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Rajah Rajeswara Dorai Alias Muthuramalinga Sethupathi Avergal Vs. S. Ponnuswami Tevar and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1921Mad125; 61Ind.Cas.907; (1921)40MLJ52
AppellantRajah Rajeswara Dorai Alias Muthuramalinga Sethupathi Avergal
RespondentS. Ponnuswami Tevar and anr.
Cases ReferredSoar v. Ashwell
Excerpt:
.....for sale show that time was essence of contract. - the application of this rule has been discussed by lord justice bowen in his well known judgment in soar v. a constructive trust is one which arises when a stranger to a trust already constituted is held by the court to be bound in good faith and in conscience by the trust in consequence of his conduct and behaviour. that was a matter well within their powers but in this country we are bound by the provisions of section 10 of the limitation act, which though founded no doubt......and as regards trusts, have refused to allow limitation to be pleaded as regards breaches of express trusts, whilst following the analogy of the statute as regards constructive trusts. the application of this rule has been discussed by lord justice bowen in his well known judgment in soar v. ashwell (1893) 2 q.b. 390 where he distinguishes between express and constructive trusts in the following passage:an express trust can only arise between the cestuique trust and his trustee. a constructive trust is one which arises when a stranger to a trust already constituted is held by the court to be bound in good faith and in conscience by the trust in consequence of his conduct and behaviour. such conduct and behaviour the court construes as involving him in the duties and.....
Judgment:

1. This is an appeal from the Temporary Subordinate Court of Madura dismissing as barred by limitation the suit instituted in 1916, by the plaintiff, the present Rajah of Ramnad, to recover from the defendants certain payments made by the trustee of the estate under a trust created by the Rajah's father between the years 1S98 to 1902, by way of interest, on a mortgage of part of the estate created by the trustee in favour of the 1st defendant, a transaction which may be taken to have been a breach of trust by the trustee of which the 1st defendant had notice. It is said to follow that the payment by the trustee of interest on the mortgage was also a breach of trust and that the first defendant having taken these payments with knowledge of the breach of trust, the suit is not barred by limitation as it comes within the provisions of Section 10 of the Limitation Act. The learned Advocate General cited several English cases to show that the bar of limitation would not be applied in a similar case in England, but in our opinion those decisions have no application in this court. In matters of equitable jurisdiction (such as trusts) English Courts have never regarded themselves as bound by the statutes of limitation, and as regards trusts, have refused to allow limitation to be pleaded as regards breaches of express trusts, whilst following the analogy of the statute as regards constructive trusts. The application of this rule has been discussed by Lord Justice Bowen in his well known judgment in Soar v. Ashwell (1893) 2 Q.B. 390 where he distinguishes between express and constructive trusts in the following passage:

An express trust can only arise between the cestuique trust and his trustee. A constructive trust is one which arises when a stranger to a trust already constituted is held by the court to be bound in good faith and in conscience by the trust in consequence of his conduct and behaviour. Such conduct and behaviour the court construes as involving him in the duties and responsibilities of a trustee, although but for such conduct and behaviour he would be a stranger to the trust. A constructive trust is therefore, as has been said, ' a trust to be made out by circumstances' '. Here it may observed that in our own Trusts Act constructive trusts are not treated as trusts, but in a supplemental chapter as ' obligations in the nature of trusts. ' The learned Lord Justice goes on to show that the English courts have refused to apply the bar of limitation on the analogy of the statute in certain cases which appear to come within his definition of constructive trusts and this is the class of cases on which the learned Advocate General relied. That was a matter well within their powers but in this country we are bound by the provisions of Section 10 of the Limitation Act, which though founded no doubt. on the equitable rule as to express trusts already cited, does not refer in terms to express trusts except in the marginal note, but 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,' ' shall be barred by any length of time.' It is in my opinion impossible to hold that the payments which in this case were made by the trustee of the estate for interest due to the defendant as mortgagee under a mortgage of estate properly created by the trustee became vested in the mortgagee on trust specifically for the beneficiaries of the trust of which the mortgagor was trustee. That was not the intention of either party to the transaction. On the contrary the payments were made as lawful debts due to the mortgagee and at the most he could only have incurred with regard to them obligations in the nature of a trust under Chapter IX of the Indian Trusts Act. Section 10 has as already pointed no application to such a case. It has also been contended that the present plaintiff, as beneficiary under the trust deed, acquired a fresh cause of action on attaining majority. We are unable to accept this contention. The causes of action, if any, accrued to the plaintiff on-the dates of the payments and after attaining majority he was bound to sue within the time limited by Section 6. The appeal fails and is dismissed with costs.


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