Judgment :- 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. 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 document was marked on the side of the plaintiff. On the side of the defendant D.W.1 & D.W.2 were examined and Ex.B.1 to Ex.B.6 were marked, before remand. After remand no evidence was let in on the side of the defendant. 5. On the side of the defendant D.W.1 & D.W.2 were examined and Ex.B.1 to Ex.B.6 were marked, before remand. After remand no evidence was let in on the side of the defendant. 5. After going through the evidence both oral and documentary, the learned trial Judge has decreed the suit as prayed for. Aggrieved by the findings of the learned trial Judge, the defendant preferred an appeal, which also ended against her, which necessitated the defendant to prefer this second appeal. 6. This Court in Second appeal NO.2018 of 1984 dated 18.8.1998 has remanded the appeal to the trial Court on the ground that the findings of the Courts below holding that Ex.A.3 dated 24.1.1928 was binding on the temple without deciding whether the same was executed by the then trustee for legal necessity and that the burden is also on the beneficiary under Ex.A.3 to show that the same was executed for legal necessity. The parties have been given liberty to let in fresh evidence before the trial Court. But after remand only P.W.2 was examined before the trial Court, who had also reiterated the evidence of P.W.1. 7. The substantial questions of law involved in this second appeal are as follows:- a) Whether the Courts below are correct in finding that the suit is not bared by Limitation? b) Whether the Courts below are correct in finding that the mortgage deed is invalid? c) Whether the Courts below are correct in finding that the possession of the defendant is not adverse and the same is permissive possession? d) Whether the Courts below are correct in granting a decree for recovery possession? 8. Heard the learned Senior Counsel Mr.AR.L.Sundaresan appearing for the appellant and the learned counsel Mr.V.Santharaman appearing for the respondent and considered their respective submissions. 9. The Point:-The learned senior counsel would contend that the earliest usufructuary mortgage in respect of the suit property was executed by one Ranthinam Pillai and Manickampillai on 24.1.1928 for 15 years in favour of one Subbaraya Naidu, who had assigned the same to Arulanandasamy Nadar, the father-in-law of the appellant-plaintiff under Ex.B.3. Ex.B.2 is the usufructuary mortgage deed in favour of Subbaraya Naidu. Ex.B.1 is the receipt issued by Rathinam Pillai and others in favour of Arulanandasamy Nadar. Ex.B.2 is the usufructuary mortgage deed in favour of Subbaraya Naidu. Ex.B.1 is the receipt issued by Rathinam Pillai and others in favour of Arulanandasamy Nadar. 9(a) The learned senior counsel would contend that the defendant is in continues uninterrupted possession of the suit property and thereby had prescribed title to the suit property and the suit is barred under Section 96 of the Limitation Act and also under 61(b) of the Limitation Act and under Section 109 of HR & CE Act the plaintiff cannot take shelter. Relying on Article 96 of the Limitation Act 1963, the learned senior counsel would contend that the original mortgagors viz. Rathinam Pillai & Manikkam Pillai have not redeemed the suit property within 12 years and that they died on 2.9.1950 and in February, 1932 respectively as per Ex.B.5 & Ex.B.6. 9(b) To meet this argument, the learned counsel Mr.V.Santhraman appearing for the respondent would contend that the present trustee was appointed on 15.12.1972 and as per Article 96 of the Limitation Act 1963 the 12 years period will run only from the date of appointment of the plaintiff as Manager of the Endowment and that the suit being filed on 12.8.1976, the suit is not barred by limitation. Further the learned counsel for the respondent would contend that as per Ex.B.2 usufructuary mortgage dated 24.1.1928, 15 years time has been granted for redemption, which will expire on 23.1.1943 and as per the Article 148 of the Limitation Act of 1908, 60 years period is available for the plaintiff for redemption from 1943, which will expire only in the year 2003 and that the suit being filed in the year 1976 (Originally the suit in O.S.No.89 of 1976 was filed before the Subordinate Court, Kumbakonam, which was later transferred on the point of jurisdiction to the District Munsif Court, Kumbakonam and renumbered as O.S.No.600 of 2004) is not barred by limitation. 9(c) Relying on Section 30(A) of the Limitation Act, 1963, the learned senior counsel for the appellant would contend that if the period of limitation prescribed under the Indian Limitation Act, 1908 is shorter than, the suit can be instituted within a period of 7 years next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. The learned senior counsel would further contend that as per the proviso to Section 30 of the Limitation Act, 1963, if the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act. The Limitation Act, 1963 came into force only on 1.1.1964. So the period of limitation prescribed under the old Act of the year 1908 will not be available to save the suit from limitation. But the fact remains that under Article 96 of the Limitation Act, 1963, the plaintiff is having 12 years periods from the appointment of the plaintiff as a trustee of the endowment. Admittedly the plaintiff was appointed as a trustee of the plaintiff-temple on 15.12.1972. So as per the Article 96 of the Limitation Act, 1963, the plaintiff will get 12 years period from the date of his appointment as a trustee i.e. 15.12.1972 to file the suit for recovery of possession. Since the suit has been filed on 12.08.1976 itself, I am of the view that the suit is not barred by limitation. 9(d) Both the Courts below have concurrently held that the mortgage itself is void abinitio because there was no permission obtained from the Commissioner of HR & CE for mortgaging the property, which belongs to the plaintiff-temple. Unless it is shown that there was necessity, the mortgage itself void as per Section 34 of the HR & CE Act. Further, under Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 also, according to the learned counsel for the respondent, the suit is not barred by limitation because under the said provision of law, the limitation Act, 1963, shall not be applicable to the plaintiff-temple. Further, under Section 109 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 also, according to the learned counsel for the respondent, the suit is not barred by limitation because under the said provision of law, the limitation Act, 1963, shall not be applicable to the plaintiff-temple. But the learned senior counsel would meet this argument by saying that Section 109 was constituted only under the Tamil Nadu Act 28 of 2003 and the proviso to the said amendment to section 109 reads as follows:- "Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person to property or funds of any religious institution which had not vested in such person or his predecessor-in-tile before the 30the September 1951." Relying on the said provision of law, the learned senior counsel would contend that the mortgage is of the year 1928 and the vesting was not before 1951 since the mortgage was held to be void. But in lieu of the Article 96 of the Indian Limitation Act, 1963, the said defence is not open to the defendant/appellant. 9(e) Admittedly the mortgage is only usufructuary mortgage i.e., the mortgagee is entitled to enjoy only the fruits of the standing trees in the mortgaged property. Under such circumstances, it cannot also be said that the mortgagee got possession of the suit property from the mortgagor. Further there is also no document produced before the trial Court by the defendant to show that they ware in continuous possession of the suit property adverse to the interest of the temple. Both the Court below have dealt with the point of limitation as well as the validity of the mortgage deed elaborately. I do not find any reason to interfere with the findings of the learned first appellate Judge in coming to the conclusion that the plaintiff/respondent herein is entitled to the recovery of possession from the defendant. Point is answered accordingly. 10. In fine, the second appeal is dismissed confirming the judgment of the learned first appellate Court in A.S.no.126 of 2005 on the file of the Additional Subordinate Judge, Kumbakonam. Connected M.P.No.1 of 2006 is closed. No costs.