1937 (12) TMI 13 - HC - Indian Laws

Summary

Issues:
1. Applicability of Article 36 or Article 120 of the Indian Limitation Act, 1908 to a suit against a trustee or ex-trustee for loss sustained by the trust due to omission to collect moneys.
2. Determination of when limitation commences to run under Article 120.

Analysis:

Issue 1:
The reference involved conflicting decisions on whether Article 36 or Article 120 applies to a suit against a trustee for losses to the trust due to omission to collect moneys. Article 36 pertains to suits for malfeasance, misfeasance, or non-feasance and has a two-year limitation period from the date of occurrence. On the other hand, Article 120 is the residuary article with a six-year limitation from the accrual of the right to sue. Previous cases like Ranga Pai v. Baba and Subramania Aiyar v. Gopala Aiyar had differing views on the application of these articles. The Full Bench concluded that Article 36 does not apply to trustees, and hence, Article 120 governs such suits.

Issue 2:
Regarding the commencement of limitation under Article 120, it starts when the right to sue accrues. In cases where a sole trustee commits a breach of trust, the right to sue is dormant until a new trustee is appointed. The limitation period does not begin until a new trustee is in place. However, if there are multiple trustees, the period starts when the loss occurs since they have the right to sue the defaulting trustee. The timing of limitation commencement varies based on the nature of the trust and the presence of other trustees. The Full Bench clarified that the lower court should assess the case on its merits rather than solely focusing on the limitation issue, considering the significant time lapse since the suit was filed.

In conclusion, the Full Bench held that Article 36 does not apply to suits against trustees, and Article 120 governs such cases. The commencement of limitation under Article 120 is contingent on the right to sue accruing, which varies based on the trustee scenario. The lower court was directed to re-examine the case comprehensively, considering all aspects beyond just the limitation aspect due to the substantial time elapsed since the initiation of the suit.