Venkataramana Rao, J.
1. This is an appeal from the judgment of the learned Subordinate Judge of Tiruvarur dismissing the suit of the plaintiffs in reversal of the decree of the District Munsif of Tirutu-laipundi decreeing the suit. The suit is in ejectment. The plaintiff who is the Sri Bana Oushadeesvarasiwami Temple seeks to recover possession of 24 cents of land comprised in R.S. Nos. 183/3 and 183/5 in Tiruturaipundi, Tanjore District. The said property and a plot north of it were found by both the lower Courts to belong to the temple before 1899. The 1st defendant who is the 1st respondent in the appeal is in possession. He claims title to the suit property under a purchase, dated 28th July, 1924 from one Rangaswami Mudaliar. The 2nd defendant is his nephew in whose name the property was purchased but it is admitted that the said purchase was for the benefit of the 1st defendant. It is also admitted that the suit plot and the plot north of it were given to the ancestors of one Rajammal on Kasavargam tenure and that, Rajammal was in enjoyment of the said property in 1890 but by reason of the non-performance of the services she incurred forfeiture and lost her rights in the said land. It appears from the evidence that the plot north of the suit property was purchased in execution of a decree in O.S. No. 272 of 1890 on the file of the District Munsif of Tiruturaipundi by one Ramalinga Mudaliar, the father of the 1st defendant. The temple appears to have obtained possession of the said plot, but so far as the suit plot is concerned Rajammal was not ousted from it and she continued in possession. At the date of the said purchase the said Ramalinga Mudaliar was the trustee of the temple. After his death a suit (O.S. No. 11 of 1899) was filed in 1899 against his undivided brother Arunachala Mudaliar to recover possession of the said property. The said litigation appears to have ended in a compromise. Two transactions came into existence then which are evidenced by Exs. B and A. Ex. B is a lease deed executed by Arunachala in favour of the then trustee Subbaraya Aiyar of the plot in the said O.S. No. 11 of 1899 for a period of 40 years. Arunachala was on that date not a trustee of the temple, the lease deed being, dated 28th January, 1899. Two days thereafter another lease deed of the said plot Ex. A, bearing 30th January, 1899 was executed by one Thiagaraja in favour of Subbarayar. The case for the plaintiffs is that Thiagaraja was only a* nominee of Arunachala but on account of some misunderstandings between the parties the documents had to be compulsorily registered in May, 1399. It is found by the learned Subordinate Judge that so far as the suit plot was concerned possession was not taken from Rajammal and given to Thiagaraja but Rajammal continued in possession of the said property. There is no evidence that possession was ever after given to Thiagaraja by the trustees of the temple under Ex. A. A few days before the registration of Exs. A and B Kajammal sold the property to one Doraisami Mudaliar under Ex. I. He leased the property to one Nataraja Pillai and the said lessee was in occupation under the said lease. After the death of Doraisami Mudaliar, his sons alienated the suit property under Exs. IV and V to one Rangaswami Mudaliar from, whom the second defendant purchased. Arunachala became a trustee in June, 1899. Subsequent to his death the 1st defendant became a trustee in 1921 and continued to be so till 1925. On the 30th April, 1924, the trustees of the temple purported to execute a lease deed of a portion of the plot Ex. E to one Kayarohanam Pillai but he does not seem to have taken possession thereunder and there is no evidence that possession was taken by him or that he paid any rent. The finding of the learned Subordinate Judge is that both Exs. A and E are nominal documents. In paragraph 33 of his judgment the learned Subordinate Judge finds that Ex. A was a sham transaction and no enjoyment passed to Thiagaraja under it, that the rent deed Ex.. E was obtained for ulterior purposes and was not acted upon and the lessee did not get possession of the property. The learned Judge also finds that the sale deed Ex. I executed by Rajammal in favour of Doraisami Mudaliar and the subsequent dealings with the sons of Doraisami Mudaliar were all genuine transactions, that Kajammal and her successors alone have been in possession of the property in spite of Exs. A and E, that adverse possession commenced to run against the temple from the date of forfeiture incurred by Rajammal and whether the date is taken to be 1890 or 1899, the right of the temple was barred by limitation after 12 years from either of those dates,
2. Mr. Sitarama Rao who appears for the plaintiff temple did not challenge any of the findings of fact nor the view of law taken by the learned Subordinate Judge regarding limitation and adverse possession consequent on the forfeiture of Rajammal. But he contends that on the date of purchase by the 2nd defendant the 1st defendant was a trustee of the temple and he must be deemed to hold the said property for the benefit of the temple and surrender the property to it. He relies on Section 88 of the Trusts Act and the decisions of the Privy Council in Nagendrabala Dasi v. Dinanath, Mahish and Peary Mohan Mukerji v. Manohar Mukerji . I may state at once that the question in this aspect was not raised in either of the Courts below. Mr. Bhashyam Aiyangar on behalf of the 1st defendant contends that it would be unfair to his client if that is allowed to be raised now. Mr. Sitarama Rao concedes that it was not raised in the lower Courts and in fact even in the memorandum of grounds of second appeal the question in this form was not raised. The case was fought out in both the lower Courts on the assumption that Arunaehala was a lessee of the suit property, that the first defendant while holding it as lessee could not acquire title to it in derogation of the trust and that neither Raj ammal nor her successors acquired any title by adverse possession. On both these points the findings of the lower appellate Court were against the temple and on those findings the plaintiffs cannot succeed. This is also conceded by Mr. Sitarama Rao. But however having regard to the fact that this is a case of trust, I allowed the point to be raised to see how far there is a basis for this contention and if so, whether I should remand this case or what relief has to be given to the plaintiffs if the contention is found to be sustainable. Section 88 of the Trusts Act runs thus:'
Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself, any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, for may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
On the date of the purchase in 1924, the first defendant was not in possession of the suit property either as lessee or in any other capacity. When he assumed office of trustee the temple was not in possession of it and the right of the temple was barred by limitation and no suit by the temple to recover possession could have been successfully maintained. It had therefore by that time ceased . to be trust property and was the absolute property of Rangasami. The question therefore is, is a trustee--and I may state he is one of the five trustees--debarred from purchasing the property which was once a trust property but had become lost to the trust before he ''became a trustee? Section 88 assumes that the property must be trust property at the date of purchase or that the trustee must have purchased an outstanding claim on it such as an encumbrance. As I have said above, the property ceased to be trust property and there was no outstanding encumbrance, nor could it be said there was an adverse claim either. The claim must be such that it could be resisted by a suit and not one which by prescription resulted in a complete loss of title and ceased to be an outstanding claim. It is not disputed that if a trustee sells trust property to a stranger and subsequently purchases it from him the purchase would be valid though he could not haw done so if the sale in favour of the stranger was not completed. The reason is the moment the property is sold in proper exercise of the powers of a trustee, the trust is at an end and the subsequent purchase by the trustee, cannot be deemed to be a purchase of the trust property. Vide Re. Postlethwaite : Postlethwaite v. Rickman (1888) 60 L.T. 514. The question therefore is, can this principle be applied to the case of property lost to the trust by adverse possession? What Mr. Sitarama Rao contends is that the property S. No. 183/3 still stands in the name of. the temple in the Settlement Register, that the first defendant was one of the trustees when Ex. E was executed and that it was therefore the duty of the first defendant as trustee to protect the interests of the trust and that when he purchased the said property he must be deemed to have entered into dealings of the said property under circumstances which are adverse to the trust which resulted in a pecuniary advantage to him. If the title to the trust property had become lost by adverse possession long before the date of purchase and the property could not be recovered by a suit, it is not possible to see what steps should be taken by a trustee to preserve it. If he does not purchase it; a stranger might have purchased it and the temple could not recover it from him. If this point had been raised in the lower Court> evidence could have been let in by the first defendant. In regard to the pecuniary advantage all that Mr. Sitarama Rao says is that the first defendant appeared to have purchased at a price less than its proper value and he must have done so by reason of his position as a trustee. But the first defendant's case is that the purchase was made in the name of the second defendant, because if the purchaser came to know that he was purchasing it, he would put a higher price for it And there is no evidence on record to show that any pecuniary advantage was gained by reason of his position as trustee, because the point was not raised and the evidence of the parties was not directed with reference to it.
3. The question is whether the case should be remanded for this purpose. The purchase was made in 1924 and the suit was laid in 1935. The first defendant ceased to be a trustee within a few months after the sale and thereafter he has been openly dealing with the property as owner paying house tax, collecting rent and this open dealing must have come to the knowledge of the trustees of the temple. If the trustees had really thought they had a claim in respect of the said property, it is hardly likely that they would not have taken immediate steps to recover the property. On the other hand they waited for nearly 10 years after the first defendant ceased to be a trustee to file the present suit and they did not raise the question that the first defendant by taking advantage of his position as trustee obtained pecuniary advantage in respect of the said property. I therefore think that in the circumstances it is not fair to allow this point to be raised and remand the case for the said purpose. On the findings given by the lower appellate Court, the appeal must fail. But in regard to the actual relief the suit property comprises 24 cents and the first defendant's purchase relates only to 21 cents. The first defendant is therefore directed to give possession of the remaining three cents to the temple to be mentioned in the schedule to the decree. Subject to this modification the appeal fails and is dismissed. In the circumstances of the case I direct each party to bear his own costs throughout. Leave to appeal refused.
4. This second appeal having been set down to be mentioned this day, the Court delivered the Mowing Judgment:
5. The parties have filed an agreed plan which will be annexed to the decree. The portion marked in that as D E F A measuring 329 links by 9 links will 'be the plot to be delivered. I accordingly direct the first respondent to deliver the said plot.