TMI Blog1933 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... In 1319 (1912) Gobendra retired from service, but the notes remained with the Raj. In October 1914 Gobendra died. Defendants 1 and 2 are his sons and defendants 3 and 4 his grandsons. The plaintiffs are the heirs of Debendra No. 1 being one of his two sons and No. 2 being the widow of the other. They instituted this suit to recover the said G.P. Notes of ₹ 11,000 or, in default, the equivalent money-value thereof together with interest. The Subordinate Judge, made a decree in favour of the plaintiffs ordering the defendants to return the securities within a week, failing which the plaintiffs were to recover ₹ 14 thousand odd representing the value of the securities and the interest thereon, together with interest pendente lite. Defendants 1 to 3 have then appealed, and defendant 4, as respondent, has supported them. 2. Apart from one other point that was sought to be raised on behalf of the appellants, but which we have not allowed as it was not raised in the Court below and involves investigation of facts, the only ground on which the decree of the Court below has been assailed is the ground of limitation. This contention was overruled by the Court below in the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except a confidence reposed by one person in another, and enforceable in a Court of Equity. Godfrey says: A trustee then is he, who, while holding-legal ownership or possession of, or dominion-over, the subject of the trust, is bound to allow beneficial enjoyment or usufruct of the property to be reaped by another, who is called the cestui que trust or beneficiary. A trustee, properly so called, must have property vested in him or a right to call for a transfer of or to possess such property, and there must be a person or persons for whom he holds or ought to hold such property: Re Barney (1892) 2 Ch 265. 8. So far as Section 10 is concerned and upon the facts of the present case, the words, of that section that have to be specially regarded are has become vested in trust, for any specific purpose, and for the purpose of following in his or their hands such property or the proceeds thereof, 9. The expression has become vested in trust has received interpretations from the Courts which are not quite uniform. For our present purpose it is not necessary to discuss this conflict. The word vesting implies property in the subject matter, and that it is contrary to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as regards third parties, is had by the Government. I think this must be vesting of this moveable property within the meaning of the section .... The word become seems to convey every possible manner in which the vesting could take place. 12. In our opinion, while transfer of proprietary rights is not intended, mere transference of management or control is not enough to satisfy the requirements of vesting as contemplated by Section 10; a right to call for a transfer and to possess the property for the purposes of the trust and also a power to dispose of it according to the terms of the trust without reference to the owner are the essentials that constitute the vesting. 13. The expression for any specific purpose need not detain us long after the pronouncement of the Judicial Committee in the case of Khaw Sin Tak v. Chuah Hooi AIR 1922 P C 212. 14. Their Lordships have said: A specific purpose, within the meaning of Section 10 must, in their Lordships' opinion, be a purpose which is actually and specifically defined in the terms of the will or the settlement itself, or a purpose which from the specific terms can be certainly affirmed. 15. Also in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne knows if the money had been set off or repaid in some other way the liability of Gobendra would have been equally extinguished. We are unable to hold that there are any materials which would justify us in affirming with certainty that a return of the G. P notes in specie to Devendra's estate after Gobendra's service with the Burdwan Raj came to an end was a purpose of the trust. In our judgment therefore Section 10, Limitation Act, cannot be applied to the suit. 19. As regards the applicability of Article 145, which the Subordinate Judge ]was of opinion, in the alternative, was the article applicable, Mr. Mitter has addressed to us a learned and weighty argument. He has argued that this article is not applicable, but Article 49 is the correct article to apply. His reasons, with authorities in support, may be summarised here: Firstly.-That Article 145 is applicable to the particular class of bailment known to Roman law under the name of depositum which is a bailment of a specific thing to be kept for the bailor and returned when wanted as opposed to commodatum where a specific thing is lent to the bailee to be used by him and then returned, and both of which again a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit or depositary in the Limitation Act, must be judged by the ordinary dictionary meaning of these words. We entirely agree in the observations of Schwabe, C.J. in the case of Kishtappa Chetty v. Lakshmi Ammal AIR 1923 Mad 578 as to the meaning of this article. He said: I cannot believe that it was the intention of the framers of that statute that the various District Munsifs throughout India or other Subordinate Judges who have to administer the law should have to study either Coggs v. Bernard 1 Sm LC 187 or the Roman law in order to ascertain what is the true meaning of Article 145. I think they meant to use simple and plain language, and they used the word depositary; and in using that word they meant simply to say that, where one man's property was handed by that man to another, he became a depositary of it, unless of course there was something in the terms of that handing over which would prevent his being treated as a person with whom it was deposited at all. 21. Taken in this broad sense a deposit would include a commodatum, or the lending gratis to be used by the bailee which is one of the kinds of bailment in Roman law and one of the six kinds of bailment in Cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of opinion, therefore, that the first contention should fail. As regards the second contention we must dissent from the view propounded therein. We are supported in the view we take by a long series of decisions of all the Courts, e.g., Shivlal v. Bhavani Shankar (1902) 26 Bom 430, Gangineni v. Gothipati (1910) 33 Mad 56; Gangahari v. Nabin Chandra AIR 1916 Cal 869; Promotho v. Pradyumno AIR 1921 Cal 416 and Ma Shew v. Ma Saw AIR 1928 Rang 309. As regards the third contention, if the idea of a gratuitous bailment under the Contract Act is to be imported into the Limitation Act it cannot be gainsaid that by virtue of Section 162, Contract Act, the bailment must on the death of Gobendra have come to an end. But as we read the provisions contained in Article 145, Lim. Act, it takes no notice of the termination of the bailment; what it is concerned with is the time when the deposit was made. 24. But the question which presents to us greater difficulty is the question whether the suit, as against the defendants who were not themselves the actual depositaries but are only the heirs of the depositary, is a suit within the meaning of Article 145. The only authority of this Court dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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