V. Balakrishnudu v. G. Narayanaswami Chetti .

The Judgment of the Court was delivered by

White, C.J:— In this case, the plaintiff sues as the executor of one Nagammal under a Will bearing date the 20th December 1903. Nagammal died in the beginning of 1904. Probate was not taken out by the executor till 1910. We have only to consider two of the defences which were raised by the defendant in his written statement and relied upon before the learned Judge. One is the defence of limitation. The other is that the plaintiff is not entitled to sue, as claimed in the plaint. I shall have to refer to some dates in order to make my observations with reference to the question of limitation intelligible.

2. On the 15th August 1900, three documents were executed, viz., Exhibits B, VII and VIII. The transaction in connection with which these documents-were executed, is certainly of a very curious character. Nagammal was the sister of the defendant's father. When the documents were executed it was apprehended that a suit would shortly be instituted by the party who claimed to be the reversioner of Nagammal's son, for the purpose of establishing his claim to the son's estate. It was thought desirable by Nagammal and by the defendant that steps should be taken in order that, if that suit should be successful, the money which might be held to form part of the estate of Nagammal's son should be screened from the plaintiff. Exhibit VII is executed by Nagammal, and in it she purports to give a receipt for the money which is claimed in this suit. The document purports to show that the moneys in the hands of the defendant had been repaid to Nagammal. It is accompanied by a letter (Exhibit VIII) to the same effect. At the same time, the defendant executed a document, Exhibit B, which we have to consider with some care. The general purport of it is that the receipt wad a sham, that Nagammal had never got the money and that the money, notwithstanding the receipt, remained in the possession of the defendant on the terms mentioned in the document. That is what happened on the 15th August 1900. Then on the 25th November 1901, the suit, which had been anticipated when this curious transaction took place, was in fact instituted. In March 1902, the reversioner's suit was dismissed by the District Court. In January 1904, Nagammal died. In December 1904, this Court dismissed an appeal against the decree of the District Court in the reversioner's suit. On the 22nd November 1910, the present suit was instituted. It seems to me that there are two possible views which may be taken with regard to this question of limitation. I think it may reasonably be said that the defendant ought not, for the purpose of getting the benefit of the law of limitation, be allowed to rely on this Exhibit B, which is part and parcel of a transaction which is admittedly a sham. If that view is adopted, the parties would be relegated to the state of affairs, whatever they/were, when the original transaction took place, i.e, when this sum of money changed hands, when it passed out of the hands either of Nagammal or of her husband and passed into the hands of the defendant's father, whose estate has now become vested in the defendant. In that view, if the plaintiff could make out that the original relations between the parties, having regard to the original transaction, brought the case within Article 60 of the 1st Schedule to the Limitation Act, I think it might reasonably be said that the plaintiff was entitled to the benefit of;the Article. But then the question arises:—“Is there any evidence, (setting aside Exhibits B, VII and VIII for the moment), of the original transaction which entitles the plaintiff to say that Article 60 applies?”. We have had great assistance from Mr. Ethiraja Mudaliar in this case, and we have examined the evidence very carefully. But, speaking for myself, I have come to the conclusion that there is really no evidence as to the original transaction which would warrant us in saying that the case comes within Article 60, that is to say, evidence which goes to show that the money was deposited under an agreement that it should be payable on demand. We have been referred to various documents in connection with this part of the case, which are also material with regard to the questions which I will consider afterwards. We have Exhibit II, which is the Will of Nagammal's husband, dated 1879. There is really nothing in the document which throws any light upon the question as to how this sum of money came into the hands of the defendant's father. Then we have the pleadings in a suit brought by Nagammal's husband's father against Nagammal and against the executor appointed by her husband under Exhibit II. I can find nothing in the pleadings in that suit which can be said to throw any light upon the question. So it seems to me that if the plaintiff is to succeed in showing that the present claim is not barred by limitation, he must do so, and can only do so, by virtue of the terms of Exhibit B.

