The main legal point established is that Article 36 does not apply to trustees, and the suit against a trustee for losses sustained by the trust is governed by Article 120 of the Indian Limitation Act.

Alfred Henry Lionel Leach, C.J.

1. This reference embraces two questions, which may be stated as follows: - (1) Does Article 36 or Article 120 of the first schedule of the Indian Limitation Act, 1908, apply to a suit filed against a trustee or ex-trustee to make good loss sustained by the trust by reason of his omission to collect moneys due to the trust? (2) If Article 120 is applicable, when does limitation commence to run?

2. Article 36 relates to suits for compensation for malfeasance, misfeasance or non-feasance independent of contract and not specially provided for in the schedule of the Act. It fixes a period of two years from the date when the malfeasance, misfeasance or non-feasance takes place. Article 120 is the residuary article. It fixes a limitation period of six years in respect of suits for which no period of limitation is provided elsewhere in the schedule and time begins to run when the right to sue accrues. It has been necessary to refer the questions set out above to a Full Bench because there are conflicting decisions of this Court with regard to the first question, and: the second question follows if Article 120 applies, because in some cases for more than six years there may be no one in a position to sue. In the case of Ranga Pai v. Baba I.L.R. (1897) Mad. 398, Shephard and Davies, JJ., applied Article 120. In the case of Subramania Aiyar v. Gopala Aiyar (1909) 20 M.L.R. 633 : I.L.R. 33 Mad. 308, Sir Ralph Section Benson, Officiating Chief Justice and Krishnaswami Aiyar, J., considered that Article 36 governed a suit of the nature of the one under discussion. In Ranga Pai v. Baba I.L.R. (1897) Mad. 398, the plaintiffs and the defendants, together with one Subbaraya Pai, were the trustees of a temple. Subbaraya Pai died in 1884, but for some years before his death he was left in exclusive management of the temple affairs. He was succeeded in the management by the defendants, who remained in management of the temple until 1891, when their co-trustees filed the suit to exclude them from trust and to compel them to make good sums lost as the result of breaches of trust alleged to have been committed by them. The question whether Section 10 of the Limitation Act applied was discussed and the Court was of the opinion that it did not. It was, however, held that the defendants were liable for the loss occasioned by them within six years from the date when the suit was instituted. Article 120 of the Limitation Act was not specifically referred to, but as the Court decided that the period of limitation was six years it follows that it considered that this article applied. In Subramania Aiyar v. Gopala Aiyar (1909) 20 M.L.R. 633 : I.L.R. 33 Mad. 308, the suit was instituted by the plaintiff as the trustee of a temple for recovery of a sum of money representing the loss to the temple occasioned by breaches of trust committed by the father of the defendant, he having been the preceding trustee. The suit was dismissed on the ground that it was barred by the law of limitation. On appeal it was argued that Article 98 was applicable, but the argument was rejected as the Court was of the opinion that the suit against the father was time barred under Article 36 and, therefore, no suit would lie against his son. Another case bearing on the first question embodied in the reference and quoted to us is that of Shirinbai Dinshaw v. Navroji Pestonji A.I.R. 1936 Bom. 30 where a Division Bench of the Bombay High Court held that a suit against trustees for alleged breaches of trust was governed by Article 120 and time began to run from the date of the breach. In none of these cases, however, was there any real discussion of the questions now under consideration. In Ranga Pai v. Baba I.L.R. (1897) Mad. 398 and in Shirinbai Dinshaw v. Navroji Pestonji A.I.R. 1936 Bom. 30, the learned Judges took it for granted that Article 120 did apply and in Subramania Aiyar v. Gopala Aiyar (1909) 20 M.L.R. 633 : I.L.R. 33 Mad. 308 the discu