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7.The defendants filed written statement and additional written statement stating that believing the words of the plaintiffs, the defendants entered into the registered lease deed dated 30.03.2007. With the mala fide intention of cheating the defendants, the plaintiffs had executed a registered lease deed in their individual capacity. It is settled principle of law that the trust property has to be leased out by the trustees only, but wantonly the plaintiffs had executed the lease deed in their individual capacity. It is a clear case of cheating on the part of the plaintiffs. Against the order passed in CRP.(MD) No.398 of 2011, the defendants filed Special Leave Petition (Civil) in No.2766-2767 of 2014 before the Hon'ble Supreme Court. The plaintiffs have received a sum of Rs.9,90,000/- being the rent for 33 years at the rate of Rs.30,000/- per year. The lease period is for 33 years. The plaintiffs cannot seek possession before the expiry of the lease period. The lease deed executed between the plaintiffs and the defendants had not been declared as null and void by any Court of law. The Trust O.P. relates to sale of the suit property. The lease deed relates to possession of the suit property. Thus, both https://www.mhc.tn.gov.in/judis the transactions were different. It is specifically stated in the lease deed that the defendants have right to demolish the old building and construct a new building by getting plan approval from Madurai Corporation; to get water tap connection, drainage connection, EB connection in the name of the defendants. The defendants put up a construction at the cost of Rs.10,00,000/-. Right of sub-lease is also given to the defendants. The plaintiffs were given right to purchase the super structure constructed by the defendants after the expiry of the lease period. For the notices sent, suitable replies were sent. Plaintiffs also threatened the defendants to vacate from the suit property. Therefore, the suit in O.S.No.642 of 2013 was filed. Before the expiry of 33 years lease period, plaintiffs cannot seek the relief claimed in the plaint. The prayer for cancelling or setting aside the lease deed should have been filed within three years from 30.03.2007. Therefore, the suit filed in 2013 is barred by limitation.

25.It is relevant to extract the commentaries presented before this Court by the learned counsel for the appellants. It is stated in the commentary to Section 36 that a lease by the trustee of a private trust for term exceeding twenty one years is not void but voidable at the instance of the cestui que trust. The provision contained in the second paragraph of this section is intended for the benefit of the cestui que trust and this is secured better by treating such leases as voidable than by holding that they are necessarily illegal and void.

iii) The Hon’ble Madras High Court in Kadir Ibrahim Rowther And Ors. vs Arunachellam Chettiar And Ors, 4 Ind Cas 1082 held that Section 36 of the Indian Trusts Act was intended for the benefit https://www.mhc.tn.gov.in/judis of the cestui que trust (beneficiary of the trust). Thus leases should not be treated as void for being malum prohibitum (prohibited by statute) and illegal per se,but voidable at the instance of the cestui que trust.

31.In the judgment relied upon by the learned counsel appearing for the appellant reported in 1941 SCC Online Bom 9 (referred supra) it was held that when one party acts fraudulently, he cannot be allowed, either as plaintiff or as defendant, to plead his fraud, on the principle that no man shall be heard to plead his own fraud. It is not in dispute that the respondents/plaintiffs have deliberately shown the trust properties as their individual properties and entered into the lease deed. Therefore, they cannot justify the fraud to claim the relief. The judgment reported in 4 Ind Cas 1082 (referred supra) shows that Section 36 of the Indian Trusts Act is intended for the benefit of the Cestui que trust and the leases should not be treated as void for being malum prohibitum and illegal per se, but voidable at the instance of the cestui que trust. In the judgment reported in 2022 SCC Online SC 638 (referred supra), it was held that when a composite suit is filed for cancellation of sale deed and recovery of possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of https://www.mhc.tn.gov.in/judis the sale deed. In the case before hand, the substantive relief is cancellation of the lease deed and therefore, the suit should have been filed within a period of three years. It was held that the lease deed dated 30.03.2007 between the appellants and the respondents is not a void deed, but only a voidable document and therefore, the judgment relied upon by the learned counsel for the respondents reported in 1952 SCC Online Mad 318 (referred supra) is not applicable to the facts and circumstances of the case. In the light of the discussions held above, the other judgments relied upon by the learned counsel for the respondents are also not applicable to the facts and circumstances of the case.