Skip to content


Bhurabhai Jamnadas Vs. Bai Ruxmani - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 652 of 1907
Judge
Reported in(1908)10BOMLR540
AppellantBhurabhai Jamnadas
RespondentBai Ruxmani
DispositionAppeal allowed
Excerpt:
.....act 1877, applied to the case, and that it was, therefore, not barred.;a suit to recover trust money is a suit to follow the trust property within the meaning of section 10 of the limitation'act, 1877.;section 10 of the indian limitation act 1877 requires, as conditions precedent to its applicability, first, that the suit should be against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns, and, secondly, that the suit should be for the purpose of following 'such property in his or their hands.;the phrase ''trust for a specific purpose' in section 10, is merely a more expanded mode of expressing the same idea as that conveyed by the expression'express trust' of english law. it is used, in the section, in..........consider the second requirement, namely that the suit should be for the purpose of following the trust property into the hands of the trustee or his legal representative. if this condition be also complied with, it will not assist the defendant that the trustee jagjiwandas died in 1877, for admittedly she is now his legal representative and would therefore be liable to the extent of his estate descended to her. is, then, the present suit a suit for following the property in the hands of the trustee's legal representative it may be said that a money fund which has been simply dissipated cannot be followed, and, so far as i am aware, the english cases go no further than this that the trust property may be followed into any other form in which after conversion it may be traceable. but i.....
Judgment:

Batchelor, J.

1. A preliminary objection was raised by the Honourable Mr Gokaldas that under the Provincial Small Cause Courts Act no second appeal lay, but it appears to me clear that this is a 'suit relating to a trust' within the meaning of Article 18 of Schedule II of the Act, so that a second appeal is competent.

2. The only other question debated is whether, as the first Court held, the suit falls under Section 10 of the Limitation Act and so is within time, or whether, as the lower appeal Court has decided, the suit does not fall under this section, in which case it would admittedly be barred by time.

3. Section 10 of the Limitation Act requires as conditions precedent to its applicability, first, that the suit should be against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns, and, secondly, that the suit should be for the purpose of following such property in his or their hands. The question is whether the present suit answers both these requirements. That will primarily depend upon the facts of the case, and upon the findings of the lower appeal Court, which we must accept in second appeal. I take it that the main facts found are that a sum of Rs. 366, being the amount of the female plaintiffs palla or dowry was, on the occasion of her betrothal to the male plaintiff, made over by the male plaintiff's father to the keeping of the lady's father, Jagjivan, as a fund constituting her palla in accordance with the usual practice prevailing in the caste; and that this fund has been misappropriated either by the original trustee or after his death by his successive legal representatives, his deceased son, or that son's widow, the present defendant.

4. In thus putting the facts on the footing of a misappropriation I am taking the case least favourable to the appellant, and I do so because the precise conclusion of fact which the lower appeal Court arrived on this point is not clear to me. It may be that the Court intended to find that the trust fund still remains mingled with the estate of Jagjivandas Avhich has descended to the defendant. On the other hand there are some passages in the judgment which suggest to my mind that the finding intended was that the trust fund had been misappropriated and squandered; and as this latter hypothesis is the less favourable to the decision which I have reached. I adopt it for the purposes of this judgment though I hope to show that the result is unaffected whichever finding of fact may have been intended by the Court below.

5. This, then, being the state of facts, the first question which arises is whether there was a trust of the fund for a specific purpose. That there was a trust, and not a mere deposit, is a proposition which both Courts have accepted and which seems to me abundantly clear. Jagjivandas was to hold the money, which amounted to the precise sum fixed by the caste for a girl's dowry, as the dowry of the female plaintiff and for her benefit. The beneficial interest passed to her from the male plaintiff's father. She was then only about four years old, and the understanding was that her father was to hold the money on her behalf, or to convert it into ornaments and hold them on her behalf, until she came to have a house of her own and demanded the fund or its proceeds. The male plaintiff's father's interest in the money ceased, and after the transfer he would not have been entitled to demand the repayment of the money to himself. It is plain that Jagjivandas took as trustee for the female plaintiff.

