Shaw Ahmed Mohiuddin Kadri vs Shah Yehiya Alum Kadri

Srinivasa Chari, J.—This is a first appeal against the judgment of the Judge of the original side of the High Court dismissing the plaintiff''s suit. The plaintiff who is the appellant before us and the respondent are own brOrs. . The plaintiff and the defendant are the grand-sons (daughter''s sons) of a Jagirdar Hazrath Syed Shah Fazlulla Saheb who was a very well-to-do Jagirdar of the Hyderabad State. This Jagirdar gave his wife Sher Afghan Begum the amount due to her on account of her Mahr viz. Rs. 232,000. This lady with a sum of Rs. 18,000 of her own made a gift of the total sum of Rs. 250.000 in favour of her two grandsons, the plaintiff and the defendant on 10th Ardhibehishet 1328 Fasli in the following proportion, Rs. 175,000 to the defendant and Rs. 75,000 to the plaintiff. This gift transaction was effected by means of a gift deed executed by the lady on the said date and duly registered.

Eighteen years after the date of the gift the present suit was instituted by the younger brother against the elder brother alleging that the latter received the amount that was gifted to the plaintiff, and that the same was lying with him as ''Amanath''. The defence was one of complete denial Parties went to trial and on the evidence the lower Court held that the plaintiff did not prove the receipt of the money by the defendant and dismissed the suit. The present appeal is by the plaintiff.

The first question is as to whether the suit is within time. What is the nature of this suit? On the decision of this point would depend the question as to whether the suit is within time. Admittedly the gift was made on 16th Ardhibhishet 1328 Fasli and the suit was filed on 14th Azur 1346 Fasli i.e. 18 years after. The plaintiff states that the cause of action for the suit arose on or about 5th shehrewar 1345 Fasli when he called upon the defendant to pay the money and the defendant failed to pay.

According to the plaint allegation this suit purports to be one against a person who held the amount in trust for the plaintiff. It is admitted that there was no express trust created and therefore this suit cannot be considered to be a suit for the recovery of an amount in the hands of a trustee. Clearly this case cannot come within the purview of Section 10, Limitation Act. Then the question arises as to what the position would be having regard to the allegations in the plaint. The plaint allegation is that the defendant received the amount gifted by the grand-mother as an elder brother as the plaintiff was then a minor. What are the necessary ingredients in order to constitute a trust? There is no Trust Act in Hyderabad, but the provisions in the Indian Trust Act are usually followed when a question arises as to whether the nature of the transaction is a Trust or not.

A trust contemplates the ownership in two persons at the same time, the relationship between the two owners being such that one of them is under an obligation to use his ownership for the benefit of Anr. . The ownership of the trustee is merely one of form than of substance; trusts are either express or implied. In an express trust, there is a declaration in explicit terms by the settler that the legal and beneficial ownership is held by different entities. An implied trust can be deduced from the conduct of the parties and the circumstances of the transaction.

Assuming that the allegation of the plaintiff is true that the defendant received the amount from the donor (the grand-mother) for and on behalf of the plaintiff prima facie the article of the Limitation Act which would apply to a suit for the recovery of such amount would be Article 50, Article 62, Union Limitation Act. But Article 50, Limitation Act, would apply only to suits where the claim is to recover a specific sum of money and not to suits for accounts. Further Article 50 would only apply where the defendant is bound to pay over the money to the plaintiff as soon as it is received by him and not where it is payable after a particular period.

The present suit has been instituted as a suit for accounts and suits for accounts would ordinarily be governed by Article 77 corresponding to Article 89, Union Limitation Act, but that article contemplates a suit by a principal against his agent. An agent for the purposes of this article should be one employed to do any act or represent Anr. in dealings. Agency need not necessarily have been established by a written document. It may be inferred from circumstances. In order to constitute agency by implication there must have been proof of the one having acted for the other in transactions and having dealt with the estate. There is no proof of the defendant having dealt with the money for and on behalf of the plaintiff. Therefore Article 77 would not apply.

The learned advocate for the appellant relied upon Article 131: Article 145 (Indian Union). That article would be applicable where the suit is for the recovery of movable property deposited or pawned. Here there is no question of any property having been pawned or pledged with the defendant. The question again arises as to whether movable property mentioned is this article includes money. There is difference of opinion as regards this point among the High Courts in India. The words used in the article are recovery of movable property from a ''depositary or pawnee''. The word ''pawnee'' is indicative of the fact that it is some movable property as distinguished from money, the recovery of which in specie is contemplated by this article. Money is not pawned. The word depositary occurring with the word pawnee also is clearly indicative of the same idea. Depositary means a person with whom goods have been deposited or in other words, a bailee of goods. That the word depositary used in this article relates only to a depositary of movable goods is also confirmed by, the fact that there is a specific article which relates to deposit of money. That is Article 48: Article 60 (Indian Union). Therefore this article clearly excludes deposit of money. On all these grounds I am of opinion that Article 131 cannot apply to this case.

Where other articles do not apply we are driven to invoke the residuary article in the Limitation Act viz., Article 106: Article 120 (Indian Union) If Article 106 were to be applied we would have to examine when there was an accrual of eight asserted and infringement of the same, and time would begin to run when the right to sue accrued. This suit cannot be regarded as a suit by a ward against his guardian for an account of the profits made for the simple reason that it is abundantly clear from the evidence that the plaintiff stayed with the father and by no stretch of imagination could the defendant be regarded as the guardian who was accountable to the plaintiff. According to the plaint allegation, the present suit can be regarded at best as one for accounts against a person who has received money for a minor and in such a case the suit would be governed by Article 106. The Rangoon High Court has taken the same view in Ma Thein May v. U Po Kin AIR 1925 Rang. 289. The right to sue accrued to the plaintiff on his attaining majority. The suit is dearly barred as the plaintiff attained majority, more than three years before the institution of the suit, as the evidence would show.

