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Behari Lal Vs. Shiva NaraIn and ors. and - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in84Ind.Cas.631
AppellantBehari Lal
RespondentShiva NaraIn and ors. And; Badri Prasad and anr.
Cases ReferredDhanpat Singh Kuthory v. Mohesh Nath Tewari
Excerpt:
civil procedure code (act v of 1908), section 92 - limitation act (ix of 1908), section 10, schedule i, article 120--trust--scheme suit--suit, whether maintainable against trustee de son tort--heirs of testator, liability of--limitation. - - three years later, in 1914, badri prasad applied for perfect partition of his shar,e behari lal objected and he said that he was in possession of one-half of the property for the administration of charities and that it was the other half of the property that had been divided among the parties in the ratio of 2 to 1. it seems that, he was in possession as a lambardar. he contended that, in this view of the compromise, the applicant had not got a sufficiently large area to allow of a perfect partition being effected. 5 as well. what possible light.....mukerji, j.1. these two appeals arise out of the same suit, no. 1 of 1920, instituted in the court of the district judge of farrukhabad under section 92 of the c.p.c.2. one narain das was the owner of a large property, consisting of zemindaris, bonds, moveables, etc. these were all his self-acquired properties. he executed a will on the 11th of september 1901 the effect of which will have to be considered in greater detail later on. suffice it to say for the present that, thereby, he gave one-half of the property to his wife absolutely and he directed that the income from the other half should be spent on certain charities connected with the arya samaj religious rites and education of boys and girls. he had a wife's brother in behari lal, the appellant in appeal no. 131 of 1921. he.....
Judgment:

Mukerji, J.

1. These two appeals arise out of the same suit, No. 1 of 1920, instituted in the Court of the District Judge of Farrukhabad under Section 92 of the C.P.C.

2. One Narain Das was the owner of a large property, consisting of zemindaris, bonds, moveables, etc. These were all his self-acquired properties. He executed a Will on the 11th of September 1901 the effect of which will have to be considered in greater detail later on. Suffice it to say for the present that, thereby, he gave one-half of the property to his wife absolutely and he directed that the income from the other half should be spent on certain charities connected with the Arya Samaj religious rites and education of boys and girls. He had a wife's brother in Behari Lal, the appellant in Appeal No. 131 of 1921. He directed by the Will that Behari Lal should manage the property and render accounts to his wife. He also desired that a party of five gentlemen, including Behari Lal himself, should form an advisory board for the carrying out of these charities. Narain Das died soon after the execution of the Will. His wife Musammat Chironja died on the 20th of June 1903. Their daughter Musammat Shushila died on the 19th of April 1907. Narain Das had a brother Parmanand,. whose sons Badri Prasad and Lakhmi Chand are the appellants in the connected Appeal No. 204 of 1921. On the death of Musammat Chironja, Behari Lal applied for the issue of a Probate of the Will of Narain Das and in spite of objections filed on behalf of Narain Das's daughter and his nephews Badri Prasad and Lakhmi Chand, by order dated the 14th of August 1903, a Probate was issued. On the death of Musammat Shushila, a suit was instituted by Badri Prasad and Lakhmi Chand in the Court of the Subordinate Judge for recovery of the entire property of Narain Das against Behari Lal. They claimed as the lawful heirs of Musammat Chironja and Narain Das. The half share given to Musammat Chironja was claimed by way of defence by Behari Lal on the allegation that Musammat Chironja had not been married in one of the approved forms and, therefore, the property, being her stridhan, went to the heirs of her father and, therefore, to Behari Lal himself. The suit was, however, csmpromised on the 16th of April 1908 and it was agreed that Badri Prasad and Lakhmi Chand should pay to Behari Lal a sum of Rs. 6,000 and Behari Lal should hand over the property to the then plaintiffs and the plaintiffs should maintain the charities. We, however, find that subsequently this compromise was not carried out and a further suit was brought by Badri Prasad and Lakhmi Chand on the.21st of April 1910 against Behari Lal for recovery of possession of the property of Narain Das. There was again a compromise on the 8th of February 1911. The property was divided between the parties 2/3rd going to Badri Prasad and his brother and 1/3rd to Behari Lai. It was also agreed 'that the properties divided, between the parties should continue to be liable for the payment of certain specified debts and such other liabilities to which they might be subject. Mutation of names followed this compromise and parties were recorded as in possession of their respective shares under the compromise. Three years later, in 1914, Badri Prasad applied for perfect partition of his shar,e Behari Lal objected and he said that he was in possession of one-half of the property for the administration of charities and that it was the other half of the property that had been divided among the parties in the ratio of 2 to 1. It seems that, he was in possession as a lambardar. He contended that, in this view of the compromise, the applicant had not got a sufficiently large area to allow of a perfect partition being effected. The Deputy Collector conducting the partition held that the objection did not raise any question of title such as had not already been settled between the parties by a decree of a competent Court and he dismissed Behari Lal's objection. An appeal was filed by Behari Lal to the Court of the District Judge and to the High Court and the appeals were dismissed. The High Court in their judgment (at p. 175 of the printed record) dated the 12th of April 1917, made certain remarks which will be noticed later on. Three years after the High Court had decided the case, the suit, out of which this appeal has arisen, was instituted by three Hindus, being members of the Arya Samaj of Farrukhabad, with the permission of the Lagal Remembrancer claiming the administration of the property which they alleged had been endowed by Narain Das by his Will.