6. And it seems to me equally plain that he took on a 'trust for a specific purpose.' In Vundravandas v. Cursondas ILR (1897) 21 Bom. 646 it was held by a Division Bench of this Court that this phrase was merely a more expanded mode of expressing the same idea as that conveyed by the expression '' express trust' of English law. I think that we should follow this opinion, and I do not doubt that the expression 'trust for a specific purpose' was used, like 'express trust,' in contradistinction to trusts arising by implication of law, trusts resulting and trust constructive; but the' point is not of much present consequence for, as it seems to me, Jagjivandas's liability is established under either form of the definition. For there is no question here of a constructive or resulting trust, but of a direct trust, created by the author, who himself constituted Jagjivandas the trustee. And in my opinion it was also a trust for a specific purpose, namely for the provision of the customary dowry for the betrothed girl. It'is no answer to say that there is no evidence proving the precise words used when the fund was made over to the girl's father and guardian. At this distance of time such evidence is not to be expected, nor is it necessary where, as here, there is other evidence to shew that these were the terms upon which the money was given to Jagjivandas. The material point is that this fact should be established, as it is held to be in this case; it matters nothing whether it is established by the proved use of a certain form of words or by the acts, the conduct, and the relation of the parties, and by the circumstances surrounding the transfer : in either case it is an express trust. I think, therefore, that the first requirement of Section 10 of the Limitation Act is fulfilled.

7. It remains to consider the second requirement, namely that the suit should be for the purpose of following the trust property into the hands of the trustee or his legal representative. If this condition be also complied with, it will not assist the defendant that the trustee Jagjiwandas died in 1877, for admittedly she is now his legal representative and would therefore be liable to the extent of his estate descended to her. Is, then, the present suit a suit for following the property in the hands of the trustee's legal representative It may be said that a money fund which has been simply dissipated cannot be followed, and, so far as I am aware, the English cases go no further than this that the trust property may be followed into any other form in which after conversion it may be traceable. But I venture to doubt whether the English decisions are of much direct assistance in interpreting Section 10 of the Indian Limitation Act; for in England there is the broad rule that no claim of a cestui que trust against his trustee for any property held on an express trust or in respect of any breach of such trust shall be held to be barred by any statute of limitation : see Section 25(2) of the Judicature Act, 1873. I prefer, therefore, to base this judgment on the provisions Section 10 of the Indian Act. Here it is important to remember that the detence is a bare denial of the trust; that plea is found against the defendant and we are left, as I have explained, to the conclusion that the trust money has been misappropriated, that is, spent on objects unconnected with the trust. In such a case it is difficult to see why the plaintiffs should be placed in any worse position than they would occupy if it appeared that the money had been spent in breach of the trust in purchasing other property which could now be identified ; and the formal objection based on the disappearance of the fund in specie may be met by the consideration that the moneys removed from his estate by Jagjivandas should be deemed to be moneys which he was authorised to remove, and not moneys which it would be fraudulent for him to remove : see In re Hallet's Estate, Knatchbull v. Hallett (1880) 13 Ch. D. 696. So, as to the argument that ' money has no earmark. ' that doctrine has long been very limited, and, as at present understood, onlymeans that a person who bona fide takes money as currency is not affected by any want of title in the person from whom he received it : see Miller v. Race (1758) 1 Burr. 452 and Moss v. Hancock [1899] 2 Q.B.111. But here we are not concerned with any claim on a transfer for valuable consideration, and it would seem, therefore, that the character of the trust property affords no reason for excluding the suit from the operation of Section 10. That being so, I am of opinion that, under the decisions of special authority in India the section should be held applicable to the present suit. In Balwant Rao v. Puran Mal ILR (1883) All. 1 the question of the interpretation of the phrase ' following the property' in this section came before the Privy Council, and their Lordships laid it down that the expression 'means for the purpose of recovering the property for the trusts in question; and that when property is used for some purpose other than the proper purpose of the trusts in question it may be recovered, without any bar of time, from the hands of the persons indicated in the section.' In Thackersey Dewraj v. Hurbhum Nursey ILR (1884) 8 Bom. 423 where there was a claim for the return of moneys lost to a trust, Mr. Justice Scott in applying this decision says: ' I think the section is satisfied if the money can be traced to the trustees' hands and if the loss can be shown to have been caused by their misconduct and improper dealing with it; otherwise every improper use of trust money in trade or speculation would be beyond the application of the section.' The same view commended itself to a Division Bench of the Madras High Court in Sethu v. Subramanya ILR (1887) Mad. 274 where the plaintiff as manager of a temple sued to recover a certain sum alleged to have been part of the temple funds and to have been misappropriated by a former manager. The objection that the money could not be followed in specie was disallowed, and the suit was held to fall within the ambit of Section 10.

