1. One Gokaldas Jetha died on 6th March 1904 leaving a Will. In that Will he sets out what property he is possessed of and particularly mentions a debt of about Rs. 2,000 due by Dayal Mowji. In effect he appoints his wife manager of his estate with full powers of management during her lifetime. He then goes on to say After the death of my wife my two executors Dayal Mowji Kalianji and Damodar Khimji, shall' do such and such things 'with my estate' and directs how the residue shall be disposed of. He concludes 'my executors shall act in accordance with the directions contained in this Will on their true religious faith and my wife shall act with the advice of my executors.'
2. Two or three weeks after the death of the testator Dayal Mowji and Damodar Khimji took away the Will from the cupboard of the deceased's house and Dayal Mowji wound up the shop belonging to the deceased, handing over the proceeds to the widow. It appears, however, that nothing farther was done by either Dayal Mowji or Damodar Khimji except to deposit the Will with the solicitors, Messrs, Raghavaya and Bhimji. Sometime afterwards a proposal was made for filing a petition for probate, but Dayal Mowji declined to join. A suit was filed in the Small Cause Court in 1907 against the other debtor mentioned in the Will, Tribhowandas Lallubhoy, both Dayal Mowji and Damodar Khimji joining as plaintiffs. In 1908 probate was granted to Damodar Khimji alone as executor according the tenor of the Will and a decree was passed in his favour alone in the Small Cause suit. On the 29th of April 1908, Damodar Khimji sent a notice through his solicitors to Dayal Mowji calling upon him to pay the amount which was due by him to the testator and eventually Damodar Khimji filed this suit praying that the defendant may be ordered to pay the sum of Rs. 3,225-8-6 for principal and interest and for all necessary directions and accounts. The defendant mainly relies on the contention that the suit is barred by limitation, but if it is not barred he is willing that account should be taken of what is due by him to the testator. Now, On the question of limitation, the first question is what is the nature of the account between the testator and Dayal Mowji? It was alleged in the plaint that the account was mutual, open and current and, therefore, Article 85 of the Limitation Act applied. That contention was not maintained during the argument and I must, therefore, hold that the account was an ordinary current account between the testator and Dayal Mowji.
3. The next question is what was the position of the defendant? Was he an executor appointed by the Will or was he an executor in accordance with the tenor of the Will or was he an executor de son tort? The Will does not appoint him executor in so many words. The persons named by the testator as executors have nothing to do with the estate until the death of the widow. During her life-time their functions are limited to giving her advice. If, therefore, they applied for probate as executors they would come in direct conflict with the powers which were granted to the widow, under the Will. Therefore, it seems to me that the defendant is not an executor. He may have rights on the death of the widow to apply that probate should be granted to him in accordance with the tenor of the Will but until he makes an application to the Court, not having been directly appointed, he is not an executor and can exercise no functions as such.
4. The next question is whether he is an executor de son tort and there is no doubt to a certain extent he intermeddled with the estate, though I feel doubtful whether what he did do in connection with the winding up of the estate is such as would make him an executor de son tort. It is quite possible that he acted according to the wishes of the widow. But assuming he made himself by his action an executor de son tort, that would only render him liable for certain results in connection with his action. It would not make him an executor. He can only be an executor de son tort as long as he intermeddled with the estate and his liabilities last as long as he continues dealings with the estate. On the question of limitation as against an executor de son tort, I do not think that time ceased running.
5. I hold that the defendant, is not an executor under the Will and as he has not obtained probate as an executor according to the tenor and as there is no doubt he has ceased intermeddling with the estate as executor de son tort, (if he ever was such an executor) it seems to me the question of limitation cannot arise and that, therefore, time has not ceased running against the plaintiff so as to prevent the period of limitation coming to an end.
6. Under Section 9 of the Limitation Act, when once time has began to run, no subsequent disability or inability to sue stops it: provided that, where letters of administration to the estate of a creditor have been granted to his debtor the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues. It is quite clear that that proviso does not apply to this case and it only applies to an administrator under the grant of letters where he is a debtor of the deceased. With this exception in the case of an ordinary grant of letters of administration, the running of time would not be suspended. But I must also deal with the contention which was argued at a considerable length on the assumption that the defendant was an executor, that time would not run against the plaintiff from the date of testator's death. That could only be under Section 10 of the Limitation Act and time would only cease to run if the defendant as executor was a trustee for a specific purpose. That depends entirely upon the facts of each case and assuming here that the defendant was appointed executor by the testator, it is quite clear that he does not come within the provisions of Section 10 of the Limitation Act. Under Section 87 of the Indian Trusts Act he would be a trustee of the debt due by him and, therefore, the common law doctrine under which such a debt would be released, would not apply, but it does not follow that he thereby becomes an express trustee of that debt for a specific purpose, unless that is so designated in the Will. So that even if there were in this Will express words 'I appoint Dayal Mowji my executor,' still that would not prevent time from running. Therefore, this must be treated as an ordinary debt due to the estate of Gokaldas Jetha the period of limitation for which is three years. It runs from the data of each item in the account.
7. Whether the time runs from the date of each item in the account or whether time should begin to run at the date of the testator's death, in either case, the claim is barred. The result is that the suit must be dismissed.
8. I understand from what fell from Mr. Jinnah that although the defendant was anxious to resist this suit he is not indisposed to pay what is really due by him to the estate.
9. The usual rule is that costs should follow the events and if the Court does not follow that rule, the Court is bound to record its reasons.
10. In this case the testator evidently placed considerable trust and confidence in the defendant, and directed that he should be concerned with the ultimate disposal of the property and that he should be one of the persons to advise his widow how to manage the estate during her life-time. Ho expressly mentions, that Rs. 2,000 are due by the defendant and whatever his legal position might be there was certainly a moral liability on the defendant to pay what was due to the testator according to the Will or to render an account to the widow. Instead of doing that he lies by and keeps the money in his own pocket. After four years when a demand is made upon him by a person who has a legitimate right to make that demand instead of saying 'I am willing to pay what will be found due on the account,' he sets up the plea of limitation. No doubt according to law he was. entitled to do that and the Court is bound to take that into consideration.
11. If once it is brought to the notice of the Court that the claim is barred, it has no power to pass judgment on it. But it is impossible to say that the conduct of the defendant in his relation to the testator's estate is in any way creditable to himself. The only way I can express my opinion of that, is to disallow his costs.