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[3] This was the vyavasthapatra as executed by Govind on 30th July 1691. A short time thereafter, that is on sand August 1894, Govind died leaving him surviving his widow Ramabai and his three daughters above mentioned. Trimbak, who was hia trusted nephew and executor, carried on the management of the properties, movable and immovable, which had been the subject matter of the partition as above, without however effecting any partition thereof by metes and bounds. He thus managed the one half share of the properties belonging to the joint family, which had come to Balkrishna's branch, on his own and managed the other half share, which had come to Govind on such separation but which had been the subject-matter of the vyavasthapatra executed by Govind, in hia capacity as the executor of that vyavasthapatra. The two other persona Khare and Joshi did not take any part in the management of the properties. Trimbak died in the year 1897, and thereafter his sons Martand and Janardan entered into possession of all the properties which had been till then managed by Trimbak. Even after Trimbak's death, Khare and Josbi, the two executors who had been named in the will of Govind, did not enter upon the administration of the estate of Govind, but kept aloof. Martand and Janardan carried on the management of all the properties inclusive of the share of the estate of Govind therein right from 1897 (Janardan having joined in the management in 1899 onwards) and all those properties were managed as a single unit without any division made in regard to the share of Govind therein, by both these brothers Martand and Janardan. In the year 1907 Martand purchased the house in suit in his own name by a conveyance dated 17th April 1907. There were disputes between the two brothers Martand and Janardan. They were referred to arbitration and ultimately in 1916 an award decree was passed aS a result of the award made by the arbitrators, a partition was effected between Martand and Janardan. It is necessary to observe at this stage that the suit house which had been purchased by Martand in his own name in 1907 was declared to belong to Martand alone under the terms of this award decree, It appears that Khare and Joshi at that time broached the topic of the properties which would come to the share of Govind being set apart and handed over to tha parties entitled thereto, but nothing seems to have been done by Martand and Janardan in regard to the same. In fact, no concrete stops wore taken by Khare and Joshi, the surviving executors of Govind's will, to reduce the properties belonging to the estate of Govind into their possession. Martand sold the suit property to Raghunath Vasudeo Joshi on 11.4.1933, and that appears to have spurred Joshi, the surviving executor of Govind's will, into action and he started proceedings for obtaining probate of the will of Govind in the year 1934. Probate of this will was ultimately granted in the year 1937. Joshi, the proving executor, in the course of the administration of the estate of Govind, in accordance with the terms of the will, sold Govind's half share in the suit property and the 12 annas share in the Pangri village, which had been purchased in the year 1900 by Martand and Janardan, to Ramabai on 29.6.1939. Ramabai appears to have asked for her half share in the suit house from the purchaser from Marland, namely Raghunath Vasudeo Joshi, but, on her failure to recover the same, filed the suit being civil suit no. 470 of 1340 in the Court of the Extra Joint Subordinate Judge at Poona on 18-4-1940, for recovery by partition of her half share in the suit house and for mesne profits. The contest thus was between the purchaser from the executor of Govind's will and the purchaser from Martand of the suit property. The defendant contested this claim of the plaintiff, and the trial Court came to the conclusion that the defendant was a bona fide purchaser for value without notice of this property from Martand and dismissed the plaintiff's suit with costs. An appeal was filed against this decision of the trial Court in the Court of the Judge, Small Causes, Poona, (with appellate powers), and the learned Judge in appeal allowed the appeal with costs and set aside the decree of the trial Court, he being of the opinion that Mart and, who was a trustee of the estate of Govind, had mixed up the trust properties with his own properties, that Martand had failed to prove that the suit property was acquired by him out of his own monies, and that the defendant not being a bona fide purchaser for value without notice, was not protected under Section 64, Trusts Act and was bound to hand over the one half share of Govind in the suit property, as claimed by the plaintiff, to her. It was this judgment of the lower appellate Court which was appealed against by both the parties. The original defendant, against whom the suit was decreed, filed Second Appeal No. 608 of 1918 contending that he was a bona fide purchaser for value without notice and, having purchased the property in that manner from Martand who was a trustee, was protected under Section 64, Trusts Act. The original plaintiff filed a cross-appeal being second Appeal No. 1110 of 1918, claiming certain mesne profits which had not been allowed to her by the lower appellate Court. Both these second appeals came on for hearing and final disposal before Chainani J. who heard them as a single Judge. He came to the conclusion that Martand was a trustee of Govind's estate, but there was no evidence to show that be had blended the property coming to Govind's share with his own property. Having come to that conclusion, he observed that there was no evidence to show that the suit property had been purchased by Martand out of the corpus of the estate or from the income thereof, and ho therefore non-suited the plaintiff. In the view which he took he observed that it was not necessary for him to go into two other questions which had been raised in the appeal before him by Mr. Bhalerao who appeared for the original defendant, namely (1) that Martand was, in his capacity as a trustee, competent to sell the property to the defendant and the plaintiff could not consequently challenge that transaction, and (2) that the plaintiff's suit was barred by limitation. Having, however, decided the appeal in this way, be felt that the points involved in the two appeals required further consideration and ho, therefore, granted leave to the plaintiff to file an appeal under the Letters Patent. The Letters Patent Appeal No. 38 of 1950 was accordingly filed by the original plaintiff, and that appeal has now come on for hearing and final disposal before us.

