ROSHAN LAL KUNJA MAL Vs. KAPUR CHAND

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of Rs. 61,114/1/6 on account of money which one Sunder Lal is alleged to have deposited with the defendants. The trial Court passed a decree in favour of the plaintiffs for Rs. 32,792/10/- with proportionate costs and the plaintiffs have appealed to this Court claiming the full amount in suit.

(2.) The case of the plaintiffs was that Sunder Lal, a Jeweller by profession (now deceased), deposited large sums of money with a firm of jewelers known as Messrs. Baboo Mull and Company, Sunder Lal, during his lifetime, appropriated a sum of Rs. 25,000/- by way of trust for the benefit of a pharmacy known as Sunder Lal Jain Digambar Aushdhalya. On 16-1-1931 he executed a will which was subsequently registered by means of which he devised the remainder of the money lying with Messrs. Baboo Mull and Company for the purposes of the trust. He appointed five persons as executors under the will. They are Roshan Lal and Gulab Chand plaintiffs 1 and 2, Sidhu Mal defendant No. 3 who had throughout supported the case of the plaintiffs, and Sant Lal and Kapur Chand. Sant Lal is now represented by his son Hira Lal, and Kapur Chand is defendant No. 1. The executors were connected with the firm Baboo Mull and Company in the following manner: The firm Baboo Mull and Company consisted of two joint Hindu Lal and his two sons, Hira Lal and Kapur Chand Sant Lal, Kapur Chand are two of the executors appointed under the will of Sunder Lal). The second joint Hindu family firm consisted of Nawal Kishore and his descendants. Nawal Kishore had two sons, Baboo Mull and Kharaiti Lal. Baboo Mull is now represented by his descendants, defendants Nos. 4, 5 and 6, and Kharaiti Lal is now represented by defendants Nos. 7 to 10. It is clear that there was mutual trust between Sunder Lal and the members of the firm Baboo Mull and Company and that is why he appointed some members of this firm as executors. Sunder Lal died on 2-6-1982 and his executors applied for probate. Probate was granted and in due course letters of administration were taken out by them. Demand was made for the amount due from Baboo Mull and Company on account of the deposits which had been made from time to time by Sunder Lal, but the executors did not receive satisfaction. On 23-7-1947 a telegraphic notice was sent by the trustees to Baboo Mull and Company for payment of the money due from the firm. The amount demanded was the amount now in suit, viz., Rs. 61,114/1/6. The present suit was their instituted on the 30th of July 1947.

(3.) A number of pleas were taken up in defence and the main contentions were that the plaintiffs had no locus standi to sue, the suit was barred by time and the amounts which are alleged to have been deposited by Sunder Lal constituted loans and not deposits. It was also pleaded that the plaintiffs were not entitled to any interest. Parties went to trial on the following issues: