SHAW AHMED MOHIUDDIN KADRI Vs. SHAH YEHIYA ALUM KADRI

JUDGEMENT

(1.) THIS is a first appeal against the judgment of the Judge of the original side of the High Court dismissing the plaintiff's suit. The plaintiff who is the appellant before us and the respondent are own brors. . The plaintiff and the defendant are the grand -sons (daughter's sons) of a Jagirdar Hazrath Syed Shah Fazlulla Saheb who was a very well -to -do Jagirdar of the Hyderabad State. This Jagirdar gave his wife Sher Afghan Begum the amount due to her on account of her Mahr viz. Rs. 232,000. This lady with a sum of Rs. 18,000 of her own made a gift of the total sum of Rs. 250.000 in favour of her two grandsons, the plaintiff and the defendant on 10th Ardhibehishet 1328 Fasli in the following proportion, Rs. 175,000 to the defendant and Rs. 75,000 to the plaintiff. This gift transaction was effected by means of a gift deed executed by the lady on the said date and duly registered.

(2.) EIGHTEEN years after the date of the gift the present suit was instituted by the younger brother against the elder brother alleging that the latter received the amount that was gifted to the plaintiff, and that the same was lying with him as 'Amanath'. The defence was one of complete denial Parties went to trial and on the evidence the lower Court held that the plaintiff did not prove the receipt of the money by the defendant and dismissed the suit. The present appeal is by the plaintiff.

(3.) ACCORDING to the plaint allegation this suit purports to be one against a person who held the amount in trust for the plaintiff. It is admitted that there was no express trust created and therefore this suit cannot be considered to be a suit for the recovery of an amount in the hands of a trustee. Clearly this case cannot come within the purview of Section 10, Limitation Act. Then the question arises as to what the position would be having regard to the allegations in the plaint. The plaint allegation is that the defendant received the amount gifted by the grand -mother as an elder brother as the plaintiff was then a minor. What are the necessary ingredients in order to constitute a trust? There is no Trust Act in Hyderabad, but the provisions in the Indian Trust Act are usually followed when a question arises as to whether the nature of the transaction is a Trust or not.