KESAVAN MATHEVAN Vs. GOVINDAN SOMAN

JUDGEMENT

(1.) IN division of the assets and liabilities of one govindan among his heirs as per Ext. P. 1, defendants 1 and 2 and the late mother of defendants 3 and 4 were allotted the plaint property and the obligation to pay Rs. 750/-in part satisfaction of a debt owed to the plaintiff by the late Govindan. The plaintiff sues for the amount basing his claim on the provision in Ext. P. 1. Defendants 1 and 2 contested the suit and pleaded to have paid Rs. 300/-in part-satisfaction of the claim. The Munsiff repelled the plea of partial discharge but dismissed the suit on the ground that the plaintiff, not being a party to Ext. P. 1, cannot sue on the stipulation therein which did not amount to creation of a trust in his favour as claimed in the plaint, adding "this disposal is no bar to the plaintiff seeking recovery of the amount in other appropriate proceedings on any other pleadings". The Subordinate Judge on appeal held: "the suit is essentially one for enforcing an obligation created under a contract. If S. 10 does not apply, the suit is clearly barred by limitation. This was conceded by the appellant's learned counsel at the time of argument. I hold that the suit is barred by limitation. It follows that the suit was rightly dismissed by the lower court. " The plaintiff has come up in second appeal.

(2.) I agree with the Subordinate Judge in his observation that S. 10 of the Limitation Act, 1908, is not attracted to this case. That section reads: "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 bis or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. The expressions in the section underlined by me show clearly that to attract the section the suit must be to follow the property vested in the defendant in trust for a specific purpose. A mere direction in a deed of partition to pay a creditor of the estate cannot be said to vest any property in the sharer for paying the creditor. Partition is defined in mithakahara thus: (Sanskrit omitted) (Partition is the adjustment of diverse rights regarding the whole, by distributing them on particular portions of the aggregate colebrooke ). It cannot then be said to make any new right or fresh vesting of property. Nor can it be said that the present suit is to follow any property vested in trust; the suit is only to enforce an undertaking to pay made in the partition deed. Even a recital that the amount is to come out of property allotted would not, in my opinion, amount to vesting of the property allotted for the purpose of such payment. The contention that the direction or undertaking in the partition deed to pay the plaintiff creates an express trust within the meaning of S. 10 of the Limitation Act does not appear to me right. Chintaman Raoji Naik v. Khanderao Pandurang Takur (AIR. 1928 Bombay 5. 8), muhammad Mathur Rowther v. Kasa Rowthar (AIR. 1924 Madras 920) and Vairavan chetti v. Chettichi Achi (AIR. 1936 Madras 876) where money was entrusted to one for payment to another are cases of vesting of property (namely money) for a specific purpose and are therefore distinguishable from the present case.

(3.) COUNSEL for appellant contended that the plaintiff, as a participant in the partition evidenced by Ext. P. 1, has attested the deed to signify his acceptance of the terms therein for payment of his dues from the estate in certain proportion by the different groups of sharers and that establishes an enforceable agreement between planitiff on one hand and the sharers in Ext. P. 1 on the other. The plaintiff is the father of defendants 3 and 4. It is in his capacity as the husband of one of the parties to the partition that he has attested Ext. P. 1. COUNSEL for defendants is right in saying that the same has not been specifically pleaded in the suit. But the context and the description of plaintiff's identity in Ext. P. 1 are clear that his attestation of Ext. P. 1 was in token of his acceptance of its terms. True, attestation need not always connote knowledge of contents of the deed; but context of a particular case may show that an attestation was with knowledge of its contents or in token of acceptance or assurance of the recitals therein. The estate that was divided under Ext. P. 1 owed a debt to the plaintiff. In divining the estate that liability was apportioned between the two groups of sharers who agreed between themselves to discharge it in particular proportion. The relationship of the plaintiff with the parties to Ext. P. 1, the apportionment of the plaintiff's debt between two sets of parties therein and the plaintiff's attestation as a party's husband tend to show that he was, when he attested it, well aware of the contents of the deed including the provisions for payment of his debt; and that therefore his signature, though as attestor, meant his acceptance of its terms. It then establishes an agreement an offer to pay plaintiff's dues in certain proportions accepted by him between plaintiff and the sharers in Ext. P. I; and the plaintiff is therefore entitled to sue on it.