The District Judge disbelieved the evidence of the trust alleged in the plaint on the ground that the accounts put in do not contain the plaintiff's name. The allegation in the plaint regarding the trust is that it was for Ka. Srinivasa Aiyangar, i.e, the plaintiff's father and for the plaintiff. If in fact, there was a trust for Srinivasa Aiyangar, the plaintiff as his heir would be entitled to the benefit of it and as the plaintiff alleged in the plaint that there was a trust for both Srinivasa Aiyangar and herself she would be entitled to succeed if a trust for Srinivasa Aiyangar is found. The District Munsif observes in paragraph 13 of his judgment that Seshadri Aiyangar accounted for the money in his hands in December 1878. That was apparently during the lifetime of Srinivasa Aiyangar, for he says in the same paragraph that Srinivasa Aiyangar, died in 1882. The absence of the plaintiff's own name would not of course show that there was no trust for Srinivasa Aiyangar. Besides if the accounts shew that the money was treated by Seshadri Aiyangar as a fund held by him in trust even after Srinivasa Aiyangar's lifetime, the mere fact that the plaintiff's name does not appear would be immaterial. The Judge apparently did not come to a conclusion on the question of the genuineness of the accounts. We cannot treat the finding of the judge as satisfactory. We shall therefore ask him to return a fresh finding on the question whether the money in question was held by Seshadri Aiyangar in trust either for Srinivasa Aiyangar, or for the plaintiff, or for both. We must express no opinion on the question whether the facts proved by the plaintiff at the trial would make out a trust. If the finding of District Judge should be in the affirmative, on the question of trust, he will record findings also on issues 2 to 4.

Findings should be submitted in one month from the date of receipt of this order by the lower court, and 7 days will be allowed for filing objections.

In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following

FINDING:—

In Second Appeal No. 659 of 1911 on the file of the High Court against Appeal Suit No. 243 of 1908, on the file of this Court, their Lordships have directed me to submit a fresh finding upon the following Issue:—

Whether the money in question was held by Seshadri Aiyangar in trust either for Seshadri (sic) Aiyangar or for the plaintiff or for both? (N. B. The second “Seshadri” must be a clerical error for “Srinivasa” and I have proceeded upon this supposition.

2. If the finding should be in the affirmative fresh findings are also required upon the following

Issues:—

(Issue 2). Whether the suit is barred by limitation?

(Issue 3). Whether the plaintiff is entitled to any and what amount against the estate of the deceased husband of the defendant?

(Issue 4). Whether the plaintiff is entitled to a charge over the plaint mentioned properties?

3. My predecessor allowed this appeal on the ground that the accounts, even if their genuineness be admitted, would not show that the late Seshadri Aiyangar held any money as trustee for the plaintiff to whom there is no reference in them at all. It is true there is no mention of the plaintiff in the accounts, but the plaintiff's case, as I understand it, is that the plaintiff's father Ka. Srinivasa Aiyangar in 1877 entrusted a sum of about Rs. 400 to Seshadri Aiyangar who was then about to marry the plaintiff. After Ka. Srinivasa Aiyangar's death the said Seshadri Aiyangar continued to hold the money as then improved, in trust for his wife, the plaintiff; and after Seshadri Aiyangar's death the money came to his son Srinivasa Aiyangar. The last named died in 1906 and plaintiff now seeks to recover the money from the estate.

4. The principal account is Exhibit A. The District Munsif has discussed it at length in paragraphs 7 to 17 of his judgment and has come to the conclusion that it is substantially genuine. At the top of page 7 the name Kaveri Srinivasa Aiyangar was undoubtedly written at a later date than the rest of the page, as is especially apparent on looking at the other side of the paper. There is also an interpolation at line 1a. On page 7 the word, “Seshan” also is an interpolation, With the exception of these interpolations the account book bears every indication of being genuine. There is also evidence that the book is in the handwriting of Seshadri, but P. W. 3 admits that the entry at the top of page 7, and also the superscription on page 1 of the book are not in Seshadri's hand, As regards the superscription (A3) it runs “Ka. Srinivasa Aiyangar's account from Avani of Iswarayear (August) 1877.” It appears old and contemporaneous with the first few pages of the book, and whether it is or is not in the hand of Seshadri, I do not think it can be a modern addition. The vakil for the defendant argues that as the account book has been tampered with, it cannot be accepted, I think that as the suspicious items can be clearly distinguished and are few in number, the rest of the book is acceptable. I therefore agree with the District Munsif, and find that this Exhibit A was an account kept by Seshadri in the name of his father-in-law Ka. Srinivasa in order to account for money which the latter had entrusted with him. As there is no mention of the plaintiff, and the oral evidence is not altogether satisfactory on the point, I cannot hold that she was originally a beneficiary, either alone or jointly with her father.

5. As regards the details of Exhibit A it practically opens on page 5 with “particulars of the property brought when he came to our house” the property being mostly jewels, The “he” must be Ka. Srinivasa Aiyangar as this was the time when he came to Seshadri's house and the whole book purports to be in his name. Page 7 and the top of page 8 (Exhibit A 5) sets out the details of a total of Rs. 387-8-0 which should then be on hand. Then on page 11 (Exhibit A4) the particulars for 3-11-1880 amount to Rs. 404. In the year 1884 the trust fund was carried over to Seshadri's general family fund as is found in Exhibit C1. and Exhibit E, when it amounted to Rs. 400. Exhibit A then ceased and there is no means of ascertaining what became of the interest which this money earned.