[4] The appeal his been very ably and exhaustively argued before us by Mr. Dharap, who appeared for the plaintiff-appellant, and Mr. Bhalerao, who appeared for the defendant respondent. It does involve several intricate points of law and we shall proceed to dispose of the same, [5] The first question which we have to consider is, what was the position of Martand qua the estate of Govind. Govind, under the terms of his will, had appointed Trimbak, Khare and Joshi as his executors Trimbak was the preferential executor if he may be so styled, and he continued to act as the executor and managed the estate of Govind which was the subject-matter of the will during his lifetime. After the death of Trimbak, however, neither Khare nor Joshi took it to be any part of his obligation to take charge of and manage the estate of Govind, and Martand and Janardan, the sons of Trimbak, continued to manage all the properties, movable and immovable, which were the subject master of the partition, including Govind's share therein as before. All these properties were managed as a single unit. Govind had expressed ample confidence in his nephew Trimbak and had also staged in the vyavasthapatra or will that Trimbak would continue to manage the properties in the same manner as he had been till then doing. It was contended by Mr. Bhalerao that this provision conferred on the executors a power to sell the properties which fell to the share of Govind, because Govind, if he would have been managing the properties himself, would have had, as the owner thereof, the power to sell the same. We do not agree with that contention. When the testator expresses his confidence in an executor whom he appoints under the terms of his will that the executor will continue to manage the properties in the same manner as he (the testator) was doing during his lifetime, it predicates the care and caution as also the prudence in the management of the properties of which the testator himself was capable. He expects that the executor will manage the properties as prudently and with the same care and caution as he himself was managing the same. That does not however import a power to sell of the type which the testator as the owner of the properties possessed Trimbak certainly was a man of the confidence of Govind and he continued to manage the properties as an executor of Govind's will during his lifetime The two other executors should have stepped in after the death of Trimbak, but, for some reason or other, they did not do anything of the type, and Martand and Janardan, the sons of Trimbak, went into possession of the properties which were being managed by Trimbak during his lifetime and continued to manage the same till, in any event, 1915, if not thereafter. They did not come into possession and management of the share of Govind therein by virtue of any title. They were not the executors of the will of Govind', the executors who were entitled to assume possession and management of the properties being Khare and Joshi. 'They however intermeddled with the estate of Govind and as such occupied the position of executors de son tort. An executor de son tort is in the position of a trustee, and that was the position which was rightly understood and taken up by the parties in this suit at all stages of this litigation. It was conceded that Martand was in the position of a trustee of Govind's share in the properties and his liability was that of a trustee, and the position of the defendant, who was the purchaser of the suit property from Martand, was the position of a purchaser of a property from a trustee. When Martand having obtained a conveyance of the suit property in his name on 17-4-1807, sold it in his turn to the defendant on 11-4-1933, he did not purport to sell it as the trustee of Govind's estate. He sold it as his own self-acquired property. It, however, the position of Martand was that of a trustee qua Govind's estate and if it was established that Martand had mixed up the trust properties with his own, the question remained to be considered whether the suit property which Martand had ostensibly acquired in his name on 17-4-1907, was in fact acquired by him out of his self-acquisitions or out of the blended fund, that is the common fund which was made up of the properties which came to his share as also the properties which came to the share of Govind on partition, and on whom the onus lay of proving whether the property was Martand's property or was joint property.

