied for the purposes of the estate.” Their Lordships pointed out in the same paragraph that the general rule is subject to certain exceptions and in a proper case the executor or trustee could indemnify himself out of the estate in his hands. In Swaminatha Aiyar v. Srinivasa Aiyar3, it was decided that a creditor from whom money was borrowed by the trustees for purposes of trust by executing a promissory note is not entitled to a decree against trust property. To a similar effect is the ruling of this Court in Palaniappa Chettiar v. Shanmugham Chettiar4. In that case, it was laid down that unless there was any indication in the hundi that the executant who was the trustee of a charity, did not intend to incur personal liability, the executant was personally liable. Different considerations will arise if it was specifically stipulated that the creditor should be paid out of the trust funds. The distinction between such a case and a case where the document does not show the personal liability of the executants is excluded and the creditor is made to look to the trust funds for repayments, is well drawn in Ekambara and Dandayuthapaniswami Temples v. Veerappa Goundar5. The question that arose there was whether, in a suit on a promissory note executed by the manager of the temple for money borrowed for the expenses connected with the temple and which did not contain any stipulation that the creditor should look to the temple property for the repayment, a decree could be legally passed against the temple. The question that arose there was whether, in a suit on a promissory note executed by the manager of the temple for money borrowed for the expenses connected with the temple and which did not contain any stipulation that the creditor should look to the temple property for the repayment, a decree could be legally passed against the temple. While dealing with that point the learned Judge referred to cases which laid down that a decree could be passed against the estates of the temple and pointed out that they were all cases where the trustees had stipulated with the creditor that the repayments would be made out of the temple funds. Then the learned Judge stated that, having regard to the fact that there was no such stipulation in that case and the personal liability of the executants of the promissory note was not excluded, a decree against the temple could not be validly granted. This aspect of the matter is discussed elaborately by Viswanatha Sastri, J., in Rama Variar v. Anantha Pattar6. The learned Judge laid down that when there was no indication in the promissory note that the trustees intended not to incur any personal liability but to pay it out of the funds of the temple, a decree could not be passed against dewaswom. In this state of law it is clear that the decree passed by the Court in S.C. No. 116 of 1932 is not valid and binding upon the trust. As I have already pointed out, the trustees in suffering a decree against the temple, were acting fraudulently and in collusion with the creditor. This leads me to the next question, namely, whether the present suit is barred by res judicata by reason of the decree in S.C. No. 116 of 1932 which ultimately resulted in the sale of the suit properties and whether it is open to the present plaintiffs to show that the decree is not binding upon the trust without having the decree set aside by appropriate proceedings. In considering this point it has to be borne in mind that either the question of justifying necessity or the question whether a decree could be passed against the assets of the estate were not put in issue in S.C. No. 116 of 1932. In considering this point it has to be borne in mind that either the question of justifying necessity or the question whether a decree could be passed against the assets of the estate were not put in issue in S.C. No. 116 of 1932. In fact the trustees allowed the suit to be decreed ex parte; so necessary issues were not raised and determined by the Court. In Prosunno Kumari Debya v. Golab Chand Baboo1, it was laid down that the decree against the shebait of the temple would be binding upon the succeeding shebaits if the necessary and proper issues were raised, tried and decided in the suits which resulted in the decrees and was not tainted by fraud and collusion. In Great NorthWest Central Railway Co. v. Charlebois2, the view taken by the House of Lords was that a consent judgment declaring plaintiff’s lien on a company railway and other property and obtained on a contract entered into between the company and the plaintiff was not of a higher value than the contract, if the question as to the competency of the company to enter into the contract to incur such a liability, was not raised in the suit either in the pleadings or on the facts stated. In Rajah Ramachandra Sri Harischandra Deo Garu v. Akella Venkatalakshminarayana3 a suit