PACHIAPPA CHETTY Vs. SIVAKAMI AMMAL

JUDGEMENT

(1.) The plaintiff in this case is the daughter of one Ponnambala Chetty who with his brother, Periambala Chetty formed an undivided family. They carried on money-lending dealings and entrusted those dealings; to their brother-in-law Sadayappa Chetty, the lather of the present defendant, Sadayappa Chetty continued those dealings for sometime and maintained accounts for the monies in his hands. In 1906 the brothers Ponnambala Chetty and Periambala Chetty effected a partition and the latter removed his share of the property from the hands of Sadayappa Chetty who, however, continued to deal with the property of Ponnambala Chetty until the latter's death in February 1912, and even after that date remained in possession of all his property. The plaintiff now alleges that Sadayappa Chetty held all these properties in trust for her and has brought this suit against his son, the defendant for an account. These facts are not disputed; but it is contended that the plaintiff's suit for an account is barred by limitation. The Subordinate Judge has, however, found that Section 10 of the Limitation Act is applicable to this case, and has given a decree. In appeal we are only concerned with the question of limitation; it being contended for the appellant that Section 10 is not applicable because the property of Ponnambala Chetty had not become vested for any specific purpose either in Sadayappa Chetty or in the defendant. The main point relied on in appeal is that the property never became vested in Sadayappa Chetty for any specific purpose; and it is contended that as the property consisted of promissory-notes, bonds and mortgage-deeds, the provisions of Section 5 of, the Trust Act were not complied with, and no valid trust has been created. It is in evidence that shortly before his death Ponnambala Chetty directed Sadayappa Chetty to hold his property for the benefit of his wife and daughter; and there seems to be no reason to disbelieve the oral evidence on this point, for, many witnesses speak to the fact and the discrepancies in their evidence are merely on matters of detail which is due to the fact that the witnesses are deposing to events which took place nine years ago. It is also alleged that when Sadayappa Chetty died in December 1912 he informed the plaintiff and her mother that his son would continue to hold the property on their behalf. The arguments in appeal have been confined to the entrustment alleged to have been made by Ponnambala Chetty shortly before his death, and it is contended that, as some of the property consisted of mortgages which were immoveable property, no valid transfer was effected as there was no registered instrument of transfer and consequently, the property did not vest in Sadayappa Chetty, and a fortiori did not vest in him for any specific purpose. This argument, however, ignores the pleadings in the suit. The plaintiff alleged that the properties vested in Sadayappa Chetty and after him in his son, the defendant, and were held in trust for her. The defendant admitting that the properties vested in him contended that the properties vested in him absolutely and that the plaintiff had no interest therein. This contention of the defendant has been found against and this finding is not disputed in appeal. It was, therefore, the case of both parties that the properties actually vested in the defendant. Consequently no evidence was let in as to the manner in which such vesting was effected, and consequently it hardly lies with the defendant now to plead that the plaintiff has not proved an effective transfer of the properties.

(2.) Apart from this, the whole of the appellant's argument has been confined. to the period dating from Ponnambala Chetty's death; but it is in evidence and it in not disputed now that the property entrusted to Sadayappa Chetty was entrusted to him many years before Ponnambala Chetty died; the alleged trust being at the time one for the benefit of Ponnambala Chetty himself. The bulk of the property originally entrusted was presumably money and, possibly promissory-notes and bonds; there is no evidence at all that at that time any mortgages existed. The transfer of the money and bonds, therefore, could be effected by delivery; and if it was the intention of the parties that Sadayappa Chetty should hold the properly as a separate fund to be accounted for by him to Ponnambala Chetty, undoubtedly an express trust would be created. There being no immoveable property, so far as it appears from the record, no registered instrument of transfer would be necessary; and the property would vent in Sadayappa Chetty by the mere transfer of possession coupled with the intention of the parties that such delivery of possession should vest the property in Sadayappa Chetty. The subsequent direction by Ponnambala Chetty that the property should be held for the benefit, of his wife and daughter was merely an alteration of the purpose of the trust; in both cases the property would have been held for a specific purpose. In this view of the case, undoubtedly an express trust within the meaning of Section 10 of the Limitation Act was created and, consequently, the plaintiff's present suit cannot be barred by limitation. I do not, therefore, think it necessary to ascertain in this whether the mortgage-deeds had become vested in Sadayappa Chetty inasmuch as there is nothing to show that, when the entrustment was made, any immoveable properties, such as mortgages, wore transferred. Their existence now can be explained by the fact that Sadayappa Chetty dealing with the monies of Ponnambala Chetty converted some of those monies into mortgages; and, if the money vested in him, the proceeds thereof would similarly vest. Even if it were necessary to prove vesting, it is possible that the view taken by the learned Chief Justice in Kistappa Chetty V/s. Lakshmi Ammal 72 Ind. Cas. 812 : 44 M.L.J. 431 at p. 443 : 17 L.W. 467 : (1923) M.W.N. 281 : 32 M.L.T. 217 : (1933) A.I.R. (M.) 578 that the word vesting means merely "properly having control of the property" would be sufficient to dispose of the case; but, as I am of the opinion that the parties did not go to trial on this question of vesting, the defendant having admitted that the property vested in him, it is unnecessary to further discuss this question; and I need not refer to the various authorities, English and Indian, which have been referred to in the course of the argument, an argument which was largely beside the point with reference to the pleadings in the case.

(3.) The appeal, therefore, fails and dismissed with costs. Krishnan, J.