( 403 )
The following is the judgment cited by counsel: —
WANNIGASURIYA v. BALASURIYA.
October 6, 1910. Hutchinson C.J.—
The plaintiffs claim Rs. 3,000 principal, being the balance of a sum ofBe. 4,000alleged to havebeenreceived bythedefendantfrom hismother
(tiie plaintiffs’ grandmother) in February, 1909, for distribution amongst theplaintiffs, and interest thereon from February, 1902, amounting with theprincipal to Rs. 6,000. They say that the defendant accepted the Rs. 4,000so entrusted to him, and promised the plaintiffs to give them property to thevalue of Rs. 4,000, and toinvest the moneyforthem andget theminterest
at 15 percent, per annum;andthat he paidtothe first plaintiff out of the
principal Rs. 660, and to the second plaintiff Rs. 340. So that, if that is true,each plaintiff was originally entitled to Rs. 1,383.384 principal; and the firstplaintiff is now entitled to Rs. 673.334 and some interest, the second plaintiffto Rs. 993.334 add some interest, and the third plaintiff to Rs. 1,333.334 andsome interest.
The defendant replied that the plaint disclosed no cause of action, as therewas no privity of contract between the plaintiffs and him. He denied thereceipt ofthe money andthathe promisedtogive theplaintiffsproperty
to the value of Rs. 4,000 or to invest any money for them add get theminterest as alleged, and denied that he paid the Rs. 660 and Rs. 340 as alleged.
Amongst the issues settled were: —
(1) Did Baba Hamine (defendant’s mother) entrust Rs. 4,000 to him tobe held in trust for the plaintiffs?
Did the defendant accept it and promise to invest it for the plaintiffs
as averred in .the plaidt?
Was the Rs. 1,000 paid by the defendant to the plaintiffs, or was it
paid by Baba Hamine?
Is the action prescribed?
The District Judge found that the defendant's mother gave him Rs. 4,000to be invested for the plaintiffs, and that he afterwards paid Rs. 1,000 to thefirst two plaintiffs. He did not think that any prescription " has run at allagainst a trust of this kind," and added, as (perhaps) an additional reason,that there was no date fixed for the execution of the trust. And he gavejudgment for the plaintiffs for the amount claimed.
The learned Judge says that he is convinced that what the plaintiffs say iscorrect. There is no reason why we should dissent from that finding; boththe plaintiffs and .the defendant are probably quite unworthy of credit, butperhaps, on the whole, the plaintiffs’ version of what took place in February,1902, is substantially true. What, then, is it that they say? The secondplaintiff in his evidence says that their grandmother told the defendant tolend out Rs. 4,000 at interest for them, and out of the principal and interestto buy them a house and garden, and that she had previously given himnotes and bonds to the value of Rs. 4,000; that he paid the witness and his
( 404 )
brother (probably meaning the elder brother) Bs.. 1,000, and nothing more;that he promised, to buy them a house and garden (when or where he promisedis not specified), and so they waited. One of their witnesses, the defendant’sbrother, deposedthathe was present in hia mother’shouse, with allthe
plaintiffs, .'when his mother asked the defendant (who had the notes andbonds) to lend out Be. 4,000 for the plaintiffs, and later to buy a house andland with the money and interest. The first plaintiff was at that time(February, 1902) about 22; the second plaintiff about 20 or 21; the thirdplaintiff about 14 or 15.
According to the narrative,' therefore, which the Judge accepted, and whichwe must accept,therewas a family arrangement in February,1902, whenthe
mother instructedthedefendant who was her favouritesonand one ofthe
executors of herlatehusband's will, under which shewasentitled tothe
property, to distribute the bulk of it (which was in the defendant’s custody)amongst her children and the plaintiffs (the children of a deceased daughter)in certain shares, and to hold Bs. 4,000 for the benefit of the plaintiffs' and toinvest it for them (not to pay them any specified rate of interest, but to investit), and afterwards to buy for them a house and garden with the principal andinterest;' and the defendant assented. The defendant says through his counselthat this merely constituted him hip mother's agent’ for the purpose and gaveno right to the plaintiffs, *and that there was no contract, between him and.the .plaintiffs (one of whom was then a minor, and perhaps another was alsostill a minor), and that only the mother or her representative—she being nowdead—could enforce the * arrangement as regards the Bs, 4,000. If that isthe right view of the transaction, the mother could have revoked herinstructions to the defendant and demanded the Bs. 4,000 and interest backfrom him at any time before he had paid it over to the plaintiffs. But I.do not think that that is the right view. I think that the defendantaccepted a trust for the benefit of the plaintiffs, and that the trust must beinterpreted according to the rules of the Boman-Duteh law as to fideicommissa. We have then to consider whether the claim of the plaintiffs isbarred >by the Prescription Ordinance, or rather, whether the claim of . thefirst two plaintiffs is so barred; for the third plaintiff was a minor until 1908or 1909, and this action was commenced in December, 1909.
