CHINTAMAN RAOJI NAIK Vs. KHANDERAO PANDURANG THAKUR

JUDGEMENT

(1.) This is a very simple case though it raises points of general importance. One Pandurang died in 1904 leaving a widow and two sons, plaintiff No. 1 and plaintiff No. 2. His assets consisted in part of certain moneys coming under a provident fund and certain other moneys, Pandurang's widow and natural guardian of the children handed over the moneys to her brother Raoji for the benefit and education of the two boys. On the facts of this case as found in the lower Court it must be taken that Raoji applied part of this trust moneys for that purpose, but put the balance amounting to Rs. 1,600 and upwards into his own pocket. He died in 1918, His representatives are called on to refund this balance and to account, and they set up limitation. In other words an apparently fraudulent trustee who has put trust money into his own pocket is thus to escape by reason of lapse of time.

(2.) It is clear, however, that Section 10 of the Indian Limitation Act 1908 prevents a suit brought against such a trustee, (provided he is a trustee for a specific purpose), from being barred by lapse of time. The section provides:- Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or asaigus (not being assigns for valuable consideration), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

(3.) It was said, to start with, that the property was not vested in Raoji. That, on the facts, is a hopeless argument. It was based on one answer which the widow gave in cross examination, but as the learned appellate Judge points out the answer has been an outcome of the ingenuity of the cross-examining pleader in putting the words of the section into the mouth of the witness. The answer just previous to this one was that the money was entrusted to Raoji for the boys. The word actually used in the subsequent answer was malik, and as my brother Crump has pointed out, no doubt the lady thought that she was being asked whether she constituted Raoji the absolute owner of the moneys. Of course she did not. She had given it to him on trust for the boys. It is clear, therefore, that the money was "vested" in him.