N K SANKUNNI MENON Vs. NKGOVINDA MENON

JUDGEMENT

(1.) The plaintiff is the appellant before us m the Second Appeal. As karnavan of a Malabar tarwad he brought this suit for the recovery of tarwad money (Rs. 3,000) which the defendant (a junior member of the tarwad) has been withholding from him (the plaintiff), the defendant having denied the plaintiff s title to recover that amount as tarwad money from the 6th November 1906 to the plaintiff s knowledge. The cause of action is stated in the seventh paragraph of the plaint to have accrued on the 6th November 1906. The suit was brought on the 30th September 1909.

(2.) The facts have been found in the plaintiff s favour by the lower Courts and the only question we have to decide is whether, on those facts, the suit is barred or not, the lower Courts having dismissed the suit as barred.

(3.) The lower Courts have held that either Article 61 or Article 81 of the second schedule to the Limitation Act applies. Article 61 applies to a suit "for money payable to the plaintiff for money paid for the defendant." The plaintiff in this case did not pay any money for the defendant (to any creditor of the defendant or otherwise) but claims money belonging to the plaintiff which the defendant had all along admitted to be tarwad money till November 1906. Neither does Article 81 apply as the plaintiff was not a surety and the defendant was not a principal debtor in respect of the tarwad money in the hands of the do fondant. The lower Courts seem to us to have been misled by the nature of the previous transactions which resulted in the defendant (a junior member of the plaintiff s tarwad) becoming possessed of the tarwad money in 1904.