P L D 1955 Dacca 96 (PLP)

BADIUZZAMAN, J.--‑This appeal arises . out of Money Suit No. 7 of 1951, of the Court of the Subordinate judge, 4th Court, Dacca. The suit was by a Receiver appointed by the District Judge, Dacca; in the Administration Suit No. 17 of 1943, against the sons of Nibaran Chandra Guha Mustafi, deceased executor to the estate of one Jaga Mohan Pal, for recovery of Rs. 8,500 out of the assets of the deceased executor in the hands of the defendants, his sons. Facts relevant for the purpose of this appeal may briefly be put thus: Jaga Mohan Pal had immense properties, both movable and immovabie, and about 6 years before his death which occurred on the 29th September, 1926, he executed a Will by which he made some minor legacies to three of his proteges and dedicated the rest of his vast properties to various charitable purposes. He appointed 3 executor, vie., Babu Jogendra Nath Seri, Nibaran Chandra Guha Mustafi (father of the defendants) and Shyam Chand Basak who jointly obtained probate of the Will on the 23rd August, 1927, frorn the District Judge of Dacca in the Probate Case No. 51 of 1926, Of the three executors. Jogendra Nath Sen died on the 8th September, 1941, Ninaran Chandra Guha Mustafi on the Is‑, October, 1945, and Shyarr Chand Basak on the 28th October; 1946. Jogendra managed the estate from 1929 to 1931, Nibaran from 1931 tc 1945 and Shyam Chand from 2nd October, 1945, to 28th October, 1946: The defendant No. 1 Swami Turiananda, one of the sons of Nibaran was appointed executor in place of his father under ‑. Neogpatra and probate was extended to him under the District judge's order which was subsequently vacated by the High Court on appeal. At certain stage prior to 1935 the administration was utterly paralysed on account of acute dissensions among the execu?tors. They did not carry out the provisions of the will but on the other hand committed various acts of malfeasance and misfeasance in respect of the property in their charge. On the 3rd July, 1935, some persons interested in the public charities provided for by the Will instituted a suit under section 92.of the Code of Civil Procedure, being Suit No. 30 of 1935, against Jogendra Nath Seri, Nibaran Chandra Guha Mustafi and Shyam Chand Basak, for their removal from the position of trustees and for other reliefs but the suit was dismissed on the 16th September, 1935. Thereafter Nishi Kanta Pal and others as members of the public filed another suit, being Suit No. 17 of 1943, in the Court of the District judge of Dacca for the administration of the estate of late Jaga Mohan Pal on the footing that the executor had not yet fully administered the estate. When the suit was filed on the 20th July, 1943, Jogendra Nath Sen was dead and his son Nripendra Nath Sen. who had obtained an order substituting himself as executor in place of his father, was impleadeu as defendant No.

3. Nibaran Chandra Guha and Shyam Chand Basak figured as defendants Nos. 1 and 2. respectively. During the pendency of the suit Nibaran Chandra Guha Mustafi died and his six sons figuring as principal defendants in the present suit were substituted in his place as his legal representatives. The Administration Suit was eventually decreed on the 4th July, 1946, in preliminary form and defendant No. 1 Swami Turiananda, the then sole executor of the trust estate, was removed from the executorship for acts of wilful default, malfeasance, misfeasance and negligence, etc., and the plaintiff was appointed Receiver prior to the institution of the Adminis?tration Suit. Nibaran and Shyam Chand as executors to the estate of Jaga Mohan Pal jointly instituted a Title Suit, being Title Suit No. 13 of 1935, in the Court of Subordinate Judge, 3rd Court, Dacca, against one Kagozijan Bibi and other for enforcement of a mortgage and obtained a decree on the 26th February, 1941. This was followed by an application by Kagozijan Bibi for re‑opening of the decree under the Bengal Money Lenders Act. The application was allowed, the decree was re‑opened and a new decrre passed for Rs. 11,678‑1‑3 and the decretal amount was made payable in ten equal instal?ments. The decree was followed by payment of Rs. 2,335‑10‑0 and on the 21st October, 1943, Rs. 9,342‑7‑9 was found outstanding, but Nibaran on receipt of R s. 8,342‑7‑3 from Kagozijan's legal representative, granted full satisfaction. The plaintiff after taking over charge of the estate came to know that the amount received was not either credited or accounted for, but it remained with Nibaran till his death. The defendants being in possession of the amount as legal representatives of Nibaran, the plaintiff asked them to pay up the dues but this demand not having been complied with, the present action was brought for recovery of the same with damages at 12 per cent. per annum. The defendants denied the plaintiff's allegations of wilful default, malfeasance, misfeasance and