1. The only question is whether the plaintiff is entitled to have accounts for more than six years before suit, and the answer to that depends upon whether he comes within the meaning of Section 10 of the Limitation Act.
2. First, it is to be considered whether the addition to Section 10 the Act in force when the suit was brought governs the conduct of this suit. I am referred in that connection to an old decision in Reg. v. Dorabji Balabhai (1874) 11 Bom. H.C. 117, in which the Judges observe that the law of limitation being a law of procedure regulates all proceedings had under it. That is merely a general statement with reference to what was uppermost in the Judges' mind at the time, a case very different from this. I doubt in the first place whether it is strictly accurate to say that the law of limitation is always a law of procedure, that is to say, a purely adjective law, for, amongst its other consequences, it certainly has the creation of rights by prescription and if those rights have vested in individuals under one law of limitation, I do not suppose that it can be seriously argued that they can be devested by the introduction of a new law of limitation. In this connection I have also been referred to Section 6 of the General Clauses Act, 1897, and upon general principles it seems to me that if before the amendment of the law of limitation the defendants had acquired the right of immunity to render accounts for more than six years before suit, they could not be deprived of that right by any amendment in the law of a later date.
3. Now, I come to the consideration of the main question, which is whether confining ourselves to Section 10 of the old Limitation Act the plaintiff's case falls within its contemplation, and its provisions, therefore, entitle him to have the accounts opened from the beginning. If the plaintiff's case in every respect conformed with the requirements of Section 10, that is to say, if there were admittedly a trust which was for a specific purpose, and if the plaintiff were admittedly following that trust property, then I confess I should have very great difficulty in adopting the view which seems to have prevailed in this Court that by merely framing his suit in the form of a suit for taking accounts he was excluded from the benefit of Section 10. For none of the reasoning contained in the judgments of those learned Judges, whose decisions are the other way, convinces me to the contrary, that assuming that there is a trust for a specific purpose and the trust property in the hands of the trustee is devoted to the performance of that trust, a suit for accounts at his hands is in one (sic), and a very necessary way, following that property. This was (sic) view which commended itself to Wilson J. in the Calcutta High Court (Hurro Coomaree Dossee v. Tarini Churn Bysack ILR (1882) Cal. 766, a Judge of the highest distinction, and was later on adopted by Maclean C. J. and two other Judges in Nistarini Dassi v. Nundoo Lal Bose ILR(1902) Cal. 369. The reasoning of the later case is precisely that which I suggested during the consideration of the authorities collected in the recent decision of my brother Davar in Ayeshabai v. Ebrahim Haji Jacob : (1908)10BOMLR117 . As regards the particular decision of Davar J., I have only to say that in my opinion it appears to be unassailably correct; but it also appears to me, notwithstanding Mr. Jinnah's efforts to persuade me to the contrary, that it is distinguishable from the present case. But my brother Davar has collected all the Bombay cases bearing upon this question, and some of those cases seem to go the length of holding that in no circumstances whatever if the suit takes the form of a suit for account can it be brought within the scope of Section 10. It is, however, unnecessary for me to examine the reasoning upon which that conclusion is based or to throw any doubt upon it, because after hearing the arguments of the learned Counsel for the plaintiff, it seems to me that his case does not in other material points conform with the requirements of Section 10. This is a suit by the legatee against the executors of a will, the principal object of which is to be put in possession of a legacy. It is true that the plaintiff has already received a great portion of that legacy, but he is not satisfied that he has received the whole of it. It was strenuously pressed upon me that in such circumstances an executor is not an express trustee within the meaning of Section 10, nor can the plaintiff be said to be following up the trust property in his hands. Section 10 does not contain the words 'express trustee,' but speaks of a trust for a specific purpose; and so eminent a Judge as Sir Richard Garth in the cases of Kherode-money Dossee v. Doorgumoney Dossee ILR (1878) Cal. 455 and Greender Chunder Ghose v. Mackintosh ILR (1879) Cal. 897, quite clearly stated and approved the distinction upon which the defendant relies. I myself think that the defendant's argument upon this head is correct and conclusive. Therefore the case does not fall within Section 10 of the Limitation Act.
4. Neither can the plaintiff take the advantage of Article 123, Schedule I, of the Limitation Act, so as to extend the taking of a(sic) for a period of twelve years. If he relies on that article at all, he will be clearly time-barred, and the suit will have to be dismissed.
5. The result, then, is-(though I arrive at that result by a different way) in accord with the general current of the authorities in this Court-that a suit of this kind must be restricted to the taking of accounts for six years before the date of suit.
6. I, therefore, find that the plaintiff is entitled to take accounts for the six years next before the institution of the suit.
7. Reference to the Commissioner to take the accounts mentioned in the plaint and the written statement. The period restricted to six years before suit and of course thereafter to the end of the account.
8. The defendant asks me to make the plaintiff pay the costs of this argument. It appears to me that that is an utterly unwarrantable request. The point was not taken in the written statement and was fairly arguable. I shall certainly not make any such order.
9. Costs and further directions reserved.
10. Attorneys for the plaintiff: Jehangir, Mehta & Shomji.
11. Attorneys for the defendants: Shamrao Minocheher and Hiralal.