V BALAKRISHNUDU Vs. NARAYANASAWMY CHETTY

JUDGEMENT

(1.) The plaintiff in this case sues as executor of the will of the deceased V. Nagammal to recover with interest the sum of Rs. 10,680-9-9 alleged to have been deposited by her with her brother s son the defendant on 15th August 1900. It is common ground that this sum was due by the defendant to Nagammal on the date mentioned, but the plaintiff s case is that at that time a suit for waste was about to be filed against Nagammal by the reversioner of her minor son s estate, to which she had succeeded more than twenty years previously, and that, to prevent this sum getting into the hands of the Receiver in that suit, it was arranged between Nagammal and the defendant at the defendant s suggestion that Nagammal should give him a receipt for the money which could be used against the Receiver in case of his seeking to recover the above sum from the defendant as part of the estate of Nagammal s son and that the defendant should execute in her favour a document stating that though she had given a receipt for the money it had not really been paid to her, and that it had been arranged between them that the money should remain on deposit with the defendant who should make her advances for costs of litigation and household expenses and should pay her the amount due with interest at 9 per cent. on the disposal of the suit. The counter-receipt embodying these terms (Exhibit B) which bears the defendant s signature though filed with the plaint, was not in terms referred to in the plaint, and the defendant who was apparently unaware that it was forthcoming pleaded in his written statement that he had paid Nagammal the amount due on the date in question and thus discharged her debt in full and had also a receipt from her of the same date. He also denied that he had agreed to make any further payment to Nagammal, as alleged in the plaint, or that he paid her anything after September 1900. This case was persisted in during the examination of the plaintiff s witnesses, but the only result of the cross-examination was to elicit further confirmation of their evidence and the defendant s vakil was well advised in the interests of his client in not putting him into the box or calling evidence and in relying entirely on the defences that the suit is barred and that the plaintiff is not the proper person to sue.

(2.) As regards limitation the following dates are material; the deposit was on 15th August 1900, Nagammal died on 16th January 1904, and the appeal of the reversioner against the decree of the District Court dismissing this suit was itself dismissed by the High Court on 1st December 1904 owing to her death while the appeal was pending. To save limitation the plaintiff in the first place relies on Article 145 which in a suit against a depositary or pawnee to recover moveable property deposited or pawned allows 30 years from the date of the deposit or pawn. There has been some difference of opinion in the Calcutta High Court as to whether this article applies to deposits of money, and the plaintiff relies on the decision of Maclean, C.J., and Stevens, J., from which Hill, J., dissented in Administrator-General, Bengal v. Kristo Kamini Dassee (1904) I.L.R. 31 Calc.519, and on the more recent decision of Mookerjee and Holmwood, JJ., in Lola Gobind Prasad v. Chairman of Patna Municipality (1907) 6 C.L.J., 535 while the defendant relies on certain observations in the judgment of WILSON and O Kinealy, JJ., in Ishur Chunder Bhaduri v. Jibun Kumari Bibi (1889) I.L.R. 18 Calc. 25, and on the dissenting judgment of Hill, J., already referred to. This article was first enacted in the Limitation Act of 1871 and the proper course in my opinion is in the first place to see what it meant in that Act because at any rate unless there is some strong reason to the contrary it must be read in the same sense, in the subsequent Act in which it is re-enacted. Mayor of Portsmouth v. Smith (1885) 10 A.C. 354 at p. 371. We should perhaps go further back as the language of Article 145 is taken from Section 1(15) of the Act of 1859. The only other article in the Act of 1871 in which deposit is mentioned is Article 133 " to recover moveable property conveyed in trust, deposited or pawned, and afterwards bought from the trustee, depositary or pawnee in good faith and for value" which again is founded on Section 5 of the Act of 1859. As to these Articles 133 and 145 the learned Judges observe in Ishur Chunder Bhaduri v. Jibun Kumari Bibi (1889) I.L.R. 18 Calc. 25, that "it is clear from the context that the deposit meant is a deposit of goods to be returned in specie, and that is in accordance with the old use of deposition (obviously a misprint for depositum) with which all lawyers are familiar." I would venture to go even further and to say that when as in the Acts of 1859 and 1871 there is nothing to suggest the use of the word deposit in any other sense it must be taken to mean the sort of bailment known to lawyers under that name in the Roman Law of Bailments which was accepted by Bracton and afterwards by Lord Holt in Coggs v. Barnard (1703) 1 Sm. L.C. 173 : S.C. 2 Raym. 909, as fit to be enforced in England. This depositum is a bailment of a specific thing to be kept for the bailor and returned when wanted as opposed to commodatum where a specific thing as a horse or a watch is lent to the bailee to be used by him and then returned; and both are contrasted with mutuum where corn, wine or money or other things are given to be used and other things of the same nature and quality are to be returned instead. In my opinion there is no ground for holding that in the Acts of 1859 and 1871 the word deposit in the sections and articles already referred to included so-called deposits of money or other things which were not intended to be kept but to be used, and there is nothing in the Acts of 1877 and 1908 to show that any different construction should now be put on Articles 133 and 145.

(3.) The framers of these Acts were lawyers and must be taken to have used the term deposit in the ordinary legal sense. This conclusion is not, I think, in any way affected by the fact that in 1877 the legislature introduced a new Article 60 which speaks of "money deposited under an agreement that it shall be repayable on demand" thus using the word deposit not in its legal but in its popular sense. On the contrary an examination of what happened strongly supports the same view. No express reason was assigned for the amendment, and doubt has been expressed in some cases as to the meaning of the legislature and the reasons for the change, but it seems to me that those reasons are not very far to seek.