Kishorekunverba Devsinhji vs Nanubha Vakhatsinhji

Chhatpar, J.—The facts leading up to this appeal are as under: One Vakhatsinhji had four sons, Harisinhji, Lakhubha, Nanbha and Karan singhji. The estate of the four brOrs. had joint management although each one of them had defined share, there being however no partition by metes and bounds between them, i.e., the four brOrs. held the estate as tenants-in-common. Lakhubha died leaving a son Bhikhubha and Karansinhji died leaving a son Jilubha who was then about six months old. Jilubha is the Plaintiff who filed the present suit against Nanbha for accounts. The estate of the four brOrs. was heavily indebted and it appears that Lakhubha, with the sanction of the former Gondal State, within whose territory the estate was situated, took over the management in about 1922. Before that the Gondal State had taken over the management, probably under the Encumbered Estates Rules of Gondal State which are analogous to the Broach and Kaira Encumbered Estate Act. Lakhubha died in the year 1928, leaving a minor son named Bhikhubha. Thereupon the management of the estate was taken over by the State. In April 1932, the widow of Lakhubha applied to the Gondal State that the management of the estate of Bhikhubha as also of Jilubha may be made over to Nanbha the present Defendant. This was agreed to by the State and Nanbha took charge of the estate of both Lakhubha and the Plaintiff Jilubha on condition, that he would render accounts to the State every year that he would pay up all the dues of the State and would not encumber the estate without sanction of the Ruler and would maintain and educate the minors according to the customs and practice of the State. Nanbha had agreed to this arrangement. He had in fact joined the widow of Lakhubha in the application to the Gondal State. The Ruler of the State issued an order dated 13-4-1932 putting the estate of Jilubha under his management and added that the Upleta Mahalkari would satisfy himself at the end of June every year whether the estate had been properly managed or not and that the amounts realised as the share of Jilubha would be deposited in the account of the minor who would be paid the same on his attaining majority. Nanbha was a co-sharer in the estate and he had, in addition to manage the share of the minor Jilubha as also of Bhikhubha. Nanbha deposited some amounts in the year 1932 but failed to make any deposits in the subsequent years. He was deprived of the management at the end of 1934 when the Gondal State took it over.

The Plaintiff Jilubha attained majority in 1941. The present suit for accounts was filed for the years 1932 to 1934 and the only question I have to deal with is of limitation whether the suit is in time. The suit was filed on 19-8-1949. The Plaintiff died during the pendency of the suit, and his widow has continued the suit as his legal representative. The trial Court passed a preliminary decree for accounts holding that the Defendant was a trustee and Section 10, Indian Limitation Act applied. On appeal by the Defendant Nanbha, the Assistant Judge who heard it, reversed the decision holding that Section 10, Limitation Act was not applicable as the estate was not vested in the Defendant in trust for any specific purpose and that the only article which applied was Article 89 which provides for a suit by a principal against his agent for accounts and that the cause of action arose in June of every year during the continuance of the agency and latest in 1935 when the agency terminated. As the Plaintiff was then a minor he should have brought the suit within three years of his attaining majority. The suit filed in 1949 was time-barred. The Plaintiff has preferred the second appeal to this Court.

Mr. Boghani for the Appellant has raised three points. He has relied upon Section 10, Indian Limitation Act contending that the section applies whenever there is a fiduciary relationship between the parties. But the law appears to be quite clear on the subject. Section 10 cannot apply in the case of a partner, a manager or an agent or a guardian, unless they are trustees in the strict sense of the word. The section requires vesting of the property for a specific purpose. In the present case there is no such vesting of the property. I therefore agree with the decsion of the learned Assistant Judge that Section 10 has no application.

Mr. Boghani''s next argument is that the suit comes within Article 145, Limitation Act. This article obviously has no application as it provides for a case against a depository or a pawnee to recover moveable property so deposited or pawned. There is no question of a deposit or a pawn in the present case. The mere fact that the Defendant has to deposit the realisations of the estate of the minor in the Gondal State treasury does not mean that he himself was a depository or a pawnee.

