1. The sole point in this appeal is the question of limitation. The District Judge has held that Section 10 of the Indian Limitation Act applies to the case and that therefore the plainttiffs' suit was not time-barred. No doubt it is true that Section 10 was not relied upon in the trial Court, which dismissed the suit as being time-barred, and also that Section 10 is not referred to in the grounds of appeal to the lower Court, but that would not suffice to prevent the District Judge from acting on Section 10, if it really applied. Mr. Desai for the appellant contends that the District Judge erred in holding it applied. The question seems to me to depend upon whether it can be said, first of all, that the property sued for had become vested in trust in defendant No 1 (the appellant) for a specific purpose, and secondly, that the plaintiff is following trust property to recover it for the specific purpose in question. This is practically what has been laid down by the Privy Council in Khaw Sim Tek v. Chuah Hooi Gnoh Neoh (1921) 25 Bom. L.R. 121 and Balwant Rao v. puran Mal. I.L.R. (1883) All 1 In the first named case their Lordships say (p. 125):-
A specific purpose, within the meaning of Section 10, must, in their Lordships' opinion, be a purpose that is either actually and specifically defined in the terms of the will or the settlement itself, or a, purpose which, from the specified terms, can be certainly affirmed.
Then they go on to approve of what was laid down in Balwant Rao v. Puran Mal that the purpose of following the property in the hands of the trustees referred to at the end of Section 10 must be the purpose of restoring it to the trust, which is specified in the earlier part of the section. The property in question became vested in defendant No. 1 under a deed of 1890 (Exhibit 46). It consists of certain lands, which are held to be Devasthan Inam lands of a certain Darga ; and under the deed of 1890 it was arranged that defendant No. 1 should manage these lands in letting them out on behalf of all the parties concerned and out of the income that accrued he should pay, first of all, the expenses of the Darga and then out of the surplus give the others a six annas share. It seems to me that there were two trusts imposed upon defendant No. 1 by this deed. He was, first of all, under a trust to utilise part of the proceeds for the expenses of the Darga, and there was a second trust to pay a certain share of the surplus proceeds. The plaintiffs seek to enforce this second trust. As the main purpose of the document was to partition such of the lands as could he partitioned and to arrange for a division of the surplus income of these Devasthan lands, the second trust was, in my opinion, one which really had more importance in the eyes of the parties than the first trust in regard to the devotion of part of the profits to the Pir. The latter trust was already in existence on any wahivatdar of the darga and these lands, so it was not created by the document, whereas the second trust is directly so created. This particular trust or purpose of division of surplus profits is the main object of the part of the deed dealing with these lands and is specified in the deed ; the case, therefore, certainly seems to me to fall within what their Lordships of the Privy Council say is contemplated by Section 10. I consider that the lands and their profits were by this deed of 1890 vested in trust in defendant No. 1 for a specific purpose, viz., the purpose of division of surplus profits, as already mentioned.
2. As regards the second condition, it is argued by Mr. Desai that the case does not fall under the ruling in Balwant Rao v. Puran Mal because the plaintiffs do not seek to do anything which has the result of benefiting the Pir. But, in my opinion, that is beside the point. As I have already pointed out there were really two trusts imposed upon defendant No. 1 and plaintiffs are here seeking to enforce the second one. It is not a case like that in Balwant Rao v. Puran Mal where the plaintiff' was seeking to do something which was already being done by a trustee, namely, the defendant in that suit. Here the defendant is not carrying out the terms of the second trust about the division of surplus profits and the plaintiffs are seeking to follow the property in his hands for the purpose of having that property put to that specific purpose. It seems to me, therefore, that the case does properly fall under Section 10 of the Indian Limitation Act.
3. In support of this view, I may refer to the ruling in Syud Shah Alleh Ahmed v. Mussamut Bibee Nuseebun (1874) 21 W.R. 415 which, although it refers to a different enactment, is a very similar case to the present ; and also to Vithal Vishvanath Prabhu v. Ramchandra Sadashiv Kirkere(1),which ruled that a poison to whom property was given to bo kept for a specific purpose was a trustee.
4. In this view of the case it is unnecessary to consider the other points that have been argued before us. I think the District Judge was right and we dismiss the appeal with coats.
5. I agree.