1. The question we have to decide is one of limitation and it is not quite simple. The 1st appellant was in 1893 appointed by the District Judge as trustee or manager of an endowed mosque during the minority of the defendants, an expression which has been in a former suit held to imply the termination of his trusteeship on the date on which the eldest of the defendants attained the age of majority. That date was the 27th February 1900. The 1st defendant thereafter sued to recover possession from the appellant and obtained a decree on the 26th of April 1902, and it is conceded that, though the appellant did not actually surrender possession before 1905, we may take the date of the decree as the latest date on which he can be held to have had a right to retain possession.
2. The appellant's contention is that he has a period of limitation of 12 years under article 132 or at the least a period of 6 years under Article 120 of the 2nd Schedule of the Limitation Act within which to bring his suit for the recovery of sums advanced by him to the trust of which he was trustee and not recovered by him before he lost possession. The merits of his claim have not so far been investigated and we may assume, without deciding, that some of the advances were made before February 1900, and that among those advances were some which the trustee might properly recover from the trust property. Advances made after February 1900 may possibly also be recoverable, if made for proper purposes, and I do not wish to decide more than that the expenses of the suit of 1901 in which the plaintiff unsuccessfully resisted the 1st defendant's claim to be trustee, cannot be allowed as a proper charge on the trust property.
3. For the respondents the contention before us is that article 120 is the appropriate article as held by the Privy Council in Peary Mohan Mukerjee v. Narendra Nath Muherjee (1909) 37 I.A. 27; 30 M.L.J. 171 a similar case, and the starting point is the 27th February 1900, the date on which the minority of the 1st defendant terminated and with it the trusteeship of the 1st appellant. The Subordinate Judge has suggested the application of other articles not now relied on by either side and has held that, if article 120 be applicable, the contention now advanced on behalf of the respondents must prevail.
4. I may here observe that the appellants do not now rely on the acknowledgment, Exhibit F. nor on the agreement, Exhibit G. Exhibit F, it is conceded, did not bind all the defendants, and, as the 4th defendant was a minor at the date of the trial and the agreement Exhibit G was not sanctioned by the Court, it was open to the parties to resile from it.
5. The only question therefore is the question of limitation. The Trusts Act does not apply to the case, but the Privy Council have held in the case of a public trust that the trustee has a first charge on the property for the purpose of reimbursing himself advances properly made. It is argued therefore that a suit to enforce payment of the money charged would be governed by article 132, and taking the date of the advance as the date on which the money is due, the charge could be enforced in the present case in respect of all proper advances made within 12 years of the 24th January 1908.
6. But the difficulty in applying article 132 in this way is that there would be no one to be sued when the money became due. There is no beneficiary who could be sued by the trustee in possession, and the trustee could not sue himself. ' Due' must therefore mean payable by some one else to the trustee, if article 132 is to be applied, and limitation would start from the time when the trustee ceased to be able to pay himself. But this interpretation of 'due' is open to the objection that the money advanced is recoverable by the trustee as soon as he can get it, and he cannot, properly speaking recover it before it is ' due.'
7. I doubt therefore whether article 132 can properly be applied to a case where a man lends money out of his own pocket to himself as trustee of a religious institution on the security of the trust property, and I think it safer to follow their Lordships of the Privy Council in Peary Mohan Mukerji v. Narendra Nath Mukerji (1909) 37 I.A. 27; 20 M.L.J. 171 and to hold that the appropriate article is article 120.
8. Applying that article we have to determine the date on which the right to sue accrued. Was it the 27th February 1900 when the 1st defendant attained majority, or was it at the earliest, the 26th April 1902 when the Court refusing to accede to the 1st plaintiff's contentions (as defendant in that suit) that he was entitled to be trustee until the youngest child of the founder ceased to be a minor, and that in any event he was entitled to remain in possession till he was paid, decreed the 1st defendant's claim (as plaintiff in that suit) to eject him at once.
