Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed by the respondent on the original side of this Court to recover from the appellants, who were sued as the legal representatives of his deceased brother Abdul Wahid, the amount due to him in respect of the management of his estate. The suit was tried by Somayya, J., who granted the plaintiff a decree for Rs. 29,348-14-2. The appellants object to the decree only in respect of two of the sums which make up the aggregate of Rs. 29,348-14-2. The first objection is with regard to a sum of Rs. 2,730-1-0 allowed as a one-fourth share of a fixed deposit and the second objection is with regard to a sum of Rs. 9,760, allowed in respect of interest from the date of death of Abdul Wahid, which, took place in the month of September, 1932.
2. The respondent is the youngest son of the late Dr. N. Mohamed Oosman Sahib of Madras. Dr. Mohamed Oosman died on the 10th April, 1929. He was survived by three sons and two daughters. The respondent was then a minor. His eldest brother Abdul Wahid acted as the respondent's guardian and took charge and managed his share of their father's estate, which was partitioned amongst the sons and daughters on the 26th June, 1929. The total value of the estate was Rs. 4,00,000. It included immovable properties in Madras and Trichinopoly. The respondent was allotted as his share certain lands and houses in Trichinopoly, a house in Madras and Rs. 5,100 in cash. Each son and each daughter received as part of his or her share immovable property and the rest in cash. After the father's death the respondent lived with his eldest brother in Madras until the month of April, 1931. Abdul Wahid then moved to Trichinopoly, where he was taken ill. He moved to his father-in-law's house in Mysore in June, 1932 and died in Bangalore in the following September. Abdul Wahid was survived by his son, the second appellant, and his wife the third appellant. The first appellant is his father-in-law and he has been made a party because he has been appointed the guardian of the property of the second appellant. The respondent attained his majority on the 5th January, 1933 and filed this suit on the 19th December, 1935.
3. It is not disputed that upto his death Abdul Wahid remained in possession of the respondent's share of his father's estate. The appellants put the respondent to full proof of his case. They went so far as to deny that Abdul Wahid had acted as the respondent's guardian. That attitude has now been abandoned. It is accepted that Abdul Wahid was the de facto guardian of the respondent and as such was in a fiduciary position.
4. Before his death the father had placed a sum of money with the Indian Bank on fixed deposit. The deposit was not payable until the 1st August, 1930. On that date Abdul Wahid was paid the amount which with interest came to Rs. 10,920-4-0. The bank insisted on Abdul Wahid giving a receipt for one-fourth of this sum, Rs. 2,730-1-0, on behalf of the respondent who was still a minor. This is the amount which forms the subject-matter of the appellant's first objection. The bank addressed the pay order for the Rs. 2,730-1-0 to the respondent who was described as a minor ' represented by his eldest brother and guardian Oosman Abdul Wahid Esqr.' The receipt was signed by Abdul Wahid as guardian. The case for the appellants is that as the respondent was allotted properties worth Rs. 1,00,000 on partition it must be taken that these included his share in the fixed deposit with the Indian Bank. This contention cannot be accepted. In the accounts relating to the partition there is no reference to this fixed deposit and as the receipt for one-fourth of the sum was taken in the name of the respondent, the only reasonable conclusion is that the division of the sum placed on fixed deposit was left in abeyance until it actually became payable. The appellants have led no evidence to show that the other heirs gave up their shares in this sum and there has been no attempt whatever to prove that this deposit was included in the properties partitioned. The second son Abdul Huq is dead, but the two daughters are alive. For these reasons we consider that the learned Judge was fully justified in charging the Rs. 2,730-1-0 against the estate of Abdul Wahid.
5. With regard to the second objection, the appellants contend that interest cannot in law be charged against the estate and therefore the whole of the Rs. 9,670 awarded by the learned Judge in respect of interest should be disallowed. The answer to this question is governed by the provisions of the Indian Trusts Act. Abdul Wahid was not a trustee within the meaning of Section 3 of the Indian Trusts Act, but came within Section 94 of the Act. That section says that where there is no trust, but the person having possession of the property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, and illustration (b) to the section says that if A assumes the character of a trustee for B, and under colour of the trust receives certain money, B may compel him to account for it. Section 95 says that a person holding property in accordance with any of the 'preceding' sections of the Chapter (sections 80 to 94) must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it. Therefore, as Abdul Wahid was the de facto guardian of the plaintiff and had assumed management of his properties, he was under all the liabilities and disabilities of a trustee.
6. Section 20 says that where the trust property consists of money and cannot be applied immediately or at an early date to the purposes of the trust, the trustee is bound to invest the money. Section 23 makes a trustee liable for a breach of trust and indicates the circumstances under which a trustee committing a breach of trust . is liable to pay interest. Clause (e) of that section says that where the breach consists in failure to invest trust money and to accumulate the interest or dividends thereon, he is liable to account for compound interest with half yearly rests at six per cent, per annum unless the Court otherwise directs. As Abdul Wahid was in the position of a trustee, it was his duty to invest the Rs. 2,730-1-0 which he received on the 1st August, 1930, because he could not pay it over to the respondent until he became a major. On the 31st July, 1931, he received Rs. 6,862-4-6 belonging to the minor. This represented a sum placed on fixed deposit two years before and the interest which had accrued thereon. In addition he collected and accumulated the rents and profits of the minor's properties. These sums should have been invested in the circumstances. As Abdul Wahid failed in his duty, he was liable to pay interest under Section 23 of the Trusts Act read with Sections 94 and 95.
7. The Rs. 9,760 represents interest on the total sum in the hands of Abdul Wahid at his death in September, 1932, from that date. The respondent should have in fact been allowed interest in respect of the Rs. 2,730-1-0 from the 1st August, 1930, interest on the Rs. 6,862-4-6 from the 31st July, 1931 and interest on the accumulations of mesne profits from earlier dates. The respondent has not objected to the award of interest from the date of the death of Abdul Wahid and the appellants naturally do not wish to have it calculated from the proper dates. In these circumstances the decision of the learned Judge awarding interest from the date of the death of Abdul Wahid must stand.
8. The result is that the appeal fails and must be dismissed with costs.