Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed by the respondent against the appellant in the City Civil Court. The trial Court dismissed the action on the ground that the relief sought was barred by the law of limitation. On appeal Byers, J., held that Section 10 of the Indian Limitation Act applied and consequently the plaint had been presented in time. The appeal has been filed under Clause 15 of the Letters Patent from the judgment of the learned Judge.
2. The plaintiff is the son of one Haji Mir Abbas Ali, who died in 1917. His heirs, of whom the plaintiff is of course, one, numbered sixteen. His estate included a casuarina plantation which was sold in 1921, in accordance with the wishes of the majority of the heirs, by the plaintiff's step-brother, Haji Mir Moosa Raza Ali. The sale realised Rs. 3,000. Apparently with the consent of the majority of the heirs Raza Ali handed over the sale proceeds to the defendant with instructions to distribute the money amongst the heirs in accordance with their respective interests. The defendant paid some of them but he did not pay the plaintiff. The plaintiff says, and it has been so found by Byers, J., that he did not become aware until 1940 of the fact that the money was in the hands of the defendant. The suit was filed on the 19th November, 1940, to recover from the defendant Rs. 1,290, of which Rs. 250 represented the plaintiff's share in the Rs. 3,000 and the balance interest on the Rs. 250, calculated up to date of suit. Certain receipts given by the defendant to Raza Ali show that the money was given to him on the 1st August, 1921 and that it was in fact paid to him to be distributed amongst the heirs.
3. The main question in the trial Court and before Byers, J., was whether the payment of the Rs. 3,000 to the defendant and his acceptance of the money for purposes of distribution amongst the heirs created an express trust. If it did, no question of limitation could arise. The City Civil Judge was of the opinion that no trust had been created, but Byers, J., disagreed.
4. It is common ground that Section 10 of the Indian Limitation Act only applies where there is an express trust. There is a judgment of a Division Bench of this Court to this effect; see Chandra Kesavalu Chetti v. Perumal Chettiar : AIR1939Mad722 . The wording of Section 10 leaves no room for doubt that it only operates when the suit is against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration) and the purpose of the suit is to follow in his or their hands the property vested or the proceeds thereof or to obtain an account of the property or proceeds.
5. Section 5 of the Indian Trusts Act, 1882, which also has important bearing reads as follows:
No trust in relation to immoveable property is valid, unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
No trust in relation to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud.
6. There is no document declaratory of the alleged trust and there is no question of fraud in this case. The learned Counsel for the defendant says that the ownership of the Rs. 3,000 was never transferred to him and the money never became vested in him within the meaning of Section 10 of the Limitation Act. We consider that this argument is sound. The person who handed the money over to the defendant was not its owner. He merely held it on behalf of the estate of Abbas Ali. As we have already indicated, the sale took place according to the directions of the majority of the heirs. They had no authority in law to direct the sale, but nothing turns on that. As Raza Ali, who sold the property, was not the owner of the sale proceeds he could convey no title to the defendant and therefore there could be no transfer of ownership as required by Section 5 of the Indian Trusts Act. The defendant undertook the task of distribution, but he had no legal title to the money and at the most he could only be regarded as an administrator de son tort in this connection. It follows that the learned Judge was wrong in applying Section 10 of the Limitation Act.
7. The learned Counsel for the plaintiff has on this question relied on the judgment of Varadachariar, J., in Vairavan Chetti v. Chettichi Achi : AIR1939Mad722 , but when the facts of that case are examined it is clear that it has no application. There a person entered into an arrangement with another (the defendant) under which the latter was to receive a sum of Rs. 4,000 and out of it pay off the debts of the former. The debtor drew a hundi in favour of the defendant, who cashed it. This money was the property of the debtor and he vested it in the defendant for a specific purpose. It was held that there was here a trust. That case differs from the present case in that the money did not belong to the person who handed it over to the defendant in the present suit and there was no vesting of it in him.
8. We have now to decide which article of the Limitation Act applies to the present case. The learned Counsel for the defendant says that the proper article is either Article 62 or Article 123. On the other hand, for the plaintiff it is said that the case either falls within Article 89 or Article 120. It is obvious that the case does not fall within Article 123 or Article 89. The real question is whether Article 62 or Article 120 applies. Article 123 only applies to a suit which is against an executor or administrator by some person legally charged with the duty of distributing the estate, as the Privy Council had occasion to point in Ghulam Mohamed v. Ghulam Hussain (1931) 62 M.L.J. 371 : L.R. 59 IndAp 74 : I.L.R. 54 All. 93 . This is not a suit for the administration of an estate, nor is it against a person legally charged with the duty of distributing any portion of it. Article 89 only applies to a suit by a principal against his agent. The defendant was never the agent of the plaintiff. Agency implies a contractual relationship. '('here was no contractual relationship between the plaintiff and the defendant. In fact the plaintiff's case is that he knew nothing of the defendant until 1940.
9. Article 120 can only be applied when there is no other article having application. Therefore the question resolves itself into this : Does Article 62 cover this case? If it does, Article 120 cannot be applied. Article 62 prescribes a period of three years' limitation for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use and the period starts on the date when the money is received by the defendant. Now it is quite clear here that the defendant received the Rs. 3,000 for the use of the heirs of the deceased of whom the plaintiff is one and therefore he received part of that sum for the plaintiff's use. The plaintiff says, however, that time only began to run when he became aware of the fact that the defendant held this money. That was in 1940 and the suit was filed in the same year.
10. There is an observation to be found in the judgment of Coutts-Trotter, C.J., in Ramaseshayya v. Tripurasundari Cotton Press, Bezwada (1931) 62 M.L.J. 371 : L.R. 59 IndAp 74 : I.L.R. 54 All. 93 to the effect that in cases where the party aggrieved is ignorant of the facts the time will only begin to run, not when the money was in fact received by the defendant, but when the plaintiff first became aware of it. That case was decided by a Full Bench and the other members of the Court concurred in the judgment delivered by the learned Chief Justice. If for the purposes of that case it was necessary for the Court to consider and decide the question whether knowledge was a factor we should be bound to follow the judgment of Coutts-Trotter, C.J., but it is obvious that it was not necessary for the Court to consider this question and the passage in the judgment on which the plaintiff relies can only be regarded as constituting an obiter dictum. The judgment gives no indication on what the assertion was made and nothing has been said in the course of the arguments which convinces us that it is right. As the Privy Council has on more than one occasion had to point out, the Court is not concerned with the hardship of the case. It must have regard only to the wording of the statute. There is nothing in Article 62 which even implies that knowledge is a factor. It says in the plainest possible language that time shall begin to run when the defendant has received the money. In our judgment Article 62 clearly applies to this case and the suit was not brought within the three years allowed.
11. The result is that the appeal is allowed and the suit is dismissed with costs throughout.