9. Before discussing this question, I may deal with a contention that in any event the time occupied by the 1st plaintiff in defending his suit of 1901 must be excluded under Section 14, of the Limitation Act. I do not think that section is applicable here. The 1st plaintiff as defendant in that suit claimed a right to remain in possession till he was reimbursed; he did not ask for a decree against the then plaintiffs for the money alleged to be due to him. That seems clear from the abstract of the defence set out in Exhibit I (the judgment). That being so, his present claim is not founded upon the same cause of action; had he then claimed a decree against the plaintiffs for the money by way of counter claim, there might be something in the contention, as he might, it is possible, have been held to be prosecuting the claim which he is now prosecuting (vide Maharajah Jagutendur Bunwara v. Deen Dayal Chatterjee) (1881) 1 W.R. 310 but his defence in the suit of 1901 cannot be treated as a counter suit when all he wanted was the dismissal of the plaintiffs suit in ejection as premature.
10. Moreover the court did not dismiss his claim for want of jurisdiction to entertain it: it decided that it was unfounded, holding that he had no right to remain in possession till paid; and it told him that a suit for the money might be successful as a suit for a general account of management. The claim made was a claim to remain in possession and that rightly or wrongly was disallowed as a matter of law, and not for want of jurisdiction to entertain it or other like cause.
11. The answer to the question raised on article 120 is made to depend, as the case was argued, on the further question whether an ex-trustee remaining in possession can sue his successor in respect of advances made to the trust. There is no beneficiary whom he could sue in the case, and unless he can ' sue his successor, there can be no right of suit, and therefore limitation cannot start running.
12. The only suit which appears possible is a suit for a declaration that the property is charged with the amount of the expenses, and the cause of action for such a suit might arise, it is suggested on the date when the trustee's possession is threatened, in this case, not later than some date in 1901, when the suit No. 22 of 1901 was instituted by the 1st defendant.
13. But such a suit would appear to be incompetent, so long as the trustee was in a position to collect the rent and pay himself without a suit and without obstruction or threatened obstruction. His possession was in jeopardy in the suit but his right to a charge on the property for expenses properly incurred was not denied and there was no threat to prevent him from collecting the rents and appropriating them so long as he remained in possession. When turned out he would have a cause of action for expenses then unpaid, but not so far as I can see, before that.
14. The mere fact that there was in existence a person interested to deny his title to remain trustee would not give him a right to sue for a declaration: that person was not interested to deny: his right to repay himself his proper expenses out of the property, so long as he was in possession of it, and apparently did not deny that right but claimed that some unauthorised collection had been made and I suppose, appropriated by the trustee, though that does not appear in the abstract of the plaint given in Exhibit I.
15. Consequently, I think though not without hesitation, that right to sue did not accrue to the plaintiff before the 26th of 1902, (it may well be that it did not accrue till 1905), and the suit is not barred and must be remanded for disposal. Costs will abide the event.
Sadasiva Iyer, J.
16. The plaintiffs are the appellants. The 1st plaintiff was the de jure and de facto trustee of the plaint mosque from April 1893 to the end of February 1900 a period of six years and ten months. The 2nd plaintiff is the 1st plaintiff's agent. Then the 1st defendant attained majority and became de jure trustee, but the 1st plaintiff continued to be de facto. trustee, refusing to give up possession of the trust properties to the 1st defendant under a claim that, till the 1st defendant's two sisters and one brother also attained majority, the 1st plaintiff was entitled to continue as trustee. The defendants had to bring O.S. No. 22 of 1901 to eject the 1st plaintiff. That suit was decreed in the original court in the end of April 1902. The 1st plaintiff still refused to deliver up possession to the defendants, but in execution of the final decree on appeal in that suit, the defendants got possession in February 1905. The plaintiffs have brought this suit for recovery of Rs. 8,000 out of. the Rs. 10,000 and odd alleged to have been spent by them till February 1905 for the benefit of the trust. The period covered may be divived thus:
(a) Between April 1893 and February 1900 when the 1st plaintiff ceased to be lawful trustee, (b) between February 1900 and April 1902 when the 1st plaintiff was declared by a Court of Justice not to be entitled to remain as trustee any longer and (c) between April 1902 and February 1905, when the 1st plaintiff was ejected from possession of the trust properties. The plaintiffs claim recovery of the amount of Rs. 8,000, costs and interest ' out of the income of the said mosque on the liability of the property of the said mosque and out of the income of the said property.' The suit was brought in January 1908 more than 14 years after the 1st plaintiff became trustee, and more than 7 years after the 1st plaintiff ceased to be lawful trustee, but within 6 years of the 1st plaintiff having been declared by a court of law to have ceased to be trustee (April 1902) and within three years of his dispossession by the defendants of the trust properties (February 1905).