2. Several defences were separately, taken, by Behari Lal and by Badri Prasad and his brother. The suit has been decreed by the learned District Judge and he held that as to half the property of Narain Das, Badri Prasad and Lakhmi Chand should have it and they should disgorge 1/6th out of the 2/3rd share taken by them and Behari Lal should give up his entire 1/3rd share received by him under the compromise. The learned Judge also directed accounts to be taken. He also directed that such properties as had been acquired out of the property of Narain Das should also be given up by the defendants. Hence the appeals.

3. On behalf of Behari Lal, it has been urged that he should not be called upon to give up the entire 1/3rd share taken by him, but he should give up only 1/6th share. He also contends that the suit for accounts was barred by three years rule of limitation. The point was also taken that in the circumstances of the case the appellant was not liable to be removed from the trusteeship. But this last mentioned point was not seriously pressed. On behalf of Badri Prasad and Lakhmi Chand, the argument was that the lower Court was right in calling upon Behari Lal to give up the entire property that had fallen into his share under the compromise decree, that they were mere trespassers and the suit was not maintainable against them and lastly the suit was barred by limitation against them. It was also urged that the liabilities of the several defendants should be separated.

4. It will be noticed that some of the points urged on behalf of Badri Prasad and his brother were not taken in the memorandum of appeal. But as the points were those of law they were allowed to be urged.

5. The points for determination, therefore, in these appeals are:

(1) Whether the suit against Badri Prasad and Lakhmi Chand is maintainable?

(2) Whether Behari Lal should give up the entire 1/3rd property or he should give up only half of J-rd, that is 1/6th?

(3) What is the position in law of Behari Lal?

(4) Whether the claim for accounts is barred by time as against him?

(5) What is the position of Badri Prasad and Lakhmi Chand and whether the suit for accounts is barred against them?

(6) Whether the liabilities of the several defendants should be separated, if so, What are the liabilities of the defendants?

5. Point No. 1-It is urged, that Badri Prasad and Lakhmi Chand were mere trespassers, so far as the endowed property, went and the suit against them under; Section 92 of the C.P.C, was not maintainable. There are two answers to this argument: First, they are, on their own showing and, on subsequent admission, of Behari Lal, the heirs of Narain Das and they are there fore, the heirs of the founder of the trust. In this capacity they are themselves express trustees since the death of Musammat, Shushila, which occurred on the 19th of, April 1907. Under the Will which is printed at p. 59 of the record half the property was given to the wife Musammat Chironja and as to the other half it was dedicated to certain charities. It was mentioned that, only the income from half the property would be devoted towards the expenditure for the maintenance of charities and the: corpus of the property, the subject-matter, of the endowment should remain in the charge and custody of the wife and after, her death, in the charge and custody of such person as might receive the property from the wife, Musammat Chironja Musammat Chironja did not execute any Will or gift and did not nominate any successor to her for the purpose of holding the trust property. According to established principles, therefore, the persons who were the heirs of the creator of trust became the, n party entitled to administer it. In this view Badri Prasad and Lakhmi Chand, became the express trustees and they were bound to administer the trust. Indeed, under the compromise of 1907 printed at p., 113 of the record these men took upon themselves the charge and custody of the property impressed with the charities. They are, therefore, liable as trustees and the suit against them is a proper one.

