Babu Janardhan Prosad Thakur and Another vs Musammat Jankibati Thakurain and Others

The appellants in this case are the nephews of one Rudranand Thakur, that is to say, second cousins once removed. Their case is that on the death of their father Shiva Pershad Thakur in 1894 Rudranand Thakur took out Letters of Administration for the management of his estate during their minority and that during that management, he mad purchases of properties out of the proceeds of the minors'' estate and having wrongfully obtained entry of his own name in the documents of title refused to deliver to the plaintiffs their shares in the property acquired during his administration. They also allege that Rudranand had, on the expiry of his administration, refused to deliver accounts and upon these causes of action ask for the following reliefs:

(a) That an account be taken from defendant No. 1 of the income and expenditure of the plaintiffs'' share of the estate during the management of the defendant No. 1 from the year 1894 to the end of Bhado 1315 M.S. and that he may be ordered to pay to the plaintiffs the sum that may be found due by him on taking such accounts.

(b) That if upon taking account, any other defendants be found liable to pay any sum to the plaintiffs, such sum may be ordered to be paid to the plaintiffs.

(c) That the defendants be ordered to make a discovery of all the properties, move- able and immovable, appertaining to the estate of Shiva Pershad Thakur, Tirthanand Thakur, Kulanand Thakur and Rudranand Thakur and their descendants and not acquired with the private funds of any member or branch of the family.

(d) That the Court may be pleased, after adjudication of the title of the plaintiffs and of the shares belonging to the different branches or members of the family, to order a partition and separate allotment to be made of the moveable properties mentioned in Schedule 5 hereto annexed and separate possession of the landed properties comprised in the several Schedules 1, 2, 3 and 4 here to annexed, and of all other properties that may be found to belong to the plaintiffs after the discovery prayed for as above or otherwise awarded to the plaintiffs.

(e) That the costs of the suits be awarded to the plaintiffs from the defendant No. 1 or any other defendants who may be found liable.

(f) That any other or further relief in the premises to which the plaintiffs may be entitled in the judgment of the Court may also be given them.

In dealing with the reliefs sought the learned Subordinate Judge found that the suit for an account was barred by limitation, that the suit for recovery of any money that might be due on that account was barred by limitation. The prayer for discovery of the Immovable properties acquired during the administration of the estate by Rudranand was apparently not pressed, but the learned Subordinate Judge went in detail into the title of the plaintiffs in each of the properties mentioned in the schedule and dismissed or decreed the plaintiffs'' suit according to his adjudication on their title. The defendants have not appealed. The plaintiffs have appealed. The points for decision are (1) Is the suit for an account barred by limitation? (2) Having failed to secure an account have the plaintiffs succeeded in establishing by other evidence their title to the properties claimed?

There are two points in issue, upon which the question of limitation turns. Firstly, when did the younger plaintiff attain his majority? and secondly, from what date should limitation run under Article 120 or Section 10 of the Limitation Act?

We have no hesitation in finding that the learned Subordinate Judge''s arguments with regard to the present age of the younger plaintiff are unassailable. It is vain to attempt to explain away as mistakes the numerous indications of the plaintiff''s age given at a time when the question of his age was not in dispute. There is no substantial evidence on the plaintiff''s side that the plaintiff was not a major at the dates given by the learned Subordinate Judge. Knowing that these records were likely to be cited against him, the younger plaintiff failed to submit himself for medical examination. He was only himself to blame, if indeed the decision of the learned Subordinate Judge is wrong. We find as a fact agreeing with the lower Court that the younger plaintiff came of age in the year 1903.

The suit was instituted on the 3rd September 1910. The next question is whether limitation runs from the date upon which the plaintiffs were entitled to put an end to the administration of Rudranand or from the date on which they did in fact put an end to it. In our view, the legal position of the defendant as an administrator terminated upon the day the younger plaintiff came of age. If thereafter the plaintiffs allowed him to remain in charge of the property, Rudranand Thakur was in charge of the property from that date, not as an administrator, but as the agent of the plaintiffs and a suit against him for an account would fall under Article 89. The view taken in Saroda Pershad Chattopadhya v. Brojo Nath Bhuttacharjee 5 C. 910 : 6 C.L.R. 195 : 2 Ind. Dec. 1188 clearly indicates that in suits of this nature, the cause of action arises upon the date of the plaintiffs'' majority. We are of the same opinion. The administration of Rudranand was by the definite order of the District Court limited to the plaintiffs'' minority. It was open to the plaintiffs immediately they came of age to inform the District Court that the administration was at an end and to ask for an account, and on failing to get that account to maintain a suit to obtain one. Their cause of action undoubtedly arose from the date of the majority of the younger plaintiff and the date of that majority being more than six years prior to the institution of the suit, the suit is barred by limitation unless saved by Section 10 of the Limitation Act. We see no reason to depart from the rule of law, which has been observed in the Calcutta High Court for the last forty years with regard to this section. The first dictum is that reported hi Kherodemoney Dossee v. Doorgamoney Dossee 4 C. 455 : 3 C.L.R. 315 : 2 SL.R. 153 : 2 Ind. Dec. 289. This has been followed in Greender Chunder Ghose v. Mackintosh 4 C. 897 : 4 C.L.R. 193 : 4 Ind. Jar. 287 : 2 Ind. Dec. (N.S.) 568; Hemangini Dasi v. Nobin Chand Ghose 8 C.788 : 11 C.L.R. 370 : 7 Ind. Jur. 17 : 4 Ind. Dec. 509; Baroda Prosad Banerji v. Gajendra Nath Banerji 1 Ind. Cas. 289 : 13 C.W.N. 557 : 9 C.L.J. 383 and Sarat Chandra Banerjee v. Bhupendra Nath Bosu 25 C. 103 : 13 Ind. Dec. 70. It has also been followed in other Courts. It must be taken as well settled that an administrator, in whom no special trust is vested for a specific purpose, is not a trustee within the meaning of Section 10 of the Limitation Act. The prayer for an account for the period between the date of the younger plaintiff''s majority and the date of the plaintiffs entering into direct management of the property is barred, unless it be shown that the latter date was within three years of suit. The learned Subordinate Judge has clearly shown that the plaintiffs must have been in direct management of the property at least from the 31st July 1907. It is well known that changes in management ordinarily take place prior to the settlements and arrangements to be made for the bhadoi crop, that is, in July each year. The assertion of the plaintiffs that they did not take charge till the middle of September is against the probabilities The finding of the lower Court is in accordance with probabilities. We accept the finding of fact that the agency of Rudranand terminated not later than the 31st July 1907. The first two reliefs asked for the plaintiffs were, therefore, rightly refused as barred by limitation.