17. The learned Subordinate Judge who tried this suit in the original Court dismissed it as barred by limitation. He considered that article 61, article 85 or article 120 of the Limitation Act would apply and that, applying any of these articles, the suit was barred. I might state at once that article 85 has no application, as there have been ' no mutual open and current accounts' and 'no reciprocal demands' between the plaintiffs and the trust. If article 61 applies, the period of limitation is only three years from the time when the 1st plaintiff spent monies on behalf of the trust. If so, the plaintiffs' claim is barred except in respect of monies within 3 years before suit, that is, between the 24th January 1905 and 9th February 1905, and we might take it that this is a negligible sum, even if it is not zero. On this question of the applicability of article 61 also, I might at once state that if this suit was an ordinary suit to obtain a single decree for money it would be no doubt barred by article 61, but the prayer of the plaint is for the recovery of the plaint amount ' out of the income of the (plaint) mosque on the liability of the property of the said mosque and out of the income of the said property. To such a suit, article 61 cannot apply. If article 120 had to be applied, the lower Court thought that the starting point, for computing the period of limitation could not be later than February 1900 when the 1st plaintiff's right as trustee came to an end, and, as the suit was brought in 1908, the suit was, on that view also, barred.
18. The plaintiff's contentions are:
(a) That article 132 of the Limitation Act providing for a period of 12 years applies to this case, as the plaintiffs claim a charge on the trust properties,
(b) that the 1st plaintiff is entitled to such a charge because he spent monies as a trustee, who according to law, can claim such a charge.
(c) that even if he was not a trustee de jure for a portion of the period during which he spent the monies, as a de facto trustee he was entitled to a charge on the trust properties just as if he was a de jure trustee.
(d) that the 1st plaintiff did not know that he was not entitled to be trustee till the 21st November 1904, when the High Court finally decided against him, and hence he was entitled to a charge for what he spent till that date,
(e) that he was at least entitled to a charge for what he spent till the 26th April 1902, when the original Court which decided O.S. No. 22 of 1901 pronounced its decision, because, till that date at least, he bona fide believed that he was trustee.
(f) that at the lowest, he was entitled to a charge for what he spent before the 27th February 1900, when the first defend ant attained majority.
(g) that even if article 120 of the Limitation Act applied, limitation should be calculated from February 1905 when the 1st plaintiff lost possession, as the 1st plaintiff could not be expected to sue himself while he was in possession of the trust properties.
(h) that limitation could not in any event be calculated from before 26th April 1902, when O.Section 22 of 1901 was decided.
(i) that the acknowledgment (Exhibit F) by the 2nd defendant in 1907 of the plaintiffs' right to reimbursement saves limitation.
(j) that the razinamah entered into by the defendants during the course of the litigation entitled the plaintiffs to a decree for Rs. 8000 and the Lower Court should not have gone into the question of limitation at all.
(k) that the time spent in defending the suit No. 22 of 1901 and in the conduct of the appeal in that case, should be deducted in the plaintiff's favour under Section 14 of the Limitation Act.
19. The answers of the respondents to these contentions are: (a-1) Article 131 does not apply to a trustee claiming a charge on properties belonging to a charitable or religious trust. The charge of a trustee is not like an ordinary charge which entitled a man to bring the charged property unconditionally to sale. It is a charge which enables him to take the amount he has spent for the trust out of the rents and profits of the trust property or through raising monies by the creation of a similar charge to his own.
20. Article 120 alone applies to a trustee's suit against the cestui que trust to enforce such charge (see Peary Mohan Mukerji v. Narendra Nath Muherji I.L.R. (1909) C. 229; L.R. 37 IndAp 27 : 20 M.L.J. 171.
