MIR HUSSAIN ALI Vs. MIR BAQUIR ALI

JUDGEMENT

(1.) This appeal arises out of a suit filed by the respondent against the appellant in the City Civil Court. The trial Court dismissed the action on the ground that the relief sought was barred by the law of limitation. On appeal Byers, J., held that Section 10 of the Indian Limitation Act applied and consequently the plaint had been presented in time. The appeal has been filed under Clause 15 of the Letters Patent from the judgment of the learned Judge.

(2.) The plaintiff is the son of one Haji Mir Abbas Ali, who died in 1917. His heirs, of whom the plaintiff is of course, one, numbered sixteen. His estate included a casuarina plantation which was sold in 1921, in accordance with the wishes of the majority of the heirs, by the plaintiff's step-brother, Haji Mir Moosa Raza Ali. The sale realised Rs. 3,000. Apparently with the consent of the majority of the heirs Raza Ali handed over the sale proceeds to the defendant with instructions to distribute the money amongst the heirs in accordance with their respective interests. The defendant paid some of them but he did not pay the plaintiff. The plaintiff says, and it has been so found by Byers, J., that he did not become aware until 1940 of the fact that the money was in the hands of the defendant. The suit was filed on the 19 November, 1940, to recover from the defendant Rs. 1,290, of which Rs. 250 represented the plaintiff's share in the Rs. 3,000 and the balance interest on the Rs. 250, calculated up to date of suit. Certain receipts given by the defendant to Raza Ali show that the money was given to him on the 1st August, 1921 and that it was in fact paid to him to be distributed amongst the heirs.

(3.) The main question in the trial Court and before Byers, J., was whether the payment of the Rs. 3,000 to the defendant and his acceptance of the money for purposes of distribution amongst the heirs created an express trust. If it did, no question of limitation could arise. The City Civil Judge was of the opinion that no trust had been created, but Byers, J., disagreed.