Kemp, J.:— One Jamnadas Lalbhai, who is the testator in this case, died leaving a will dated March 23, 1908, by the terms of which he appointed one Ratanlal and Jamnadas as his executors. Jamnadas is the plaintiff in this suit. The deceased also left a minor daughter Buchibai and with regard to her the direction in his will was that, “she alone is the only person truly entitled to my property”, and later on, “on Ben Buchi attaining proper age, my ‘executors’ shall mike over the whole of my property to her.” Farther on, “my executors shall have full (entire) authority, to make, consistently with my reputation, proper outlays in connexion with my death and of the occasion of the marriage of Ben Buchi,” and at the end of his will is the following clause:
Should the death of Ban Buchi take place which may Narayan (God) forbid before (her) marriage or should she die without issue after her marriage than my executors shall use the whole of my property for (same) proper chari able purposes.
2. The will further directed that “Bhai Ratanlal shall keep (in his) possession my entire property.” On February 1, 1908, probate of the will was granted ta both the executors. In 1913 Buchibai married. According to the plaintiff she was then but twelve years old and in 1916 a child was born to her, who at the date of this suit is still a minor. The plaintiff says that in 1919 Buchibai attained majority. She died in 1920 and, on January 27, 1925, the executor Ratanlal died. On April 3, 1925, letters of administration to the estate of Ratanlal were granted to the defendant. From May 20 to 25 certain correspondence ensued between the plaintiff's and the defendant's attorneys. The plaintiff's suit is against the defendant praying for a declaration that certain property mentioned in list (B) belonged to the deceased testator and is in the defendant's possession, that the defendant may be ordered to hand it or the value over to the plaintiff, for an account from the defendant of the properties taken possession of by him; and in the alternative that as the heir and legal representative of Ratanlal, the defendant may be ordered to render an account of the testator's property. The prayers of the plaint further pray for a first charge on the property in the hands of the defendant to the extent of Rs. 7,000 for an inventory, a receiver and an injunction pending the suit.
3. The management of the property appears, in accordance with the will;of the testator, to have remained with the deceased executor Ratanlal. There was, the plaintiff alleges, a sum of Rs. 1,500 deposited by Ratanlal with his firm, which the plaintiff says was the residue after the funeral expenses had been paid for. He further says that the property of the deceased has not been exhausted in paying for the funeral expenses and marriage ceremony and that there is a residue of the property which has come to the hands of the defendant.
4. The defendant says that there is no property of the deceased testator in his hand. It seems to me that it is a matter for the Commissioner to ascertain whether any property of the deceased testator has come into the hands of the defendant.
5. The first point is whether the suit is barrel by limitation. The plaintiff's learned counsel contends, firstly, that Section 10 of the Indian Limitation Act applies in this case. In my opinion, that section does not apply. Firstly, because the suit is not one by the beneficiary and, secondly, because the deceased Ratanlal was not an express trustee. The question as to whether Ratanlal can be considered an express trustee is one which in similar cases has been dealt with by the English Courts. In In re Jane Davis: In re T.H Davis: Evans v. Moore(1), there was similar to the present case property which was to foe dealt with before the beneficiaries were entitled to the share of the residuary estate. At p. 124, Lord Justice Lindley, in dealing with the contention as to whether the executor in that case was an express trustee, says:
The Statute of Limitations excepts only express trusts, and there is no more an express trust under that order than under the will. [The order in that particular case was the order of the testator.] A legacy does not cease to be a legacy because it is subject to some implied trusts. An executor was always in a loose sense a trustee for creditors and legatees, since he held the personal estate for their benefit and not for his own, but such a trust does not take a case out of the statute. An executor cannot be deprived of the benefit of the statute by showing that he is a trustee; it is necessary to make out that he is an express trustee.
