Chandra Kesavalu Chetty and Another vs S.P. Perumal Chettiar

Burn, J.—This is an appeal from the decision of the Principal Judge of the City Civil Court in O.S. No. 774 of 1935. The plaintiffs are the

two sons of one Chinna Ramiah Chetty who was the owner of a house in Selvavihayakaf Koil Street, Madras City. He sold this house on the 30th

of August, 1911, to the defendant S.P. Perumal Chettiar. The purchase price was fixed at Rs. 2,600 and out of this sum, Rs. 800 was left with the

vendee on condition that he should keep it until Kondal Chetty, a minor illegitimate son of the vendor, should attain his majority. The defendant

undertook at the same time to pay interest at the rate of 14 annas per cent, per mensem on the amount of Rs. 800. Chinna Ramiah Chetty, the

vendor, died in 1920 and his illegitimate son Kondal Chetty is said to have disappeared shortly afterwards. In 1930 the plaintiffs who are the

legitimate sons of Chinna Ramiah Chetty demanded payment of the Rs. 800 to them with interest at the rate of 10i per cent, per annum from June,

1920, when their father was said to have died. The defendant repudiated liability and the plaintiffs filed this suit in forma pauperis on the 11th of

July, 1905.

The learned judge of the City Civil Court framed the following issues:

(1) When did Kondal Chetty attain majority?

(2) At what date can Kondal Chetty be presumed to have been dead? And is he dead?

(3) Are the plaintiffs entitled to claim the money as members of the joint family consisting of themselves and Chinna Ramiah Chetty, deceased?

(4) Are the plaintiffs entitled to claim the money as surviving members of the joint family consisting of themselves and Kondal Chetty?

(5) Are the defendants trustees in respect of the said money and are they bound to repay the said money as such trustees to the plaintiff?

(6) Is the suit barred by limitation?

(7) Are the plaintiffs entitled to a charge on the suit properties for the amount claimed?

(8) What amount, if any, are the plaintiffs entitled to?

(9) To what reliefs are the, plaintiffs entitled?

In his judgment the learned Judge held that the suit was barred by limitation. He held that Kondal Chetty must have attained his majority in the

year 1922. He held that the money was payable on Kondal Chetty''s attainment of majority and since the suit was not filed till 11th of July, 1935,

he held that, whether the six years'' rule applied or the twelve years'' rule, it would be barred by limitation. He held on the second issue that Kondal

Chetty might be presumed to be dead but he did not express any opinion as to the date of his death. On issues 3 and 4 he found in favour of the

plaintiffs. This appeal has been admitted, again in forma pauperis, at the instance of the plaintiffs.

The principal argument of earned Counsel for the appellants is that the learned Judge of the Court below was wrong in holding the suit is barred

by limitation. It is contended that the defendant was a trustee of the Rs. 800 and that therefore u/s 10 of the, Indian Limitation-Act, the suit cannot

be barred by limitation. This argument is based upon the language of the sale-deed (Ex. III) dated the 30th of August, 1911 and the bond (Ex. IV)

executed the next day by the defendant in favour of the plaintiffs'' father as the guardian of Kondal Chetty. Earned Counsel argues that by these

documents an express trust was created in respect of the Rs. 800, the defendant being the trustee and the beneficiary Kondal Chetty. We are not

able to accept this argument. Section 10 of the Indian Limitation Act deals with suits against persons in whom property has been ""vested in trust for

any specific purpose"". Now in Ex. III, the words relating to the amount of Rs. 800 are as follows:

The amount I retained with you this day for the minor Kondal Chetty, aged 7 years, son of my deceased wife by affection, namely, Seethammal, is

Rs. 800. As you alone have been keeping this sum of Rs. 800 and if the said minor Kondal Chetty should ask you for the said amount after he had

attained majority, you should get a release deed from him and pay off the said amount.

This is the version given by this Court''s translator. The second sentence would be more literally translated as follows:

In the matter of you yourself retaining this sum of Rs. 800 and in the matter of the said minor Kondal Chetty asking you for the said amount after he

attains majority, you should pay off the said amount and get a release deed from him.

The language of the bond Ex. IV is more explicit. It. runs as follows:

On the 30th August, 1911, you made a sale to me of articles and of house bearing door No. 2/34 in the eastern row of Selvavinayakar Koil

Street, Old Washermanpet, Police H Division, Madras-Chingleput District, for a sum of Rs. 2,600 and out of that amount you have received Rs.

