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Dhanpat Singh Kuthory and ors. Vs. Mohesh Nath Tewari - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.805
AppellantDhanpat Singh Kuthory and ors.
RespondentMohesh Nath Tewari
Cases ReferredBaroda Prosad Bawrjee v. Gajendra Nath Banerjee
Excerpt:
limitation act (ix of 1908), section 10 - trustee de son tort, liability of--accounts, suit for, by rightful trustee, maintainability of--limitation. - .....trustees, brought the present suit in 1915 for accounts against the defendants in respect of the trust estate.4. on the death of bishen chand, the original plaintiff, the suit was continued by mohesh nath, who had been appointed trustee under power given to the original trustees by pram bibi in her will.5. the defence was that the plaintiff could not maintain the suit for accounts, that the defendants were not liable to render accounts and that the claim was barred by limitation.6. now, after the death of meghraj bahadur, his son assumed the management of the trust property, and after his death his sons (the defendants) also managed the estate without any right at all. they, therefore, were in the position of a trustee de son tort. the learned subordinate judge, however, was of opinion.....
Judgment:

1. This appeal arises out of a suit for accounts by a trustee under the the following circumstances.

2. One Prem Bibi, a Jain lady, died in 1883 after executing a Will by which she appointed several persons as executors and trustees to carry out the provisions of her Will. She directed all her properties to be converted into money and invested, and the income thereof to be spent for certain religious and charitable purposes.

3. Four of the executors proved the Will, of whom Meghraj was one and Bishen Chand, the original plaintiff in the present suit, was another. Meghraj alone, however, administered the estate and acted as trustee. He died in 1900. On his death his son Jalim Singh acted as trustee: and on his death again his sons, the defendants, acted as trustees. Bishen Chand, one of the original trustees, brought the present suit in 1915 for accounts against the defendants in respect of the trust estate.

4. On the death of Bishen Chand, the original plaintiff, the suit was continued by Mohesh Nath, who had been appointed trustee under power given to the original trustees by Pram Bibi in her Will.

5. The defence was that the plaintiff could not maintain the suit for accounts, that the defendants were not liable to render accounts and that the claim was barred by limitation.

6. Now, after the death of Meghraj Bahadur, his son assumed the management of the trust property, and after his death his sons (the defendants) also managed the estate without any right at all. They, therefore, were in the position of a trustee de son tort. The learned Subordinate Judge, however, was of opinion that as Bishen Chand (the plaintiff) was a trustee and not a cestui que trust, he could not maintain a suit for accounts against the defendants, and accordingly dismissed the suit. He relied upon a passage in Lewin on Trusts, 12th Edition, page 231, which runs thus: 'We may add in conclusion that if a person, by mistake or otherwise, assumes the character of a trustee, when ft really does not belong to him, and so becomes a trustee de son tort, he may be called to account by the cestui que trust for the moneys he received under colour of the trust.'

7. On appeal the learned District Judge held that a trustee de son tort may be called to account by the rightful trustee, and relied on Williams on Executors 10th Edition, Volume 1, page 190, which runs as follows: 'Where a man has so anted as to become an execution tot de son tort, he thereby renders himself liable not only to action by the rightful executor or administrator...for an executor de son tort has all the liabilities though none of the privileges that belong to the character of an executor.' He accordingly held that the suit was maintainable against the defendants for a period of six years, before the suit, under Article 120 of the Limitation Act, and subsequently on review, held that Section 10 of the Limitation Act was applicable, and that, therefore, the defendants were liable to render accounts since the death of Meghraj Bahadur.

8. The defendants have appealed to this Court.

9. It is contended on behalf of the appellants that the passage quoted from Williams on Executors by the Court below contemplates oases where there is no rightful executor in existence at the time, and a third person intermeddles with the estate, and reliance is placed on a passage at page 186 of the same work, where it is stated 'when the Will is proved or administration granted, and another person then intermeddles with the goods, they shall not make him executor de son tort by construction of law, because there is another personal representative of right against whom the creditors can bring their action, and such a wrongful intermeddler is liable to be sued as trespasser.' The principle is embodied in Section 265 of the Indian Succession Act. The section, however, does not apply to Hindus (see Section 2 of the Hindu Wills Act, Act XXI of 1870).

