THACKER DUNGERSHI PARSHOTTAM Vs. THACKER DAMJI VIRJI

JUDGEMENT

(1.) The plaintiffs are the trustees of Shamji Dungarshi Trust of Anjar in Kutch District. They alleged that Shamji Dungarshi the settlor had given 299 gold Mohors and certain ornaments to the defendant on Bhadarva Vad 3 of Kutchi Samvat 1997 corresponding to 19th September 1940. Shamji the settlor had made a note in respect thereof in his account-book and the defendant had acknowledged the receipt thereof. Shamji executed a will on 8th January 1941 and appointed three trustees under that will. Subsequently he himself cancelled during his lifetime the appointment of one of them. Another trustee died and the third trustee resigned. Shamjis widow Sakarbai and his daughter Laxmibai filed Civil Suit No. 47 of 1954 in which they impleaded the third trustee Anandji Khimji as a defendant along with the Patels of the community. In that suit they prayed for a declaration that the will made by Shamji had not been made by him in a sound disposing state of mind and they also prayed for possession of the property of Shamji. In that suit on 25th April 1958 a consent decree was passed under which the Court appointed seven trustees.

(2.) During the pendency of that suit on 23rd December 1957 the Court issued notice to the defendant to return 299 gold Mohors which had been deposited with him by Shamji the settlor. He did not comply with the notice. Therefore the Court appointed a Commissioner to take possession of the gold Mohors from the defendant. The defendant handed over on 21st March 1958 223 gold Mohors and 153 Tolas of gold ornaments to the Commissioner. He however did not return 76 gold Mohors. The Court therefore ordered the trustees to recover them from the defendant. The plaintiffs made efforts in that direction but they failed to recover them. Thereafter the plaintiffs filed the present suit against the defendant praying for a decree against him to return to them 76 gold Mohors or to pay them a sum of Rs. 10108/as price of those gold Mohors.

(3.) The defendant filed his Written Statement at Ex. 18 and resisted the suit. He denied to have acknowledged the receipt of the gold Mohors. He also challenged the plaintiffs competence to file the suit. On merits he contended that he had returned the gold Mohors to Shamji in 1942 and that they had been in possession of one Bachuben daughter of Dhanji Dharshi of Anjar. He also pleaded that the suit was barred by time under article 70 of the Limitation Act 1963