6. Further, these men, namely, Badri Prasad and Lakhmi Chand even if they were not trustees as heirs of the founder of the trust, they took upon themselves the duties of the discharge of the trust and became liable as trustees de son tort. As I have already stated, they took upon themselves the duties of trustees in express terms by the compromise of the. 16th of April 1908, (p. 113). In the subsequent compromise no mention of the trust was made, but it was expressly stated that the property in the hand of both the parties would continue to be liable for such charges for which they might be reasonably liable. The compromise is printed at p. 155 of the record. The 'charges' besides those of the debts, could only mean the charges attributable to the endowment.

7. I hold that the defendants are liable as trustees and the suit is rightly maintained against them.

8. This finding disposes of the Issue No. 5 as well.

9. The defendants, Badri Prasad and Lakhmi Chand, are express trustees and the suit against them is maintainable under Section 10 of the Limitation Act without being barred by any length of time.

10. Points Nos. 2 and 3.-Behari Lal admitted in para. 2 of the written statement filed in the suit (see p. 14) that Badri Prasad and Lakhmi Chand were the reversioners to the estate of Narain Das and his wife. He has no right to the property as an heir although he laid a claim to it during the litigation of 1907. His title to the property is only what he gets by the compromise of 1911. Although Behari Lal was directed by the Will to manage the property, he was given no position as a trustee and the trust property never vested in him. He was to keep an account and render it to his wife. It is true that either as one of the members of the committee or as the manager of the property Behari Lal took upon himself the position and duties of a trustee. But he, thereby, became only a trustee de son tort and that is his position under the law. I find accordingly.

11. Before leaving this issue I may point out that in the judgment of the High Court in the partition case, Behari Lal was described as the trustee of the 1/3rd property given to him. That was a statement contrary to the evidence adduced in this case and the remarks of the High Court have not the effect of res judicata. They had no bearing on the case. That being the case, Behari Lal is entitled to retain half of rd which he got by the compromise. There seems to be no reason why he should give up the entire 1/3rd share while the other defendants Badri Prasad and his brother should keep half and give 1/6th only. I find that Behari Lal is liable to give up only 1/6th share and his position is that of a trustee de son tort.

12. Point No. 4. Behari Lal being a trustee de son tort, to a suit for accounts against him, Section 10 of the Limitation Act will not apply for it applies to cases of express trust. The Madras High Court in the cases reported in Rajeswara Dorai v. Ponnusami Tevar 61 Ind. Cas. 907 : 44 M. 277 : 13 L.W. 56 : 40 M.L.J. 52 : (1921) M.W.N. 37 : 29 M.L.T. 101, and Krishnan Palter v. Lakshmi 66 Ind. Cas. 858 : 45 M,. 415 : 42 M.L.J. 119 : 30 M.L.T. 238 : (1922) A.I.R. (M) 57 : 16 L.W. 886, appear to have taken the same view as myself. A contrary opinion was expressed by the Calcutta High Court in Dhanpat Singh Kuthory v Mohesh Nath Tewari 57 Ind. Cas. 805 : 24 C.W.N. 752, but no reasons were given. There can be no question about the liability of Behari Lal. The only question is what rule of limitation would be applicable. The learned Counsel appearing for him could not point out any appropriate Article. The result is that Article 120 would apply and Behari Lal must render accounts of the properties received by him for the period of six years prior to the suit.

13. Point No. 6. The liabilities of the defendants should be separated simply because they did not act anywhere in concert except for depriving the charities of their source of income. I have already stated that Behari Lal is responsible to render accounts for only six years prior to the suit. The suit was instituted on the 9th of April 1920 and Behari Lal must render accounts from the 9th of April 1914. The property which was in his hands on or subsequent to this date must be accounted for and the income from these properties must also be accounted for. It is to be mentioned that after the compromise dated the 8th of February 1911 Behari Lal had in his possession only 1/3rd of the immoveable property.