10. In the case of Narayanasami Pillai v. Esa Abbayi Sait 28 M. 351 it was held that the rule of English Law, that no liability as executor de son tort, can arise where there is another personal representative does not apply to Hindus. The learned Judges (White, C.J., and Benson, J.,) observed: 'In our opinion this rule of English Law does not apply to a case where, as here, the estate is represented under the Hindu Law by the heir. It is to be observed that in the case of Magaluri Garudiah v. Narayana Rungiah 3 M. 359 : 6 Ind. Jur. 24 : 1 Ind. Dec. (N.S.) 805, where a party who had taken the property of the decease I was held liable for a debt due by the deceased, it was not suggested that the fact that there was a personal ret resentative exempted him from the same liability as that which arises under the English Law in the case of a party who intermeddles. In fact as under the Hindu Law there must always be some legal representative of the estate of a deceased person if the appellant's contention were sound a case could never arise in which a party had constituted himself executor de son tort and had become liable as such.'

11. It is true that in that case there was no executor, whereas in the present case there was another executor and trustee (Bishen Chand) in existence when Meghraj Bahadur died. It is contended that Bishen Chand, having joined Meghraj in taking out probate, could not renounce the executorship. But the executorship did not continue all along, and Meghraj was acting as the sole trustee at the time of his death. Bishen Chand never in fact had acted as trustee nor entered upon the management of the estate.

12. It is admitted in the written statement of the defendants that since the death of Meghraj Bahadur in 1900 his son Jalim Singh, and after his death the defendants managed the estate of Prem Bibi. It has not been denied that they were in the position of a trustee de son tort and it is not open to them to deny their liability as such or to contend that they were trespassers and cannot, therefore, be liable to render accounts.

13. As for the contention that the plaintiff as a trustee cannot sue the defendants, we do not think that it is tenable. The passage quoted from Lewin on Trusts merely shows that the cestui que trust can sue the trustee de son tort. It does not state that a suit is not maintainable by a trustee. The trustee represents the cestui que trust, and as such can maintain the suit. Order XXXI, Rule 1, also says that in all suits concerning property vested in a trustee where the contention is between the persons beneficially interested in such property and a third person the trustee shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit.

14. The next question is whether Section 10 of the Limitation Act is applicable. Before the Limitation Act IX of 1903 a suit under Section 10 of the Limitation Act was limited to a suit for the purpose of following the trust property or the proceeds thereof, and it was held in many cases that a suit for accounts, pure and simple, could not be treated as a suit for the purpose of following the trust property [see Baroda Prosad Banerjee v. Gajendra Nath Banerjee 1 Ind. Cas. 289 : 9 C.L.J. 383 at p. 397 : 13 C.W.N. 557]. Bat under the present Act the words 'or for an account of such property' have been added to the section. So there is no doubt now that a suit for accounts in respect of the trust property comes under Section 10. A trustee do son tort stands in the same position as an express trustee.

15. It is contended on behalf of the appellant that the came of action for the suit; for accounts arose in 1903 and the claim for accounts was barred in 1906 by Article 120 of the old Act and that it could not be revived by the passing of the new Act in 1908. The obligation, however, of a trustee to account may be treated as continuous, and the person who is entitled to call for an account has the right to demand an account at every moment of the time during which he acts as such [see Baroda Prosad Bawrjee v. Gajendra Nath Banerjee 1 Ind. Cas. 289 : 9 C.L.J. 383 at p. 397 : 13 C. W.N. 557]. In this view the claim for accounts for six years prior to 1909 would be saved by Article 120 of the former Limitation Act. There is no limitation since 1909 when the new Act came into force, the result being that the claim for accounts up to 1903 only would be barred by limitation.

16. It is contended on behalf of the respondent that the suit is not a suit for accounts, pure and simple, that the claim is for money which represents the estate, and that accounts have been claimed for that purpose. The plaint, however, shows that no specific sum of money is claimed, and the suit is purely one for accounts.

17. We are accordingly of opinion that the defendants will be liable to render accounts only from 1904. In other respects the decree of the lower Appellate Court is confirmed. The appellant must pay the costs of this appeal to the respondent.


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