Section 6- does not apply, for it only refers to an action on a bond condi-tioned for the payment of money or for the performance of any agreement or'trust or. for the payment of penalty; and the opinions expressed by this Courtin the case of Assauw el al. v. Ipemando (1905) 1 Bal. 174], that the section enactsthat no action shall be maintainable' for the performance of “ any agreement,”except within ten years from the date of “ the breach of the condition,”appears to me to be founded on a misreading of it; and even if we acceptedthat opinion, the section would have no application, because there is here no" instrument ” and no payment of interest and no ’’ breach of the condition ’’'and no ” condition.”
Section 8, however, enacts .that no action shall be maintainable for the
recovery of any movable property,or for any money received by the
defendant for the use of the plaintiff, unless within three years from the timeyrhen the .cause of action arose) There is no express exception in the case offidei ccmmissa. The cause of action of each plaintiff arose when he came ofage; if he had sued then, he would have been entitled to his share of themoney; or he ’ could have sued within three years after an acknowledgmentin writing or after a part payment. Here there was no. such acknowledge-
. ment, and there is no evidenoe' as tp the dates- of the part payments to the
first two plaintiffs. But there is a decision of this Court in Antho Pdlle- e.Christoffel Pulte. [(1869) 1 N. L. R. 120], that the Prescription Ordinance
does not apply to an action against a trustee by a person claiming to recovermoney due to him from the trustee under' the trust'. We must follow thatdecision, and must hold that.this action is not prescribed.
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With regard to the rate of interest allowed, the defendant did not agree to –
pay any definite rate, bnt only to invest the .plaintiffs' money at interest. The
only evidence as to what interest he may have made is that he is a money Fernando vlender, and that his lowest rate of interest is 15 per. cent. "The District Court Fonsekahas allowed 15 per cent., and I do not think that that is unfair.
I Would dismiss the appeal with costs.
Wood Renton J.—
Iam not prepared to', differ fromthe findingofthelearnedDistrict Judge
on the facts of this case. The only points that remain, therefore, for con-sideration are whether the respondents’ claim is prescribed, and whether or not. that part of the judgment under appeal, in which their- claim is allowed withinterest at 15 per cent., can be maintained.Onthefirst ofthese points,
although I am not sure that I should have come to the dame conclusion myself,
1 think that we are bound by, and ought to follow,' the case of Antho Pulle e.
Christoffel Pulle [(1889) 1 N. L. R. 120], in which it was held by BurnsideC.J. and Clairence J. that a trustee, receiving money on behalf of his cestuiquetrust, cannot set up a plea ofprescriptioninbarof theclaim of such
cestui que trust. In the present case the learned District Judge has held thatthedefendant-appellant had receivedthe moneyhere insuit intrust for the
plaintiffs-respondents. No issue of minority was raised at the trial, andunder these circumstances 1 would hold that the respondents’ claim is not pre-scribed. As -the matter was fully argued before us, I desire to say that, if*itwere necessary to decide the point, I. should not be prepared to follow thecase of Assauto et al. v. Fernando. [(1905) 1 Bal. 174], in which it was held tha.t theperiod of limitation affecting trusts is to be found in section 6 of OrdinanceNo. 22 of 1871. In my opinion the words in that section, “ the performance ofany agreement .of trust," must- be read in conjunction with the earlier clause,
" any bond conditioned." I think that this is clear from the last words of thesection itself, “ or of the breach of the condition."
As regards the question of interest, I do not see any evidence of an agree- .ment on the part of the appellant to pay interest at 15 per cent.; and certainlythe fact that he is a money lender, and that 15 per cent, is his lowest rate ofinterest, would under ordinary circumstances be insufficient to justify thelearned District Judge in condemning a litigant to pay more than the legalrate of interest.'
' But, in view of the finding of the District Judge that the appellant ispractically in the position of a trustee, I agree to the formal order proposedby his Lordship the Chief Justice dismissing the appeal simpliciter.
WANNIGASURIYA v. BALASURIYA