Muhammad Matthiar 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 v a certain amount to his paternal uncle, Peria Kadir Rowther, and that Peria Kadir Rowther was in possession of it till his death

and, therefore, Peria Kadir Rowther was a trustee on his 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 Iyer on behalf of the appellant

urges that Ex. A cannot create a trust as the father of the plaintiff was dead at the time when Ex. 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 recitals in Ex. A that the trust was not.

created by means of Ex. A but Ex. A mentions that the trust 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, wife and his son Kasa Rowthan, a male, child then a

minor of about 2 years of age."" In the face of this language I do not think it is reasonable to contend that Ex. A itself creates a trust. 4 Exhibit A is

only evidence of the fact that a trust had been, created and Peria Kadir Rowther undertook to be responsible for the amount, entrusted to him and

to his brother. Mr. Subramaina Iyer wanted to contend that here there was only a mere deposit and that-would not by itself create a trust, He relief

upon Rajammal v. Lakshmammal 22 Ind. Cas. 936 : (1914) M.W.N. 606 and also upon Krishnan Patter v. Lakshmi 66 Ind. Cas. 858 : AIR

(1922) M. 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 Ex. A is only evidence of the fact. In the face of these facts, I do not think 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 is dismissed with costs of the 1st respondent. The other respondents will bear their own costs.