14. As regards Badri Prasad and his brother, they became the heirs to the property on the death of Musammat Shushila, that is 19th of April 1907. Any property that came into their hands on or after this date must be accounted for.

15. The result is that I would, modify the decree of the Court below as indicated above. The learned Judge's order in other respects must stand.

Dalai, J.

16. These are two appeals from different sets of defendants in a decree passed by the learned District Judge of Farrukhabad in a suit under Section 92 of the C.P.C. The plaintiffs were the President, Treasurer and a member of the Arya Samaj in City Farrukhabad and desired certain directions of the Judge to remove trustees, to appoint other trustees, to obtain from the defendants details and particulars relating to the trust property and to obtain accounts from the defendants. It was further prayed that a scheme relating to the trust property may be prepared and an order for the purpose of enforcement of the trust may be passed. The defendants were represented to be trustees of the property in suit under the Will of one Narain Das. The learned Judge ordered the removal of the defendants from the position of trustees of half the property of Lala Narain Das and directed that the defendant Behari Lal shall make over possession of the entire one-third property in his possession and the defendants Badri Prasad and Lakhmi Chand of 1/6th out of the 1/3rd in their possession. He further appointed the President and Treasurer of the Arya Samaj, Farrukhabad to be ex officio trustees of half the property. The property covered both zemindari and moveable property of every kind. The defendants were directed to give details of the property making up the trust and to furnish an account; they were further directed to pay to the new trustees the arrears of net income of the trust property with simple interest at 6 per cent per annum from the end of each year in which the income accrued till the date of payment. The three defendants were held to be jointly and severally liable to pay these arrears of income. Though it was not specifically mentioned from what date the accounts were to be rendered. It appears from the Judge's reference to the period of limitation that there was none and that accounts were to be rendered from the date of the death of Narain Das. A scheme of management was laid down with which we are not concerned in these appeals.

17. The decree, therefore, amounted to a decree for possession of zemindari properties and a preliminary decree for accounts and for a determination of what may be found due on account of arrears of profits and of moveable property and cash.

18. The facts giving rise to the litigation may be summarised. The following pedigree shows the relationship of defendants Nos. 1 and 2 to Narian Das:

______________________________________

| |

Narain Das Parmanand

| ___________|____

Musammat Chironja, | |

(widow) Badri Prasad Lakhmi Chand

| (defendant (defendant

Musammat Shushiia. No. 1) No. 2.)

19. Defendants Nos. land 2 are Narain Das brother's sons. Defendant No. 3 Behari Lal is brother of Musammat Chironja, wife of Narain Das. We shall examine the terms of the Will of 11th September 1901 when we come to determine the nature of the possession of the different defendants. For the present it is sufficient to say that Narain Das made a trust of half his property for charitable purposes connected with the Arya Samaj. He left half his estate absolutely to Milsammat Chironja as he was entitled to do, being a separated Hindu. On his death his widow, Musammat Chironja, took possession of the property. Narain Das died in November 1901 and his widow on 28th, June 1903 intestate. Behari Lal then applied for Probate of the Will as executor appointed by the Will and Probate was granted to him on 20th July 1903, (p. 73 of the record). The daughter and the officials of the Arya Samaj objected, but their objection was dismissed and the order granting Probate was upheld by this Court (p. 175). Musammat Shushiia died on 19th April 1907. On 7th October 1907 Badri Prasad and Lakhmi Chand filed a suit against Behari Lal for recovery of the entire estate of Narain Das (plaint p. 99). In the plaint they mentioned the. Will of Narain Das in para 3. In his written statement (p. Ill) Behari Lal pointed out that Narain Das had made a charitable trust of half his estate. He contested the claim of Badri Prasad and Lakhmi Chand to succeed to the property of Narain Das. That point is immaterial here. The suit was compromised on 16th April 1908 (p. 113.)

