THAYAMMAL Vs. PERUMAL CHETTI

JUDGEMENT

(1.) The appeal only deals with the question of interest, but a Memorandum of Objections has been filed by respondents 1 and 2, defendants 2 and 3 in which the whole decree is sought to be impeached and it will be necessary to deal with the Memorandum of Objeptions first.

(2.) The plaintiff is the daughter of one Ramu Chetti, whose brothers, Perumal Chetti and Gopal Chetti, are defendants 2 and 3. In her plaint she alleges that her father deposited with Madar Saheb, 1 defendant, a sum of Rs. 4,000 out of his self-acquisitions and directed that defendants 2 and 3 should, out of the said sum and its interest, pay the plaintiff's marriage expenses and hand over the balance to her on her attaining majority. Both the Lower Courts have found that Ramu Chetti had no self-acquisitions and that he and his two brothers were members of an undivided family whose whole property was held as joint family property. It has also been found that there was no entrustment to the 1 defendant, whose legal representatives are consequently not impleaded here. In the plaint the plaintiff states that the arrangement pleaded by her was referred to in a will executed by her father. This will is Ex. A, dated 28 January, 1906. It is not signed by Ramu Chetti, but at the end of the document we have the recital " as just when writing of this will was finished, it became impossible to sign it as referred to above, Nos. 1 and 2 agree to act as stated in the will. " This is signed by defendants 2 and 3. By that recital they undertook within two years from the date of the document to marry the plaintiff and to pay her for her stridhanam Rs. 3,794-0-6 out of their self-acquired and ancestral properties. Both the Courts have found that the arrangement was as recited in Ex. A and it is in evidence that on the date of the will the 1 defendant was indebted to Ramu Chetti's family in the said sum of Rs. 3,794-0-6. The Lower Appellate Court has exonerated the 1 defendant and his legal representatives, but has held that defendants 2 and 3 are trustees, and are bound to repay this sum with interest from the date of the plaintiff's marriage. It is now argued that the Lower Appellate Court is wrong in holding that any trust was created and I think this contention must be upheld. No specific property was assigned in trust for the plaintiff, but a sum of money was to be paid to her out of the whole family property of defendants 2 and 3. The entrustment to 1st defendant having been found against, it follows that there was no specific money or property which was assigned in trust. The Lower Court also finds that the suit is one for an account but gives no reasons for this finding and I do not understand how a suit to recover a specific sum of money with accumulated interest can be deemed to be a suit for an account.

(3.) As pointed out in Cunningham V/s. Foot LR (1878) 3 AC 974 at 993, to constitute a trust " there must be a trustee with an express trust and an estate or interest in lands vested in the trustee and which, therefore, the trust must affect ". In that case an annuity was bequeathed to the testator's wife to be paid " out of all profits arising from all and every part of my estate and property whatsoever " and it was held that although this might create a charge and a liability in favour of the annuitant, the charge and the liability together do not amount to an express trust or establish fiduciary relations which such a trust implies, because the charge was general and the liability affected everything bequeathed or devised. The very same arguments appear to be applicable in the present case; the bequest, if any, to the daughter was to be made out of the whole family property and no specific property was set apart as trust property. I may also refer to Henry V/s. Hammond (1913) 2 KB 515 : At page 521 Channel, J. observes : " It is clear that if the terms upon which the person receives the money are that he is bound to keep it separate, either in a bank or elsewhere, and to hand that money so kept as a separate fund of the person entitled to it, then he is a trustee of that money...If, on the other hand, he is not bound to keep the money separate, but is entitled to mix it with his own money and can deal with it as he pleases, and when called upon to hand over an equivalent sum of money, then, in my opinion, he is not a trustee of the money but merely a debtor. " If there is no trust, the plaintiff's suit would be barred by limitation. Under Ex. B the money was to be paid within two years from 28 January, 1906, and consequently the plaintiff's cause of action accrued on 28 January, 1908. She was then a minor, but it has been found that she has brought this suit more than three years after attaining her majority. The suit is therefore barred by limitation.