SARADA AMMA Vs. KERALA VARMA KOCHANUMN THAMPURAN

JUDGEMENT

(1.) SARADAMMA, the defendant, who filed the appeal, having died, supplemental appellants 2 to 4, who are her daughters and legal representatives, are prosecuting this appeal. The respondent-plaintiff, Kerala varma Kochanujan Thampuran, the son-in-law of the defendant, filed the suit for the recovery of a sum of Rs. 12,639. 70 alleged to be the amount due to him on account of a sum of Rs. 10'000/-deposited by him on the 3rd Edavam 1122 (corresponding to 5th June 1947) with Rama Varma Kunhikidavu Thampuran, hereinafter referred to as Thampuran, the husband of the defendant and father of appellants 2 to 4. The trial court having decreed the suit in terms of the plaint, (but without any order as to costs), the defendant preferred this appeal.

(2.) THE plaint averments, briefly stated, are as follows: the plaintiff had on 5-6-1947 deposited a sum of Rs. 10,000/ -with Thampuran on his undertaking that he would repay it with interest at the rate of 8 per cent per annum; a sum of Rs. 5000/- was repaid by Thampuran on 2-7-58; thereafter he had executed a will dated 4-7-58, a true copy of which is Ext. A-3, which contained a recital acknowledging this liability and making a direction to the defendant for its discharge. Thampuran passed away on the 1st May 1960; thereafter the defendant filed Probate Application O. P. No. 5 of 1969 before the District Court, Ernakulam, a copy of which is Ext A-4, on 6-1-1969 with an affidavit, a copy of which is Ext. A-5, in support thereof. Item 3 in the annexure to Ext. A-5 is a sum of Rs. 15,179 shown as the liability to the plaintiff from the estate of the deceased Thampuran; on 21-6-1973 the plain-fiff caused a lawyer notice, a copy of which is Ext. A-1, to be issued to the defendant demanding of her the payment of the amount outstanding in bis favour; the defendant having denied her liability to pay any amount to the plaintiff in her reply, Ext. A-2 dated 2-7-1973 sent through her lawyer, the plaintiff was constrained to institute the suit; and though the interest stipulated at the time of entrustment of the amount by the plaintiff to thampuran was 6% per annum, in order to avoid controversy the plaintiff claimed interest only at the rate of 31/2% from the date of entrustment, that being the rate of interest admitted in Ext. A3 will.

(3.) "is the claim of the plaintiff barred by limitation?" These are the issues with respect to which we are mainly concerned in this appeal. 5. Sri. M. C. Sen, the counsel for the appellants, submitted that the court below was clearly in error in holding that the suit was not barred by limitation. Under Art. 21 of the Limitation Act, 1963 (corresponding to Art. 59 of the Indian Limitation Act of 1908) the period of limitation is 3 years reckoned from the date on which the loan was made. According to him even when the payment of Rs. 5000/-on 2-7-1958 is treated as an acknowledgement of the liability, notwithstanding the fact that that itself was long after the expiration of the prescribed period for a suit, giving fresh life under S. 18 of the said Act, the suit filed on 24-11-1973 was hopelessly barred by limitation. The question regarding limitation is allied to the question relating to the nature of the transaction giving rise to the suit, namely, whether the suit claim is based on a deposit as contended by the plaintiff or a loan as characterised by the defendant. According to the plaintiff, it was in June 1973 that he made the demand to the defendant, for the first time, for payment of the amount deposited and, therefore, the suit filed on 24-11-1973 was within the time prescribed under Art 22 of the limitation Act, 1963 (corresponding to Art. 60 of the old Act ). The appellant's contention on the other hand, is that the amount having been given only as a loan, not as a deposit, it is only Art. 21 not Art. 22. that applies to the case. Both, if we may say so, are begging the question. The real question to be decided is whether the suit transaction was one of loan or deposit. Once that is decided, the solution to the problem relating to the Article of the limitation Act applicable would follow automatically.