The main legal point established in the judgment is that the transaction in question was akin to a loan, and there was no vesting of the money in the defendant, thus Section 10 of the Indian Limitation Act had no application.

Burn, J.

1. This is an appeal from the decision of the Principal Judge of the City Civil Court in O.S. No. 774 of 1935. The plaintiffs are the two sons of one Chinna Ramiah Chetty who was the owner of a house in Selvavihayakaf Koil Street, Madras City. He sold this house on the 30th of August, 1911, to the defendant S.P. Perumal Chettiar. The purchase price was fixed at Rs. 2,600 and out of this sum, Rs. 800 was left with the vendee on condition that he should keep it until Kondal Chetty, a minor illegitimate son of the vendor, should attain his majority. The defendant undertook at the same time to pay interest at the rate of 14 annas per cent, per mensem on the amount of Rs. 800. Chinna Ramiah Chetty, the vendor, died in 1920 and his illegitimate son Kondal Chetty is said to have disappeared shortly afterwards. In 1930 the plaintiffs who are the legitimate sons of Chinna Ramiah Chetty demanded payment of the Rs. 800 to them with interest at the rate of 10i per cent, per annum from June, 1920, when their father was said to have died. The defendant repudiated liability and the plaintiffs filed this suit in forma pauperis on the 11th of July, 1905.

2. The learned judge of the City Civil Court framed the following issues:

(1) When did Kondal Chetty attain majority?

(2) At what date can Kondal Chetty be presumed to have been dead? And is he dead?

(3) Are the plaintiffs entitled to claim the money as members of the joint family consisting of themselves and Chinna Ramiah Chetty, deceased?

(4) Are the plaintiffs entitled to claim the money as surviving members of the joint family consisting of themselves and Kondal Chetty?

(5) Are the defendants trustees in respect of the said money and are they bound to repay the said money as such trustees to the plaintiff?

(6) Is the suit barred by limitation?

(7) Are the plaintiffs entitled to a charge on the suit properties for the amount claimed?

(8) What amount, if any, are the plaintiffs entitled to?

(9) To what reliefs are the, plaintiffs entitled?

3. In his judgment the learned Judge held that the suit was barred by limitation. He held that Kondal Chetty must have attained his majority in the year 1922. He held that the money was payable on Kondal Chettys attainment of majority and since the suit was not filed till 11th of July, 1935, he held that, whether the six years rule applied or the twelve years rule, it would be barred by limitation. He held on the second issue that Kondal Chetty might be presumed to be dead but he did not express any opinion as to the date of his death. On issues 3 and 4 he found in favour of the plaintiffs. This appeal has been admitted, again in forma pauperis, at the instance of the plaintiffs.

4. The principal argument of earned Counsel for the appellants is that the learned Judge of the Court below was wrong in holding the suit is barred by limitation. It is contended that the defendant was a trustee of the Rs. 800 and that therefore under Section 10 of the, Indian Limitation-Act, the suit cannot be barred by limitation. This argument is based upon the language of the sale-deed (Ex. III) dated the 30th of August, 1911 and the bond (Ex. IV) executed the next day by the defendant in favour of the plaintiffs father as the guardian of Kondal Chetty. Earned Counsel argues that by these documents an express trust was created in respect of the Rs. 800, the defendant being the trustee and the beneficiary Kondal Chetty. We are not able to accept this argument. Section 10 of the Indian Limitation Act deals with suits against persons in whom property has been "vested in trust for any specific purpose". Now in Ex. III, the words relating to the amount of Rs. 800 are as follows:

The amount I retained with you this day for the minor Kondal Chetty, aged 7 years, son of my deceased wife by affection, namely, Seethammal, is Rs. 800. As you alone have been keeping this sum of Rs. 800 and if the said minor Kondal Chetty should ask you for the said amount after he had attained majority