IMPORTANT POINTS
Where there is an agreement between the parties settling the obligations arising from the trust, it gets fulfilled in terms of S. 77(a). We do not think that we should narrate various circumstances which may come u/s 77 of the Indian Trusts Act as it has to be decided on a case to case basis. Therefore, a trust does not get extinguished unless any such eventuality in terms of S. 77 arises.

ORDER :

Shaffique, J.

By reference order dated 13/11/2019, the above matter has been referred for the consideration by the Full Bench. The question involved is whether trust created by a wife entrusting her property to her husband gets extinguished after the dissolution of marriage and whether she can initiate proceedings invoking section 10 of the Limitation Act, 1963, without any limitation of time. Reference is also made to the judgment of another Division Bench in Bindu K.P. v. Surendran C.K. [2018 (2) KHC 1] wherein it was held that the claim of the wife or ex-wife for a dowry is not barred by any length of time.

2. In Bindu K.P's case (supra), this Court held at paragraph 12 as under:-

"12. There is another reason to state that the family court did go wrong. Sec.6(1) of the Dowry Prohibition Act specifically states that pending transfer of the dowry to the woman, the person holding it shall hold it in trust for the benefit of the woman. Thus, a statutory trust is created under Sec.6(1) of the Dowry Prohibition Act. In view of the creation of the statutory trust, Sec.10 of the Limitation Act applies. Therefore the claim of the wife or ex-wife for her dowry is not barred by any length of time, Even if it is accepted for the sake of argument that the wife should return the 'tali' or any other property presented to her by her husband, no such statutory trust is created. Therefore Sec.10 of the Limitation Act has no application. The marriage was in 1996. The suit came in 2004. Therefore the claim, if at all maintainable, was hopelessly barred by the law of limitation."

3. The learned counsel Sri.S.K.Balachandran appearing on behalf of the appellant has placed before us the following judgments:-

(i) Swapna v. Thankavelu {1990 (2) KLT 604):- In the above case, a learned Single Judge of this Court held that when valuable articles are entrusted by the wife to the husband for safe custody, the husband remains in the position as a trustee who is bound to account to the wife all her properties at any time when she demands. The aforesaid judgment was delivered following the Apex Court judgment in Pratibha Rani v. Surajkumar and another (AIR 1985 SC 628). It was further held that if the husband is a trustee, the wife is entitled to follow the property in the possession of the trustee, and S.10 of the Indian Limitation Act would apply.

(ii) Chacko v. Annamma (1993 (1) KLT 675):- In this case, the Division Bench of this Court approved Swapna’s case (supra). In the above case, on a detailed analysis of the relevant provisions including S.10 of the Limitation Act and the provisions of the Trusts Act, overruling an earlier judgment in Annamma v. Thressiamma (AIR 1972 Ker. 170), it was held that there is a creation of trust in respect of stridhanam property and therefore S.10 applies. Paragraphs 28 to 30 are relevant, which reads as under:-

"28. It is profitable to note that the trusts are divided into two broad classifications, viz., simple trust and special trust, according to the nature of the duty imposed on the trustee. A simple trust is a trust in which the trustee is a mere repository of the trust property, with no active duties to perform. Such a trustee is called a passive or, more frequently, a bare trustee see Underbill's Law of Trusts and Trustees. In a case where A devised property to B in trust for C there is a simple trust, as the only duty which B has to perform is to convey the legal estate to C if so requested. Here B is a passive or bare trustee. This trust is also an express trust. We are of opinion that in the case of payment by a father of a girl to the prospective father in law or the prospective husband is a simple trust. The only duty of the husband to convey the legal estate of the property to the girl. Though it is a simple trust, it is an express trust and we are of opinion that the specific purpose denoted in S.10 of the Limitation Act can be understood in a meaningful way that the only duty of the husband or the fathe