6. The vakil for the defendant has argued at length that accounts alone are not sufficient to charge any person with liability, that the accounts have not been properly proved, that they were not kept in the regular course of business, that it was not proved that entries were made at the time, that Seshadri may have merely been Srinivasa's book-keeper whilst Srinivasa himself held the money, and that the money may have been subsequently repaid, for the accounts produced only bring us down to 1904, shortly after Seshadri's death. I have considered all these points and I am still of opinion that the accounts are as good as can be reasonably expected, and that they show Seshadri held money on trust for Srinivasa.

7. After Srinivasa's death, the plaintiff inherited his property and thus becomes the sole beneficiary of the trust. I find issue (1) in the affirmative that the money in question was held by Seshadri Aiyangar in trust for Srinivasa Aiyengar, and after the latter's death in trust for the plaintiff.

8. Issue (2) deals with limitation and the District Munsif has found it in the negative. Section 10 of the Limitation Act will govern the case and therefore there is no time limit. The vakil for defendant argues that this section applies only to a specific trust, and not to an implied trust or one made by operation of law, and he has quoted as his authorities the rulings in VI Madras 402, IX Madras 325, IX Bombay 115, IV Allahabad 187 and VII Bombay 229. All these rulings are clearly distinguishable and are of no use to the present case In order to make a person an express trustee within the meaning of the Limitation Act it must no doubt appear, either from express words or clearly from the facts, that the rightful owner has entrusted the property to the person for the discharge of a particular obligation. I think that such an intention does appear from Exhibit A, namely that Seshadri accepted the fund to be held for Srinivasa's benefit. Section 10 of the Limitation Act will apply, and the issue is answered in the negative.

9. Issue (3):—The Estate of Seshadri descended to the deceased husband of the defendant, and it is liable for the trust amount. There is nothing to show that after 1884 any interest was added to principal, and I must agree with the District Munsif in presuming that as the beneficiary was Seshadri's wife, the income was used for their family expenses. Only the capital amount of Rs. 400 can be demanded by the plaintiff.

10. Issue (4)—The trustee has mixed the trust funds with his own, and the burden is therefore upon him to point out what has become of them. The plaintiff is unable to say that any particular item of the plaint property was purchased with her money, and it is not reasonable that she should be required to do so. Seshadri acquired the plaint property by money with which he had mixed the trust funds and therefore the trust must have a charge upon the property. Issue (4) is answered in the affirmative.

This Second Appeal coming on for final hearing before their Lordships Sadasiya Ayyar and Spencer, JJ., who delivered the > following.

JUDGMENT

The learned District Judge has held that Seshadri Aiyengar was express trustee for Srinivasa Aiyengar (Seshadri Aiyengar's father-in-law) because the account A shows that Srinivasa Aiyengar's moveables were deposited with Seshadri Aiyengar.

A mere deposit of moveables or money by A with B would not make B the trustee of A on an express trust, so as to attract the provisions of Section 10 of the Limitation Act.

A deposit with a solicitor or other person already standing in a fiduciary relation to another might make such a solicitor an express trustee according to some English decisions. See Soar v. Ashwell. Also Narrondas v. Narrondas. But the relation between a son-in-law and a father-in-law is not at all similar to the relation between a solicitor and his client, that is, a son-in law by his new matrimonial relationship does not stand in a fiduciary relation to his father-in-law as a solicitor does to his client and hence, the deposit in this case by a middle aged father-in-law with his youthful son-in-law will not make the latter an express trustee for his father-in-law. The terms of the trust and the duration of the trust have not at all been established and it is impossible in this case to ascertain with “reasonable certainty” the purpose of the trust, the trust property, or the terms of any transaction in the nature of the creation of a trust by Srinivasa Aiyengar. That Ka. Srinivasa Aiyengar received back out of his deposit sums of moneys whenever required by him for his own purposes from his son-in-law shows rather that there was no trust for any specific purpose of any specific sum but it was only the ordinary case of a customer who deposited property with a sowcar or a bankar and was drawing whatever he wanted for his use from time to time. (See Official Assignee of Madras v. Krishnaswami Naidu, The Official Assignee of Madras v. Melapparangavur Sarvajana Sahaya Nidhi, Official Assignee of Madras v. Smith and Iccha Dhanji v. Natha. That after 1884, Seshadri Aiyengar merely treated himself as a banker in possession of his father-in-law's money is shown by his having mixed up (for investment purposes) the money he owed to Srinivasa Aiyengar with his (Seshadri Aiyengar's) own funds.

A depositor or a banker or an agent (or a debtor to whom a loan is made and who promises to return the loan) is not an express trustee within the meaning of Section 10 of the Limitation Act., As this suit was based on an alleged relationship between the plaintiff and the plaintiff's husband (or between the plaintiff's father and the plaintiff's husband) of cestui que trust and trustee and as that allegation has not been established by the oral evidence (disbelieved by the District Court) or of the account A (relied on by the District Court on remand), the suit fails and the Second Appeal must be dismissed. Whether if the plaintiff had sued as the heir of a mere depositor, she could have succeeded is a question which would depend upon allegations and proofs as to dates pf acknowledgments, dates of demands, etc., and it is impossible at this stage to convert the suit based on an express trust to a suit of different character.

As the defendant denied the genuineness of Exhibit A in its entirety, there will be no order as to costs of this Second Appeal.

Appeal dismissed.