PURSHOTTAM Vs. KANHAIYALAL

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment and decree of the learned District Judge of Udaipur dated January 7, 1958 and will be disposed of together.

(2.) ONE Bhimji had three sons Chotteylal, Brijlal and Jugal Kishore. Chho-teylal pre-deceased Bhimji and was issueless and plaintiff Smt. Diwali is his widow. Jugal Kishore also died but Bhimj's second son Brijlal, the other plaintiff, was alive at the time of the institution of the suit. He along with Smt. Diwali, instituted the present suit against Kanhaiyalal son of Hardeo with the allegation that Bhimji had created a trust in favour of Smt. Diwali, for her maintenance, on Baisakh Badi 4, S. 1968, by depositing Rs. 2,000/- with Hardeo who undertook to pay interest at 6 per centum per annum on that deposit. It was further pleaded that Bhimji clearly specified at the time of making the trust that the interest due on that deposit shall be paid by Hardeo every month to Smt. Diwali, during her lifetime, that the principal sum shall not be payable to her even if she made a demand for it and that after her death that money would be paid by Hardeo to Bhimji's sons Brijlal and Juglal (alias Jugal Kishore ). The document evidencing the alleged trust is Ex. 2. The plaintiffs pleaded that Smt. Diwali assigned her beneficial interest in the trust to Brijlal by document Ex. 1 dated May 30, 1952. It was alleged that the trustee did not pay the interest in accordance with the terms of the trust from Bhadwa S. 1979 so that interest for 29 years and 7 months was payable at the time of institution of the suit. As Hardeo died before the suit was instituted, his son Kanhaiyalal was sued for the recovery of Rs. 3550/- for arrears of the interest. It was also prayed that the sum of Rs. 2,000/- (originally deposited by Bhimji) may be invested in government securities or in some other manner considered suitable by the court. Plaintiff Brijlal died during the pendency of the suit and his son Purshottam was therefore brought on the record as his legal representative. Defendant Kanhaiyalal resisted the suit on various grounds. He admitted the deposit of Rs. 2,000/- but pleaded that it was an ordinary deposit which was to carry interest, and that no valid trust was thereby created in favour of Smt. Diwali. Further, the defendant pleaded that Hardeo re-paid the money to Bhimji's sons Brijlal and Jugal Kishore, and that the suit was barred by limitation as well as by the principle of res judicata. Some other pleas were taken in the written statement, but it is not necessary to refer to them for purposes of the present controversy. The learned trial Judge decreed the suit for Rs. 3,550/- along with pendente lite and future interest at annas 8 per centum per mensem and costs. An appeal was preferred by defendant Kanhaiyalal and was allowed in part by the learned District Judge of Udaipur, who held that the claim in the suit was barred by limitation except for the sum of Rs. 360/- as the arrangement between the parties did not amount to a trust so as to attract the provisions of sec. 10 of the limitation Act. The learned Judge reduced the amount of the decrees to Rs. 360/-, which alone was held to be within limitation, and allowed proportionate costs of the suit with the direction that the decretal amount would be realisable from the estate of deceased Hardeo in the hands of Kanhaiyalal. It is against the judgment and decree that the present two appeals have been filed. Appeal No. 88 of 1958 has been preferred by Purshottam and Smt. Diwali. Smt. Diwali has died since. The other appeal (No. 93 of 1958) has been preferred by defendant Kanhaiyalal on the ground that he is not at all liable for the decretal amount and that the suit should have been dismissed in toto.

(3.) IT has lastly been argued that Hardeo's widow Smt. Mangi Bai had paid Rs. 2,000/- back to Brijlal and Jugal Kishore and that there was no further liability in respect of that amount under the trust alleged by the plaintiffs. This was the subject-matter of issue No. 5 and it has been held by both the courts below that the defendant has failed to prove it. That finding of fact has not been shown to be vitiated by any error of law or procedure and is therefore final and binding on the parties.