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Judgment
Chandra Reddy, J.—This is plaintiff''s second appeal. Her suit for recovering ac. 2.20 cents set out in the A schedule or, in the alternative, possession of B Scheduled property or for recovery of Rs. 1750/- with a charge on the B Schedule was dismissed by the District Judge reversing the decree of the trial Court. The facts material for the purpose of this enquiry may be briefly set out:
In the year 1913 the mother of the plaintiff died leaving ac. 2.28 cents of land and some jewellery. She was survived by the plaintiff who was then four years old, a son aged 12 the 2nd defendant and her husband the 1st defendant. The 1st defendant purchased ac. 4.40 cents with the money realised by the sale of jewels of his wife and also the income of the lands left by his wife under Ex. B-1 in 1922.
The sale deed was taken in the joint names of the plaintiff and the 2nd defendant. The Government acquired ac. 4.7 cents out of the subject-matter of Ex. B-1 and ac. 1.40 cents out of the original property left by the plaintiffs mother for Kakinada-Motipalli railway and an amount of Rs. 7500/- was paid by way of compensation. This money was received by the 1st defendant.
It is the plaintiff''s case that she was paid only Rs. 1750/- for which she passed a receipt, Ex. B-2, dated 20-1-1935 by her father who told her that this represented the whole compensation and that she came to know of the real situation only during the trial of O. S. 2 of 1944, a suit instituted by the reversioners of the father of plaintiff''s mother claiming that the properties left by the plaintiff''s mother descended to them as the latter had only a limited interest therein and on her death succession opened to the estate of the plaintiff''s maternal grandfather.
We are not here concerned with the result of the suit. What is relevant is the allegation as to regarding the plaintiff''s knowledge as to the exact amount of compensation paid by the Government for the lands mentioned above. The suit was instituted in the year 1947. To this suit the plaintiff impleaded her father as defendant 1, her brother the 2nd defendant the latter''s wife the 3rd defendant and the alienees as defendants 4 to 8. Defendants 2 to 5 were added for this reason.
On 18-3-1938, the 1st defendant conveyed an extent Of ac. 2.20 cents under Ex. 4 in discharge of a debt said to be due to the vendee in respect of compensation paid by the Government for the acquisition of the land stated above. The 2nd defendant in his turn gifted this property to his wife under Ex. B-4. The donee i.e. the wife sold the property to the 4th and 5th defendants and purchased with the sale proceeds the properties covered by Exs. B-9 to B-11. The plaintiff claims that she is entitled to recover either the lands transferred under Ex. A-4 or those which were acquired by the 3rd defendant with the consideration of these lands.
The defence to the suit was: (1) that the properties under Ex. B-l were purchased partly with the money belonging to plaintiff''s mother and partly with the funds of the 1st defendant; (2) that the plaintiff was paid Rs. 4000/- prior to Ex. A-2 and B-2 was executed by the plaintiff in full settlement of her claim for the balance of the compensation; and (3) that, the suit was barred by limitation.
The trial Court decreed the suit overruling all the objections. On appeal, the District Judge took the view that the acquisition under Ex. B-1 was not solely with stridhana of the plaintiff and that in any event Ex. B-2 evidenced a settlement binding on her. In this view of the matter, he had not gone into the question of limitation. This conclusion of the District Judge is assailed before me in this second appeal.
5a. It is urged by Mr. Seshachelapathi that the first finding is opposed to the documents in the case. There is force in this argument. Ex. A-4 the sale deed executed by the father in favour of the 2nd defendant for a consideration of Rs. 1750/- as being due to the vendee in the matter of compensation mentioned above contains the recitals which are inconsistent with the case of the defendants that the wherewithal for the purchase under Ex. B-1 came partly from the 1st defendant. The contents of that document so far as is relevant are as follows:
After the death of your mother, the inam land belonging to her, the produce derived from the said land, her jewellery and other stridhanam property have come into my possession. That land and a portion of the land already in existence were taken out by the railway company for laying railway lines and compensation was paid to me. As it has been decided by the mediators that you and your sister Balusu Bamma should divide the remaining land and the amount awarded as compensation in two equal shares, you and your sister have accordingly adjusted the difference in the land with the cash.
There can be no doubt, on this passage that the purchase of lands under Ex. B-1 was with the funds belonging to the estate of the plaintiff''s mother to which she is entitled as stridhana heir. It follows that the whole compensation paid by the Government belonged to the plaintiff.