"The trustee, wherever the trust property may be placed, must always be careful rot to amalgamate it with his own, for, if he do, the cestui que trust will he held entitled to every portion of the blended property which the trustee can not prove to be his own".

To the same effect is the decision in Tulasamma v. Venkatasubbayya, 49 Mad. 697. It was held there that where a trustee, or a person who puts himself in the same position of accountability as a trustee, such as an executor de son tort by virtue of his intermeddling with the estate of another, is proved to have amalgamated monies of the testator with his own, and especially if he can be reasonably suspected of having destroyed the evidence which would otherwise be available to separate the two estates, on a suit being instituted by the beneficiary to recover the property from the intermeddler alleging that the property formed part of the estate, the burden of proof is on the intermeddler to show that the property did not belong to the plaintiff's estate but to himself. The ratio of this decision is very easy to understand. It is the primary duty of a trustee to recover possession of the trust property and deal with it in accordance with the directions contained in the deed of trust. It is his further duty to invest the trust estate in authorised securities, unless there is a direction to the contrary contained in the deed of trust. It is no business of his, and it would really be a breach of duty on his part, to his up the trust property with his own, so that he would be in a position to deal with the trust property in any manner be liked. He has got to conform to the provisions and the terms and conditions contained in the deed of trust and he would be guilty of a breach of trust if he acted otherwise. If he raised up the trust property with his own, the only result of that would be that it would not be it vested in authorised securities and it would be dealt with in a manner not contemplated by the deed of trust, and the trustee would be guilty of a breach of trust if he did anything of the type. If he utilised the mixed fund in the purchase of any property, he would have first to make good to the trust estate whatever had been utilised out of the same, because the liability of a trustee committing a breach of trust is to indemnify the trust estate for all losses which the truss estate has incurred by reason of his such dealings therewith. In the case of a property which has been thus purchased out of the mixed fund, it would not be possible to predicate at any time whether a particular part of the trust fund went towards the purchase of that property, and unless acid until the accounts were rendered by the trustee to the beneficiary or the cestui que trust, it would not be possible also to show that no part of the trust estate had ever gone towards the purchase of that property. As a matter of fact, it has been laid down that the beneficiary or the cestui que trust would be entitled to go against the whole of that property and to contend that the property had been purchased out of the trust fund which had been thus mixed up with the trustee's own property. It follows therefore, that the presumption should rightly be in favour of holding the property as having been purchased by the trustee out of the trust fund, mixed up though it may be with his own property. Unless and until the trustee succeeds in establishing before a Court of law that no part of the trust property formed part of the consideration for the purchase of that property and he had purchased it out of his own separate property or properties, he would not be able to claim the property as his own, and the beneficiary or the cestui que trust would be entitled to that property. This is the position which is clearly laid down in law and is well recognized in the text-books and the authorities as above stated. In the present case before us Martand mixed up his properties, that is the properties which came to the share of Trimbak, with the trust properties, that is the properties which went to Govind's share on partition. Whether the property in suit was purchased out of the corpus or the income made not the slightest difference. We have not had before us say evidence to show how the corpus as welt as the income were dealt with by Mart and when he was managing all the properties inclusive of Govind's share therein. There is nothing before us to show that Martand had any independent source of income, apart from the properties which he thus managed. Whatever was acquired by Martand was out of the proper, ties which he was thus managing, and it makes not the slightest difference, so far as his liability as a trustee to Govind's estate is concerned, whether he acquired the property in suit in 1907 out of the corpus of the properties or the income thereof. All the properties, including Govind's share therein, were managed as one unit. The properties coming to Trimbak'a branch were mixed up with the properties which came to Govind's share, and by reason of this mixing up of the properties which went to Trimbak's share with the trust properties, a position arose under which it was incumbent on Martand, when he claimed the suit property to be his own, to prove that it was so. The conflict was really between the proving executor of Govind's will on the one hand and the trustee of Govind's estate on the other, because the plaintiff derived her title from the proving executor of Govind's will and the defendant derived his title from Martand who was the trustee of Govind's estate. The onus of proving, therefore, that the property in suit belonged to Martand lay on the defendant who derived his title from him, but we see from the record that no effort was made at all by the defendant to call Martand in the witness-box to support this position. As a matter of fact, it is interesting to note