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TMI Blog2010 (7) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 3,25,500/-. The wife claimed return of the said amount of Rs. 3,25,500/- along with the interest and costs. 3. The husband was set ex parte once. The said ex parte order was set aside. Though the husband was permitted to participate in the proceedings, he again did not co-operate and take part in the proceedings. Accordingly, the Family Court proceeded to pass the decree directing him to pay the said amount of Rs. 3,25,500/- along with interest and costs. 4. The Respondent/wife took out execution before the Family Court. The husband was once directed to be arrested. He was arrested. While he was in custody, he approached this Court and on condition that he deposits an amount of Rs. 25,000/- and executes a bond with two solvent sureties for the balance amount, he was released from custody. Thereafter, before the execution Court, the Respondent-husband pressed the plea that he is without any means and that, in these circumstances, the money decree cannot be executed against him by arrest and detention. That plea was considered by the Court below and by the impugned order, the Court below came to the conclusion that the Respondent/judgment debtor has no means and consequently, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of obstructing or delaying the execution of the decree.-- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. (Emphasis supplied and portions not directly relevant are omitted.) 9. The learned Counsel for the Appellant submits that arrest and detention in civil prison is a mode of execution recognised under Section 51(c) of the Code of Civil Procedure The counsel contends and we accept that to avoid the consequence of arrest and detention in civil prison by operation of the Proviso to Section 51, Code of Civil Procedure the Court must be satisfied that the judgment debtor does not come within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure or under the General Clauses Act. The Family Courts Act also does not define the same. The Indian Contract Act in Section 16(2)(a) though it refers to fiduciary capacity also does not bear any definition of fiduciary capacity. We are, in these circumstances, forced to fall back on the dictionaries, Law Lexicons and precedents, to ascertain the precise scope of the expression "bound in a fiduciary capacity to account. 15. We note that a Division Bench of this Court earlier had occasion to consider the ambit of the expression "bound in a fiduciary capacity to account" in the decision in Francis v. Central Bank of India, 1990 (2) KLT 983. The question arose in totally different circumstances. The question to be considered in that case was only whether surety in a commercial loan transaction with the Bank can be held to be bound in a fiduciary capacity to account. But the discussions in that case by the Division Bench has reference to the sweep of the expression 'bound in fiduciary capacity to account'. 16. It is unnecessary to extract specific passages. But it is now clear that "there can be no controversy that for the purpose of Clause (c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm is not restricted to technical or express trusts, but includes also such offices or relations as those of an attorney at law a guardian, executor, or broker, a director of a corporation and a public officer. 20. In Stroud's Judicial Dictionary, the expression "fiduciary capacity" is described as follows: FIDUCIARY CAPACITY. An administrator who has received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity" within Debtors Act, 1869......; so, of the debt due from an executor who is indebted to his testator's estate which he is able to pay but will not .....; so of moneys in the hands of a receiver ......., or agent....., or Manager ...., or moneys due on an account from the London agent of a country solicitor ...., or proceeds of sale in the hands of an auctioneer ...., or moneys which in the compromise of an action have been ordered to be held on certain trusts .............of partnership moneys received by a partner......[Note. The period to be looked to is that of the act done......] Warton's Law Lexicon refers to the expression "fiduciary&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y capacity". For the purpose of Section 111 of the Evidence Act, it was considered and held that the relationship of husband and wife is one of active confidence. By necessary implication -- as fiduciary relationship is one in which there must be active confidence, the decision in Dwaraka Prasad (supra) can also be held to support the view that husband and wife relationship is one which can be described to be fiduciary. Considering the nature of the marital tie inherently, and on principle, we are satisfied that it will be absolutely safe to conclude that husband and wife can be safely held to share a fiduciary relationship unless the contra is shown. There may be instances where in an acrimonious matrimony that relationship may lose its fiduciary nature. Be that as it may, at least in the absence of a counter plea it can safely be held that husband-wife relationship is a classic example of a fiduciary relationship. 23. We now have to consider the question whether the husband in the instant case has suffered the decree for the breach of his liability "to account" in such a fiduciary capacity. According to the claimant-wife, cash (representing her share in paternal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties at any time when she demands. We extract the relevant passage i.e. paragraph 5 below: 5. Counsel for the Appellant contended that in the facts and circumstances of this case there cannot be any limitation at all in filing the suit is filed by the wife for return of the ornaments and utensils entrusted by her to the husband. According to the counsel the husband is in the position of a trustee in so far as the 'streedhana properties' are concerned and that he is bound to return them as and when demanded by the wife. After hearing counsel for both sides I am satisfied that there is much force in the contention raised by the counsel for the Appellant. It is normal for the husband and wife to reside together after the marriage and the wife normally is not expected to keep her ornaments and others valuable articles under a separate locker and key. Normally any wife may entrust her valuable things to the husband for safe custody and by that it does not mean that the husband is the owner thereof and that he has having a hostile title thereto so as to defeat the wife by claiming that it is barred by limitation. The husband in the circumstances is certainly in the position of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where also the crucial element to be established is whether the elements of trust exist in the relationship between the parties. That was also a transaction of entrustment of properties of the wife with the husband. 29. The above discussions lead us to the conclusion that husband and wife relationship can be held to be a fiduciary relationship. It also follows that in respect of cash, ornaments and articles brought by the wife to her matrimonial home and entrusted to the husband, he is bound in a fiduciary capacity to account to the wife whenever she makes a demand. Elements of trust are involved in such relationship and in the entrustment of cash/ornaments/articles. We do not, in these circumstances, have any hesitation to agree that proviso (c) to Section 51 of the Code of Civil Procedure squarely applies and the pleas which may be available under Clauses (a) and (b) of Section 51 of the Code of Civil Procedure shall not be available to a judgment-debtor, if the case falls within Clause (c). 30. It follows from the above discussions that the impugned order by which the relief of execution by arrest and detention of the Respondent was denied to the Appellant is unjustified and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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