APPELLATE SIDE. No. 132. Before Mr. Justice Chatterji, C.I.E., and Mr Justice Johnstone. GULZARI MAL,-(PLAINTIFF),-APPELLANT, Versus KISHAN CHAND,-(DEFENDANT),-RESPONDENT. Civil Appeal No. 123 of 1906. Trust and trustee-Suit by settlor against trustee on failure of the object of a trust to recover trust funds for himself -Starting point of limitationUnsigned statement of account in defendant's books-AcknowledgmentMutual account-Indian Limitation Act, 1877, Sections 10, 19, Articles 64, 85, 120-Contract - Contract to pay a debt barred by Limitation Law-Contract Act, 1872, Section 25 (c). Held that where the author of a trust on failure of its objects sues to recover trust property in the hands of a trustee for his own use and not for the purposes of the trust, Section 1) of the Indian Limitation Act is inapplicable. Such a suit being a suit to reconvey trust property to the settlor the limitation applicable is that prescribed in Article 120 and will commence to run from the date of the failure of the object of the trust. Kherode money Dossee v. Doorgamoney Dossee ('), Greender Chunder Ghose v. Mackintosh ("), Jasoda Bibi v. Parmanand (), Hemangini Dasi ▼. Nobin Chand Ghose, Cowasji v. Rustomji (*) cited and followed. Held also that a bare statement of account in a defendant's books in the hand-writing of the plaintiff himself such as "Daskhat (plaintiff) rupia 53,526-5-9 hisab samajke baqi nikal li " made up largely of a barred item transferred from another account which had not been signed by the defendant or his authorised agent in that behalf is useless for the purposes of limitation and does not create a fresh starting point, as it neither amounts to an acknowledgment within the provisions of Section 19, nor to an account stated under Article 64 of the Limitation Act or to a promise to pay within the meaning of Section 25 (c) of the Indian Contract Act. In Buch a case the transfer of the barred item without observation of due formalities to a mutual open and current account even with defendant's consent cannot over-ride the Law of Limitation. Sadasook Agarwalla v. Baikanta Nath (*), Ram Dita ▼. Ibrahim-ud-din ('), Chowksi v. Chowksi (*), Ranchhoddas v. Jeychand (°), Gangaprasad v. Ramdayal (10), Mahbub Jan v. Nur-ud-din (11), Ganesh v. Gyanu (1), and Velu Pillai v. Ghose Mahomed (13), referred to and distinguished. (1) I. L. R., IV Calc., 455. (7) 122 P. R., 1889. (*) I. L. R., VIII Bom., 194. First appeal from the decree of H. Harcourt, Esquire, District Pestonji Dadabhai, for appellant. Shadi Lal, for respondent. The judgment of the Court was delivered by CHATTERJI, J.-The material parts are briefly these Plaintiff's 30th March 1907. fatter, Hazari Mal, and defendant's father, Kanhya Lal, were brothers and partners in business at Delhi. In 1892 after plaintiff's father's death, a separation took place through an arbitrator, one Lala Kauhya Lal. The award of the arbitrator, which is printed at page 1 of the supplementary printed record, recites that Rs. 62,000 in cash were due by defendant's father as the share of Hazari Mal, Rs. 3,000 on account of furniture and half of a tavela and Rs. 7,400 on account of jewels of plaintiff's wife. Two houses valued at Rs. 10,000 were also to be given on account of that share. Plaintiff's share was to be made up thus: (a) The title deeds of the houses were to be made over to plaintiff's wife Mussammat Piari, who was to (c) Rs. 30,000 out of the Rs. 65,000 mentioned abov (d) The remaining sum of Rs. 35,000 was to remain entire joint business and the assets thereof subject to the above payments on account of plaintiff's share. A decree was passed by the District Judge of Delhi in terms of the award by consent of parties on 18th August 1892. Plaintiff's wife died without male issue many years ago, it is not clear from the record now many, but it is undisputed, more than six years before suit. From a copy of an extract from the register of deaths filed in this Court by Mr. Shadi Lal and accepted by Mr. Dadabhoy, it appears that she died on 2nd April 1893. In 1904 plaintiff tried to realize the amount he considered due from defendant in execution of the decree of 1892, but it was finally ruled by the Chief Court on 10th April 1905 that he was bound to file a fresh suit. On 20th April 1905, plaintiff brought the present suit. He alleged that after the award the parties had dealings and that on 7th June 1902 the account was adjusted between them, and defendant struck a balance for Rs. 53,526-5-9 including the item of Rs. 30,000 deposited in Mussammat Piari's name in his own book in plaintiff's favour. The defendant disclaimed all knowledge of the original jointness between the parties' ancestors and of the award, but admitted that two sums of Rs. 35,000 and 30,000 were credited to plaintiff and Mussammat Piari respectively in his books, that the plaintiff had dealings, but that not one farthing had been paid on Mussammat Piari's account, that the amount stated referred to in the plaint had been entered in his books during his absence by collusion between plaintiff and defendant's manim, and that nothing was due to plaintiff but about Rs. 13,500 owed by him to defendant. He also pleaded that plaintiff has no right to claim the Rs. 30,000 entered in Mussammat Piari's name and that the claim for this sum was barred by time, Mussammat Piari having died nine years before suit. Other technical objections to the claim need not be set out here, as they are not pressed before us. The issues framed by the District Judge were 1. Whether the entry in defendant's book, dated 7th June 1902, amounts to an acknowledgment within the meaning of Section 19 of the Limitation Act. 2. Is it in any case a statement of account that will give a fresh period of limitation. 3. If it is, may not defendant go behind it. The District Judge found that the entry was not signed ●ven by defendant's agent, and that defendant did not agree to it. He held that the suit as based on the balance was not tenable and accordingly dismissed it without costs. He incidentally ›xpressed the opinion that plaintiff had not been given the Rs. 30,000 by the award and the sum was kept perfectly distinct from the Rs. 35,000 given to plaintiff himself, and that his claim to the former sum was not clear in equity, but inconsistently allowed this equity to sway him in not awarding costs. The case was argued at great length by counsel for the parties and the plaintiff's contentions before us were substantially these (1) That under the award the sum of Rs. 30,000 was plaintiff's money, Massammat Piari having been given only a life interest in it, and that in any case the plaintiff is entitled to recover it from defendant on Mussammat Piari's death without male issue. (2) That the sum was held by defendant and his father as a trustee, and that no limitation applies to the present suit in so far as that sum is concerned. (3) That the account was stated in defendant's book by defendant's agent with authority and was never repudiated by the defendant within the subsequent period during which the parties had dealings and must necessarily have come to his knowledge and that defendant's conduct amounted to ratification if authority was not expressly or impliedly given before. (4) That the claim is within time- (a) as the amount stated gives a fresh starting point; It was admitted that if Section 10 of the Limitation Act did not apply, the limitation governing the suit was that provided in Article 120 of the Act. It was also suggested that the account may be treated as a mutual open and current account and the limitation prescribed in Article 85 applied to it. These contentions were strenuously opposed by the other side. The points for determination in this appeal group themselves under two main heads I. Whether the plaintiff has any right to the Rs. 30,000 credited in defendant's books in 'the name of Mussammat Piari, his wife, and set apart for her by the award. II. If so, whether the claim is within limitation. In order to satisfactorily decide the limitation point, the facts should be first disposed of, and we therefore proceed to consider the first question. In our opinion there cannot be any rational doubt that the sum of Rs. 30,000 was plaintiff's money, though the arbitrator set it apart for the maintenance of Mussammat Piari during her life-time. The money was provided out of his share in the joint shop and from the Rs. 65,000 cash which were due to him on account of that share. This is expressly stated in the award, and it was clearly mentioned that the cash, ornaments and immovable property of that share were to be paid to and for (uske waste) Galzari Mal in a certain way, which has already been described in an earlier part of this judgment. There cannot be the least doubt that the property was the plaintiff's, and the arbitrator merely made an arrangement for the well being and comfort of plaintiff's wife, to which plaintiff assented and that the arbitrator never intended that the property should not revert to plaintiff on the death of his wife without male issue. The case may be looked at in two ways. Mussammat Piari was only to have life interest in the property, the reversion being with the plaintiff, and this is the right way of regarding it. Or assuming, for argument's sake, that Mussammat Piari had been constituted full owner, so that inheritance is to be traced to her, it is obvious that by Hindu Law plaintiff is her heir. The arbitrator did not declare that on her death without male issue defendant was to be entitled to the money. The point is so simple and so obvious that we are unable to understand the difficulty the District Judge felt about it. The first question must be decided in plaintiff's favour. On the question of limitation the first point for consideration is whether Section 10 of the Limitation Act is applicable to the claim. There was much argument on this point, but after due consideration we are obliged to hold that Section 10 has no application. It is possibly a fair argument that defendant's father was under the award constituted the trustee for Mussammat Piari to keep charge of the money, to pay the interest to her during life, and to hand it over on her death to any male issue she might leave. The plaintiff may be said to be the author of the trust, as he acquiesced in and accepted the award of the arbitrator in this matter. But when Mussammat Pari died the trust came to an end and Section 10 ceased to be applicable. It might have applied to a claim to enforce the trust by Mussammat Piari against defendant's father and defendant, but |