malpractices and also of the allegation of realisation of Rs. 8,340‑7‑3 from the legal representative of Kagozijan Bibi, pleaded limitation and further contended that ‑the amount involved in this case being part of general accounting of the estate and the prayer for general accounting having been in the Administration Suit, the present suit must be held barred under section 10 of the Code of Civil Procedure, and that the plaintiff before the filing of this suit having brought another suit against the defendant No. 1, being Money Suit No. 59 of 1950, against the defendant No. 1 and his two brothers for recovery of Rs. 1,100 in respect of same cause of action intentionally omitting from the plaint of the said suit a portion of the claim, the present suit must be held barred under Order 11, rule 2 of the Code of Civil Procedure. The learned Subordinate Judge after reviewing the materials furnished by the parties negatived the defence objections and decreed the suit whereupon the present appeal has been preferred the appellants being Swami Turiananda and Bhupendra Chandra Guha Mustafi, defendants Nos. 1 and 6, respectively. Three points have been urged, the first being that the matter involved in this suit being subject‑matter of the administration suit instituted previously, the learned Subordi?nate judge ought to have held the same barred under section 10 of the Code of Civil Procedure the second being that the plaintiff in the previous Money Suit No. 59 of 1950 having omitted to claim the amount in suit without obtaining necessary permission of the Court, the learned Subordinate judge ought to have held that the suit was barred under Order II, rule 2, of the Code of Civil Procedure ; and the third being that the learned Subordinate judge erred in law in holding that the suit was governed by section 10 of the Limitation Act. All the three points having been urged with equal emphasis, we propose to take them up ad seriatim. To appraise the cogency of the argument advanced regarding the first point it is necessary that we should first turn to the section relied on, namely section 10 of the Code of Civil Procedure. The section provides that where a suit is instituted in a Court to which the Code applies, the Court shall not proceed with the trial of the suit, if first, the matter in issue in the suit is also directly, and substantially in issue in a previously instituted suit between the same parties ; secondly, the previously instituted suit is pending (a) in the same Court in which the subsequent suit is brought, or (b) in any other Court in British India (whether superior, inferior or co‑ordinate), or (c) in any Court beyond the limits of British India established or continued by the Central Government or the Crown Representative, or (d) before His Majesty in Council; and thirdly, where the previously instituted suit is pending in any of the Courts mentioned in Clause (b) or Clause (c) and such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. The object of the section is to prevent Court of con?current jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, but here in the present case as will be presently shown the question of staying the present proceeding does not arise at all. The Administration Suit was decreed in preliminary form on the 4th July, 1946. Against that decree there was an appeal which was disposed of by a Division Bench of this Court on the 4th August, 1949, but the present suit was instituted on the 30th March, 1951. What, therefore, follows is that at the date of the institution of this suit, the Administration Suit or the appeal preferred against the decree awarded by the District judge was not pending. Section 10 speaks of stay of a subsequent suit when a previously instituted suit in respect of the same matter is pending but here the previously instituted suit having had no pendency either at the date of the institution or at the hearing of this suit, the question of stay of its hearing under section 10 of the Code of Civil Procedure could not arise. It is true that shortly after the disposal of the appeal, an appli?cation for leave to appeal to Federal Court has been filed but that will be of little help to the appellant, for, it is pendency of the previously instituted suit that constitutes a bar to the trial of subsequent suit. The word "suit" includes an appeal to Federal Court, but it does not include an application for leave to appeal to Federal Court, for the application may not, be granted at all, and, if granted, the applicant may not prefer any appeal. It seems at the opening the learned Advocate for the appellant either misconceived the scope of section 10 or attempted to seek protection under that section under erroneous conception of facts. Subsequently at the close of the hearing the learned Advocate seeks to maintain that as the subject‑matter of the previous suit was directly and sub?stantially in issue in