KRISHNA PATTAR Vs. LAKSHMI ALIAS AMMU AMMAL

JUDGEMENT

(1.) This second appeal arises from a suit brought by the plaintiff to recover certain lands with mesne profits for 25 years. No objection was raised by the defendants to the plaintiff's claim for the lands, and they have been decreed to her and there is no appeal about them. But as regards the profits , defendants denied their liability and pleaded limitation. To avoid the plea of limitation plaintiff's case was that defendants 1 and 2 were holding the lands and collecting the profits as her trustees and she relied on Section 10 of the Limitation Act.

(2.) The Subordinate Judge who tried the case held that no express trust was made out, that defendants were only constructive trustees and that three years limitation was applicable to the claim for profits, apparently under Art. 109. He further held that, as pleaded by the 2nd defendant, the profits for the last 9 years had been accounted for to the plaintiff and dismissed her claim in to to for past profits. The District Judge reversed that decree holding that an express trust was made out, and that Section 10 applied and that even if it did not. the defendants were plaintiff's agents in law, and under Art. 89 the plaintiff's claim was in time as the demand for accounts was only made just prior to the suit. He gave a decree as sued for, without passing a preliminary decree for accounts under Order 20 Rule 16, C.P.C. and without taking any notice of the plea that the profits had been accounted for. Defendants 1 and 2 have appealed to us.

(3.) The first question for decision is whether an express trust is made out or not, as it is material to decide it in considering the application of Section 10. The only facts from which we are asked to find an express trust are these. The plaint lands were purchased with plaintiff's money and in the sale deed taken by defendants 1 and 2 in their own names there is a recital that the purchase was on behalf of the plaintiff, Defendants were receiving the rent of the lands subsequently and it is the 2nd defendant's case that he gave credit to the plaintiff for them in the accounts. From these facts it is difficult to infer the existence of an express trust or of anything other than a constructive trust. To create a trust with reference to immovable property the Indian Trust Act II of 1882 which applies to this case requires a registered instrument signed by the author of the trust or the trustee, where no question of a will or of fraud arises, and there must be a clear indication of an intention to create a trust--See Secs.5 and 6 of the Act- The only registered instrument we have in the case is Ex I, the sale deed. It is signed only by the vendors and cannot therefore be used to support a case of express trust by declaration by defendants 1 and 2, nor can it be relied on to show that the vendors created the trust, as was argued before us, because there is nothing to show that they intended to create any trust. The words in Ex. I, do not support any such contention; in fact after reciting that the purchase was on behalf of the plaintiff Ex. I, goes on to say that the lands should be enjoyed by the plaintiff and her heirs; it says nothing about defendants managing the lands and paying ever the profits to the plaintiff- It is extremely improbable that strangers like the vendors under Ex. I would intend to create any trust for plaintiff Though no doubt it is possible to take a conveyance in the form of a deed of trust, there is nothing to show that that was done here. Ex. I is an ordinary deed of benami purchase which recites its benami character. To constitute a benami purchase, it is not necessary, as the District Judge thinks, that there should be anything secret about it; and unless it is intended for a fraudulent purpose there is no reason why the deed should not disclose the character of the transaction.