1,800 from me to discharge your debts and towards the maintenance of your family and the balance is Rs. 800. As this sum of rupees eight

hundred is reserved With me on behalf of the said minor Kondal Chetty, I shall pay an interest of Rs. 7 (rupees seven) on the said sum at Rs. 0-

14-0 per cent, per mensem from this day forwards, either once a month or once in six months to you in person or to your order, for the

maintenance of the said minor and obtain receipt from you. As regards the said principal sum of rupees eight hundred, the same will be paid to the

said Kondal Chetty as soon as he attains proper age either by myself or by my heirs without raising any objections whatever and after getting a

release deed from him as mentioned in the sale-deed executed to me by you. In default, you shall realise the amount by proceeding against me and

against my other properties. To this effect have I executed this bond.

We are not able to find in the language of either Ex. III or Ex. IV any words vesting the sum of Rs. 800 in the defendant. There is nothing, in our

opinion, to indicate that the ownership in the Rs. 800 was transferred by the plaintiffs'' father to the defendant without transfer of ownership there''

can be no ""trust"". Vide Sections 3, 5 and 6 of the Trusts Act. Section 10 of the Indian Limitation Act has no application to what are sometimes

called constructive trusts, more accurately described in the Trusts Act as ""obligations in the nature of, a trust"" but only to trusts properly so-called,

as defined in the Trusts Act; In the present case, since the vendor retained the property in the sum of Rs. 800, the transaction is nothing more nor

less than a loan of the Rs. 800 to the defendant, the loan to be discharged by paying Kondal Chetty on his attaining majority. The learned Judge of

the Court below was, therefore, quite right in holding that Section 10 of the Limitation Apt had no application. For this reason, almost all the cases

cited in argument before us on behalf, of the appellants are beside the point. There is therefore nothing to be gained by a discussion of the cases in

Muhammad Mathar Rowthan v. Kasa Rowthan AIR 1924 Mad. 920, Nachimuthu Ammal Vs. Sathivadivel Muthuswamy Maniagaran and

Another, , Official Assignee of Madras v. Krishna]i Bhat (1929) 59 M.L.J. 718, Official Assignee of Madras, v. Krishnaji Bhat (1933) 65 M.L.J.

1 : L.R. 60 IndAp 203 : ILR 56 Mad. 570, Veerappa Chetty v. Official Assignee of Madras (1934) 161 I.C. 891, Nagappa Chettiar v. Official

Assignee of Madras (1930) 60 M.L.J. 355, C.T.V.E. Vairavan Chetty and Others Vs. Chettichi Achi, and T. Krishnajee Bhat Vs. Sadasiva

Tawker and Others, . In all those cases, either an express trust was admitted, or the facts show that the property alleged to be trust property

vested in the person alleged to be the trustee. In the present case, as we have already said, there was no vesting of the Rs. 800 in the defendant.

The next argument on behalf of the appellants is that even if this transaction be treated as one of loan, it must be held that the money was

deposited with the defendant, and was not payable until demanded by Kondal Chetty. In this point also, we agree with the learned Judge of the

Court below that the amount was payable on Kondal Chetty''s attainment of majority and since the bond Ex. IV is a registered document, the

period of limitation is that fixed in Article 116 of the Limitation Act, namely, 6 years from the date on which Kondal Chetty attained majority. As

the learned Judge observes, Kondal Chetty is described in Ex. III as a minor aged 7 years. He should therefore have attained his majority

sometime in 1922. It has been contended before us that the description in Ex. IV of Kondal Chetty as a child of 7 years of age means that he was

in his 7th year and that therefore he would not attain his majority until sometime in 1923. But that clearly makes no difference if, as we have held,

the article applicable is 116. The earned Counsel for the respondent has contested the learned Judge''s finding that the plaintiffs are the heirs of

Kondal Chetty but in the view that we have taken of the nature of the contract between the defendant and the plaintiffs'' father, it is-not necessary

to decide this point.

We agree with the earned Counsel for the respondent that there can be no question in this case of a vendor''s lien on the property sold for the

unpaid balance of purchase money-vide Swaminatha Odayar Vs. Subbarama Aiyar and Another, .

This appeal is accordingly dismissed with costs. The court-fee due to Government must be paid by the appellants.