the previously instituted Administration Suit between the same parties, the present suit is barred. The argument as formulated does not attract the provision of, section 10 but takes us to a new province of law, namely principle of res‑judicata but no attempt was made at any stage of the suit to raise any such plea. The issue framed in respect of the point was whether the suit was liable to be stayed under section 10 of the Code of Civil Procedure. Here‑before us too, plea of res‑judicata does not find place in the grounds of appeal. All that is urged there is that an application for cave to appeal to Federal Court being pending, the trial Judge ought to have stayed the proceeding. But, as already pointed out, the word "suits" occurring in the section does not include application for leave to appeal to Federal Court. To constitute a matter res‑judieata, the following conditions must concur: (i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and subsequently in issue either actually or con?structively in the former suit. (ii) The former suit must have been a suit between the same parties or between the parties under whom they or any of them claim. (iii) The parties as aforesaid must have litigated under the same title in the former suit. (iv) The Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. The Administration Suit having been finally disposed of the question of maintainability of this suit on the principle of res‑judicata as embodied in section 11 may, however, arise provided that on examination of the materials on record it turns out that the matter involved in this suit yeas directly and substantially in issue in the previous suit, that the previous suit was between the same parties, that they litigated under the same title and that the matter was finally adjudicated there. But these requirements, as will be presently shown, are not satisfied. The reliefs sought for in the administration suit were as follows:‑ (i) For having the movable and immovable properties of the estate of Jaga Mohan Pal deceased, administered by the Court. (ii) For the purpose of such administration for accounts against defendants 1 to 3 on the footing of wilful default and other directions for accounts and enquiries. (iii) For decree for amount found due on accounting. (iv) For the execution of the trusts of the Will by appointing trustees and vesting the estate in such trustees. (v) For framing a scheme for the administration of the trusts of the Will. (vi) For the appointment of a Receiver pending the vesting of the properties in the trustees appointed by the Court. (vi) (Ka) For leave to the plaintiffs to sue on behalf of all persons interested in the charitable bequests of the Will of Jaga Mohan Pal and for the publication of necessary notices under Order I, rule 8, Civil P. C. (vii) For costs against the principal defendants. (viii) For such other reliefs as the nature of the case may in the judgment of the Court require. A careful examination of the reliefs discloses that the suit as initially framed was one for removal of executor on the ground of mismanagement, malfeasance, misfeasance, for appointment of a Receiver, for preparation of a scheme for administration of the estate by the Court, for accounts on the footing of wilful default and for a decree for the amount which the estate might have suffered on account of wilful default on the part of the trustees. There was no prayer for decree for any amount which might be found to have been defalcated by the trustees. Yet an issue was framed in respect of that matter. But there was no issue regarding rendition of accounts on the footing of wilful default though relief was sought for on that score. This will be evident from issues Nos. 7, 8, 8A, and 8B which runs as follows: (7) Is the suit bad for misjoinder or non‑joinder of parties ? (8) Are defendants guilty of any breach of duty, mis?management, devastavit, malfeasance, misfeasance as alleged in the plaint ? If so, are they liable to be removed and should a scheme be framed by this Court for adminis?tration ? (8A) Is the estate left by Babu Nibaran Chandra Guha Mustafi, original defendant No. 1 in the hands of defendants 1 (a) to 1 (j), liable for the defalcation, if any, made by him ? ' (8B) Is defendant No. 1 (b) a legal representative of the late Nibaran Chandra Guha Mustafi, executor and as such, a necessary party in this suit ? On the issue No. (7), that is, on the question of mis?joinder and non‑joinder the learned Subordinate judge recorded the following findings: "It is, however, urged that Babu Nripendra Nath Sen was not a necessary party to the suit and defendants Nos. 1 (b) to 1 (f), sons of Babu Nibaran Chandra Guha Mustafi, are also not necessary parties . . . . As to defendants Nos. 1 (b) to 1 (f) they were made parties along with defendant 1 (a), Swami Turiananda as the legal heirs of Babu Nibaran Chandra Guha Mustafi. Of course defend? ants