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Kishtappa Chetty Vs. Lakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1923Mad578; (1923)44MLJ431
AppellantKishtappa Chetty
RespondentLakshmi Ammal
Cases ReferredSoar v. Ashwell
Excerpt:
.....not coming under article 145 come nowhere, unless indeed they can be brought within the words of article 49. article 49, if intended to cover cases like the present, is most curiously worded, for it is for suits for other specific moveable property than property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or wrongfully detaining the same; for, where goods are deposited for safe custody only and a demand is made for their return and refused, those goods become wrongfully detained and there would be a period of 30 years under article 145 and a period of 3 years under article 49; and it is not probable that the legislature intended to arrive at that result. that would clearly be a case in which the property has become..........a correct statement of the law and i think it is right to say that, wherever you have an express trust, the trustee comes under section 10 and no period of limitation avails him. what amounts to an express as opposed to a constructive trust was fully discussed in soar v. ashwell (1893) ii q.b. 390. that was a case in which a solicitor for some trustees received some of the trust monies on the terms that he was to invest them for the trust it was held that he, by those terms, became an express trustee of those monies. in my judgment, in this case the true position after the execution of ex. a. was that, when the jewellery came into the hands of the defendant, a party to that agreement, he, by his agreement, had undertaken to hold it and apply it in accordance with the terms of ex. a and.....
Judgment:

Walter Salis Schwabe, K.C., C.J.

1. This is an appeal from the City Civil Court in a suit in which the plaintiff sought to recover certain jewels or their value, and an order was made for their return or for their value, Rs. 1000.

2. The facts of the case are that the jewels in question being in the possession of the plaintiff were handed by her to the defendant on terms that he might pledge them for a short time for his own benefit and should then redeem them and return them to the plaintift. While the jewellery was still in his possession or in the possession of the pledgee with whom he had pledged them, the plaintiff and the defendant and other members of the same family, the plaintiff being the widow of a brother of the defendant, entered into an agreement, Ex. A. By that agreement the jewels in question were settled on the terms of Ex. A which was to the effect that they should be enjoyed by the plaintiff during her life without power of alienation and upon her death they should be divided between the defendant and other parties to the agreement. Within a short time of the making of that agreement the jewellery, if it was not already in the hands of the defendant, came into his hands, for he was under a duty to redeem it and there is no evidence that he did not do so. At the time that Ex. A was executed there was an express promise by the defendant that he would within ten days obtain the jewels and deal with them in accordance with Ex. A. In 1916 the plaintiff demanded from the defendant the return of the jewels and he refused. She subsequently took criminal proceedings against him but was referred by the Criminal Court to the Civil Court, and in 1921 she brought this suit. She alleged that she had discovered in 1917 that the defendant had sold the jewels in 1912. The defendant denied that he did sell the jewels in 1912 or at any time and there has been no finding of fact as to whether he has or has not sold them.

3. The learned Judge has held that the suit is not barred by limitation because Section 10 of the Limitation Act applies and that the defendant is a trustee for the plaintiff. It is contended before us that Section 10 has no application and that the case is governed by Article 49 and is, therefore, barred because the suit was not brought in three years after the demand and refusal referred to above. Section 10 applies only to 'suits against persons in whom property has become vested in trust for any specific purpose.'It has been held in Bhurabhai v. Luxmani I.L.R.(1908) 32 Bom. 394 that the phrase 'trust for a specific purpose' in this section is merely a more expanded mode of expressing the same idea as that conveyed by the expression 'express trust 'in English Law: and it is used in this section in contra-distinction to 'trusts arising by implication of law, trusts resulting and trusts constructive. 'In my judgment, that is a correct statement of the law and I think it is right to say that, wherever you have an express trust, the trustee comes under Section 10 and no period of limitation avails him. What amounts to an express as opposed to a constructive trust was fully discussed in Soar v. Ashwell (1893) II Q.B. 390. That was a case in which a solicitor for some trustees received some of the trust monies on the terms that he was to invest them for the trust It was held that he, by those terms, became an express trustee of those monies. In my judgment, in this case the true position after the execution of Ex. A. was that, when the jewellery came into the hands of the defendant, a party to that agreement, he, by his agreement, had undertaken to hold it and apply it in accordance with the terms of Ex. A and was thereby constituted an express trustee in whom the property was vested for that purpose. I do not think that the word 'vested' in Section 10 means anything more than properly having control of the property. The jewellery was accordingly held by him from that time forward on terms that he should hand it over to the plaintiff, if alive, or, if dead, should hand it over to himself and Ors. entitled to it in reversion. I, there fore, agree with the decision of the learned Judge of the City Civil Court. I agree with the decision of the majority in Administrator General of Bengal v. Kristo Kamini Dasee I.L.R. (1904) C. 19, which supports this view.

