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  • provisions of Section 26 of the Real Property Limitation Act, 1833,
  • Article 120 of the Schedule to the Limitation Act
  • sub-Section 2 of Section 98 of the CPC,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
Acts
  • provisions of Section 26 of the Real Property Limitation Act, 1833,
  • Article 120 of the Schedule to the Limitation Act
  • sub-Section 2 of Section 98 of the CPC,
Smart Summary

Factual and Procedural Background

The suit arose from a deposit of about Rs. 800 made on 18 December 1909 in the Hazaribagh Bank in an account opened in the name “Pramatha Nath Ghose on behalf of Srimati Pranab Kumari Dasi.” Pranab Kumari Dasi (the widow and heir of Jatindra Mohan Dutta) died on 21 November 1910 and the defendant, her maternal uncle Pramatha Nath Ghose, withdrew the money on 22 December 1910. The plaintiff, the deceased husband's brother and admitted heir-at-law, sued on 6 October 1915 alleging that the money belonged to his sister-in-law and had been misappropriated by the defendant; he stated he ascertained the bank facts on 25 March 1915.

At trial the Subordinate Judge found for the plaintiff on the merits and held the suit governed by Article 120 (six years) of the Limitation Act (applying the residuary article), also noting that S.18 would assist the plaintiff if Article 62 applied. The District Judge agreed on the merits but held the suit barred under Article 62 (three years) on the view that the plaintiff had knowledge of the deposit and withdrawal early in 1912. On second appeal to this Court the two Judges were equally divided on the limitation question, resulting in confirmation of the District Judge's decree under sub-Section 2 of Section 98 of the CPC. The present appeal under Clause 15 of the Letters Patent challenges that result.

Legal Issues Presented

  1. Whether the plaintiff's suit for recovery of money is governed by Article 62 of the Schedule to the Limitation Act (three-year period for money received by defendant for plaintiff's use) or by the residuary Article (Article 120) invoked by the trial Court.
  2. If Article 62 applies, whether Section 18 of the Limitation Act (fraud tolling) prevents the suit from being barred by limitation because the plaintiff was kept from knowledge of his right by fraud.
  3. Whether, having found prima facie fraud and concealment by the defendant, the defendant can be permitted at this stage to change his defence and assert that the plaintiff had clear and definite knowledge of the fraud beyond the limitation period.

Arguments of the Parties

Plaintiff's Arguments

  • The disputed sum belonged to his sister-in-law (Pranab Kumari Dasi) and was misappropriated by the defendant.
  • He only learned the precise details of the deposit and withdrawal from the Bank on 25 March 1915, and therefore the suit (filed 6 October 1915) is within time if Section 18 applies to toll limitation because he was kept from knowledge by fraud.

Defendant's Arguments

  • The defendant denied the claim and asserted that the money was not his niece's property.
  • He pleaded that the suit was barred by limitation — the District Judge found that the plaintiff had knowledge of the deposit and withdrawal early in 1912 and thus the suit was time-barred under Article 62.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Juscurn Boid v. Pirthichand (reported as Hukuwchand v. Pirthickand) Illustration of Article 62 as approaching the English formula of "money had and received" when read descriptively. Cited to support the interpretation that Article 62 applies to suits where defendant received money in equity belonging to plaintiff.
Mahommed Wahid v. Mahommed Ameer Support for the scope and application of Article 62 in money-recovery suits. Used as authority reinforcing the Article 62 characterization of such suits.
Raghummani v. Nilmani Cited among authorities clarifying the form of suit covered by Article 62. Relied on as part of the body of decisions interpreting Article 62.
Sankunni v. Gobinda Another decision cited in connection with Article 62's scope. Used to support the Court's view that Article 62 governs the suit.
Bibi Solomm v. Abdul Aziz Mentioned in relation to comparison between S.18 and Section 26 of the Real Property Limitation Act (distinction possibly not noted in that case). Referenced to observe that Section 18 is not identical to Section 26 RPLA and that the distinction may not have been considered in that case.
Rolje v. Gregory (per Westbury, L.C.) Principle: where the remedy is given on the ground of fraud, the defrauded party's right is not affected by lapse of time while he, without fault, remains ignorant of the fraud. Quoted and applied to frame the equitable principle underlying S.18 and tolling for fraud.
Bulli Coal Mining Company v. Osborn (opinion by Lord James) Reiterates that the statute is not a bar where the wrong-doer has not taken active measures only, and rejects requirement that defendant must have actively prevented detection. Adopted to reject the contention that the statute bars suit absent proof of active steps taken to prevent discovery.
Rahmboy v. Turner (per Lord Hobhouse) Statement that where fraud has been committed and property obtained, it is for the fraudster to show that the injured party had clear and definite knowledge of the facts constituting the fraud at a time rendering suit too remote. Applied to allocate the evidential burden on the defendant once plaintiff shows fraud and concealment.
Natha Singh v. Jodh Singh Example of repeated application of the principles governing fraud and the operation of S.18. Cited as one of several cases reinforcing the established principle on burden and knowledge.
Narayan Sahu v. Mohant Wamodav Dos Another example applying the fraud/limitation principles. Listed among authorities demonstrating consistent application of these principles.
Arjun v. Gunendra Further example of the principle that fraud which keeps a plaintiff in ignorance tolls limitation under S.18. Referred to as supportive precedent on the subject.
Jatindra Mohan v. Brojendra Kumar Named among cases applying the same principles. Used to show consistent judicial approach to S.18 and fraud.
Lokenath v. Chintamani Also cited as a repeated application of the governing principles. Included to illustrate prior applications of burden and knowledge rules.
Avancha v. Avanch Decision particularly in point where a plaintiff recovered money from a stranger and concealed the realization from a co-payee; relevant to questions of concealment and knowledge. Viewed as closely analogous and used to test the parties' positions under the stated principles.
Lakhpat v. Jung Bahadur Another decision closely in point concerning recovery from a stranger and concealment from a co-payee. Cited as directly relevant precedent for assessing concealment and its effect on limitation.