Nos. 1 (b) to 1 (f) are not successors‑in‑interest of Nibaran Babu in his capacity as an executor. But before any successor to Nibaran Babu as an executor was appointed it was natural that all the heirs of Nibaran Babu should have been made parties, particularly when there is a prayer for accounts. I am of the opinion that in the suit as framed the Court cannot investigate the question of the liability of the heirs of an executor ; that would have to be done in a properly framed suit. But in any case the addition of defendants 1 (b) to 1 (f) as parties cannot make the suit bad for misjoinder." In connection with issue No. (8) the learned judge after enumerating the instances of mismanagement, malfeasance, misfeasance, etc., concluded his findings on the said issue with the following observation: "Accordingly, I consider it necessary that there should be the appointment of a Receiver for the administration of the estate of the late Jaga Mohan Pal. As already pointed out, the clause in this issue as to the removal of the defendants was framed by mistake and the defendants as executor are not liable to be removed at the instance of this Court but they may be controlled or by‑passed by the appointment of a Receiver to take charge of the property and it is necessary for the interest of the estate that this should be done and a scheme should be made for the management of the estate." On the issues Nos. (8A) and (8B) the learned Judge summarised the findings as follows: " ???... Defendants Nos. 1 (a) to 1 (f) may be liable for defalcation made by Nibaran Babu but in the present administration suit that question cannot be considered. The surviving executor or the Receiver, if any, may obtain the necessary relief against the heirs of Nibaran Babu but the suit cannot be considered bad simply because all the sons of Nibaran Babu have been brought on the record. In view of the order obtained for appointing him as an executor, defendant 1 (a) alone is the successor‑in‑interest of Nibaran Babu in his capacity as an executor." It is apparent on the face of the above finding that the learned judge treated the prayer for account as ancillary to the prayer for settlement of scheme for the administration of the estate by the Court In his opinion the defendants Nos. 1 (a) to 1 (f) might be liable for defalcation made by Nibaran but the suit being purely an administration suit, that question could not be entered into, and the surviving executor or the Receive, any, might obtain the necessary relief against the heirs of Nibaran in a properly framed suit. Though the learned Judge found that all the heirs of Nibaran except the appellant Swami Turiananda who figured as defendant 1 (a) in the Administration Suit were not necessary parties, still, however, he decreed the suit against them all. This anomaly, however, will not fetter our decision when there is no bar to a decree being interpreted with reference to the findings in the body of the judgment. And the decree in question, if interpreted with such reference, will come to this that there was no effective decree against the defendants Nos. 1 (b) to 1 (f). The question whether the amount in question was involved in the Administration Suit, or the question whether there was any defalcation in respect of that amount, or the question whether there was breach of trust on the part of Nibaran or the question whether the appellant and his brothers would be liable for defalcation made by his father was not, in the opinion of both trial and appellate Courts scope of the Administration Suit. On the other hand, the learned District judge in clear and unequivocal language left the question of the liabilities of the defendants on account of defalcation of Nibaran open. The present suit, therefore, could not be said to be hit by the principle of res‑judicata. Yet there is another factor. If on general accounting it is found that the amount involved in the Administration Suit was misappropriated, even that will not affect the plaintiff's position in the least, for, at the time of filial decree the Judge will not be in a position to pass a decree against the heirs of Nibaran, no such relief having been sought for. In the prayer portion in the plaint of the Administration Suit, as already pointed out, there was no prayer for a decree‑against the assets of the deceased in the hands of the appellants and their brothers. In this connection the learned Advocate for the appellants has drawn our attention to the decision in the cases of Sudhir Chandra Das and others v. Govinda Chandra Roy and others (21 C W N 1043) and Raja Peary Mohan Mookerjee v. Monohar Mooker jee (27 C W N 989). The former having absolutely no bearing upon the point under review, it will be needless to discuss the principle laid down in that case. Raja Peari Mohan's case arose out of a suit instituted by Monohar Mookerjee who figured as respondent in that appeal against