4. I wish, however, to deal also with the other point, namely, whether, assuming that there is no trust, the case is governed by Article 145 or by some other and what Article of the Schedule to the Limitation Act. For this purpose one has to consider the terms on which the defendant originally got the jewellery into his possession. The terms were that he might use the jewellery for his own benefit by pledging it and, if not so required, if and when redeemed he should hand it over to the plaintiff. Article 145 refers to suits against depositaries or pawnees to recover moveable property deposited or pawned; the period of limitation is 30 years from the date of the deposit or pawn. It is argued that the word 'deposit' there must be confined to the strict meaning of 'depositum' in Roman Law and there is some authority in support of that view. There is a judgment to that effect of Sadasiva Aiyar J. in Narayana-szvami Thevar v. Aiyasamy lyengar (1912) 24 M.L.J. 184, where it was unnecessary for the decision, and of the Bench in Gopalasami Ayyar v. Subramania Sastri I.L.R. (1911) M. 636, where, as the Court was holding that the time had not expired, it was also unnecessary for the decision. There is also the dissenting judgment of Hill J. in Administrator General of Bengal v. Kris to Kamini Dassee I.L.R. (1904) C. 19. Looked at from the point of view of Roman Law, I do not think that the handing over of the property in this case by the plaintiff to the defendant was a depositum. I think it is more in the nature of commodalium. There are six kinds of bailment refered to in Roman Law and set out in detail in the famous judgment of Holt C.J. in Coggs v. Bernard (1703) I Smiths Lading Cases 173, 191. But the Indian Limitation Act was meant to provide a simple guide to cover every possible case that might come before courts in India. It is obvious that the intention was to merely have to look up the particular suit and you would find the answer in the First Schedule. The results, it is true are not very happy, but I cannot believe that it was the intention of the framers of that Statute that the various District Munsiffs throughout India or other Subordinate Judges who have to administer the law should have to study either Coggs v. Bernard or the Roman Law in order to ascertain what was the true meaning of Article 145. I think they meant to use simple and plain language and they used the word depositary; and, in using that word, they meant simply to say that, where one man's property was handed by that man to another, he became a depositary of it, unless, of course, there was something in the terms of the handing over which would prevent his being treated as a person with whom it was deposited at all. It is almost impossible that, when they were making a period of 30 years applicable to cases of goods handed over either for safe custody or in pledge, they should have intentionally made a shorter period for cases of goods handed over for the advantage of the person to whom they were handed. It would be most illogical to* allow a shorter period in the case where the 'depositee', if I may use the word, gets the advantage than is allowed in the case where the depositee is merely doing something for the advantage of the depositor, and it is to be observed that cases not coming under Article 145 come nowhere, unless indeed they can be brought within the words of Article 49. Article 49, if intended to cover cases like the present, is most curiously worded, for it is for suits for other specific moveable property than property lost or acquired by theft or dishonest misappropriation or conversion or for compensation for wrongfully taking or wrongfully detaining the same; and the period of limitation is 3 years from the time when the property is wrongfully taken or injured or when the detainer's possession becomes unlawful. It seems to me that an entirely different class of suits is being dealt with-not suits for recovery of property deposited with another but suits in respect of property wrongfully taken or wrongfully detained. It is to be observed that, if this is not so, there would be two different periods allowed in respect of goods deposited strictly so called; for, where goods are deposited for safe custody only and a demand is made for their return and refused, those goods become wrongfully detained and there would be a period of 30 years under Article 145 and a period of 3 years under Article 49; and it is not probable that the legislature intended to arrive at that result. I think that that is an argument in favour of the view that Article 49 is not dealing with articles deposited in any sense and it would follow that it is an argument in favour of holding that Article 145 covers more than the depositum of Roman Law. In my judgment, if this case were not covered by Section 10, it would be covered by Article 145, and if it is not covered by Art, 145, it is not provided for at all and would, therefore, be covered by Article 120, and the suit is in time. For these reasons, in my judgment, this appeal must be dismissed with costs.

Wallace, J.

5. I agree that Section 10 of the Indian Limitation Act applies and it is sufficient to dispose of this case.

6. This is in effect a suit by a widow for property in which she has a. life-interest under a deed of maintenance executed by all the members of the joint family property withheld from her by the manager of the joint family. Whatever were the terms by which the defendant originally came into possession of the jewels, he, whenever he subscribed to Ex. A which declared that the jewels were to be the property of the plaintiff for her life-time and then promised, as was found in the judgment in the previous case, O.S. No. 427 of 1919 on the file of the lower Court, to return them to her within ten days evidently then either having, them himself in his possession or being able to obtain them within that period, constituted himself, so long as he held them and did not return them to her, a trustee of them on her behalf. And having regard to his definite promise to return them, he held them in trust for a specific purpose; while from his promise and the terms of Ex. A it seems to me clear that the jewels were considered then to be in the possession of the 1st defendant and, therefore, vested in him. I see no difference in his position from that of a managing member of a joint family, who is withholding from a widow in the family entitled to maintenance property which that widow on the arrangement of the joint family itself is entitled to have in her own possession and which the manager is bound at her request to hand over to her for her life-time. That would clearly be a case in which the property has become vested in the manager for a specific purpose, as soon as he continued to hold it after the family arrangement came into force, and where the manager would be in the fiduciary relationship from that time and would be bound to hold the property for her as directed by her. In this view, the defendant is at the very least a trustee de son tort, if that expression may be used, and is certainly an express trustee in English Law as laid down in Soar v. Ashwell (1893) 2 Q.B. 390 . It seems to me further clear, as indicated above, that the property was, on the date of Ex. A, vested in the defendant for a specific purpose.

7. I, therefore, agree that Section 10 applies in terms and that the appeal must be dismissed with costs.


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