The third contention of Mr. Boghani is based upon the Encumbered Estates Rules of the Gondal State of 1897. This point though raised in the lower appellate Court has not been touched by the learned Assistant Judge. It seems to me to be very material and has been entirely overlooked by the lower appellate Court. In para. 9 of the plaint the Plaintiff stated that the Defendant''s estate was, at the time when he was a minor, under the management of the Gondal State under the Encumbered Estates Rules which prohibit any suit being filed against the Defendant during the period of management and which period is to be excluded when suits are to be filed after the management ceases. He specifically also alleged that the estate of the Defendant was released from the management in 1947, whereafter alone he could take any action against the Defendant. Consequently, if the period upto 1947 was excluded the suit filed in 1949 would be within three years and in time. I have heard the learned advocates on this point and it appears to. me that this argument is scund. In answer to this plea the Defendant did not dispute the fact that his estate was under management under the Encumbered Estates Rules upto 1947 but he disputed that this would save the period of limitation. I have been referred to the evidence on the point and the admissions of the Defendant himself. It is clear that his estate was under management at least from 1941 when the Plaintiff attained majority upto 1947. It appears that the estate of the four brOrs. was for many years under the management even before this period. Rule 5 of the Encumbered Estates Rules prohibits suits being filed and there is a further provision contained in Rule 23 to the effect that in computing the period of limitation for a suit filed after the management has ceased the period of management would be excluded. Mr. Parekh, the learned advocate for the Respondent has argued that all dues which were provable in the Encumbered Estate proceedings would be deemed to have been washed off if not claimed before the manager. This plea is a mixed question, of fact and law and was not raised in the lower Courts. I cannot permit it to be raised for the first time in second appeal. There is no evidence as to the exact date on which the Defendant''s estate was taken in management and what proceedings were held by the manager. Consequently it would appear that the Plaintiff''s suit for accounts would be in time.

A further plea was raised by Mr. Parekh that the Defendant could only account to the Gondal State and not to the minor. He has not rendered accounts to the Gondal State. He was given management of the minor''s estate under some statutory rules of the Gondal State relating to taking over of the estate of minors. The minor''s right for account of management could not be disputed. He could on attaining majority claim the account. It would be open to the Defendant to prove that he has already rendered accounts to the Gondal State and that there is no necessity for reopening those accounts. The plea of the Defendant that he has rendered accounts has not been made good as held by the trial Court.

There is therefore no substance in the contention of Mr. Parekh on this point.

A further point arises which has not been considered by the lower Courts whether the proper article of limitation applicable in the present case, would be Article 120, Limitation Act. The Defendant was invested with management of the minor''s estate under some statutory rules and the relationship between the minor and the Defendant was not on contractual basis as a principal and an agent. The Defendant was also a co-owner with the Plaintiff in the entire estate originally belonging to the four brOrs. and there was joint management. A suit by a owner for accounts of rents and profits against Anr. co-owner is, governed by Article 120 and limitation runs from the date when demand for accounts is made and is refused. For this proposition see the ruling'' of the Full Bench of the Madras High Court in the case of - Yerukola alias Penta Jogulu (Dead) and Others Vs. Yerukola alias Penta Tatayya alias Purushottam and Others, , which has been followed by the Sind Court in the case of - ''Khemchand Dayaram v. Dayaram Jessomal AIR 1941 Sind 50 (B), (remarks at p. 68,) and by the Madras High Court in the case of - (Peria) Syed Levvai Rowther and Another Vs. Syed Ammal, and by two decisions of the Bombay High Court in - Govinddas Rajaramdas Gujar Vs. Ganpatdas Narottamdas Gujar, and - Saiyad Jaffar El Edroos Vs. Saiyad Mahomed El Edroos, ). As the demand in the present case was made for the first time by letter of 12-6-1949, Ex. 8 in the case, the suit filed in August 1949 would be within the period of limitation. I therefore set aside the decision of the lower appellate Court and confirm the preliminary decree for accounts passed by the trial Court. The Plaintiff will have his costs from the Defendant of this Court as also of the lower appellate Court.