the appellant, for the administration of Debutter estate for the removal of the trustee, for the appointment of a new trustee or Receiver, for declaration that an execution sale of a portion of the trust estate when it was purchased by the trustee in the name of his son was invalid and inoperative, for proper investment of a sum of Rs. 11500 alleged to form part of the trust estate and for other incidental reliefs. On these facts three propositions of law were laid down, the first regarding the nature and effect of the order passed after the preliminary decree determining the period or mode of accounting the second regarding the liability of a trustee de son tort and the third regarding account on the footing of wilful default. The law laid down on the first point was? this: "The order was a preliminary decree within the meaning of section 2 (2) of the Civil P. C. and appealable as such." The law laid down on the second point was this: "If a person, by mistake or otherwise, assumes the character of trustee when it really does not belong to him and so becomes a trustee de son tort, he may be called to account by the cestui que trust for the moneys he received under colour of the trust such a person cannot be heard to say for his own benefit that he had no right to act as a trustee. " On the third point the principle enunciated was this: "In order to obtain an account on the footing of wilful default against a trustee, the cestui que trust must allege and prove at least one instance of wilful default. He must consequently prove that there is some part of the trust funds which should have been received but was not. When the cestui que trust has charged wilful default in his plead? ings, either originally or as amended, but has not obtained a judgment on that footing, the Court canat any stage of the proceedings order an account to be taken on that footing, if evidence of wilful default is adduced." The law laid down on the first point is not at all material for the purpose of this appeal. The same remark applies to the second proposition. It is true that on the principle laid down on the second point the Swami is accountable for the period he was incharge under an illegal Neogpatra but the defalcation in respect of the amount involved in the suit not having taken place during the period he acted as trustee de son tort, any previous decree for accounts against him cannot stifle the present proceeding. The third proposition would have however, been of some use to the appellant if in the administration suit the claim for account on the footing of wilful default had not been withdrawn. Then again, as already pointed out, there was no prayer for a decree for any amount which on accounting might be found to have been defalcated by the‑executors. If there was any such prayer and if on adjudication it was found that the amount in question had been defalcated by Nibaran and if on such finding a preliminary decree had been passed in the Administration Suit, such decree would have certainly operated as res? judicata. Judging from various stands we find that the suit is not barred either under section 10 of the Code of Civil Procedure or by the principle of res‑judicata. Next comes the second point. The Money Suit No. 59 of 1950 was brought by the plaintiff against the present appel?lant Swami Turiananda alias Dinesh Chandra Guha and his two brothers, Protab and Ajit, for recovery of money on the allegation that Nibaran Chandra Guha Mustafi and Swami Turiananda as executors for and on behalf of the estate had received some money but did not account for it. The suit was tantatively valued at Rs. 1,100 but it was withdrawn by a petition, dated the 18th June, 1951, on the ground of formal defect with the leave of the Court to bring a fresh suit on the same cause of action, if not otherwise barred. On behalf of the appellants it is contended that in the Suit No. 59 of 1950 plaintiffs having omitted to sue in respect of a portion of the amount claimed in this suit, it must be held barred under Order II, rule 2 of the Code of Civil Procedure. Order II, rule 2, Civil P. C., provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. He is not entitled to split his cause of action into parts, and bring separate suits in respect of each part. If he omits to sue in respect of or intentionally relinquishes any portion of the claim arising from the same cause of action, he will be precluded from suing in respect of the portion so omitted or relinquished. The appellants, therefore, in order to repel the plaintiff's claim under Order II, rule 2 of the Code of Civil Procedure must satisfy the Court that the previous suit was brought on the same cause of action, that the plaintiff: omitted to sue in respect of or intentionally relinquished any portion of the claim arising from the same cause of action and that the parties were the same. This view will find support in the case