MAULAVI KAMIRUDDIN KHAN Vs. BADRUN NISA BIBI

JUDGEMENT

(1.) This is a defendant's second appeal against concurrent decrees of the Courts below decreeing the plaintiffs claim. The suit out of which the appeal arises was for rendition of accounts and payment to plaintiffs of any sum found due after taking such accounts. Various defences were raised, but it is only necessary to consider one of them in this appeal and that is the defence of limitation. Both the Courts below held that the suit was a suit for rendition of accounts as against a trustee and accordingly they found that the suit was not barred by time. On 12th December 1920, two brothers, namely Zamir and Zahir, executed what is called a deed of trust. By the terms of that deed defendant 1 was entrusted with the management of the property of Zamir and Zahir for a period of ten years ending on 12 December 1930.

(2.) It appears that defendant 1 managed these properties and in the year 1928 Zamir died. As I have stated, the period of the deed ended on 12 December 1930, and on 13 December 1933 the pre-sent suit was filed by the plaintiffs claiming an account from defendant 1. Defendant 1 contended that the suit was one brought against an agent for accounts and was, therefore, governed by Art. 89, Limitation Act. The plaintiffs, however, argued that this case was governed by Section 10, Limitation Act, as the deed in question constituted defendant 1 a trustee of the property. That being so, it was argued that a suit for rendition of accounts could not be barred by time. The question which has to be decided in this case is whether defendant 1 was a trustee or an agent with very wide powers of management. Certain evidence was adduced in the Courts below, to show what had in fact occurred during the period of management; but in my view this case must be decided upon the construction of the alleged deed of trust. The deed opens with a recital that the two brothers were unable to manage their property conveniently and were suffering a great loss thereby.

(3.) For that; reason, it is said that they were giving defendant 1 by the document the powers enumerated thereafter for the purpose of good management of the said properties. Thereafter are set out the various rights given to and duties imposed upon defendant 1. He was to transact all the business of the two brothers, appoint servants and agents, bring suits, realize rent and in short deal with the properties as a general manager. He was in fact given certain powers to sell though in some instances such powers could not be exercised without the consent of the two brothers.