This takes me to the question whether Ex. B-2 evidences a binding transaction. That the appellant''s present case, viz., that a misrepresentation was made by her father with regard to the actual amount received by him is utterly devoid of substance. Though the father received a sum of Rs. 7500/- on her behalf and as trustee and she is alleged to have been given only Rs. 1750/- she had chosen to institute a suit only for Rs. 1750/-.
This factor seems to be more consistent with the defendant''s case, viz., that Rs. 4000/- was received by her before the execution of Ex. B-3 and that the balance of Rs. 3500/- was divided equally between the plaintiff and her brother as per. the advice of mediators and this was acquiesced in by the former and it was in accord ance with, this she was paid Rs. 1750/-. Oth(sic) wise, the claim for Rs. 1750/- in the suit is explicable.
It should also be remembered that by t(sic) date of Ex. B-2 the plaintiff was married, so(sic) is not probable that she was kept in the dark to the total compensation paid by the Government and she came by the requisite knowledge only in the course of the proceedings in O. S of 1944. The District Judge was not impres(sic) with the truth of the evidence bearing on t(sic) aspect of the matter. I find no justification take a different view of the matter especially it does not accord with probabilities.
Whatever might be the position if the plaintiff was unmarried and had no other inder(sic)dent assistance, her version is incapable of acceptance having regard to the fact that she the help of her husband who appears to be q(sic) an independent man and conducting litiga(sic) on behalf of his wife. On the premises, finding of the District Judge on this issue (sic) not be said to be vitiated in any way and it therefore to be accepted. This is sufficient dispose of the appeal.
However, I will also deal with ano(sic) contention which has been argued at some le(sic) at the bar i. e., whether the plaintiff could cover the property which was transferred to 2nd defendant by his father the 1st defendant under Ex A-4 recited above. The argument Mr. Seshachelapathi in this behalf is that as property in dispute was conveyed to the defendant in discharge of a debt which in was not due to him but was payable to the plaintiff the latter could lay a claim to it on the (sic)rine of following trust property.
The foundation for this contention is of Assignee of Madras v. Raraachandra Iyer, 33 Mad 134 (A), which contains the propos(sic) that the doctrine of following trust proper(sic) not confined to properties capable of being t(sic) in specie but applies to properties acquired the trust money. I do not quite understand the appellant falls within the ambit of that (sic)ing. The rule stated in that case is in committee with the principle enshrined in para S. 63 of the Indian Trusts Act.
Where the trustee has disposed of trust property and the money or other property which has received therefore can be traced in his be or the hands of his legal representative or (sic)tee, the beneficiary has, in respect thereof, as nearly as may be the same as his righ(sic) respect of the original trust property.
Illustrations: (a) A, a trustee for B (sic) 10,000/- wrongfully invests the Rs. 10.000 the purchase of certain land. B is entitled
(b) A, a trustee, wrongfully purchases in his own name, partly with his own r(sic) partly with money subject to a trust for B. entitled to a charge on the land for the a: of the trust-money so misemployed.
This only recognises the right c(sic) beneficiary to follow up property whatever it might take and in all its transmutation cestui que trust could seize upon the fund (sic)i property into which it has been converted. B(sic) doctrine cannot be extended to cases whe(sic) trustee transfers his own properties (whi(sic) not traceable to the funds of the beneficial third parties. The right of the cestui qui(sic) or beneficiary is only to claim the special equivalent in whosesoever hand it be
The property of the trustee which was not purchased with the trust money cannot answer (sic)lat description, in my opinion, the ruling in ILR 33 Mad 134 (A), cannot govern the instant (sic)se. The only remedy which is available to the aggrieved beneficiary is to take steps to avoid the alienation by the trustee either on the ground its being a sham or a colourable transaction under S. 53 of the Transfer of Property Act.
It is not open to her to claim this property the doctrine of tracing. This contention therefore fails and is rejected. Nor is S. 82 of the (sic)rusts Act applicable to this case. That section maintains only the principle of benami. The transaction evidenced by A-4 cannot in any sense be (sic)scribed as a benami one. In fact no such claim advanced here.
In the result, the appeal is dismissed. But, the circumstances of the case, I direct parties to bear their own costs in this court.