of Phani Bhusan Mookerjee v. Rajendra Nandan Goswami (51 C W N 261) wherein it was held as follows: "To make Order II, rule 2, Civil P.C. applicable, two things are essential : firstly, both suits must arise out of the same cause of action, and, secondly, they must be between the same parties." The previous suit, as will appear from paragraph 7 of its plaint, was a suit for recovery of the money which might be found due on accounting. But the present suit is not for any t accounts but for recovery of a specific sum on the allegation that it had been received on behalf of the estate. The cause of action of the present suit therefore could not be said to be the same on which the previous suit was brought. Almost in similar circumstances the same view was taken in the case of Mangal Sain v. Labhu Mal (A I R 1933 Lah.542) and Radha Kishen and another v. Ikram Uddin (AIR1941All.217). In the former it was held that in order to make the provisions of Order II, rule 2, Civil P. C. applicable it was necessary that the causes of action should be clearly the same. In the later what happened is this A military contractor gave a sub‑contract to a person for the supply‑ of goods, the arrangement between the parties being that the sub‑contractor should submit his bills to the contractor and the latter should realise the money from the Military Department and thereafter pay it to the sub?contractor after deducting a commission of 5 per cent. The sub‑contractor instituted a suit against the contractor for recovery of a specific sum of money which admittedly had reference to specific bills submitted by him to the contractor. Subsequently the sub‑contractor instituted a second suit against the contractor for rendition of accounts. On these facts it was held as follows: "Since the cause of action and the matters to be proved in the two suits, were different. Order II, rule 2, was no bar to the second suit." Tested in the light of the law laid down in the cases referred to above, we are clearly of opinion that the cause of action and the matter to be proved in the two suits were different. Next question that calls for consideration is whether there was intentional relinquishment or omission. The previous suit having been tantatively valued at Rs. 1,100 the question of intentional relinquishment or omission could not arise, reason being that the plaintiff after accounting was complete could enhance the claim or reduce the same at any stage. Neat comes the question of parties. The previous suit, as already stated, was instituted only against three sons of Nibaran, namely, Swami Turiananda, Protab Chandra and Ajit Chandra. But the present suit has been brought against all the six sons. Evidently, the parties in both the suits are not identical and by no stretch of imagination it can be con?ceived that the suit is hit by Order II, rule 2 of the Code of Civil Procedure so far as the three sons who were not parties in the previous suit are concerned. In this connection the learned Advocate for the respondent has drawn our attention to the case of Amiya Krishna Khan v. Sree Debendra Lal Khan (46 C W N 865) wherein it was held that a suit for account was not main?tainable against the legal representative of a deceased agent or trustee or co‑trustee but a suit does lie against him for the recovery of money misappropriated by the deceased agent or trustee or co‑trustee. The decree in such a suit would be against the. assets of the deceased. The previous suit was a suit for recovery of an amount which on accounting might be found due but according to the law laid down in the aforesaid case such a suit for account was not maintainable against the legal representative of the deceased trustee. It is for this reason that the suit had to be withdrawn with the leave of the Court. As the matter stands, there is therefore little scope for the applicability of Order II, rule 2 of the Civil P. C. to this case specially when there was no final adjudication of the claim involved in the previous suit. Next comes the third point, namely, the question of limitation. The learned Advocate for the appellants contends that the learned Subordinate judge ought to have held that the. suit was governed by Article 98 of the Limitation Act and not by section 10 of the Act. The learned Advocate for the respondent, however, supports the view taken by the trial Judge. Before entering into discussion of the point we should first look into the provisions of the two sections. Section 10 provides: "Notwithstanding anything hereinbefore contained no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal represent?atives or assigns (not being assigns for valuable consider?ation), for the purpose of following in his or their hands such property or the proceeds thereof; or for an account of such property or proceeds shall be barred by any length of time " Article 98 provides that a suit to make good out of the general