The 1st plaintiff's claim for what he spent for the trust before the 24th January 1902 is barred;
(b-1) The 1st plaintiff could not be held to have spent monies as trustee except before the 27th February 1900 and could not claim even this limited charge as trustee for what he spent afterwards.
(b-2) He did not spend for the trust the amounts he alleges to have spent before that date.
(c-1) A de facto trustee is not entitled to claim a charge like a de jure trustee and hence article 61 alone applied.
(d-1) and (e-1) The 1st plaintiff knew on the 27th February, 1908 that he was not entitled to be trustee any longer and bad no bona fides thereafter.
(g-1) The possession of the lst plaintiff had nothing to do with the starting point of limitation.
(g-2) Wrongful possession by the 1st plaintiff after the 27th February 1900 could not postpone the starting point of limitation for the 1st plaintiff's suit against the trust to enforce his charge, as plaintiff could have sued the trust represented by its de jure trustees to enforce the charge.
(h) Even if the 1st plaintiff bona fide believed till April 1902 that he could not sue the trust as he himself was the de jure trustee and could not therefore sue the trust so represented by himself, his said belief could not prevent limitation from commencing to act, no provision being made in the Limitation Act for postponing the commencement of a limitation period, because the 1st plaintiff was labouring under a bona fide mistake and believed that he had no right to bring a suit till he lost possession or till a Court of Justice declared that he had no legal status as trustee.
(i) The acknowledgment by the 2nd defendant in 1907 could not bind the other defendants or the trust.
(i) The Razinamah (Exhibit G) was not sanctioned by the Court and is useless, as one of the defendants is still a minor.
(k) That the time spent in the 1st plaintiff's conduct of the defence in O.S. No. 22 of 1901 cannot be deducted in the plaintiff's favour.
21. That the charge created in favour of a trustee of a religious or charitable trust enables him to take the sums he hats expended on behalf of the trust only from the rents and profits of the trust estate.(except, in very exceptional cases) and cannot entitle him to put an end to the trust itself by bringing the corpus of the religious or charitable trust properties to sale has been decided both in England and India. In Prosunno Kumari Debya v. Golab Chand Baboo (1875) 2 I.A. 145 their Lordships of the Privy Council say ' it is to be observed that execution of the judgments sought to be set aside' (passed in favour of a creditor who had lent monies to a temple trustee for carrying on the pooja &c.; in a ' temple) ' is decreed and in their Lordships' view rightly only against the rents and profits of the debuttur lands.' That a trustee has a lien and a charge upon not only the rents and profits of the trust property, but also upon the corpus is clear law (see Lewin on Trusts Chapter 25, Section 2, paragraph 12). Section 32 of the Trusts Act (which Act, though it does not relate to religious or charitable trusts according to Section 1, contains several provisions which lay down principles applicable to all trusts) says that besides the right of reimbursement out of property the charge which a trustee has upon the trust property for out of pocket expenses ' shall be enforced only by prohibiting any disposition of the trust property without previous payment of such expenses and interest'. This indicates that such a trustee has got only two rights:
(a) to reimburse, to pay or discharge himself in respect of such out of pocket expenses out of the income and profits of the trust property (such right being an unconditional paramount right) and
(b) to a charge on the trust property, including its corpus, a charge which can be enforced only by prohibiting any disposition of the trust properly without previous payment of such expenses.
22. Article 132 of the Limitation Act was evidently not intended to cover such a qualified charge and, in any case, I think, we are bound by the decision of the Privy Council in Peary Mohan Mukerji v. Narendra Nath Mukerji (1909) 20 M.L.J. 171 : L.R. 37 IndAp 27 and to hold that article 120 alone applies to the enforcement of such a charge I have nothing to add to the reasons given by my learned brother for holding that Exhibits F and G cannot avail the plaintiffs and that the sums spent in defending suit No. 22 of 1901 and in conducting the appeals from the decision in that suit could not be decreed in plaintiff's favour. This disposes of the appellants' contentions (a), (i), (j) and (k) above.