on a mortgage against the zamindar of Tarla, an impartible zamindari was compromised on the basis of the mortgage debt being a valid and binding one Under the compromise decree the zamindar had to pay the agreed sums in instalments. On default being committed, an application under Order 34, rule 5, Civil Procedure Code, for a final decree and for sale of mortgaged property was filed. The question arose whether by reason of the zamindar being a party to the suit and the razinama decree and of his admission that the debt was for a proper purpose, the succeeding zamindar was precluded from raising the question as to the validity and binding nature of the mortgage. The Bench that heard the case answered it in the negative. The Bench that heard the case answered it in the negative. It is stated therein that, apart from the compromise decree, the mortgagee had to establish the necessity and binding character of the mortgage, in order to obtain a mortgage decree directing the sale of the property in an impartible estate and if there is no enquiry and a decision about the binding character of the debt, the compromise or the statements therein are not entitled to a higher value than the mortgage and the succeeding zamindar can show that the mortgage is not such as would bind an impartible estate. In Srinivasa Aiyar v. Thiruvengada Maistry4, another Bench expressed the opinion that a compromise decree between a Hindu widow and an alienee of her husband’s property from her, did not stand on a higher footing than a private alienation by the widow and, therefore, the reversioner could show that the decree was not binding on the reversioner. Mr. Veeraraghavan, for the respondents, urged that, as in this case the decree was not a consent decree or the result of a compromise, but was an ex parte decree it was on a better footing and could not be ignored and unless it was set aside the trust was not entitled to any relief. I do not think it makes any difference in principle even if the decree obtained against the trust is an ex parte decree. (See Tej Singh v. Chaudari Hannuprasad5.) The principle deduced from the decisions referred to above is that a decree obtained against a limited owner or a shebait of a mutt or a manager or a trustee of a temple or charity, without the necessary and appropriate issues raised, tried and decided, could not bind the reversioner or the succeeding shebait or manager or trustee and it could be reopened in a subsequent suit. It follows that the plaintiffs could establish in this suit that the decree in S.C. No. 116 of 1932 is not valid and binding on the temple for the reasons already stated. There remains the point for consideration, whether this suit for recovering possession of the property sold in execution of a decree is maintainable without institing a suit to set aside a sale either under Art. 12 or 95 of the Limitation Act. In my opinion, this question does not present much difficulty. There remains the point for consideration, whether this suit for recovering possession of the property sold in execution of a decree is maintainable without institing a suit to set aside a sale either under Art. 12 or 95 of the Limitation Act. In my opinion, this question does not present much difficulty. It was laid down in Tallapragada Sundarappa v. Boorugapalle Sreeramulu1, that Article 95 of the Limitation Act applies to a case where fraud is practised upon a party to the decree and does not govern a case where a reversioner impeaches the decree brought about by fraud of a qualified owner. In Bijoy Gopal Mukerji v. Krishna Mahishi Debi2, the Privy Council expressed the view that a reversioner can file a suit to recover immoveable property within 12 years ignoring the alienation made by the widow. It was also pointed by their Lordships that in such a case, the reversioner need not have to set aside the alienation and the intervention of the Court was unnecessary. He could elect to treat it as a nullity and the very fact that the suit was filed indicated that he exercised such an election. In Rupa Jagshet v. Krishnaji Govind3, it was laid down that a suit to recover trust property which was sold in execution of a decree not properly obtained could be filed within 12 years. In this context, I may refer to a decision of the Judicial Committee in Mahanth Sudarsan Das v. Mahanth Ram Kirpal Das4, where the point that arose for decision was whether a suit for declaration by the succeeding Mahanth of a mutt, that the sale of mutt properties in execution of a decree which was not binding upon the mutt for the reason that the debt was not incurred for purposes binding upon it, was governed either under Article 134-B or Article 144 of the Limitation Act. How the question which arose in that case was this. The head of a mutt called Pokrauni Asthal borrowed some grain from the Mahanth of a neighbouring mutt called Birpur