Janandan Prasad Thakur vs Musammat Janabhati Thakurain

In this case the plaintiffs ask for a certificate u/s 110 of the CPC that the case complies with the provisions of the section and is a fit one for appeal to His Majesty in Council. The decision of this Court from which it is sought to appeal, was a decision of affirmance and the question is whether there is a substantial question of law for decision by their Lordships of the Privy Council. The suit was instituted by the plaintiffs who were in the year 1894 minors and their estate to which they were entitled, was at that time put under the administration of the defendant No. 1 who was their uncle, he having been appointed administrator by the Court. In the year 1903 the younger of the two plaintiffs attained his majority but no account appears to have been rendered by the defendant as to his management of the estate and no action was taken by the plaintiffs to obtain an account from him until this suit was instituted on the 3rd September 1910. In the suit the plaintiffs claimed "that an account may be taken from defendant No. 1 of the income and expenditure of the plaintiffs'' share of the estate during the management of defendant No. 1 from the year 1894 to the end of Bhado 1315 M.S. and that be may be ordered to pay to the plaintiffs the sum that may be found due by him on taking such accounts," and then there were further prayers in the plaint relating to specific properties in respect of which certain reliefs were claimed and the schedule of the properties was set out. It was found in respect to some of the properties with regard to which relief was claimed that it was not proved that these properties were purchased by the defendant out of the trust fund and as the plaintiffs had no means of ascertaining unless they obtained an account of how the trust fund had been used, it is not surprising that they had no evidence in respect of any particular property to show out of what fund it had been acquired. With regard to these properties the suit was dismissed. With regard to others, that is to say, with regard to property which admittedly formed part of the trust fund, it was held that under the Limitation Act, Article 120 the period of limitation for suits mentioned in that Article being six years, no suit could be brought in 1910 by the plaintiffs because the period of the defendant''s administration ended in the year 1903 and no suit having been brought within six years of that time it was found to be barred by Statute. The plaintiffs on the other hand contended that section 10 of the Limitation Act prevented the operation of Article 120 this being a case within the provisions of section 10. It was decided by a Bench of two Judges of this Court when the case was before them that section 10 had no application to the present case. This matter appears to us to be one which is by no means settled by the decisions in this country although it is claimed that there has been a consensus of opinion for some years with regard to the application of section 10 which would govern the present case. Having looked at the cases in question, it does not appear to us by any means certain that these cases are conclusive of the points which arise in the present case and we think that there does arise in this case a substantial question of law and there being no doubt whatever as to the value of the subject-matter in dispute, we agree that this is a fit case for appeal to His Majesty in Council and both as to value and nature complies with the provisions of section 110. The usual certificate should be granted. This application will, therefore, be allowed. The costs of this application will be costs in the cause. Hearing fee five gold mohurs.