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Hurro Coomaree Dossee Vs. Tarini Churn Bysack and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal766
AppellantHurro Coomaree Dossee
RespondentTarini Churn Bysack and ors.
Cases ReferredSaroda Persad Chatteerjee v. Brojonath Bhuttacharjee I.L.R.
Excerpt:
express trust - limitation act (xv of 1877), section 10. - .....i.l.r. 5 cal. 910. in that case it was held, that a suit against a trustee, not to recover any trust-property in specie, but only for an account, was not within the protection of section 10. sitting as a court of first instance, i should have felt bound to follow this ruling had it been expressly in point. but i am not inclined to extend it, and the case is not expressly in point. the primary object of the original suit, and therefore of this suit, is to charge two houses with the trusts of the will of the testatrix. it is, therefore, a suit to follow property, and as such a suit is saved from the bar of limitation by section 10. i think the plaintiff is entitled to all relief ordinarily given in such a suit without limitation.4. there will be a decree in terms of prayers (a), (b).....
Judgment:

Wilson, J.

1. This case came before me for settlement of issues, and several questions of law were argued which I do not deal with, because the view which I take of the scope of the suit makes it unnecessary to do so. This is a suit to revive and give effect to a former suit, and all that is asked for might have been obtained by orders in the former suit (which would have been made almost as a matter of course) if the time for applying for such orders had not long since expired. I took time to consider my judgment, because it was contended that this suit also was barred by limitation, at any rate as to some portion of the accounts asked for.

2. The original suit was, and this suit is, brought to enforce express trusts, and the plaintiff's case is that, under Section 10 of the Limitation Act (XV of 1877), no length of time is a bar. That section is as follows: Notwithstanding anything hereinbefore contained, 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), for the purpose of following in his or their hands such property, shall be barred by any length of time.'

3. I was referred by the defendants' counsel to the case of Saroda Persad Chatteerjee v. Brojonath Bhuttacharjee I.L.R. 5 Cal. 910. In that case it was held, that a suit against a trustee, not to recover any trust-property in specie, but only for an account, was not within the protection of Section 10. Sitting as a Court of First Instance, I should have felt bound to follow this ruling had it been expressly in point. But I am not inclined to extend it, and the case is not expressly in point. The primary object of the original suit, and therefore of this suit, is to charge two houses with the trusts of the will of the testatrix. It is, therefore, a suit to follow property, and as such a suit is saved from the bar of limitation by Section 10. I think the plaintiff is entitled to all relief ordinarily given in such a suit without limitation.

4. There will be a decree in terms of prayers (a), (b) and (c) of the plaint. Costs and all other questions are reserved.


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