estate of the deceased trustee the loss occasioned by a breach of trust should be instituted within 3 years from the date of the trustee's death, or if the loss has not then resulted, the date of the loss. On perusal of the provisions of section 10 and Article 98 it seems that the trustee and his legal representatives are put upon the same footing as regards the Statute in cases of breach of trust. In the case where the trustee is dead and the suit has to be brought against his representatives, the effect of section 10 taken with Article 98 is that suits against the representative of a trustee to recover trust property are exempted from limitation, but that suit for breach of trust not claiming specific property must be brought within 3 years (as required by Article 98). Article 98 and section 10 are to be construed together and the word "loss" in Article 98 refers to the loss of the specific property mentioned in section 10 and the meaning of Article 98 is that in case such specific property is irrecoverable, its value can be recovered out of the general estate of the deceased trustee within the period prescribed therein, that is, by Article

98. To be more clear, the breach of trust contemplated in Article 98 is a ordinary breach of trust and not one covered by section

10. Consequently before one can apply Article 98, he must first get rid of section

10. Let us now turn to the decisions relied on by the parties in support Of their respective cases. The learned Advocate for the appellants in support of his contention relies on the decision in the case of Mst. Sahudra Bai v. Shri Deo Radha Balabhji Mandir,. through Babu Dinanath Shrivastava and others (A I R 1938 Nag. 30) while the learned Advocate for the respondent besides the case relied on by the appellants‑refers also to five other cases, namely, Sethu v. Subramanya and another (I L R 11 Mad. 274), Bhurabhai rlamandas a?d another v. Rai Buxmani (I L R 32 Bom. 394), Official Trustee v. Mrs. Bechurn and others (A I R 1940 Rang. 207) and Chintamani Raevji Nayaka v. Khandi Rao.( I L R 52 Bom. 184) and Sree Amiya Krishna Khan v. Debendra Lal Khan. In the Nagpur `case (distinctive features of section 10 and Article 98 were clearly pointed out in plain and unequivocal language. What happended in that case was this: A suit was brought against a daughter in respect of a breach of trust committed by her father. She herself was not a trustee, and she had not committed any wrong act ; also the defalcated money was not in her possession ; nor was there anything else in her hands which could be said to represent it. On these facts it was held as follows: "The suit against her was clearly one to make good the loss occasioned by her father's breach of trust out of his general estate. To such a suit Article 98 would apply. "It is not necessary that the property followed should be identical property in respect of which a breach of trust has been committed. It can be anything into which the original property has been converted, whatever form the conversion may have taken, provided of course the one can be clearly and definitely connected with the other. But under section 10, whatever the form the original property may have taken, it is essential that it should be in the hands of the person sued." Here the suit being one for recovery specific property in the hands of the legal representatives of Nibaran, is clearly attracted by section 10 even according to the aforesaid pro?position of law. The same law was laid down in the Bombay and Madras cases referred to above. These two cases were of misappropriation either by the trustee himself or by one of his legal representatives. In the Bombay case it was held as follows: "Section 10 of the Limitation Act (XV of 1877) requires, as conditions precedent in its applicability, first, that the suit should be against a person in whom property has become vested in trust for a specific purpose or against his legal representatives or assigns, and, secondly that the suit should be for the purpose of following such property in his or their hands." In the Madras case what happened was this: Plaintiff, as Dharmakarta of a Hindu Temple, alleging that the defendant, a former Dharmakarta, who has been removed from office; had, when in office, misappropriated certain temple funds held by him, sued to recover a certain sum alleged to have been misappropriated. On these facts it was held as follows: "The defendant was a person in. whom the temple funds had become vested in trust for a specific purpose within the meaning of section 10 of the Limitation Act, 1877, and that as the plaint disclosed a right to follow trust funds in his hands, the suit might be treated a suit for that purpose." In the case of Official Trustee the law laid down was this: "Section 10 has no application to a claim for an account of money which ought but for the default of the trustee to have come into his