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Shahebzada Muhammad Habeeb Alum Vs. Shahebzadi Anjuman Ara Begam - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.109
AppellantShahebzada Muhammad Habeeb Alum
RespondentShahebzadi Anjuman Ara Begam
Cases ReferredSoar v. Ashwell
Excerpt:
limitation act (ix of 1908), section 10 - money paid monthly to person for benefit of another during her minority--sum becomes vested in trust for minor. - .....this court, it appears that after the death of the petitioner's father those in charge of the wakf estate paid the sum of rs. 25 to mr. alum. there is some evidence that both the books of the estate and the receipts granted by mr. alum show that the intention in making the payment was that mr. alum should apply it towards maintenance of the petitioner. there is nothing to show that it was so applied and apparently mr. alum kept no separate account, but mixed the moneys so paid by the wakf estate with his own money. mr. alum died in 1922 and the present suit was instituted for the administration of mr. alum's estate.4. on march 4, 1925, a preliminary administration decree was passed and the usual accounts were ordered to be taken and the customary enquiries made. on june 15, 1932, the.....
Judgment:

Panckridge, J.

1. This is an application by Shahebzadi Badshah Begam that the report of the Assistant Master and Referee be set aside and discharged and that it be directed that the petitioner do receive and recover out of the estate of Shahebzada Muhammad Sultan Alum the sum of Rs. 10,401-4-6 with costs of the reference.

2. The petitioner is the daughter of Abdus Salim deceased. By an agreement come to as long ago as 1881 Abdus Salim received a monthly sum of Rs. 25 which was to inure to the benefit of the petitioner during her minority after the death of Abdus Salim. Abdus Salim died when the petitioner was a child of four months old, and the petitioner thereupon became entitled to receive the monthly sum up to the date on which she attained majority, namely, up to June 29,1918. The source of this monthly sum was the wakf estate of the Nawab of Dacca.

3. The petitioner's mother was the daughter of one Shahebzada Muhammad Sultan Alum, an attorney of this Court, It appears that after the death of the petitioner's father those in charge of the wakf estate paid the sum of Rs. 25 to Mr. Alum. There is some evidence that both the books of the estate and the receipts granted by Mr. Alum show that the intention in making the payment was that Mr. Alum should apply it towards maintenance of the petitioner. There is nothing to show that it was so applied and apparently Mr. Alum kept no separate account, but mixed the moneys so paid by the wakf estate with his own money. Mr. Alum died in 1922 and the present suit was instituted for the administration of Mr. Alum's estate.

4. On March 4, 1925, a preliminary administration decree was passed and the usual accounts were ordered to be taken and the customary enquiries made. On June 15, 1932, the petitioner filed her claim for Rs. 10,400, being the amount of the monthly allowances paid to Mr. Alum together with interest thereon at 6 per cent.

5. The learned Assistant Referee to whom the accounts and enquiries were delegated has found the facts to be as I nave stated, but he has come to the conclusion that the petitioner's claim must fail on the ground that it was barred by limitation. Having regard to the dates which I nave mentioned, it seems to me that it is so barred unless it can be saved by the operation of Section 10 of the Indian Limitation Act. The Assistant Referee has considered this aspect of the matter with great care and he has come to the conclusion that Section 10 has no application, chiefly upon the ground that the property cannot be said to have ever become vested within the meaning of the section. I. have given the matter considerable thought and I do not find that any of the cases cited to me are of much assistance: but considering the language of the section apart from authority, I nave come to the conclusion that the Assistant Referee was in error and that the section has application to the present case. In other words, in my opinion, the property, that is to say the monthly sums paid to Mr. Alum became vested in trust for a specific purpose.

6. Now with regard to the words ''specific purpose,' it is not, I think, very helpful to spend much time in discussing the question whether a trust for a specific purpose is in all respects equivalent to what is called in English Law an ''express trust'. I have been referred at gone length to the case of Soar v. Ashwell (1893) 2 QB 390 : 4 R 602 : 69 LT 585 : 42 IB 165. There the difference between 'express trusts' and ''constructive trusts' from the point of view of limitation is considered and explained. In my opinion whatever meaning is to be assigned to the words ''specific purpose' the trust in the present case must be a trust for a specific purpose. A trust for a specific purpose quite clearly includes a case where the purpose of the trust is specified by the instrument creating a trust: but I think the term is not confined to such cases and that when as here it is possible from the evidence before the Court to say with reasonable certainty that the money was paid to Mr. Alum with the intention and on the understanding that it should be applied to the maintenance of the petitioner that was a trust for a specific purpose.

7. It remains to be considered whether the property can be said to have become vested. Now, it has been pointed out that from one point of view a trustee cannot be said to be the owner of the trust property. If that view is correct, vesting means something different from ownership. It has been also said in other cases that vesting means something more than management or control. The salient circumstances of this case appear to me to be that when the payments were made to Mr. Alum the wakf estate abandoned all the interest in the money and completely divested itself of its property therein. The money remained with Mr. Alum subject only to the right of the beneficiary to enforce the trust. The wakf estate which may be described as the settlor has no further legal interest in the matter. Mr. Alum did not hold it as the agent of the petitioner because being a minor the petitioner was not legally able to employ an agent, neither did Mr. Alum hold the money as the petitioner's guardian, for he Was neither her natural guardian nor had he been appointed guardian of her property by any Court, it appears to me, there-fore, he must have held it as a trustee and had complete control over it, subject, as I have said, to the right of the beneficiary to enforce the trust. In my opinion the money when it was paid became vested in Mr. Alum within the meaning of Section 10 of the Limitation Act.

8. In my opinion the report of the Assistant Referee (should ?) be set aside on the ground that the claim is not barred by limitation. The Assistant Referee will, therefore, proceed with the accounts and enquiries on that basis.

9. The costs of this application will come out of the estate. Costs of Counsel for appearing before the Assistant Referee is allowed.


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