1. This is a suit against the executors of the late A. Sabapathi Mudaliar who obtained a grant of administration to the estate of the late Tiruvengada Mudaliar who was a relation of his during the minority of the three daughters of Tiruvengada Mudaliar. The plaintiff charges that Sabapathi Mudaliar both when and after obtaining this administration set up that the estate of the late Tiruvengada Mudaliar was indebted to him in the sum of Rs. 8,000 and that subsequently Sabapathy Mudaliar made over to his own creditors three mortgages roughly for Rs. 9,000 which were outstanding in favour of Tiruvengada Mudaliar at the time of his death and the plaint alleges these transfers were illegal and inoperative.
2. A good deal of evidence was given as to the administration of this estate by Sabapathi Mudaliar and, in my opinion, some of that evidence went to show that there was no such debt at all ever due to Sabapathy Mudaliar and that it was found by Mr. Justice Subramania Iyer in a suit filed by a transferee of one of these mortgages from Sabapathi Mudaliar. However, it is not necessary to go into that question now.
3. I may say that if this plaint had definitely alleged that Sabapathy Mudaliar had converted the money of the estate to his own use during his administration then I should hold on the principle as laid down in Hollet's Trusts 1 Ch. 49 and in accordance with the decisions in the case of Yakub Ebrahim Sayani v. Bai Rahimatbai 10 Bom. L.R. 346 and Baroda Proshad Banerji v. Gajendra Nath Banerji 13 C.W.N. 557 that the monies so converted must be considered to be still in the hands of Sabapathy Mudaliar so that unless the suit was barred he could be made to account for them also. And following those cases I should be of opinion that Article 120 of the Limitation Act applies to this case and that he could be sued within six years of the termination of his administration to recover sums so misappropriated; no matter whether he had misappropriated them more than 6 years before the date of the suit or not.
4. However, this is not the case which is made in the plaint although the evidence goes very far to support it. But even if it were the case set up, still I should be constrained to hold that the suit is barred, because this was a grant during the minority of the daughters and came to an end when the minors or the last of them attained majority. It does not matter for the purpose of this case whether it was the eldest or the youngest daughter's majority that is looked to. In England Equity would undoubtedly follow the property in the hands of that administrator who had misappropriated it without bar of time. But in this country perhaps unfortunately Executors and Administrators are a class of persons who in my experience require looking after just as closely as trustees; we have to depend upon the law of limitation. And it is well settled that, under that law Executors and Administrators are not trustees for specific purposes within the meaning of Section 10 and, therefore, we are driven back to Article 120, and giving Article 120 the most liberal interpretation as was done in Yakub Ebrahim Sayani v. Bai Rahimatbai 10 Bom. L.R. 346 Baroda Proshad Banerji v. Gajendra Nath Banerji 13 C.W.N. 557; still one cannot help saying that the cause of action must in this case have arisen when the administration during the minority came to an end and that this suit was brought long after, i.e., more than 6 years after that time.
5. And further as I say in this particular case, upon the face of the pleadings this is not an action seeking to recover money misappropriated by Sabapathi Mudaliar, but it is merely an action for an account. And it is quite clear that such an action against an executor or an administrator will be barred within six years from the date of the termination of the administration. For these reasons I am of opinion that the suit fails and must be dismissed with costs. It is, therefore, unnecessary to consider the other issues which have been raised, but I may say, because I have considered the case, that in my opinion, it is not made out that there was any settlement of account at all in this case such as was set up for the defence. It is only on the ground of limitation that I hold that the suit would not lie and must be dismissed with costs.