LEELAMMA OOMMEN Vs. OOMMEN

JUDGEMENT

(1.) This second appeal by the plaintiff is in a suit to enforce a simple mortgage Ext. A, executed by the plaintiff's mother's father in favour of the plaintiff's father, the 7th defendant, on the eve of his marriage, towards stridhanam payable to the plaintiff's mother. It is dated the 17th Chingom, 1103. The plaintiff's mother died on the 31st Chingom, 1108, when the plaintiff was a child. On his attaining majority, the plaintiff commenced the present suit to enforce the mortgage. Defendants 1 to 3 are the children of the brothers and sisters of the plaintiff's mother, and defendants 4 to 6 were impleaded as having some interest in the mortgaged property. The contention of defendants 4 and 5, that Ext. A was not supported by consideration and that it did not take effect, were repelled by the Subordinate Judge in appeal, but the two courts concurred in dismissing the suit as barred by limitation. The suit was filed on the 24th Karkadakam, 1127.

(2.) According to the plaintiff, having been a minor at the time her mother died, she is entitled to sue within three years of her attaining majority as she has done. The Subordinate Judge has held, that the 7th defendant was a trustee for the plaintiff's mother, that he alone could have enforced the mortgage and not the plaintiff's mother or the plaintiff. Before me, learned counsel for plaintiff contested the view of the Judge, that the 7th defendant was a trustee for the plaintiff's mother. In Lonan v. Hoog Werf (14 TLJ 1) which was relief on by the Judge, the husband who took the document in his name for stridhanam due to his wife, was held to be a trustee for his wife who was held to be the beneficiary. In Mathula Louis v. Eapen Rosa (6 TLJ 464) also relied on by the Judge, the question was whether a person who received the stridhanam amount on behalf of his daughter inlaw, was a trustee in respect of the amount within the meaning of S.10 of the Travancore Limitation Act, 1062. It was held that he could not be so regarded, because the fund did not vest in him for any specific purpose, but it was observed, that in a loose way he may be said to hold the same in trust for the daughter inlaw. Implied trusts or trusts which the law would infer, are not trusts within the meaning of S.10 of the Limitation Act. Learned counsel relied on the observation in Mathula Louis' case, that the correct view seemed to be, to regard the person who received the stridhanam as a mere custodian with whom the amount was deposited on behalf of the female. That was a case where the stridhanam was in deposit with the father inlaw, and an express trust for a specific purpose under S.10 of the Limitation Act was held not to arise. But in a case like the present, the 7th defendant, could not be held to be the custodian of property deposited with him on behalf of his wife. The better view seems to me to be, that the 7th defendant was in the position of a trustee for his wife. This is in accord with Lonan v. Hoogwerf (14 TLJ 1). A trust is defined in the Indian Trusts Act, as "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner .............. for the benefit of another." These elements are found in the present case. If the 7th defendant was a trustee for the plaintiff's mother, he was the person competent to sue upon the hypothecation. Under S.13 of the Trusts Act, he was even bound to sue within time and preserve the trust property. The plaintiff's mother was but a beneficiary and upon her death the plaintiff stepped into her shoes, possibly with the 7th defendant as well. There is no scope for the application of the principle of S.6 of the Indian Limitation Act.

(3.) The case may be viewed from another standpoint. The 7th defendant was the mortgagee who had taken the document in his name and it was his right to sue upon it and realise the amount. Even if the plaintiff's mother were to be impleaded as party in such a suit, it can hardly be denied, that the right of suit was of the 7th defendant. For the above reasons the suit was barred by limitation. The second appeal fails and is dismissed with costs.