Now coming to the factual portion of the case, I find that the plaintiff''s case is not borne out by the testimony of witnesses. The fact that the defendant received the gift for the plaintiff as the latter was a minor is denied by the defendant. I must straightway say that the plaintiff has not been able to prove that the defendant received the amount gifted to him (plaintiff) as a trustee, because there was no trust created. There is no direct evidence as regards entrustment of the money to the defendant. The gift deed is printed at page 73 of the Paper Book. The recital in the gift deed is to the following effect: "I have gifted and given over into their possession and taken receipts from them." These words would indicate that the amount sought to be gifted was actually handed over to the respective domes viz., the defendant and the plaintiff. The plaintiff''s case is that the amounts were handed over to them as stated in the gift deed but as he was a minor and under the guardianship of his elder brother the defendant received the amount on his behalf and gave a receipt to the donor. (Vide para. 4 of the plaint at page 2). If what is alleged by the plaintiff is correct then the matter would be concluded and the defendant would be liable to account to the plaintiff for the moneys received by him on the latter''s behalf. The receipt said to have been given by the defendant to the donor has not been caused to be produced. As I have stated above there is absolutely no evidence either documentary or oral as regards the receipt of the amount by the defendant, barring the statement of the plaintiff himself and this is not corroborated by other witnesses. On the evidence I am not prepared to hold that the defendant received the amount, for the plaintiff, at the the time of the gift.

11-14. There being no direct evidence of the receipt of the money by the defendant, the learned Advocate for the appellant argued before us that there was overwhelming circumstantial evidence to prove that the amount was lying with the defendant. The plaintiff''s case is that he was at Aligarh undergoing studies, while the defendant was living with the maternal grandfather and grand mother, and as the plaintiff had gone away, he allowed the money to lie with the defendant. The plaintiff has sought to prove this fact by documentary as well as oral evidence. [After elaborately discussing the evidence his Lordship concluded:] Thus the oral evidence and the documentary evidence on behalf of the plaintiff does not prove that the defendant admitted that he had with him the sum of Rs. 75,000 said to have been gifted by his grand-mother on 10th Ardhibhishet 1328 Fasli.

The ruling cited by the learned advocate reported in Chundra Kunwar v. Narpet Singh 29 ALL. 184 can have no bearing on the facts of this case because in that case the admission relied on was held to have been proved and inasmuch as there was no rebuttal to this admission the Court held that a decree on the admission which was found to have been proved could be passed. The Advocate for the appellant also relied upon the statements of the father coupled with the reference in the letter by the defendant wherein he says that the father asked him to advance a loan from out of the amount with him belonging to the plaintiff. I have dealt with the letter as well as the statements of the father in extenso in the foregoing paragraphs. I am of opinion that neither the letter nor the statement of the father can go to establish the existence of plaintiff''s amount with the defendant in the face of the fact that the defendant immediately denied his having any amount of the plaintiff with him. The father appears to have made the demand in 1331 Fasli and when the defendant denied his having the money one would have expected the plaintiff to take steps immediately and the plaintiff''s keeping quiet till 1346 Fasli is very significant.

The next argument of the learned Advocate for the appellant is that the defendant used to send moneys to the plaintiff from time to time, when he was undergoing studies in Aligarh and the learned advocate argues that if there was no money of the plaintiff with the defendant there was no obligation on the part of the defendant to send him moneys and it was because the defendant was in possession of plaintiff''s funds that he used to send him money every time when he asks for it. For this argument the plaintiff relies upon the correspondence between the plaintiff and the defendant. This correspondence consists of letters written by the plaintiff requesting him to send him moneys for his expenses while at Aligarh, I have gone through the letters and I am of opinion that these letters far from supporting the plaintiff''s case go to disprove the contention of the plaintiff. (Here his Lordship again scrutinized the evidence and concluded:)

On the facts, therefore, I come to the conclusion that the plaintiff has not been able to prove the handing over of the amount gifted to the plaintiff to the defendant nor is it borne out by the circumstantial evidence that defendant came to be in possession of the same later on. The statements of the witnesses do not go to establish an admission on the part of the defendant of his being in possession of the amount due to the plaintiff. On all these grounds, I am of opinion that the judgment of the lower Court should stand. This appeal is, therefore, dismissed but in view of the fact that the parties after all are own brOrs. we make no order as to costs.

Siddiqi, J.

After going through the evidence very carefully, I am unable to accept the defendant''s allegation that the money was taken over at the time of the gift by the plaintiff; at the same time I am not convinced that the money was handed over to the defendant on that occasion. As the burden was on the plaintiff to prove that fact (the only fact really contested in this suit), he must naturally fail. If the money remained with the lady, the donor, the plaintiff cannot avail of that fact for the simple reason that the suit is not so framed and is not for enforcement of gift. Probably the gift according to Mahomedan Law would be ineffective for want of delivery and acceptance. If the money really remained with that lady, we can understand the great pact of the evidence; the reluctance on the part of the plaintiff to press his claim before her death and the defendant might have felt at least morally responsible for the money, as he has succeeded to that lady''s estate. In view of these facts the suit will have to be dismissed. I need not discuss the evidence in detail as my learned brother has already dealt with it. The defendant has not come with clean hands in his allegations and therefore, I have no reason to disagree with my brother that he is not entitled to costs. The appeal is, therefore, dismissed.