Muhammad Mathar Rowthan vs Kasa Rowthan and Others

Devadoss, J.—The question argued in this appeal is whether the claim of the plaintiff was barred by limitation. The plaintiff''s case is that his

father entrusted a certain amount to his paternal uncle, Peria Kadir Rowther and that Peria Kadir Rowther was (sic) of it, till his death and (sic)

Paria Kadir Rowther was trustee (sic) behalf and being an express trustee he is not entitled to claim the benefit of the law of limitation. Both. the

lower Courts have found that Peria Kadir Rowther was an express trustee. Mr. Subramania Aiyar, on behalf of the appellant, urges that Exhibit A

cannot create a trust, as the father of the plaintiff was dead at the time, when Exhibit A was executed and that for the purpose of creating a trust

there must be a transfer of the right of the owner to the trustee. It is quite clear from the (sic) in Exhibit A that the trust was not created by means of

Exhibit A; but Exhibit A mentions that the trusts had been created by the father of the plaintiff in his favour and that Peria Kadir Rowther and his

brother were trustees. The recital is:

Whereas even 12 years before our father''s death, our brother, the said Naina Muhammad Rowther, died entrusting to the persons mentioned

below his earnings, namely, Rs. 745-4-0 his wife and his son Kasa Rowthan a male child then a minor of about 3 years of age.

In the face of this language, I do not think it is reasonable to contend that Exhibit A itself creates a trust. Exhibit A is only evidence of the fact

that a trust had been created and Peria Kadir Rowthan undertook to be responsible for the amount entrusted to him and to his brother. Mr.

Subraimania Aiyar wanted to contend that here, there was only a mere deposit and that would not by itself create a trust. He relies upon Rajammal

v. Lakshmammal (1914) 1 L.W. 577 and also upon Krishna Pattar v. Lahskmi 1922 Mad. 57. But the facts in this case are quite clear that the

trust was created by the father of the plaintiff, in favour of the plaintiff, during his life-time and Exhibit A is only evidence of the fact. In the face of

these facts, I do not thing that the contention that there was no trust in this case can prevail. There is no other question involved in the case.

The second appeal fails and id dismissed with costs of the 1st respondent. The other respondents will bear their own costs.