RAJAMANNAR; VENKATAKRISTNAYYA Vs. VENKATAKRISTNAYYA; RAJAMANNAR

JUDGEMENT

(1.) Their Lordships stated the facts as given above and continued: 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 favor of the defendants and on the third point that interest to run at 9 per cent, was intended by the parties.

(2.) We are unable to agree with the Subordinate Judge on the 1 question, for, in our opinion, the bequest of Rs. 10,000 was clearly a legacy meant as a satisfaction of the indebtedness of the testator to the plaintiff for money (as he expresses it) "kept with him" by the plaintiff. The mere fact that it finds place in a will not payable to the plaintiff till the testator's death and is a round sum without any provision for interest negatives the idea that it was a direction to the executors to pay a just and lawful debt. This they would have been bound to do, apart from the will, and the testator would probably have settled the amount in his lifetime if he considered that the money deposited with him was a debt pure and simple. We take it therefore that the Rs. 10,000 was a legacy, and consequently it is unnecessary for us to discuss the question whether treating it as a deposit the plaintiff's claim was or was not barred by limitation. The appellant's Vakil then urged that the suit, if taken to be as for a legacy, was also barred inasmuch as it involved an administration of the estate, and administration suits were governed by Art. 120 of the second Schedule of the Limitation Act under which the limitation is six years. We cannot accept this contention, for though it is true the plaintiff prayed for an administration, it was only ancillary to his getting his legacy. When a suit for a legacy for which 12 years is specifically allowed under Art. 123 entails administration of the testator's estate, it would be unreasonable to hold that that circumstance cuts down the period of limitation to six years under an indefinite article like 120, which does not refer to an administration or any particular suit but only to suits for which no other period of limitation is provided.

(3.) It was further urged that the plaintiff had no right to sue for the legacy as such, as his title thereto was not complete for want of the executor's assent ( Section 112 of the Probate and Administration Act V of 1881), and the only suit he could therefore bring was one for administration which was clearly barred, but as regards this there is indubitable proof of one executor's express assent in Exhibit F and of the other executors in Exhibit B. The last contention is that the plaintiff is estopped from claiming the legacy under the will as tie has disputed the validity of the will, and has elected to take the Rs. 10,000 as a debt due to himself, and not as a legacy. What happened was that in a suit brought by a brother of the plaintiff claiming his share in the testator's estate as family property the plaintiff supported his brother and also claimed a share. It was then decided that the property was the sole property of the deceased, and that neither plaintiff nor his brother had a right to share therein. We do not see how the plaintiffs right to the legacy is affected thereby. Having had to bow to the decision that he had no independent right in the testator's property he now seeks that he may recover what the testator gave him out of that property. There is no estoppel. And as to the alleged election, if he had agreed to accept the money as in repayment of a debt, and had actually so received it he could not of course-claim the same amount once again as a legacy. Having, however, failed to obtain it as a debt he is entitled to get it is a legacy. We accordingly decide on the first question that the suit as brought is maintainable, and is not barred by limitation.