20. Under the compromise the plaintiffs of that suit were declared to be owners of the entire property but liable to pay Rs. 6,000 to Behari Lal. They did not ask for further accounts from Behari Lal and it was further agreed:

That portion of the property which has been dedicated to religious objects under the Will shall remain in the charge and custody of the plaintiffs who shall act upon the directions given in the Will.

21. Behari Lal and Lakhmi Chand then obtained a succession certificate from the District Court (pp. 125 and 129)and recovered some of the moveable properties. Behari Lal however did not make over the zemindari property, so another suit was brought by them on 21st April 1910 for the zemindari property and some other property. In the plaint of tfua suit also (p. 137) the Will executed by Narain Das is mentioned in para. 8. In his written statement (p 147) Behari Lal contended that a suit regarding endowed property should have been instituted in the Court of the District Judge. It is clear that in this suit also the trust was brought into issue. This suit was also compromised on 8th February 1911 (p. 155). The terms important for the purposes of these appeals are the first two:

(1) The claim was decreed in favour of the plaintiffs in respect of and was to be dismissed in respect of 2/3rd which was to remain with the defendant. The plaintiffs were to obtain mutation of names of the Zemindari property to the extent of 2/3rd.

(2) The plaintiffs and the property were to remain liable for the debts specified in the compromise and also far other charges on the property in dispute to the extent of 1/3rd and the defendant and his property was to be liable for the same to the extent of 1/3rd. The whole was thus to be liable for the said debts and other charges.

22. These terms indicate that as regards the trust Badri Prasad and Lakhmi Ghand rendered themselves liable to the extent of frd and Belrari Lal to the extent of 1/3rd. Mutation of names was obtained accordingly.

23. On 25th June 1914 Badri Prasad applied to the Revenue Court for a partition of his frd, share. Behari Lal objected on the ground that the applicant was in possession not of 1/3rd but of 1/6th of the property under the compromise of 8th February 1911, because the compromise related only to half the property, the other half being trust property in the custody of Behari Lal. If this were the case Badri Prasad would not possess a sufficiently large area of land to obtain a partition. The objection was dismissed by the Revenue Court and also by the District Judge. On appeal by Behari Lal this order of the District Judge was confirmed by this Court on 12th Aprill 1917. In this judgment occurs the following observations of a Bench of this Court:

It seems that the appellant has undoubtedly been guilty of a breach of trust so far as the Arya Samaj is concerned, but there can be also no doubt that he entered into that compromise as representing the Arya Samaj or rather the interest which they had obtained under the Will. What possible light the appellant, could have to any portion of the estate except in his capacity, as trustee or quasi trustee for the Arya Samaj, we fail to see. It seems quite clear that any part of the property which the appellant holds is held by him as trustee and that he is liable. to account for the same.

24. After the partition the present suit was instituted on behalf of the Arya Samaj on 9th April 1920.

25. In these appeals the learned Counsel for Behari Lal pressed only half heartedly that his client should be appointed trustee of the charities. On behalf of Badri Prasad and Lakhmi Chand also a plea for their appointment was not pressed here. So far as these appeals are concerned it may betaken as conceded that the plaintiffs were entitled to sue and that they were fit persons to be appointed trustees.

26. The questions at issue are (1) what is the share of the property which the two sets of defendants must severally make over to the new trustees to make up half the property of Narain Das and (2) how far the several defendants are liable to render accounts and from what years.

27. We think that the learned Judge was not correct in holding that Behari Lal held the entire 1/3rd share as trustee either express or by his own wrong. In the first compromise the trust was specifically mentioned and Badri Prasad and Lakhmi Chand undertook to manage it and to spend the profits of half the property to carry out the objects mentioned in the Will. To avoid litigation they undertook to pay Rs. 6,000 to Behari Lal. In the second compromise the trust was not specifically mentioned but it was definitely stated that Badri Prasad and Lakhmi Chand were liable for debts and other charges to the extent of their 2/3rd share. The other charges can mean nothing else than the trust charges.