3. Exhibit B is in the following terms:— “You have given to me a receipt that you have received from me Rs. 10,680-9-9 deposited with me by you till the disposal of your Pangali's suit to come off on the 15th August 1900. But I have not paid you the above said amount. I shall, after the disposal of your Pangali's suit pay you the above said amount, together with interest thereon at 12 annas per cent per mensem from this date. I shall, in the meantime, pay you for the Court and house, etc., expenses, required by you. After the disposal of the above suit, I shall pay you the amount due to you according to account.” Now, if there was any evidence as to the original transaction and the relations between the parties in connection therewith, it might very well be that the provisions of this document would not alter the relations so far as the question of the law of limitation was concerned. But as I have said, there is practically no evidence of the original transaction and, therefore, the plaintiff is driven to rely upon Exhibit B. Now, in that view what is the Article to be applied? The plaintiff contended before Mr. Justice Wallis and argued before us that the proper Article was Article 145.

4. The first question is:—Was Mr. Wallis J., right in holding that Article 145 did not apply?” If it did apply, the period is no less than 30 years. The very fact that the period of limitation is so long goes some way to indicate, to my mind, that the legislautre intended that the transaction to which so unusually a long-period of limitation is applicable should not be the sort of transaction which is of every day occurrence, the lending of money and an agreement to pay on demand or on a specific date. I entirely agree with Mr. Justice Wallis in the conclusion at which he has arrived, and for the reasons that he states, that the deposit in this case is not within Article 145. I would only add one other reason and that is that the words are “against a depositary or pawnee to recover moveable property deposited or pawned.” The word “pawnee” which occurs in conjunction with the word “depositary” seems to be wholly inappropriate to the case of money.

5. Then, treating the case with reference to the provisions of Exhibit B, can we say that Article 60 applied? There have been numerous decisions as to the distinction, not a very easy one to state, between money lent within Article 59 and money deposited within Article 60. One thing, I think, is clear, that, where the word ‘deposited’ is used in Article 60 it is used in a different sense from the word ‘depositary’ in Article 145. It is used rather in the sense of a deposit account as contra distinguished from a current account. I think that every case must be decided with reference to the fact of that particular case. That was the rule laid down in the case of Perundevitayar Ammal v. Nammalvar Chetti(1), and I think that has been generally accepted. It seems to me, although I was a little doubtful at first, that this cannot be said to be a deposit which is payable on demand. The express words are “deposited with me by you till the disposal of your Pangali's suit.” Then there is the provision that the defendant will pay Nagammal for the “Court and house expenses,” which I suppose means the law expenses and household expenses required by her.

6. Then there is a future provision, “after the disposal of the suit, I shall pay you the amount due to you according to account.” It may be that under this agreement, Nagammal was entitled to say:—“I want so much for household expenses and I want so much for law expenses,” but I do not think it can be said, on the true construction of Exhibit B, that the money deposited was payable on demand. If this is the right view as to the construction of the document, that rules out Article 60.

7. The plaintiff then asked us to say that Article 120 applies. There are numerous decisions to the effect that unless it is clear that no other specific Article is applicable, the Courts ought not to apply Article 120; and, as I am not satisfied that Mr. Justice Wallis was wrong in holding that there is a specific Article applicable to this case, my opinion is that we ought not to apply Article 120. Mr. Justice Wallis' view was that either Article 66 or Article 115 applies. Article 66 is “on a single bond, where a day is specified for payment.” Now a single bond is a written engagement for payment of money without a penalty that is the definition adopted by the Allahabad High Court in Lachman Singh v. Kesri(2)]. I feel no difficulty in holding that this is a single bond. As to the question “where a day is specified for payment,” I should be disposed to hold that here there is a day specified for payment. The day, or the time, specified for the payment is the happening of an event which was in the contemplation of both the parties when the undertaking was given. However that may be, I think that Mr. Justice Wallis was certainly right with regard to Article 115. I think this is a claim for compensation for breach of an agreement ‘not in writing registered’ and not herein specifically provided for. Under Article 115, the period of limitation is three years, from the time “when the contract is broken or when the breach in respect of which the suit is instituted occurs or where the breach is continuing when it ceases”. That would make the time three years from the failure to pay by the defendant after the disposal of the suit; and if this Article is applicable, (and I have come to the conclusion that it is), then we must support the judgment of Mr. Justice Wallis on this part of the case and hold that the claim is barred by limitation. With regard to Article 115, I our attention has been drawn to two authorities, Vide Rameswar Mandal v. Ram Chand Roy(3) and Ramasami v. Muttuswami(4), which are in accordance with the opinion which I have expressed.