that the plaintiff subpoenaed Martand to come and give evidence as also to produce his books of account for the relevant period, and though that attempt was made on more occasions than one, Martand did not turn up in Court. Much as we may disapprove of the method of a party calling the other party or his witnesses as his own, the fact remains that Martand was not called into the witness-box by the party whose duty it was to do so. We do not understand what useful purpose would have been served by the plaintiff calling Martand into the witness box, because the plaintiff wanted to prove something which was inconsistent with the position which Martand had taken up in the matter of the purchase of the property in suit in his name in 1907 and the sale thereof to the defendant in 1938. These facties, however, though deprecated by the Privy Council, are common enough in the Courts in the mofussil and we shall take no further notice of the same except commenting upon the inadvisability of doing so. It was the duty of the defendant to have called Martand into the witness box in order to prove, by producing the relevant books of account, that the property in suit was purchased by Martand out of his own self-acquired monies and not from the mixed fund made up of his own personal properties and the trust properties. This, the defendant obviously failed to do. The onus being, therefore, on the defendant and he not having discharged the same, there was not proof at all that Martand had purchased the property in suit out of his self-acquired properties, with the result that the presumption in law which is laid down in the passage from Lewin on Trusts and Tulasamma v. Venkatasubbayya, above quoted, obtained and the property which was purchased by Martand must be hold !o be purchased by him out of the blended or mixed fund, the beneficiary, that is Govind's estate represented by the proving executor, being held entitled to every portion of the blended property including the house in suit which was purchased out of the same. The method of approach which was adopted by Chainani J. was with great respect, not the proper one. Once it was proved that there was a mixed fund made up of the personal properties of the trustee as well as the trust property it was not open to the Court to enquire as to whether the property was purchased from the corpus or from the income. Even though that position was adopted, we have before us the fact that for a considerable number of years the plaintiff, who was the legatee under Govind's will was not paid Rs. 500 per year which she was to got out of the income of the money-lending business. As a matter of fact, she had to file a suit against Martand and Janardan and recover the monies from them. It is also not apparent on the record as to what portions of the outstandings were in fact recovered and how they wore dealt with. In the events that happened, it was the duty of Martand who was in possession of ail the facts to come forward and state what exactly were the sources from which the consideration monies for the purchase of the property in suit came. All the evidence in that behalf was in his possession and the defendant who derived title from him was bound to put forward all that evidence in order to prove before the Court what the exact situation was. This, the defendant failed to do. We are of the opinion that the onus of proving that the property in suit was purchased from the mixed fund was not on the plaintiff, but the onus was on the defendant to prove that the suit property had been acquired by Martand out of his self acquisitions. What the plaintiff had got to prove was merely the fact that Martand, the trustee, mixed up his own properties with the trust fund and once that was done, the plaintiff's part of the case was established. The onus then lay on the defendant to show by calling Martand that Martand in fact purchased this property out, of his self acquisitions. We are, therefore, of the opinion that the learned Judge's approach to this aspect of the case was wrong, and on the record, as it stands before us, the plaintiff would be entitled to a half share in the suit property having derived title thereto from the proving executor of Govind's will.

[9] Mr. Bhalerao next urged before us that the plaintiff's suit was barred by the law of limitation. He urged that the alienation of the suit property was made by Martand in favour of the defendant on 11-4-1933, and the suit was filed on 18-4 1940, that is more than six years after the date of the alienation. He submitted that this was really a suit for partition and should have been filed under Article 120, Limitation Act, within six years from the date when the cause of action accrued to the plaintiff. He relied upon a decision of our appellate Court in Bai Shevantibai v. Janardan Warick, 41 Bom. L.R. 631, where a purchaser of the interest of a member of a joint Hindu family, who was not entitled either to joint possession or to a partition of only the right, title and interest of his vendor in the particular property, filed a suit for general partition, and his claim was held to be barred under the residuary Article 120, Limitation Act, because at the date of the suit more than six years had elapsed since the date of the sale or the date of the death of the vendor whichever date be considered the starting point for limitation, He further contended that the executors of Govind's will knew as far back as 1915 that Govind's share was not being set apart and that Martand and Janarden claimed to be the sole owners of all the properties which they divided among themselves. He contended that from the year 1915 up to the year 1910 as many as twenty-five years had elapsed and that, therefore, the plaintiff's suit wag barred by the law of limitation because the plaintiff in fact derived title from the executors of Govind's will.