28. It was not likely that Behari Lal who insisted on the payment of Rs. 6,000 under the first compromise and refused to make over the property on non-receipt of that money would consent to give over the property to Badri Prasad and Lakhmi Ghand without getting anything for himself. If he wanted to keep the trust property he would have kept half the property and not 1/3rd.

29. It is clear to us that under the compromise of 8th February 1911 Badri Prasad and Lakhmi Chand consented to make over 8th, of the property free from trust to Behari Lal. They are bound by the decree of 8th February 1911 and cannot go behind it. Much stress was laid by their Counsel on the observations already quoted of this Court in the Bench judgment of 12th April 1917.

30. In our opinion those observations did not arise on the issues which were before this Court for decision. The question for decision here was whether Badri Prasad and Lakhmi Chand had received frd of the whole property or 2/3rd of the half under the compromise of 1911. The question of the trust was not before it, because the Arya Samaj officials were not parties. It was merely an opinion of this Court that Behari Lal entered into the compromise as representing the Arya Samaj. There was no such plea on behalf of Badri Prasad and Lakhmi Chand in the partition suit. On the contrary Badri Prasad in his partition application made no mention whatsoever of the trust.

31. We are of opinion that the observations in the judgment of this Court of 12th April 1917 are not binding by way of res judicata, We hold that Behari Lal is liable to make over 1/6th of the entire property of Narain Das and, Badri Prasad and Lakhmi Chand frd to make up the property decreed to the plaintiffs.

32. We must now come to the terms of the Will in order to decide the question relating to the accounts. In the Will Narain Das has made the following specific directions about his property:

My wife is the owner of a moiety of the property and cash including the outstanding debts amounting to Rs. 50,000, while the other moiety i. e, Rs. 25,000 should be spent for the under-mentioned religious objects with the advice and sanction of a Sabha of five members whose names are given below. (Behari Lal is one of the five members).

33. Then he describes how the trust should be carried out. The words are:

The principal amount should not be spent for the religious objects, only the profits should be utilised. As long as my wife is alive, she is the absolute owner of her moiety share; towards the close of her life she has power to give in consultation with her brother Lala Behari Lal, her property to her daughter or for such religious objects as she chooses. The moiety share of my property which I have dedicated for religious objects shall remain in the charge and custody of my wife and after her death the person to whom she gives her own property shall have the same power as she had My wife or her successor shall not have power to spend anything out of the property dedicated by me for religious objects without the advice and sanction of the Sabha.

34. He then describes what the religious objects are and gives the names of the members of the Sabha and a list of religious objects according to him. A consideration of these clauses of the Will is not necessary here.

35. Finally Behari Lal is appointed manager to manage the property after his death. He is directed to manage honestly, without oppressing any one and to render accounts to his wife.

36. The question then is who are the express trustees under the Will. It was argued strenuously on behalf of Badri Prasad and Lakhmi Chand that they were mere trespassers and a suit under Section 92 did not lie against them. It was suggested that they should be removed from the array of defendants and the plaintiffs after they were appointed trustees should bring a separate suit against Badri Prasad and Lakhmi Chand for recovery of possession from the trespassers.

37. In our opinion these defendants are express trustees. They are certainly not trespassers. Under the compromise, of 19,11 they took over the property burdened by the trust to the extent of 2/3rd, so at the very least they would be trustees de son tort. It was held by this Court in Ham Bilas v. Nitya Nand 69 Ind. Cas. 990 : 21 A.L.J. 105 : 44 A. 652 : (1922) A.I.R. (A.) 542, that a suit under Section 92 of the C.P.C. did lie against such persons.

38. We are of opinion, however, that Badri Prasad and Lakhmi Chand are express trustees. Behari Lal was appointed manager but not trustee. He was directed to render accounts to the testator's wife after the testator's death. The Sabha was only to give advice as to the disposal of the profits and was not put in possession of the corpus of the trust property. The person placed in possession of the trust property was the testator's widow, The words are definite and may be repeated.

The moiety share of my property which I have dedicated for religious objects shall remain in the charge and custody of my wife, and after her death, the person to whom she gives her own property shall have the same power as she had.