The properties affected by the second part of the case may be dealt with in three divisions. We may say at once that we regard it as unfortunate that the learned Subordinate Judge should have allowed a case of this complex nature to be prosecuted as one suit. The plaintiff is attempting under cover of one plaint to obtain an account for the period of Rudranand''s administration, to take up family history for the past 20 to 30 years, and to obtain a repartition of the estate. He has attacked a number of transactions to which Rudranand Thakur was not a party at all in a vain attempt to encroach upon the property of other cousins, who were not interested in the administration of the estate by Rudranand. The suit as a whole seems to us to have been framed in direct contravention of Order II, Rule 4, whereby the plaintiff is precluded from joining a suit for recovery of Immovable property with suit for a sum of money due. The suit in effect was a suit to recover damages for malfeasance under Sections 146 and 147 of the Probate and Administration Act. It should have been kept within those limits. The suit for the recovery of Immovable property in the hands of Rudranand Thakur and the cousins Girjanand and Gajanand Thakur was in no way connected with the suit for an account. The result of interweaving this quarrel with regard to the Immovable properties with the quarrel over the administration has been that the plaintiffs'' evidence on the real ownership of each item of property claimed is so hopelessly meagre that the learned Subordinate Judge cannot possibly be taken to task for refusing to rely on it. We are asked to declare for instance that a large batch of properties were taken in the name of such benamidars as Bulan Kawas, Nanul Dutt Pande, Khublal Thakur and Badri Nath Thakur, on evidence which covers for each case not more than 10 or 12 lines of the paper-book for each benamidar. It is suggested that sufficient evidence has been given to show that these people were probably benamidars of the plaintiffs'' family. This was not sufficient for the plaintiffs'' case. The plaintiffs were required to show that they were benamidars of Rudranand Thakur. The evidence of their own witnesses makes it perfectly clear that if indeed they were benamidars for any member of the family, they were benamidars for Girjanand Thakur or his father Thirthanand Thakur and not for Rudranand Thakur at all. This disposes of the cases dealt with in Schedule 4 to the plaint.

With regard to the properties covered by schedules Nos. 1 and 2, a considerable number of them have already been decreed to the plaintiffs. With regard to the others, we agree with the learned Subordinate Judge that there is no real evidence of the plaintiffs'' title.

It has been strongly urged upon us that because a number of these properties were acquired by Rudranand Thakur during the period of his administration and because during that period the plaintiffs lived in the same house with him as members of the same family we should assume that the tahbil or purse of the family was a common purse and that all sums taken from it by Rudranand Thakur for the purchase of property must be regarded as taken from the common purse of a joint family. Evidence has been given by the plaintiffs to show that they and Rudranand Thakur messed together, but even in that evidence there is no definite statement that Rudranand Thakur and the plaintiffs had a common purse. The position was that Rudranand was managing his share of the properties for himself and plaintiffs'' share of the properties for them. He was required by law to keep a separate account for the plaintiffs'' properties and to submit a separate account of the collections and disbursements from those properties annually to the District Judge. The fact that he failed to do so would not constitute the purse into which he placed the collections from both his own and the plaintiffs'' properties a common purse. Such a purse is merely the private purse of a fraudulent trustee. When a trustee makes a profit by the improper employment of trust money, he is liable to make good to the beneficiary the amount of that profit in addition to the money improperly employed. But it is not the case that the beneficiary is entitled to claim a title in the property acquired by the improper use of trust funds. The properties claimed were not purchased by Rudranand on plaintiffs'' behalf. There was never any intention in the mind of Rudranand to acquire for the plaintiffs a title therein. It is clearly the plaintiffs'' case that Rudranand was throughout acting fraudulently. If he did purchase these properties with the plaintiffs'' money (and this is very far from being proved), he was using the plaintiffs'' money improperly. Even if it be granted that the refusal of Rudranand to file an account of the administration raises the presumption that he improperly used the plaintiffs'' money in these speculations in landed property, and even if it be granted that the cases quoted in Halsbury''s Laws of England, Volume 28, at pages 192 and 193 are authority for the proposition that the plaintiff is entitled at his option to claim either the money used with interest, or the property acquired with the money, limitation for the exercise of such an option would be the limitation for the recovery of the money used. This disposes of the plaintiffs'' claims to the properties acquired in the name of Rudranand himself during the period of his administration. It is unnecessary to discuss at length the plaintiffs'' title to properties acquired in the name of Rudranand prior to the period of his administration. The family was clearly separate at the time of their acquisition and there is no evidence at all to show that the properties were acquired in part from the funds of the plaintiffs'' side of the family.

The appeal fails on all the points raised and is dismissed with costs.