Skip to content


Mojilal Premanand Vs. Gavrishankar Kushalji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case Number Second Appeal No. 402 of 1909
Judge
Reported in(1910)12BOMLR947
AppellantMojilal Premanand
RespondentGavrishankar Kushalji
DispositionAppeal allowed
Excerpt:
limitation act (ix of 1908), section 10- trust for a specific purpose-trust created by operation of law-trusts indicated in a will-no specific trust e-suit to follow residue in trustees' hands-limitation.;a testator made his will on the 20th of february 1889 and died on the 7th of december following. under the will, he gave certain legacies including one of ks. 300 to his sister (the plaintiff). five persons were appointed trustees under the will, which provided : ' they are to dispose of the properties in accordance with what is written in the above will and should my out-standings have to be recovered for giving effect to the said dispositions, they are to do the same and i do by this will give them power to do whatever else they may have to do to carry out this will. ' the trustees..........property shall be barred by any length of time.10. is the property which is the subject of this suit, property which has become vested in the trustees in trust for any specific purpose? it is we think clear that it has been vested in them for the purpose of application in carrying out the trusts of the will. once the testator's property is vested in them for a specific purpose it is not necessary that any resulting trust of the residue which necessarily arises by operation of law should be specified in words in the will in order to bring it within the scope of section 10. that was the opinion of the court in vundra. vandas v. kursondas ilr (1897) 21 bom. 646. the learned judges in that case said; ' it must, we think, be conceded that where a hindu will makes the executors trustees of.....
Judgment:

Basil Scott, Kt., C.J.

1. This is a suit instituted by Sarasvatibai, widow of Premanand Parbhudas and sister of Jethabhai Valavram, for a declaration that she is the heir of her brother Jethabhai and as such owner of the residue remaining after administering his property under his will.

2. Jethabhai Valavram by his will dated 20th of February 1889 gave certain legacies including one of Rs. 300 to the plaintiff and by the last clause provided as follows :-

With the property that might remain after paying as above the expenses of my obsequies are to be defrayed. I do make disposition in this way in my consciousness and in order to carry out these dispositions, I appoint after me the following gentlemen as trustees : Dave Gavrishankar Kushalji, Desai Mojilal Premanand, Dave Parbhashankar Purshotam, Desai Desaibhai Kalidas and Desai Maneklal Amratlal, Out of these five, Dave Gavrishankar Kushalji and my nephew Desai Mojilal Premanand should both join and take possession of my properties after my death in accordance with the above will and with the consent of the remaining trustees, they are to dispose of the properties in accordance with what is written in the above will and should any outstandings have to be recovered for giving effect to the said dispositions, they are to do the same and I do by this will give them power to do whatever else they may have to do to carry out the will.

3. The trustees named in the will have performed the funeral obsequies which are necessary in the case of a Hindu in the position of the testator, and they have also paid the legacies mentioned in the will. Three of the trustees are now dead. The property of the testator has not been exhausted in carrying out the trusts of the will. It now consists of money advanced upon a san-mortgage-deed for Rs. 1,300, the mortgagees being Gavrishankar Kushalji, Mojilal Premanand, Desaibhai Kalidas and Maneklal Amratlal, and a small sum of cash in the hands of the second respondent.

4. The suit was brought against Gavrishankar Kushalji, Mojilal Premanand, original trustees, Ganpatlal Chunilal as representative of Maneklal Amritlal and Harilal Desaibhai as reprentatives of Desaibhai Kalidas.

5. A decree was obtained by the plaintiff in the Court of the Subordinate Judge but that decree was reversed upon the appeal to the Joint First Class Subordinate Judge with Appellate Powers on the ground that the suit was barred by limitation.

6. In second appeal the point which has been argued is whether the suit is barred by limitation having regard to the fact that the property is in the hands of the trustees named in the will and the representatives of named trustees who are dead.

7. It is argued that the property is vested in the defendants in trust for a specific purpose and that this is a suit of the nature contemplated in Section 10 of the Limitation Act of 1877.

8. Now it has been held by a Full Bench of this Court in Lallubhai Bapubhai v. Mankuvar bai ILR(1876) 2 Bom. 388, that a suit against an executor by an heir of a testator who has by will made the executor an express trustee for certain purposes is as to the undisposed of residue a suit within the scope of section 2 of Act XIV of 1859. That section provided that no suit against a trustee in his life-time, and no suit against his representatives for the purpose of following in their hands the specific property which is the subject of the trust, shall be barred by any length of time.

9. The section of the Act of 1877, with which we are concerned, provides that no suit against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns not being assigns for valuable consideration for the purpose of following in his or their hand such property shall be barred by any length of time.

10. Is the property which is the subject of this suit, property which has become vested in the trustees in trust for any specific purpose? It is we think clear that it has been vested in them for the purpose of application in carrying out the trusts of the will. Once the testator's property is vested in them for a specific purpose it is not necessary that any resulting trust of the residue which necessarily arises by operation of law should be specified in words in the will in order to bring it within the scope of Section 10. That was the opinion of the Court in Vundra. vandas v. Kursondas ILR (1897) 21 Bom. 646. The learned Judges in that case said; ' It must, we think, be conceded that where a Hindu will makes the executors trustees of the whole estate of the testator, and the bequests in the will are not sufficient to exhaust that estate, the executors become express trustees of the undisposed of residue for the next-of-kin of the testator. That has been so decided by this Court in Lullubhai v. Mankuvarbai, where the case of Salter v. Cavanagh (1838) 1 D. & W. 668 was followed, as it was also followed by the Queen's Bench Division in England in Patrick v. Simpson (1889) 24 Q.B.D. 128 and after further discussion of the point they add: ' We have considered this question as though the expression ' express trust' had been used in our Statute (Act XV of 1877, section 10), but for this purpose we think that ' vested in trust for a specific purpose ' may be treated as a more expanded mode of expressing the same idea. Our decision on this point is supported by the case of Kherodemoney v. Doorgamoney ILR (1878) Cal. 455 which cannot, we think, be substantially distinguished from it.

11. We therefore hold that the suit was not barred by limitation.

12. There is no dispute as to the property to which the plaintiffs as representing the original plaintiff Sarasvatibai are entitled.

13. We reverse the decree of the lower appellate Court and declare that the appellants are entitled to recover the san-mort-gage-bond Exhibit 84 and all the mortgage-bonds and personal bonds and documents relating to the undisposed of and unexhausted residue of Jethabhai's estate. Order that respondent No. 2 do retain one bond of the nominal value of Rs. 100 for delivering to the Vyatipat Institution. Order that the respondents Nos. i and 2 if and when required so to do by the appellants do assign to them the said bonds and documents & the appellants' expense. Decree that respondent No. i do pay Rs. 81-7-0, that respondent No. 2 do pay Rs. 107-11-3 and that respondents Nos. i and 2 do pay Rs. 60 to the appellants. Decree that first and second respondents, do pay the costs throughout of appellants and third respondent.


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