6. Then again in In re Mackay: Mackay v. Gould(2), Mr. Justice Kekewich says (p. 30):
But it is said that the widow was not only an executrix, but was a trustee, and divers reasons were put forward for that. In the first place, it is said that when the duties of an executor is the strict sense of the word are performed, and the executor retains moneys on behalf of those claiming the estate—and the argument must also be good as regards an administrator—then he becomes an express trustee for the legatees, or, if it is an administrator, for the next-of-kin. No authority is cited for that, and in my opinion the proposition is unsound. I see no reason for converting an executor into a trustee by anything like a performance of his duties qua executor. The argument must go to this length, that once the debts and funeral and testamentary expenses are paid, then the residue is held upon an express trust. Reference is made to authorities which show the difficulty of determining the time at which persons who ore appointed executors and trustees, and to whom money is given in that character, cease to hold it as executors, and commence to hold as trustees. The exact moment of passage from one character to the other is difficult to define; but there is no difficulty in saying that at some point of time the executor becomes a trustee and, the trustee being sufficiently declared, an express trustee, and then the consequences of that conversion follow. Those authorities, it seems to me, have nothing to do with a case such as this, where there is a direct gift and the executor only claims the property virtue officii, and, when he has discharged his duties as executor, holds it in a loose sense, as Lindley L.J says, as a trustee for those who are concerned.
7. Looking at the will in question in this suit I am quite satisfied that there is no express trust as is alleged by the plaintiff. It is true that the marginal note to a section cannot be taken as an index to what the section was meant to apply to. The marginal note to S. 10 describes it as a section concerning express trusts. I think Section 10 of the Indian Limitation Act has no application to this case. The Article which would apply, in my opinion, is Article 120 of the Indian Limitation Act which gives a period of six years to the plaintiff to file this suit.
8. Now the suit, shortly put, is for an account of the property, which the plaintiff says is in the hands of the defendant. So far as the defendant is concerned I fail to sea how he can be rendered liable to account for the management of Ratanlal. Ratanlal was a trustee and I find it difficult to say that a trustee can be regarded as an accounting party to a co-trustee. The point would, of course, be different if the suit was one filed by the beneficiary. The obligation cast upon the plaintiff as a trustee by the Indian Trusts Act is to watch the management of the trust by Ratanlal to whom the testator had given possession of the property. For that purpose the plaintiff is entitled to the relief a trustee is entitled to in circumstances against his co-trustee, and I think that the proper order to pass with regard to the management prior to the death of Ratanlal would be that the plaintiff should have inspection of all the papers and documents and accounts relating to the estate in the hands of the defendant.
9. With regard to the relief sought against the defendant himself, assuming that arty property of the deceased testator has come into the hands of the defendant, that is a matter which will have to be determined by the Commissioner. As to whether the claim is maintainable, Ratanlal died in 1925, the cause of action therefore against the defendant accrued on his death. Moreover, the right to inspection accrued, in my opinion, on the death of Ratanlal. There will, therefore, be a reference to the Commissioner. I may here state the fact that in a letter written by the plaintiff during the lifetime of Ratanlal, he purported to consider his duties as an executor at an end; but he did not take the proper steps to be discharged and his liability therefore remained. Hence he is in a position to file this suit. Some evidence has been adduced on the plaintiff's part to show that Ratanlal and the defendant had assets belonging to the estate of the testator and that the estate was not wholly administered by paying for the funeral and marriage expenses. It may be that it was not necessary to take that evidence and I might have been asked to pass this order at the outset. But I wanted to get a clear conception of the case and, therefore, took some evidence. I think now that I am in a position to make the order of reference.
10. One other point remains. The plaintiff applied for an amendment of the pleading by aiding the minor daughter of Buchibai as a co-plaintiff or as a defendant in the suit under O. 1, R. 10. I am of opinion that no such amendment should be allowed. The cases under which an amendment will be allowed under that rule may be classified, firstly, as those in which an agent has filed a suit in his own name instead of his principal's name; secondly, where an estate is the real plaintiff and by mistake the wrong person is put on the record to represent it; and, thirdly, where a plaintiff is aided to enable a complete adjudication of the questions involved in the suit or to finally protect the defendant's interests. I think those three cases shortly summarise the result of the authorities on the point and a plaintiff on the record cannot be given a good cause of action by the addition subsequently of a plaintiff who has a good cause of action. I am referring to the cause of action which would enable the beneficiary to sue for an account of the property. The application for amendment is, therefore, disallowed. (The judgment then proceeded to record finding and directing that plaintiff was not entitled to an account of Ratanlal's management, but the defendant was bound to account for any property belonging to the deceased testator, which came into his possession proceeded). Plaintiff to pay defendant's costs occasioned by the application for amendment. Costs and further directions reserved.
11. Order accordingly.