8. For the reasons which I have indicated I think that, following these decisions, we ought to hold that the present suit is not barred by lapse of time. It is a suit to recover for the trust property which, on the case most favourable to the defendant, has been used for some purpose other than the proper purpose of the trust, and no bar of limitation can arise.

9. The result is that we must reverse the decree of the lower appellate Court, and restore the decree of the Subordinate Judge except as to the part decreeing the claim against the defendant personally. That claim must be left to be substantiated, if possible, in execution : the clause as to defendant's personal liability will be deleted, but the decree of the Subordinate Judge is otherwise affirmed, and the defendant must bear all costs throughout.

Heaton, J.

10. The chief argument addressed to us, was that the facts found do not disclose a trust. It seems to me that they bring the matter precisely within the definition of trust given in Section 3 of the Indian Trusts Act, for there was trust property, the money deposited for a bride's palla; there was an author of the trust, the bridegroom's father ; a person beneficially interested in the property, the bride : and a trustee, the bride's father. It also seems to me to be clear on the facts that the trust was for a specific purpose, as there was a deposit of a'sum of money for a definite and well understood object, viz. the palla of the bride. The trust, therefore, was one of the class contemplated by Section 10 of the Limitation Act. The suit, as the pleadings, the judgment of the first Court and the decree of that Court show, was treated as a suit to follow the trust property. The Court of first appeal thought that substantially it was a suit of the nature described in Article 98 of Schedule II to the Limitation Act, viz. a suit to recover the amount and make good the loss, if any, occasioned by a breach of the trust, out of the estate of the deceased trustee. But that conclusion was largely founded on the assumption that there was not a trust of the kind contemplated in Section 10, and on a conjecture, not amounting to a finding of fact, that there may have been a breach of the trust. The assumption was wrong as has been already explained; and the conjecture is too vague to accept as a basis for decision. That being so, there remains in my mind no doubt that the suit was one to follow the trust property. It might conceivably have been met in various ways, but the one selected and pressed in the Courts below and here, was that there was not a trust ; or at least no trust such as is contemplated in Section 10. It was not asserted, much less found as a fact, that even if there was such a trust, there was no trust property which could be followed. The facts established indicate that there is trust property which can be followed. It is found that the bride's father received Rs. 366 in trust or in other words that there was in his possession a sum of Rs. 366 as trust property. It is not definitely found what became of that sum, but it was argued in this Court on behalf of his present representative that it was a deposit with the bride's father, and as such became his property, for which he was responsible only as a debt requiring to be repaid. The argument assumes that there was no trust and is therefore wrong : but it also assumes that the money became merged in the estate of the bride's father; and that assumption may be accepted as a statement of fact not adverse to the interest of his representative, the respondent. It also appears to be the fact found or assumed in both the Courts below. It being found that there was trust money which became merged in his own property, it follows that the trustee's estate was trust property which could be followed to the extent necessary to discharge the trust. The facts found do not establish anything which enables it to be said that the estate has so changed its character that it can no longer be properly described as trust property capable of being followed. The question of following trust property is clearly and comprehensively expounded in the case of In re Hallett's Estate (1880) 13 Ch. D. 696 and it is unnecessary for me to refer to any other authority.

11. For these reasons I concur in the order proposed by my learned colleague.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //