Judgment :- 1. The plaintiff Devastanam, represented by its general trustee, which failed in both the Courts below, is the appellant. The suit was filed for recovery of possession of 61 cents of wet land comprised in Survey No. 243/4 of Thiruvalleesvaram village in Ambasamudram taluk, together with mesne profits. The appellants case was that the suit property was dedicated for the performance of certain kattalal in the appellant temple by one Muthuswami Chettiar under his Will, Ex. A-3 dated 21st February, 1926 and that the property had been alienated by the trustee appointed under that Will, by Ex. B-1 dated 9th May, 1949 to his own sister, Mahalakshmi without reference to Ex. A-3, but however, undertaking to perform the charities from his other properties. The charity mentioned in the Will, Ex. A-3, it the performance of Thiruppalli Ezhuchi for thirty days in the month of Margazhi and Abhisheka-nivedana-dharmam on one of those days to the extent of Rs. 30/-, after paying the kist for the property from its income. The appellants case was that the charity was being performed until 1963 and that the trustee, who bad been appointed as the general trustee by the H.R. and C.E. Department under Ex. A-1 dated 27th March, 1966, made enquiries and came to know about tho alienation under Ex. B-1, had sold the suit property to one Palavesa Mooppanar, the brother-in-law of the respondent herein, under Ex. B-2 dated 4th June 1957 and Palavesa Mooppanar has sold the property to the respondent subsequently under Ex. B-3 dated 21st December, 1960. The appellants case was that there was an outright dedication of the property in favour of the kattalal and that the alienation was unlawful. The defence was that there was no outright dedication, but only a charge had been created for the performance of the kattalal and that the appellant was not entitled to recover possession of the property. The respondent further raised the plea of limitation and contended that the suit was barred. 2. Both the courts below held that there was no outright dedication, but only a partial dedication and only a charge had been created on the property for the performance of the kattalal and that the appellant was not entitled to mesne profits. The respondent further raised the plea of limitation and contended that the suit was barred. 2. Both the courts below held that there was no outright dedication, but only a partial dedication and only a charge had been created on the property for the performance of the kattalal and that the appellant was not entitled to mesne profits. The trial court held that the suit was barred by limitation, but the appellate court held that it was not barred having regard to Art. 92 of the Limitation Act of 1963. Both the Courts dismissed the suit, the lower appellate Court had observed that it is open to the appellant to enforce the charge in separate proceedings. 3. The points that arise for consideration, now are: (1) Whether there was an outright dedieation of the suit property in favour of the kottalal or only a charge had bean created, and (2) Whether the suit is barred by limitation. 4. Relying upon the evidence of the respondent examined D.W. 1 that the income was about Rs. 40/-and that the kist was Rs. 9.50. par annum, the learned counsel for the appellant submitted that the income mentioned by him was as in 1926 and that as the charity was to be performed to the extent of Rs. 30/- out of the income and the kist was Rs. 9.50 it would follow that the dedication was an outright one. In this connection he sought to rely upon three decisions. The first of those decisions is that of a Beach of this Court in Jainambukanni Ammal v. Ruthrapathy Pillai 1946-I-M.L.J. 181; 18 L.W. 185 where it has been observed thus: “The dominant intention of the settlor which appears from the preamble to the deed was clearly to dedicate property to a religious charity for the attainment of salvation. There is no intention either expressed on the face of the document or which could be necessarily implied, to confer any benefit on his heirs in general. It is significant that even in the clause which provides for the maintenance of the three relatives, the words ‘and their heirs’ or ‘and their descendants’ or the words ‘from generation to generation’ are absent. “Reading the document as a whole. It is significant that even in the clause which provides for the maintenance of the three relatives, the words ‘and their heirs’ or ‘and their descendants’ or the words ‘from generation to generation’ are absent. “Reading the document as a whole. It is impossible for us to discover any gift of the surplus income or the property either to the sons or to the members of his family generally; nor do we find any express-4 intention to make a residuary gift in favour of them. The three individuals are mentioned as persense designate rather than as members of his family. The next Important circumstance appearing from the face of the document is that though he mentions two persons as his sons who have come from the Bast, he totally disregards them. They have no right even to manage the charity and the property. Even the obsequies to be performed for himself and for bis wife are directed to be performed, not by the sons, as would, be in the ordinary coarse, be expected from a Hindu, but they are directed to be performed by the son-in-law Govindaswami Pillai. After the death of Govindaswamy Piliai, the person to manage the charity and the fatally is to be a person nominated by Govindaswamy Pillai and not any of his heirs or descendants. These circumstances clearly distinguish this case from the rulings relied on by the advocate for the appellants in Achutosh Dutt v. Doorga Churn Chatterji I.L.R. 5 Cal. 428 Sonatun By sack v. Sareemutty Jagguttoonaree Dosses 1859 8 M.I.A. 66 and Thiruvengadamudayaniya v. Narasimhaswamiaiya 1941-I M.L.J. 488; 53 L.W. 366 In all those cases there was a gift or a bequest in favour of the heirs or the members of the family or in favour of a residuary legatee. Such a provision is significantly absent from the deed which we have to construe in this case and we attach great importance to the omission of the words indicating a gift to any member of the family or to the heirs of the settlor generally, “In these circumstances it is not possible to any that any part of the income has been unalterably fixed by the settlor for the expenses of the charity with the result that there is bound to be a surplus disposed of or undisposed of by the document. Moreover, from the evidence on record, it does not appear that at the time of the settlement deed or even subsequently there was the likelihood of a largo surplus, Even at the present time, it is probable that very much would not be left after providing for the kist for the legitimate expenses of the charity” Taking all the circumstances into consideration, we are clearly of opinion that the charity itself is the true beneficiary and Govindaswami Pillai should be considered to be a trustee of the charity and the only obligation of the trustee, for the time being, was to utilise the surplus income, if any, for the maintenance of the three specified relatives of the settlor mentioned in the deed.” The next decision is that of the Supreme Court in M. Dasaratharami Reddi v. D. Subba Rao A.I.R. 1957 S.C. 797, at page 800 where the learned Judges have observed: “The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity... “Now it is clear that dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete, a trust in favour of the public religious charity is created. If the dedication is partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to and follows, the property which retains its original private and secular character. Whether or not dedication is complete would naturally be a question of fact to be determined in each case in the light of the material terms used in the document.” “In such cases it is always a matter of ascertaining the true intention of the parties; it is obvious that such intention must be gathered on afair and reasonable construction of the document considered as a whole. The use of the word ‘trust’ or trusts is not doubt of some held in determining sue intention but the mere use of such words cannot treated as decisive of the matter. The use of the word ‘trust’ or trusts is not doubt of some held in determining sue intention but the mere use of such words cannot treated as decisive of the matter. If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other band, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left In hands of the manager or worshipper for the own private purposes, it would be difficult to accept the theory of complete dedication. “It is naturally difficult to lay down a general rule for the solution of the problem. Each case mast be considered on its facts and the intention of the parties must be determined on reading the document as a whole.” The third decision is of Ramamurthi, J. in M. Muthu Pillai v. Arumugathammal 1970-1 M.L.J. 349; 83 L.W. 223 where reference is made to the above decision of the Supreme Court A.I.R. 1957 S.C. 797. With great respect, it is not possible to agree with the learned Judges observation that if, reading the document as a whole, it is clear that whatever remains, whether substantial or otherwise, after the charities are performed, it is not to form an accretion to the corpus but can be utilised and taken by the manager or the trustee as his own without any liability to render an account and with no obligation to hold it on behalf of the trust the endowment will be an outright dedication, but a charge only is created in favour of the charity for the expenses or dhittam specified in the deed of endowment. In the decision of the Supreme Court A.I.R. 1957 S.C. 797. it is observed: “If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. it is observed: “If the income of the property is substantially intended to be used for the purpose of the charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of public charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the bands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. 5. The learned counsel for the respondent would submit that the evidence of D.W. 1 regarding the income and the kist must be held to be as in 1970 and that it could not be bating regard to the fact, according to the learned counsel, that the kist is Rs. 9-50 for a property which would yield an income of only Rs. 40/-. In the absence of any evidence to the contrary, it is not possible to reject the evidence of D.W. 1 that the income of the property is Rs. 40/- per annum and the Kist is Rs. 9-50. per annum. If the income was only Rs. 40/- per annum in 1970 it could not have been more in 1926, having regard to the fact that in the recent past there has been a considerable improvement in the technique of agriculture. Therefore, it must be taken that by evidence regarding the income and the kist in respect of the property was as in 1926. Therefore, it would appear from the evidence of D.W. 1 that the income from the property was Rs. 40/- and that the kist was Rs. 9-50 leaving a balance of only Rs. 30-50 As already stated, the charity was to be performed to the extent of Rs. 30/- and it would, therefore, appear that practically no surplus could have been left to be enjoyed by the kattalal trustee appointed under Exhibit A-3. Therefore, having regard to the first two decisions referred to above, I agree with the learned counsel for the appellant that the dedication was complete and that it is not a case where only a charge has been created in favour of the kattalal . Therefore, having regard to the first two decisions referred to above, I agree with the learned counsel for the appellant that the dedication was complete and that it is not a case where only a charge has been created in favour of the kattalal . The alienation of the property by the kattalat trustee Meiyappa, the son of the testators brother, in favour of his own sister Mahalakshmi under Ex. B-1 is therefore not valid and binding on the kattalal . Alagiriswami, J. has held in Kariyan Chettiar v. Rangiah Gounder (1969) I. M.L.J. 340; 82 L.W. 68.“Where the temple trustee and the kattalal trustee are different persons and the latter had alienated the properties endowed for the kattala. It Is open to the general trustee of the temple, if the actual trustee who has alienated the properties is still alive, to inatitute a suit to recover the kattalal properties”. Therefore, it is open to the general trustee to sue for possession of the kattalal properties which bad been alienated by the kattalal trustee under Ex. B-I. 6. It is not disputed that the charty was being performed until 1963. The learned counsel for the respondent submits that the suit is barred by limitation, under Article 96 of the Limitation Act of 1963. In this connection, be relied upon the decision of a Full Bench of this Court reported in Venkateswara v. Venkatesa A.I.R. 1941 Madras 449: 53 L.W. 569 (F.B.) where it has been held that having regard to the scope of Article 134-B of the Limitation Act of 1908, as it stood then, the suit should have been filed within 12 years from the date of the death of the trustee. The last alienation in that case was made by the Matathipathi of Perur Matt in 1910. The Matethipatbi who made the alienation died on 15-7-1918. The suit was not instituted until 12-4-1934. Id those circumstances, it has been held that the suit must have been instituted within 12 years from the date of the death of the alienating Matathipathi and was barred by limitation, having been filed only on 12th April 1934. But, Article 96 of the Limitation Act of 1963, as it now stands, provides for a suit being fled within 12 years from the date of appointment of the plaintiff as manager of the endowment. But, Article 96 of the Limitation Act of 1963, as it now stands, provides for a suit being fled within 12 years from the date of appointment of the plaintiff as manager of the endowment. The period provided in the Article is 12 years and it starts from the date of death, resignation or removal of the transferor or of the date of the appointment of the plaintiff as manager of the endowment, whichever is later. As stated earlier, the general trustee has been appointed in this case on 27th March 1966 under Ex. A-1 by the Hindu Religious and Charitable Endowments Department and the suit has been filed on 17th April 1968. Therefore, I find that the suit is in time. 7. The result is, the second appeal has to be allowed. But, the appellant temple is not entitled to continue to be in possession of the suit property if any heir of the kattalal trustee trustee appointed under Ex. A-3, entitled to manage the kattalal according to the terms of Ex. A-3, turns up and asks for possession of the property undertaking to perform the charity as per the term of Ex. A-3. In such an event, it is clear that, the appellant would have to hand back possession of the property to that trustee. Subject to this observation, the second appeal will be allowed and the suit will stand decreed. The appellant will have its costs throughout. No leave.