Court's Reasoning and Analysis

The Court proceeded in a series of legal steps rooted in the statutory text and established principles:

  1. Characterization of the cause of action: The Court held the suit falls within Article 62 of the Limitation Act — suits for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use — because the defendant had received money which in justice and equity belonged to the plaintiff's niece. The article was described as approaching the English formula of "money had and received."
  2. Need to invoke Section 18: Because Article 62 prescribes a three-year limitation, the plaintiff must rely on S.18 (fraud tolling) to avoid the bar of limitation.
  3. Interpretation and comparison of statutes: The Court noted S.18 differs from Section 26 of the Real Property Limitation Act, 1833 (which uses the language of discovery with reasonable diligence). The Court emphasized the equitable principle that a defrauded party's remedy is not affected while he remains, without fault, ignorant of the fraud.
  4. Allocation of burden of proof: The Court explained the plaintiff, when suit is apparently barred, must first prove that fraud occurred and that the fraud kept him from knowledge of his right. Once the plaintiff establishes that, the burden shifts to the defendant to show that the plaintiff had clear and definite knowledge of the facts constituting the fraud prior to the limitation period. The Court emphasized that mere clues or hints are insufficient; the defendant must prove actual clear knowledge.
  5. Application to the facts: The trial record established that the money belonged to the niece and was misappropriated by the defendant; the defendant alone could operate the account and concealed the true state of affairs. The defendant neither pleaded nor proved the precise time of the fraud nor that the plaintiff had clear prior knowledge. The plaintiff swore he only obtained definite information from the Bank on 25 March 1915.
  6. On the question of permitting the defendant to change defence: The Court rejected permitting the defendant now to set up an alternative, contradictory defence (i.e., to assert he committed fraud and simultaneously assert that the plaintiff had been in full possession of material facts for over three years), because that would be inconsistent with his earlier positions and he had not pleaded or proved such a defence.

The Court therefore concluded that the plaintiff was prima facie entitled to the benefit of S.18 and that the defendant had failed to discharge the shifted burden of proving prior knowledge; accordingly, limitation did not bar the claim.

Holding and Implications

Holding:

APPEAL ALLOWED: The decree of the District Judge is set aside and the decree of the Subordinate (trial) Court is restored with costs throughout.

Implications:

  • The Court held that Article 62 applies to this form of money-recovery suit but that Section 18 of the Limitation Act can toll limitation where fraud has kept the plaintiff from knowledge of his right.
  • On the facts, because fraud and concealment by the defendant were established and the defendant neither alleged nor proved that the plaintiff had clear and definite knowledge of the fraud before the limitation period, S.18 prevented Article 62 from operating as a bar to the suit.
  • The direct effect is that the plaintiff's claim proceeds on the merits (trial Court decree restored) and the defendant cannot at this stage opportunistically contradict earlier pleadings by asserting a previously unpleaded alternative defence of prior plaintiff knowledge.
  • The opinion does not purport to lay down any broader novel principle beyond applying established authorities on fraud, knowledge and burden of proof under S.18; the decision resolves the parties' rights in this case and restores the trial court decree.