Asthal. As it was not repaid by the borrower, the head of the Birpur Asthal instituted a suit for recovery of the money equivalent of the grain borrowed, obtained a decree and in execution thereof purchased a portion of the property belonging to the Pokrauni Asthal and obtained the necessary court-certificates. As it was not repaid by the borrower, the head of the Birpur Asthal instituted a suit for recovery of the money equivalent of the grain borrowed, obtained a decree and in execution thereof purchased a portion of the property belonging to the Pokrauni Asthal and obtained the necessary court-certificates. Sometime thereafter, he instituted a suit for partition and separate possession of the property purchased by him alleging that his possession was disturbed by the Pokrauni mutt, while the Pokrauni mutt filed a suit for declaration of the title of that mutt to the property purchased by the head of the Birpur Asthal on the ground that the debt incurred by the head of the Pokrauni mutt was not for justifying necessity. It must be mentioned here that the title suit by the Pokrauni mutt was instituted 12 years after possession was taken by the Birpur mutt. The Courts in India dismissed the suit for partition on the ground that the decree and the sale resulting therefrom were not binding upon the Pokrauni mutt, as the grain borrowed by the head of the mutt was not for a purpose binding upon the mutt. They decreed the title suit brought by the Pokrauni mutt, despite the defence of the Birpur mutt that the suit was barred by limitation not having been brought within 12 years of the Court sale as in their view the article of the Limitation Act applicable was 134-B. On appeal by the head of the Birpur mutt, the Privy Council held that the title suit though filed within 12 years of the death of Damodar Das, the head of the Pokrauni mutt was barred by limitation, since it was beyond 12 years of the date of the sale. In the opinion of their Lordships, it was Article 144 of the Limitation Act that governed execution sales of the trust properties, and not Article 134-B, which applies only to private alienations. Though the question did not arise for consideration in the form in which it is now raised this decision may, by implication, be taken as laying down that a succeeding trustee need not set aside an invalid decree but can seek to recover possession of the property affected thereby by an appropriate suit. Though the question did not arise for consideration in the form in which it is now raised this decision may, by implication, be taken as laying down that a succeeding trustee need not set aside an invalid decree but can seek to recover possession of the property affected thereby by an appropriate suit. In Subbayya Pandaram v. Muhamad Mustapha Maracayar1, the Judicial Committee of the Privy Council held that a suit for possession of immoveable property dedicated to charitable endowments and which was sold at a Court sale in execution of a decree against the trustee for his personal debts, should be instituted within 12 years of the execution sale. Here again the defence was not raised that the suit for mere recovery of possession was not competent without asking for the sale to be set aside. These two decisions may be taken as authorities for the proposition that a suit to recover possession of trust properties could be maintained without a specific prayer for avoiding either the decrees or the consequent sales that followed them. In these circumstances, I hold that the suit was properly brought for recovering possession of the property and it was unnecessary for the plaintiffs to ask for setting aside the sale, and that the suit is not barred by limitation either by virtue of Article 12 or Article 95 of the Limitation Act. It follows that the appeal should be allowed and the judgment of the lower appellate Court should be set aside. Though in this case the first defendant purchased the property for Rs. 1,200 in view of my finding that the debt was not incurred by the then trustees for a binding purpose, the temple is not liable to pay up this amount. But, so far as the balance is concerned as the temple had the use and benefit of it, the first defendant is entitled to the return of the same. But, in view of the fact that he is to pay mesne profits to the plaintiffs at least from 1942, and the plaintiffs are entitled to have the mesne profits set off against the amount payable to the first defendant I think the ends of justice will be met by directing the first defendant to deliver possession of the property without liability on either side to pay each other. If the defendant defaults delivery of property forthwith he will be liable to pay future mesne profits at the rate claimed in the plaint. This is a fit case in which I should direct each party to bear its own costs throughout. No leave. K.C. ----- Appeal allowed.