The main legal point established in the judgment is the interpretation and application of the provisions of the Indian Limitation Act and the Indian Trusts Act in determining the creation of an express trust and the applicable limitation period for the suit.

Alfred Henry Lionel Leach, C.J.

1. This appeal arises out of a suit filed by the respondent against the appellant in the City Civil Court. The trial Court dismissed the action on the ground that the relief sought was barred by the law of limitation. On appeal Byers, J., held that Section 10 of the Indian Limitation Act applied and consequently the plaint had been presented in time. The appeal has been filed under Clause 15 of the Letters Patent from the judgment of the learned Judge.

2. The plaintiff is the son of one Haji Mir Abbas Ali, who died in 1917. His heirs, of whom the plaintiff is of course, one, numbered sixteen. His estate included a casuarina plantation which was sold in 1921, in accordance with the wishes of the majority of the heirs, by the plaintiffs step-brother, Haji Mir Moosa Raza Ali. The sale realised Rs. 3,000. Apparently with the consent of the majority of the heirs Raza Ali handed over the sale proceeds to the defendant with instructions to distribute the money amongst the heirs in accordance with their respective interests. The defendant paid some of them but he did not pay the plaintiff. The plaintiff says, and it has been so found by Byers, J., that he did not become aware until 1940 of the fact that the money was in the hands of the defendant. The suit was filed on the 19th November, 1940, to recover from the defendant Rs. 1,290, of which Rs. 250 represented the plaintiffs share in the Rs. 3,000 and the balance interest on the Rs. 250, calculated up to date of suit. Certain receipts given by the defendant to Raza Ali show that the money was given to him on the 1st August, 1921 and that it was in fact paid to him to be distributed amongst the heirs.

3. The main question in the trial Court and before Byers, J., was whether the payment of the Rs. 3,000 to the defendant and his acceptance of the money for purposes of distribution amongst the heirs created an express trust. If it did, no question of limitation could arise. The City Civil Judge was of the opinion that no trust had been created, but Byers, J., disagreed.

4. It is common ground that Section 10 of the Indian Limitation Act only applies where there is an express trust. There is a judgment of a Division Bench of this Court to this effect; see Chandra Kesavalu Chetti v. Perumal Chettiar AIR1939Mad722 . The wording of Section 10 leaves no room for doubt that it only operates when the suit is against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration) and the purpose of the suit is to follow in his or their hands the property vested or the proceeds thereof or to obtain an account of the property or proceeds.

5. Section 5 of the Indian Trusts Act, 1882, which also has important bearing reads as follows:

No trust in relation to Immovable property is valid, unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.

No trust in relation to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud.

6. There is no document declaratory of the alleged trust and there is no question of fraud in this case. The learned Counsel for the defendant says that the ownership of the Rs. 3,000 was never transferred to him and the money never became vested in him within the meaning of Section 10 of the Limitation Act. We consider that this argument is sound. The person who handed the money over to the defendant was not its owner. He merely held it on behalf of the estate of Abbas Ali. As we have already indicated, the sale took place according to the directions of the majority of the heirs. They had no authority in law to direct the sale, but nothing turns on that. As Raza Ali, wh