    Biman Ckandra Dutta v. Promotho Nath Ghose

    Mookerjee, J.:— This is an appeal under Cl. 15 of the Letters Patent from the judgment of two learned Judges of this Court who were equally divided in opinion in appeal from appellate decree preferred in a suit for recovery of money. The Court of first instance decreed the suit. The District Judge reversed that decision and dismissed the suit. On second appeal to this Court, Mr. Justice Teunon was of opinion that the decree of the Subordinate Judge should be restored. Mr. Justice Newbould held, on the other hand, that the decree of the District Judge should be maintained. The result was that under para. 1 of sub-Section 2 of Section 98 of the CPC, the decree of the District Judge stood confirmed.

    2. The facts material for the decision of the question of law raised before us lie in a narrow compass. One Jatindra Mohan Dutta died, leaving as his heir a childless widow Pranab Kuman Dasi. The widow sold her ornaments through her maternal uncle Pramatha Nath Ghose and made over the sale proceeds to him to be deposited on her behalf in the Hazaribagh Bank. The deposit was made on the 18th December, 1909, and the account was opened in the books of the Bank in the name of “Pramatha Nath Ghose on behalf of Srimati Pranab Kumari Dasi.” Pramatha Nath Ghose who is the defendant in this litigation was, consequently, the only person who could operate on the account. Pranab Kumari Dasi died on the 21st November, 1910, and a sum of about Rs. 800 stood to the credit of the account on that date. On the 22nd December, 1910 Pramatha Nath Ghose withdrew the money from the Bank.

    3. The plaintiff, who is the brother of Jotindra Mohan Dutta, the deceased husband of the lady, is her admitted heir-at-law. He commenced the present suit on the 6th October, 1915, on the allegation that the money belonged to his sister-in law, that it had been misappropriated by the defendant, and that on the 25th March, 1915, he ascertained from the Bank the facts of the transaction.

    4. The defendant repudiated the claim as entirely unfounded and denied that the money deposited in the Bank was the property of his niece. He further contended that the suit was barred by limitation. The Subordinate Judge held that the money belonged to Pranab Kumari Dasi and had been misappropriated by the defendant. The Subordinate Judge further held that the suit was governed by Article 120 of the Schedule to the Limitation Act which prescribes a period of six years from the date when the right to sue accrues. He adopted the view that the residuary article applied, because Article 62 invoked by the plaintiff was inapplicable. The Subordinate Judge also expressed the opinion that even if Article 62 had been applicable, the plaintiff would have been entitled to the benefit of S. 18 by reason of the fraud committed by the defendant.

    5. On appeal, the District Judge held, in concurrence with the primary Court, that the claim was well-founded on the merits. On the question of limitation, however, he held that as the plaintiff had knowledge of the deposit and the withdrawal early in 1912, the suit was barred under Article 62. In this Court, Mr. Justice Teunon and Mr. Justice Newbould have disagreed on the point, which has formed the only subject of controversy before us.

    6. We are of opinion that the suit falls within the scope of Article 62, which provides that every suit for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use must be instituted within three years from the date when the money is received. The form of suit indicated by this article is applicable where the defendant has received money, which, in justice and equity, belongs to the plaintiff, under such circumstances as in law renders the receipt of it a receipt by the defendant to the use of the plaintiff. In the words of Sir Lawrence Jenkins, the article most nearly approaches the formula of “money had and received by the defendant for the plaintiff's use, if read as a description and apart from the technical qualifications imported in English law and procedure.” Juscurn Boid v. Pirthichand(1) reported as Hukuwchand v. Pirthickand(2), Mahommed Wahid v. Mahommed Ameer(3), Raghummani v. Nilmani(4), and Sankunni v. Gobinda(5). In this view the plaintiff is driven to rely upon S. 18 to escape from the bar of limitation.

    7. S. 18, in so far as it applies to the case before us, provides that where any person, having a right to institute a suit, has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, the time limited for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person injuriously affected thereby. It may be observed that this is not precisely identical with the provisions of Section 26 of the Real Property Limitation Act, 1833, which makes time run from the date when the fraud is, or with reasonable diligence might have been, first known or discovered. This distinction was possibly not brought to the notice of the Court in Bibi Solomm v. Abdul Aziz(6). The principle is, perhaps, best stated in the words of Westbury, L.C, in Rolje v. Gregory(7) “when the remedy is given on the ground of fraud; it is governed by this important principle that the right of the party defrauded is not affected by lapse of time, or generally speaking by any thing done or omitted to be done, so long as he remains, with out any fault of his own, in ignorance of the fraud that has been committed.” This was quoted with approval by Lord James in delivering the opinion of the Judicial Committee in Bulli Coal Mining Company v. Osborn(8), where he added,

    “The contention on behalf of the appellants that the statute is a bar unless the wrong-doer is proved to have taken active measures in order to prevent detection, is opposed to common sense as well as to the principles of equity.”

