A FIRM OF RAMPRASAD CHHOTALAL Vs. BAI REVA

JUDGEMENT

(1.) The suit from which this appeal arises was instituted by the respondent-plaintiff in the Court of the Civil Judge (S.D.) at Ahmedabad for recovering in all a sum of Rs. 17,131-86 p. Due as per statement of accounts dated 27-10-1954 with future interest and costs of the suit, against the defendants-appellants. 2-5. Xx xx xx xx

(2.) Two points have been urged by Mr. Mody, the learned advocate for the appellants, before us. The first is that the trial court has erred in holding that the amount due from defendant No. 1 the firm running in the name of Ramprasad Chhotalal was in the nature of a deposit so as to be governed for the purpose of limitation by Art. 60 of the Indian Limitation Act. According to him, it was merely a loan and not a deposit and would therefore, be governed by Art. 57 or 59 of the Indian Limitation Act. As the period of Limitation in that event commences from the date when the loan is made, this suit filed after a period of three years provided for the same, would be barred by limitation. On the other hand, it is said that the cause of action for a claim for money deposited with the firm under Article 60 of the Indian Limitation Act would commence from the date when the demand is made. On that basis the suit is within time -it having been filed within a period of three years from the demand period of three years from the demand made in the month of May, 1956. The other point raised by him is that the right and share in the ancestral Joint family properties of Chhotalal Lallybhai, with defendants Nos. 4 to 10 cannot be held to any way liable for the suit claim since the family had nothing to do with that firm, and its partners were only Ramprasad and Natwarlal. Natwarlal, according to him was taken as a partner in the firm in his individual capacity and not as manager or the eldest member in the family. In order to appreciate the contentions raised before us, as few facts may well be set out. One Atmaram Kalidas happened to have close connections with both Ramprasad and Chhotalal. He had deposited in the name of his a first wife by name Kamala a certain amount with the firm running in the name of Ramprasad Chhotalal Patel, even prior to S. Y. 1938. After her death, Atmaram's marriage took place with the present plaintiff. The amount that stood due in the name of his first wife with the firm was then transferred to the name of his second wife-the plaintiff. At any rate, that amount stood in the firm's accounts in the name of the plaintiff since 10-11 1931. A statement of accounts as per ext. 85 sent by the firm shows that Rs. 8784-12-0 were due to her. Later on it appears that some amounts were withdrawn by her and some were added to her account. It is common ground that the firm used to prepare statement of accounts at the end of every Samvat year and it was sent to her. That went on up to the death of Chhotalal which took place on 21-11-1950. Even after his death the firm continued in the same name and as the evidence discloses, Natwarlal-defendant No. 2 the eldest son of Chhotalal, joined in that partnership firm. He appears to have looked after the affairs of the firm as well. The statement of accounts in respect of the plaintiff's dues came to be sent to the plaintiff as usual every year as would appear from Exs. 87 to 106 and the last one was sent under the signature of Natwarlal as per Ex 107. The amount due thereunder was Rs. 13,773-1-0 on Kartik Sud 1 of S.Y. 2010. As already pointed out hereabove, a demand was made in the month of May 1955 and since nothing came out from it a notice under Ex. 108 dated 3-10-55 was sent to the defendants. The reply as per Ex. 111 dated 31-10-1955 thereto was given by defendants Nos. 2 and 3 both for themselves and on behalf of the firm- defendant No. 1 whereby while they admitted the amount due from them, they denied the liability of the other heirs and legal representative of Chhotalal, including in respect of their shares in the ancestral or joint family properties of Chhotalal. In the suit, defendants Nos. 1, 2 and 3 did not appear and contest the claim. However, defendants Nos. 1 and 3 and also the heirs and legal representatives of defendant No. 2 have joined as appellants along with the defendants Nos. 4 to 10 - the heirs and legal representatives of deceased Chhotalal in this appeal, against the decision passed by the trial Court.

(3.) As to the amount due to the plaintiff, there is no dispute whatever raised before us. The question however, is whether the amount due from the firm-defendant No. 1 was a deposit so as to be governed by Art. 60, or that it was a loan contemplated in Art. 57 or 59 of the Indian Limitation Act as urged by Mr. Mody before this Court. Mr. Mody's contention is that the onus of proving that the amount was deposited so as to entitle the plaintiff to claim it on demand with the firm would be on the plaintiff and she has failed to discharge the same. According to him, when a person hands over money to any person not being in the nature of a gift, even though payable when demanded would ordinarily mean a loan so as to say that money was lent to the other person. In order to show that it was in the nature of a deposit so as to have the claim brought under Art. 60 of the Limitation Act, it would be essential for the plaintiff to show that it was not merely a loan but was a deposit. In support thereof, he invited a reference to the observations made in a decision in the case of Govind Chintaman Bhat v. Kachubhai Gulabchand, AIR 1924 Bom 28. The contention was of a similar character we have before us and while dealing with that contention it was observed as under:-