hands but in actual fact never became vested in him. It does not apply to a claim for account on the footing of wilful default. Such claim is liable to be barred by limitation, and Article 120 of Schedule I is the Article applicable. Hence a claim for an account of the corpus of the trust funds which became , vested in the trustee falls within the ambit of section 10 and is not barred by limitation : but a claim for an account of the interest which the trustee ought to have earned for the trust funds but failed to earn is governed by Article 120." The same view was taken in Chintamanis' case, Amulya Krishna's case is of much later date and exactly on the point. In that case it has been clearly laid down that a suit against the legal representatives of the deceased managing trustee for a specific sum of money alleged to have been misappropriated by the latter is governed by section 10 of the Limitation Act. From the trend of the decision it is abundantly clear that section 10 will apply to a case where it is established that there was misappropriation by the trustee and the property misappro?priated after his death has vested in his legal representative or is mixed up with the trustee's personal property. The learned Advocate for the appellants contends ‑that as the plaintiffs-?respondents fail to trace the specific property, namely, the sum of Rs. 8,342‑7‑3 in the hands of legal representatives of the deceased trustee, Nibaran, they cannot claim protection under section

10. In our opinion, tracing out of the specific property is not at all necessary. It is enough if the plaintiff succeeds in proving that the property in some shape or other has vested in the legal representative. It is true that there is no eye witness as to actual vesting, but circumstantial evidence, as will be presently shown, justifies an inference in favour of such vesting. In this connection reference ‑may first be made to paragraph 7 of the plaint wherein it is alleged that the deceased executor received Rs. 8,342‑7‑3 for and on behalf of the estate but he did not credit the amount in the account book of the estate and that the amount was with him till his death. There is no denial on the point. On the other hand, the judgment of the trial Court indicates that before the learned Subordinate judge it was admitted by the appellants that Nibaran did not account for the money in question. The learned Advocate for the appellants seeks to maintain that there was no such admission before the Subordinate judge and that his observation on the point is not correct. But we do not find any such challenge in the ground of appeal. It is not practicable for the plaintiff to locate the money but the same concession cannot be extended to the appellants specially Swami Turiananda. The Swami is not an unsophisicated young man of immature intellect. On the other hand, we get that he had upperhand in the management during Nibaran's time and he in fact managed the estate for some years on behalf of his father, than an old man of eighty‑four. He is, therefore, expected to be conversant with what happened during his father's time regarding all matters connecting management ; but still he would not say a word about the money. This lack of straightforwardness on the part of the Swami speaks a volume in favour of the plaintiff's case on the point under review. Along with this let us have a glimpse into, the conduct of the two executor, Nibaran and Shyam Chand. An examination of the materials furnished by the plaintiff discloses that these two executors vied with each other for getting control of the cash money but Nibaran emerged out victorious in the ugly contest and succeeded in winning over the legal representative of Kagozijan Bibi to his side and gave a discharge for the entire decretal amount on receipt of Rs. 8,342‑7‑3 though the claim was much higher. This unholy competition on the part of the two surviving executors in the matter of realisation of cash money and getting hold of as much cash money as they could, cannot be explained in any other way except that the competition was not in the interest of the estate but for dishonest gain. The duty of the trustees was to collect money and apply the same to the purpose for which the trust was created. The question of competition could not possibly arise if they acted honestly for the improvement of the trust estate. The fact that Nibaran at certain stage turned out to be dangerously avaricious coupled with .the fact that there was no proper denial of the allegation that the money was with Nibaran till his death though the actual location of the specific property was within the special knowledge of the appellants, leave no room for doubt that the money in question is in possession of the appellants and that the suit is not barred by limitation. In the result, the appeal fails and is dismissed with costs. AMIN AHMAD, J.‑I agree A.H. Appeal dismissed.