DODDAMANE GSHANKARAPPA Vs. MARULUSIDDIAH

JUDGEMENT

(1.) The respondent filed a suit against the petitioner for the recovery of RS. 200/- and interest thereon at 1 per cent per annum alleging that it was the balance out of Rs. 400/- payable to him by the defendant who was entrusted with certain funds for distribution amount the creditors of one Neelappa who has been examined as P.W. 1 in the case. The defendant contended that the amount payable to the plaintiff was only Rs. 200/- which admittedly had been paid. He also denied that he had been entrusted with the task of distribution by virtue of a decision at a panchayat as alleged by the plaintiff. The Court below found the plaintiff's case to be true and decreed the suit as prayed for. I have read the evidence in the case and it seems to me that the material on record finally warranted the conclusion arrived at by the learned Civil judge that the defendant came into possession of Rs. 3,250/- to be distributed amongst the creditors of Neelappa and that out of that amount a sum of Rs. 400/- was payable to the plaintiff.

(2.) It appears, however, to have been contended for the defendant at the stage of arguments in the Court below, though no such plea was raised in the written statement, that the suit was barred by limitation, as it was brought more than three years from the date of the Panchayat when the amount was entrusted to the defendant or from the date of Ex. D-3 i.e. the document relating to the sale the proceeds of which were entrusted to the hands of the defendant for distribution amongst the creditors. The learned Judge rejected this contention in these words:

(3.) The case put forward by the plaintiff was that P.W. 1 Neelappa had contracted various liabilities, that he had executed a sale in favour of one Gowdara Siddappa conveying his property consisting of lands and houses to secure the amount due to the said Siddappa, that a panchayath held, where most of the creditors were present, it was decided that the property should be conveyed to Gurushantappa, son of Patel Gurubasappa who was also one of the creditors and that Patel Gurubasappa should pay Rs. 3,250/- to the hands of the defendant, who was also one of the creditors and who was regarded as the chief man in the panchayath for distribution amongst creditors and for meeting stamp and registration charges of the sale deed. It may also be added, though the document took the form of a sale deed, the real intention was that it should be regarded as a mortgage. The sale deed by Siddappa in favour of Gurushanthappa is dated 18-12-1954. Therefore, the Panchayat must have been held earlier. There is also evidence showing that the whole sum of Rs. 3250/- was not paid in one instalment to the defendant. The debtor owed Rs. 400/- to Gurubasappa. Hence after appropriating that amount the sum which had actually to be advanced to Gurubasappa was 2,850/- out of which according to his evidence Rs. 2,600/- was paid at the time of the panchayat and Rs. 250/- later. The actual date of payment of this amount has not been established. It is clear, however, that it must have been paid some time between the date of the panchayathi and the date of the sale deed, i.e. 31-12-1954 and at any rate some days before 11-1-1955, the date of the post card addressed by the defendant to the plaintiff. The post card is referred to in para 3 of the plaint as indicating the date of the cause of action. The suit was filed on 13-1-1958. It is thus clear that the suit was filed more than three years after the date when the money was received by the defendant and the suit must be held to be barred by limitation, if it is Article 62 that is applicable. If,. On the other hand, it is Article 120 that applies to the suit, the plaintiff had a period of six years from the time when the right to sue accrued. That, according to the plaintiff by his letter dated 11-1-1955. It will be noticed from the extract given above from the judgment of the Court below dealing with the question of limitation that in the learned Judge's view the circumstance that the defendant was a trustee was conclusive in determining the article of limitation applicable as article 120. That article being a residuary one makes no reference to the nature of the claim. If there is any other article that is applicable to a claim, it follows that it is that article which would govern the case and not Article 120. In this context it may at once be mentioned that Section 10 of the Limitation Act needs no consideration since no express trust or, to use the language of Section 10, no trust for any specific purpose, is put forward or made out by the plaintiff. It is not his case that either the creditors or the debtor or the vendee constituted the defendant a trustee vesting in the defendant the property in the amount placed or to be placed in his hands by the vendee. The circumstances alleged by the plaintiff and held to be proved by the Court below do show that a constructive trust came into existence in which a sum was placed in the hands of the defendant for distribution amongst the various creditors including the sum of Rs. 400/- to be paid to the plaintiff. Article 62 contemplates cases in which the defendant has received money which is meant for the plaintiff's use and has to be paid by the defendant to the plaintiff. In the case on hand it is seen that the defendant received money out of which a specific sum of Rs. 400 was the amount for the use of the plaintiff as it had to be given by the defendant to the plaintiff. It would therefore appear that the case comes in terms under Article 62. There is nothing in Article 62 which says that the money should be payable by the defendant to the plaintiff in pursuance of an express agreement. In fact a large number of cases to which Article 62 has been held to be applicable are cases in which money had come into the hands of the defendant under the circumstances which precluded the possibility of an express agreement, for example, when a co-owner receive, rent from a tenant. The liability of the person receiving the money in such circumstances arises by virtue of an implied agreement. In fact it has been held that for the application of the article it is not necessary that the defendant at the time of receiving the money should have done so with the intention that it is for the use of another person and that if it is shown that the other person had the right for the use of the amount when the amount was received, the matter comes under Article 62. While dealing with this question in the case reported in Mahomed Wahib v. Mohamed Ameer, ILR 32 Cal 527, Harington J. refers to the principle underlying this species of action and gives the following quotation from Blackstone, saying that it lies.