    8. To this must be added further the valuabler statement by Lord Hobhouse in Rahmboy v. Turner(9).

    “When a man has committed a fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit.”

    9. The true position then is that where a suit is on the face of it barred, it is for the plaintiff to prove in the first instance the circumstances which would prevent the statute from having its ordinary effect, A person who, in such circumstances, desires to invoke the aid of S. 18, must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge of his right to sue or of the title whereon it is founded. Once this is established, the burden is shifted on to the other side, to show that the plaintiff had knowledge of the transaction beyond the period of limitation. Such knowledge must be clear and definite knowledge of the facts constituting the particular fraud; as Lord Hobhouse points out, it is not sufficient for the defendant to show that the plaintiff had some clues and hints which, perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fraud. These principles have been repeatedly applied, as for instance in Natha Singh v. Jodh Singh(10), Narayan Sahu v. Mohant Wamodav Dos(11), Arjun v. Gunendra(12), Jatindra Mohan v. Brojendra Kumar(13), and Lokenath v. Chintamani(14). The cases most nearly in point are the decisions in Avancha v. Avanch(15), and Lakhpat v. Jung Bahadur(16). Where the plaintiff had, without knowledge of the defendant, recovered from a stranger money jointly payable to the plaintiff and the defendant and had concealed from the defendant the fact of such realisation. The only question is, what is the position of the parties in the present case when tested in the light of these principles.

    10. It has been conclusively established in this litigation, notwithstanding the allegation of the defendant to the contrary, that the disputed money belonged not to him but to his niece and had been fraudulently misappropriated by him. The true character of the transaction between him and his niece was specially within his knowledge, and he has taken fall advantage of her death to set up a false claim, with impunity, if he could. The fraud of concealment of the true state of facts has been preserved in by him, not only up to the time of the present suit, but also during its progress. The burden consequently lies heavily upon him to establish, not that the plaintiff had clues and hints which if vigorously and acutely followed by him might, perhaps, have led him to a complete knowledge of the fraud, but that the plaintiff had clear and definite knowledge of the facts which constituted the fraud, at a time anterior to the period of limitation. From this point of view, the defendant is an inextricable difficulty. In the first place, he did not set up such a defence in his written statement, for the obvious reason that such a defence, even if taken as an alternative, would have seriously imperilled the success of his substantial defence that the claim was unfounded and he himself had committed no fraud. In the second place, he did not adduce evidence to substantiate such an alternative defence. He is thus inevitably constrained to rely upon isolated fragments from the evidence adduced by the plaintiff to enable him to discharge the burden of proof. It is not surprising that examined from this standpoint, his position proves untenable. He contends that the plaintiff had knowledge of the deposit and withdrawal early in 1912; but this is clearly insufficient. The account stood in his name coupled with the statement that the deposit had been made on behalf of his niece. He alone could consequently operate on the account. The withdrawal by him was thus not necessarily as act tainted by fraud. Indeed, he has nowhere asserted that he entertained a fraudulent intention at that time to misappropriate the sum; in fact, he alone would have to withdraw the sum from the Bank before he could make it over to the rightful owner.

    11. We have thus no allegation by the defendant, much less any proof by him, as to the precise time when he committed the frauds Apart from this he has throughout concealed the fraud and, has not only assured the plaintiff but has also maintained in Court that the money belonged to him and not to his niece. On the other hand, the plaintiff has given his sworn testimony that it was not till the 25th March, 1915, that he obtained from the authorities of the Bank definite information as to the details of the transaction.

    12. There is thus no escape from the conclusion that the plaintiff is prima facie entitled to the benefit of S. 18, while the defendant has neither alleged nor proved facts which would exclude the operation of that provision. This raises finally the question whether the defendant should now be allowed an opportunity to set up and establish such a defence; the answer, in our opinion, must be in the negative. The position he would have to take up would be contradictory to what has been hitherto his defence; and he cannot now reasonably ask to be permitted to assert that he has been guilty of fraud and that the plaintiff has been in full possession of the material facts for more than three years prior to the suit. We hold accordingly that this appeal most be allowed, the decree of the District Judge set aside and that of the trial Court restored with costs throughout.

    Walmsley, J.:— I agree.

    Pearson, J.:— I agree.

    13. Appeal allowed.

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    Comments

    Biman Ckandra Dutta v. Promotho Nath Ghose
    (Feb 16, 1922)