23. That the 1st appellant as trustee had a charge for what he spent before the 27th February 1900 and could have recovered that money was not denied. (I am just now leaving the question of limitation on one side). Whether he could recover what he spent out of his pocket between the 27th February 1900 and April 1902 (when the plaintiff's right to trusteeship was negatived by the decision of a court of law) and whether he could recover what he similarly spent, between April 1902 and February 1905 when he was dispossessed, are questions on which I must confess I have felt grave doubts. Was he (the 1st plaintiff) merely and purely trustee do son tort during those periods? Even if he was so is he still entitled to claim out of pocket expenses during the period when he was such trustee? I find that the expression ' express trustees' is held to include even trustees de son tort who profess (without title) to hold certain properties as trustees, that trustees de son tort might even become constructive trustees if they renew leases in their own names (see Lewin on Trusts, ChapterX) and that a trustee de son tort cannot plead limitation against the cestui que trust, as Section 10 of the Limitation Act providing that ' a person in whom property has become vested in trust for a specific purpose ' cannot plead limitation in a suit by the cestui que trust, is applicable to trustees de son tort also (see Mitra on limitation, page 771). I think that if a trustee de son tort is subject to all the liabilities of an express trustee, he should also be given in some cases and subject to certain conditions, some of the rights of a lawful trustee to reimburse himself or to recover properly incurred out of pocket expenses. Of course, the accounts of such a trustee de son tort may be liable to be subjected to a more severe scrutiny than those of a lawful trustee, but, on principle, I think that what a trustee, of whatever kind, has really spent for the necessities of the trust should be reimbursed to him, if his claim to the office of the trustee was not dishonestly made or if he did not wrongfully continue in possession. I do not say that all trustees de son tort are entitled to reimbursement of out of pocket expenses incurred on behalf of the trust. If a man violently and dishonestly takes possession of trust properties under a false claim to be trustee, he cannot be allowed to claim out of pocket expenses. If a man after being told by a court of law that he ought to give up possession to the legal trustee, would not give possession,, and then chooses to spend further monies out of his own pocket taking the chances of obtaining a decision in appeal in his favour, he must also be held to take the risk of losing the subsequent out of pocket expenses. As my learned brother has remarked in his judgment what the 1st plaintiff spent in O.S. No. 22 of 1901 and the appeals therefrom to establish his own alleged title (found to be non-existent by the courts) cannot be treated as monies spent for the trust and could not be recovered, unless the court had allowed his costs also to come out of the trust estate. A person, who acts bona fide as trustee or remains in possession after he had ceased to be trustee by virtue of his lien on the trust properties to recover out of pocket expenses incurred while he was trustee, must, however, (it seems to me) be allowed to claim recovery of such expenses incurred during the period when he was legal trustee, and also when he bona fide believed himself to be trustee, or when he bona fide believed that he had a right to remain in possession of the office till he was so reimbursed. The questions (a) whether the 1st plaintiff bona fide believed himself to be trustee between February 1900 and April 1902 (&) whether monies were due to him from the trust in February 1900 and the 1st plaintiff believed that he was entitled to continue to hold the office till the amount was reimbursed to him, either or both of these questions, might have to be decided by the Lower Court for coming to a conclusion on the point whether the 1st plaintiff is entitled to out of pocket expenses (if any) between these dates. After 1902, the 1st plaintiff cannot claim out of pocket expenses, as he must be held to have taken the risk himself and as such expenses were incurred in assertion of his own false title, which he could not have bona fide believed in after that date, as his claim to remain in possession after that date was disallowed by the court. If he afterwards spent money for necessary purposes less than the income got, he must, of course, account for the surplus, but if he spent more, it was at his own risk. He should, however, (I think) be given credit for necessary expenses incurred by him as de facto trustee up to the limit of the income derived and should not be debited with the whole income received without being given any credit at all for even necessary expenses incurred.
