S VIDYADARAN Vs. N NARAYANAN

JUDGEMENT

(1.) THOUGH some other questions were also argued before the lower court, the main question urged before us is whether the particular payment of money involved in this case was a loan attracting Art. 59 of the limitation Act of 1908 or a deposit attracting Art. 60. The lower court held that the transaction was a loan; and in the appeal before us that finding is challenged by Mr. S. Narayanan Poti, the counsel of the appellant. Before the lower court the contention of the appellant (the plaintiff) was that, when his father advanced the sum (Rs. 16,000/-) to the first respondent (the first defendant) and took a promissory note in the appellant's name a trust was created in his favour and therefore, S. 10 of the Limitation Act applied. As an alternative contention, it was also urged that, in case the lower court did not agree with this contention, it might be held that the transaction was a deposit, which attracted Art. 60 of the Limitation Act. The first respondent contended, on the other hand, that the transaction was a loan and consequently, art. 59 of the Limitation Act was attracted. Before us the contention that the transaction created a trust is not urged, the counsel of the appellant contenting himself with the argument that the transaction was only a deposit.

(2.) NOW, the appellant and respondents 2 to 5 are the children of a Sankaran Vaidyan (now deceased) and respondents 6 to 9 are his grandchildren by a predeceased daughter. The first respondent is his son-in-law having married the fourth respondent. On 4th May 1955, Sankaran Vaidyan gave rs. 16,000/- to the first respondent and took a promissory note (Ex. D3) in the name of the appellant, his eldest son. The promissory note was kept by Sankaran vaidyan and was not handed over to the appellant. On 4th June, Sankaran Vaidyan sent for the first respondent and returned the promissory note to him asking him to credit Sankaran Vaidyan's account with Rs. 16,000/- debiting the account of the appellant and also directed him to pay the interest on the amount every month to Sankaran Vaidyan. The same day Sankaran Vaidyan gave a letter (Ex. D5)to the first respondent containing the aforesaid directions. The first respondent made an endorsement (Ex. D3 (a)) on the promissory note and also wrote to the appellant (Ex. D1) regarding the directions of Sankaran Vaidyan and the consequent changes in the accounts. Sankaran Vaidyan died in August 1955; and thereafter, nothing happened until 4th July 1961, when the appellant sent a demand notice to the first respondent claiming that he was entitled to the sum, since a trust was created in his favour when his father advanced the money and took Ex. D3. A reply followed resulting in the suit which has given rise to the appeal.

(3.) THERE is a memorandum of cross-objections; and we shall dispose of that at the very outset. The Subordinate Judge found that the first respondent did not establish his claim that Sankaran Vaidyan directed him to give the balance remaining on Sankaran Vaidyan's death to the fourth respondent; and in the memorandum of cross-objections this finding is challenged. Firstly, there is nothing in writing to show that Sankaran Vaidyan gave such a direction: the first respondent has just said so in the box. Secondly, though Sankaran Vaidyan died in August 1955, the transfer of the account came only in 1957.