39. Obviously then the successor-in-interest to the property unburdened with the trust was the trustee of the other half of the property. Badri Prasad and Lakhmi Chand are successors-in-interest and are, therefore, trustees of half the property which Was burdened with the trust. They have now rightly been removed by the order of the lower Court, but until they were removed they were express trustees. No period of limitation bars a claim for accounts, profits and recovery of moveable properties from them. They are, therefore, liable to render accounts of every class of property from the time when they came into possession thereof. They will be liable to refund to the plaintiffs to the extent of 1/2 of what they received, because they received 2/3rd and are liable to give back 1/3rd to the plaintiffs, Accounts shall be taken from them on that footing.

40. Behari Lal was not an express trustee under the Will but he acted throughout as trustee and there can be no doubt of his being a trustee de son tort. He was rightly made a party in the present suit.

41. Unfortunately, however, Section 10 of the Limitation Act does not appear to apply to any one other than an express trustee. A Bench of the Madras High Court held in Krishnan Patter v. Lakshmi 66 Ind. Cas. 858 : 45 M. 415 : 42 M.L.J. 119 : 30 M.L.T. 238 : (1922) A.I.R. (M.) 57 : 16 L.W. 886 that only an express trustee came within the meaning of Section 10 of the Limitation Act. The learned Judges in that case were not called upon to decide whether the three years rule or the six years rule of limitation applied to a suit brought against a person who was neither a trustee nor a trespasser. It will be necessary for us to decide that point. On behalf of the plaintiffs-respondents was quoted the Calcutta case of Dhanpat Singh Kuthory v. Mohesh Nath Tewari 57 Ind. Cas. 805 : 24 C.W.N. 752, where Section 10 was held to be applicable to a trustee de son tort. The learned Judges have given no reasons for their opinion in that case and we agree with the Madras opinion.

42. It was argued on behalf of Behari LaL that the period of limitation applicable was one under Article 109 of three years. That Article relates to profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant. In the present case however, the property did not belong to the plaintiffs nor can it be said that the defendant who put himself forward, as a trustee received the profits wrongfully. We are of opinion that the general Article of limitation, Article 120 will apply here. Behari LaL must, therefore, render accounts from 9th April 1914, six years prior to the institution of the suit and give restitution of ail monies of whatever, kind received by him from that period to the extent of one-half.

43. We think we have dealt with all the grounds of appeal in both the appeals. As to Appeal No. 131 Behari LaL succeeds on 1st, 2nd and 4th grounds of appeal. The third ground of appeal was not argued. The 5th was not pressed and we have, dealt with the 6th and 7th as regards accounts and the period from which they should be taken from Behari LaL. The 8th ground of appeal is only argumentative.

44. Turning to Appeal No. 204 the appeal was not argued in accordance with the grounds of appeal. We put it to the learned Counsel, Dr. Sen and he agreed that his grounds were that Badri Prasad and Lakhmi Chand were trespassers and should be discharged from this suit, that failing that they were trustees de sore tort and should not be called upon to render account, beyond three years prior to the suit or at the worst six years. We have dealt with those contentions. We questioned Dr. Sen and he said that his clients had no desire to appointed trustees. As to the ground of Appeal No. 6 we shall separately specify in the decree the liability of the two sets of defendants.

By the Court.

45. In the result we amend the lower Court's decree as to property and direct that the plaintiff shall recover |th of the entire property from Behari Lal and 1/3rd from Badri Prasad and Lakhmi Chand. As to zemindari property there is no difficulty as to limitation. As regards other property Badri Prasad and Lakhmi Chand shall restore half of whatever property of Narain Das they received, while Behari Lal shall restore whatever property other than landed property he received on and after 9th April 191,4. As regards profits Badri Prasad and Lakhmi Chand shall refund half of all the profits received by them, while Behari Lal shall refund half or what he received on and. after 9th April 1914. Accounts shall be made up on that footing. The decree of the lower Court as regards the scheme of management and. the directions to defendants to give details of the property bequeathed are maintained and also the order as regards interest at 6 per cent, per annum.

46. In this Court parties shall bear their own costs. Behari Lal has made a good business out of the trust on account of the bar of limitation, so we will not allow him costs here. The same decree shall be passed in Appeal No. 204.


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