24. In the present case, the 1st plaintiff's right to reimbursement of out of pocket expenses before February 1900 is unquestionable (subject of course to the question of limitation). The question of the 1st plaintiff's bona fide belief as to his legal position after February 1900 till April 1902, when the Court decided against his right, may be relevant in deciding whether the plaintiffs are entitled to claim out-of-pocket expenses incurred between those dates. That question will, however, not arise, if the trust was indebted to the plaintiffs in February 1900, when the 1st plaintiff's title as trustee ceased and if that debt had not been discharged out of the rents and profits before February 1905. The plaintiffs would have (or at least, could bona fide claim) a right to remain in possession till the money was paid up and so long as they remained in possession, they should maintain the trust as de facto trustees lawfully in possession of the trust properties. As however, in April 1902, a court of law decided against the 1st plaintiff's right to remain in possession, the plaintiffs could not (it seems to me) claim out of pocket expenses incurred after April 1902.
25. The last question remaining for disposal, the question involved in contentions (g) and (h) of the appellants is also one of great difficulty. I was, at first, inclined to hold that the right to sue for the relief of declaring and enforcing a trustee's charge accrued at once on each occasion when he spent monies out of his own pocket and that after 6 years from the date of each such accrual, the right to sue for such money became barred. In Kanddsami Pillai v. Avayambal alias Tangachi Amytal I.L.R. (1910) M. 167 : 20 M.L.J. 989 it was held by Benson and Krishnaswami Iyer, JJ. that an agent who had got a right of retainer and a right of lien (Sections 217 and 222 of Contract Act) has only 3 years from each of the dates of his spending monies for his principal for recovery of that money and that the commencement of the running of limitation is not postponed to the termination of the agency. It might, fairly be argued by analogy of reasoning, that the trustee's right also to recover from the trust accrued at once on his incurring each out of pocket expense. But I find in Peary Mohan Mukerji v. Narendra Nath Mukerji (1909) 20 M.L.J. 171 : L.R. 37 IndAp 27 that their Lordships of the Privy Council held that the executors of the deceased trustee, Bijoy, were entitled to a period of 6 years from the date of his death when he of course ceased to be a trustee, (and not from the respective dates of his incurring expenses on behalf of the trust) within which to bring their suit for reimbursement out of the trust property. And the reasons given by my learned brother in the judgment just now pronounced by him (and which I had the advantage of perusing before writing this judgment) have led me to the same conclusion as is expressed in his judgment, namely, that, till the trustee lost possession of the trust properties, no right to bring a suit to enforce his claim against the trust properties accrued to the trustee. As I said above, this also seems to have been the view of their Lordships of the Privy Council in Peary Mohan Mukerji v. Narendra Nath Mukerji (1910) I.L.R. 34 M. 167. s.c. 20 M.L.J. 989 though their Lordships do not set out the reasons which led them to the conclusion that the date of the death of the former trustee, Bijoy, was the date of the commencement of the cause of action in that case. There is no doubt this difference between the facts of this case and those in Peary Mohan Mukerji v. Narendra Nath Mukerjee I.L.R. (1910) M. 167. s.c. 20 M.L.J. 989 namely that the trustee whose representatives were the plaintiffs in that case was a lawful trustee till his death, whereas the trustee suing in this case ceased to be a lawful trustee in 1900 and was directed in 1902 by a court of justice to give up possession of the trust property. But I think that this difference could not affect the principle that, till possession of the trust property out of which the plaintiff could reimburse himself is lost, the peculiar suit to enforce a trustee's peculiar charge could not be brought against the trust. An agent has only the rights of retainer and lien, whereas a trustee has also a distinct charge even after he loses possession of the trust properties; an agent has only 3 years to sue, whereas a, trustee has 6 years to enforce his charge; an agent can at any time sue his principal, whereas religious or charitable trustee or one who claims to be such trustee cannot as plaintiff sue the trust as defendant, himself representing the defendant trust, and these distinctions probably prevent the analogy of the case of Kandasami Pillai v. Avayambal alias Thangathachi Ammal I.L.R. (1910) M. 167. s.c. 20 M.L.J. 989 being applied as regards the commencement of the period of limitation. I would therefore hold that the plaintiffs cause of action arose only in February 1905.
26. In the result, I concur in the order of reversal and remand made by my learned brother.