SOONDERDAS THAKERSEY Vs. BAI LAXMIBAI

JUDGEMENT

(1.) IN and prior to the year 1923 plaintiffs Nos. 1 to 3 with one Raghavji Khimji were carrying on business in partnership in the name of Messrs. Jetha Mulji & Co. Plaintiff No. 4, who is the brother of plaintiffs Nos. 1 to 3 and who was then a minor, was admitted to the benefit of the partnership. It is now admitted that this partnership out of its assets and funds Purchased fifty shares of the New Baroda Mills Company, Limited, and twenty-five shares1 of the Petlad Bulakhidas Mills Company, Limited. These shares stood in the name of Raghavji Khimji. IN 1923 plaintiffs Nos. 1, 2 and 3 filed a suit in this Court, being Suit No. 4196 of 1923, for the dissolution of that partnership. A decree was passed in that suit on February 6, 1931. The only provision of that decree with which we are concerned is that that decree declared that plaintiffs Nos. 1, 2 and 3 were the owners of the assets, outstandings, claims and books of account of the firm of Jetha Mulji & Co. After the decree was passed, it is clear on the evidence that Raghavji handed over the share certificates to plaintiff No. 2 on behalf of the other plaintiffs, and since then they have continued to remain with the plaintiffs. IN 1932 and 19S3 three dividend warrants were received in respect of those shares. Raghavji got the warrants cashed and handed over to plaintiff No. 2 the three cheques which he received. After this, other dividend warrants were received ; but for reasons, which I will consider later, they were not discharged by Raghavji. But these dividend warrants went to the plaintiffs and they have been and are still in their possession.

(2.) ON October 18, 1984, Raghavji and his brother Harjiwan filed a suit in this Court, being Suit No. 1524, against the plaintiffs for the recovery of a sum of about rupees four lakhs alleged to be due by the plaintiffs at the foot of certain accounts. That suit is still pending. Raghavji died on April 14, 1941, and the defendants are the executrix and the executors of his will. ON December 23, 1941, the plaintiffs' attorneys wrote to the defendants' attorneys stating that the shares in dispute belonged to the plaintiffs and they should not be shown in the schedule to the petition for probate which the defendants might file. ON June 19, 1942, the defendants filed the petition for probate, and in the schedule containing the moveable and immoveable properties of the deceased they showed the shares and the unrecovered dividends thereon as belonging to the estate of the deceased. ON that, the plaintiffs filed the suit for a declaration that the shares standing in the name of Raghavji Khimji belonged to the plaintiffs and calling upon the defendants to execute the relative transfer forms and to sign the dividend warrants.

(3.) SECTION 10 of the Indian Limitation Act, 1908, provides that no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands, such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. The marginal note to the section describes such suits as suits against express trustees and their representatives, and the decisions of all the High Courts in India have now made it perfectly clear that although the section does mot use that particular nomenclature, the trustees contemplated by it are the same as what is known in English law as express trustees. In Khaw Sim Tek v. Chuah Hooi Gnoh Nedh (1921) L. R. 49 I. A. 37, 43: S. C. 25 Bom. L. R. 121, their Lordships of the Privy Council defined a trust for a specific purpose as one for a purpose that is either actually and specifically defined in the terms of the will or the settlement itself, or a purpose which, from the specified terms, can be certainly "affirmed,