8. The other defence is raised in the third issue, “Is the plaintiff entitled to sue as claimed in the plaint?” In regard to this defence, the learned Judge says: “I have also come to the conclusion on the third issue that the plaintiff is not entitled to maintain the present suit, because the money sued for belonged to her husband and his son after him and, when she succeeded as heir to her son, she only took a woman's estate for life, and on her death the property passed to the heirs of her son as last male owner and they were the proper persons to sue for it.” As regards the question whether the plaintiff is the proper person to sue, I have referred to documents which have been put in evidence in connection with the question of limitation. Nagammal's own Will refers to a sum of Rs. 2,000 which, the Will states, was given to her as stridhanam by her mother and she refers to the money in question in the present suit as ‘my ready money’ but that really takes us very little way as evidence that the money claimed in this suit was money over which Nagammal had disposing power. It may be that there is no presumption against its being her money, but the onus is on the plaintiff to show that this sum of money was money in which she had an absolute interest and not money, as the defendant contends, in which she had only a life-interest. The Will of Nagammal's husband dates so for back as 1879. That Will (Exhibit II) again refers to Rs. 2,000 as the stridhanam of Nagammal and it proceeds to appoint his brother-in-law (wife's brother), who is the father of the defendant, as executor of the Will. But there is nothing in that Will which can be relied upon as showing that this money was the absolute property of Nagammal. Then, we have the pleadings in the suit brought by Nagammal's husband's father against Nagammal and against her husband's executor, the father of the present defendants. In the pleadings in that suit we find references to this Rs. 2,000 but nothing further which assists the plaintiff with regard to this part of the case. We may take it that there is evidence that Nagammal had Rs. 2,000 as stridhan, but it seems to me there is no evidence on which we can hold that this sum of Rs. 10,000 or 11,000 was absolutely hers. The learned Judge was satisfied that was not made out and I am certainly not prepared to differ from him. It seems to me that there is a good deal of force in the observation that, if Nagammal honestly believed that this house was her own property (if it were her own property the reversioner of her son would not touch it), she would not have thought it necessary or desirable to join in a scheme and protect the property by means of false statements, property which under the law would be hers.

9. Then there is another consideration which weighed with Mr. Justice Wallis, and which also seems to have considerable bearing on the question; that is the delay. Nagammal's Will was in 1903 and her death was in the beginning of 1904. Probate was not taken out until 1910. That to my mind goes a long way to indicate that, the executor and those who advised him at any rate were in considerable doubt as to whether this Rs. 11,000 was stridhanam or the absolute property (as representing the stridhanam) of Nagammal. Then there was another aspect of this part of the case which was presented by Mr. Ethiraja Mudaliar. He contended that it was not open to the defendant to raise the defence that the plaintiff was not entitled to sue as executor, and he suggested that this case was analogous to the case where the defendant seeks to set up a jus tertii. It seems to me that there is no analogy between this case and that class of cases. Here the executor is suing on the ground that the estate of Nagammal as regards this Rs. 11,000 has become vested in him. The defence is that the estate could not vest in him because, the estate being only a life-estate, there was no estate to vest in anybody after the death of Nagammal. I do not see any ground of estoppel on which the defendant is precluded from saying, “You sue as executor in respect of property which you say vested in you. I say it never vested in you as executor. My title is at least as good as yours and I have the money.” For the reasons which I have stated, I think the learned Judge was right on both points and I think the appeal must be dismissed with costs.

Oldfield, J.:— The question whether the amount dealt with in Exhibit B is payable on demand is important and I was at first inclined to hold that it was so repayable. I wish to say that I now adopt the defendant's argument on this point. No doubt, the amount would have been repayable on demand during Nagammal's life-time. Since after her death, however, there was no such demand, the starting point for a suit for its recovery by her legal representatives will presumably be the date of the disposal of the suit by the Pangali, which is contemplated in Exhibit B. With this remark, I concur in the decision of the learned Chief Justice.

V.S/R.K

10. Appeal dismissed.