RAJAMANNAR; VENKATAKRISHNAYYA Vs. VENKATAKRISHNAYYA AND ANR; RAJAMANNAR

JUDGEMENT

(1.) The plaintiff sues for the recovery of a legacy of Rs. 10,000 bequeathed to him by his brother Chinnam Venkata Gopalam with interest thereon, the first defendant being the son of the deceased testator, and defendants Nos. 2 and 3 the executors of the will.

(2.) The will is dated the 27 April 1887, and the provision in it, under which plaintiff claims, runs as follows: "My elder brother Ry. Venkatakrishnayya Garu's self acquisition to the extent of about Rs. 10,000 is kept with me. So, that money should be given to him." There are several codicils to the will, the only one affecting the plaintiff being dated the 25 of July 1887 in which it is directed that the rupees that have to be given to him are to be paid immediately in cash. The testator died on the 14 September 1888, and this suit was brought on the 9 May 1899 which is within the twelve years period allowed by Art. 123 of the second schedule to the Limitation Act, for a suit for a legacy. The plaintiff admitted the receipt of Rs. 6,000 on account of the legacy on the 27 January 1897 and his claim for principal was therefore only Rs. 4,000, but he further claimed compound interest at 6 per cent. per annum, on Rs. 10,000 from 14 September 1888 to the part payment of Rs. 6,000 on the 27th January 1897, and on the balance of Rs. 4,000 at the same rate from that date till the date of suit, making a total of Rs. 16,362 odd. The Subordinate Judge finding that, besides the receipt of Rs. 6,000 admitted by plaintiff, Rs. 4,000 had also been paid to him, and allowing only simple interest at 9 per cent. per annum on the Rs. 10,000 treating it as a deposit to be repaid, and not as a legacy, decreed the plaintiff but Rs. 6,832 of his claim. In appeal No. 125 the plaintiff appeals against the disallowance of the remaining Rs. 9,530, and in appeal No. 119 the first and third defendants, appeal against the sum allowed to plaintiff.

(3.) To take the defendants appeal first, it was contended on their behalf (1) that the Rs. 10,000 was not a legacy, but either a loan by plaintiff to the testator or a deposit repayable on demand, in either of which cases the suit was barred by limitation, (2) that as a fact the whole amount of the principal had been discharged, and (3) that no interest was stipulated for. The Subordinate Judge decided on the first point that the limitation bar for the recovery of the sum as a deposit was saved by acknowledgments, on the second point in favour of the defendants, and on the third point that interest to run at 9 per cent. was intended by the parties.