KISHTAPPA CHETTY Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) This is an appeal from the City Civil Court in a suit in which the plaintiff sought to recover certain jewels or their value, and an order was made for their return or for their value, Rs. 1000.

(2.) The facts of the case are that the jewels in question being in the possession of the plaintiff were handed by her to the defendant on terms that he might pledge them for a short time for his own benefit and should then redeem them and return them to the plaintift. While the jewellery was still in his possession or in the possession of the pledgee with whom he had pledged them, the plaintiff and the defendant and other members of the same family, the plaintiff being the widow of a brother of the defendant, entered into an agreement, Ex. A. By that agreement the jewels in question were settled on the terms of Ex. A which was to the effect that they should be enjoyed by the plaintiff during her life without power of alienation and upon her death they should be divided between the defendant and other parties to the agreement. Within a short time of the making of that agreement the jewellery, if it was not already in the hands of the defendant, came into his hands, for he was under a duty to redeem it and there is no evidence that he did not do so. At the time that Ex. A was executed there was an express promise by the defendant that he would within ten days obtain the jewels and deal with them in accordance with Ex. A. In 1916 the plaintiff demanded from the defendant the return of the jewels and he refused. She subsequently took criminal proceedings against him but was referred by the Criminal Court to the Civil Court, and in 1921 she brought this suit. She alleged that she had discovered in 1917 that the defendant had sold the jewels in 1912. The defendant denied that he did sell the jewels in 1912 or at any time and there has been no finding of fact as to whether he has or has not sold them.

(3.) The learned Judge has held that the suit is not barred by limitation because Section 10 of the Limitation Act applies and that the defendant is a trustee for the plaintiff. It is contended before us that Section 10 has no application and that the case is governed by Art. 49 and is, therefore, barred because the suit was not brought in three years after the demand and refusal referred to above. Section 10 applies only to "suits against persons in whom property has become vested in trust for any specific purpose."It has been held in Bhurabhai V/s. Luxmani (1908) I.L.R. 32 Bom. 394 that the phrase "trust for a specific purpose" in this section is merely a more expanded mode of expressing the same idea as that conveyed by the expression "express trust "in English Law: and it is used in this section in contra-distinction to "trusts arising by implication of law, trusts resulting and trusts constructive. "In my judgment, that is a correct statement of the law and I think it is right to say that, wherever you have an express trust, the trustee comes under Section 10 and no period of limitation avails him. What amounts to an express as opposed to a constructive trust was fully discussed in Soar v. Ashwell (1893) II Q.B. 390. That was a case in which a solicitor for some trustees received some of the trust monies on the terms that he was to invest them for the trust It was held that he, by those terms, became an express trustee of those monies. In my judgment, in this case the true position after the execution of Ex. A. was that, when the jewellery came into the hands of the defendant, a party to that agreement, he, by his agreement, had undertaken to hold it and apply it in accordance with the terms of Ex. A and was thereby constituted an express trustee in whom the property was vested for that purpose. I do not think that the word "vested" in Section 10 means anything more than properly having control of the property. The jewellery was accordingly held by him from that time forward on terms that he should hand it over to the plaintiff, if alive, or, if dead, should hand it over to himself and Ors. entitled to it in reversion. I, there fore, agree with the decision of the learned Judge of the City Civil Court. I agree with the decision of the majority in Administrator General of Bengal v. Kristo Kamini Dasee (1904) I.L.R. 31 C. 19, which supports this view.