SUBBIAH CHETTY Vs. VISALAKSHI ACHI

JUDGEMENT

(1.) On the occasion of the 1 plaintiff's marriage to the 2nd plaintiff in 1899 a sum of Rs. 5,454 was given to her by her father's family as stridhanam, in accordance with the custom prevailing in the community to which the parties belong, that of Nattukottai Chettis. This sum, together with other small sums representing presents, amounted to Rs. 5,711 on the 27th September, 1899, on which date it was deposited with the firm consisting of her three brothers Raman Chetty, Lakshmanan Chetty and Muthiah Chetty. The evidence shows that a hundi for the amount had been handed to the 2nd plaintiff's father and that he handed it back to these persons for investment in their firm. The partnership constituting this firm lasted until 1915 when there was a partition, the two elder brothers forming a new firm with the Vilasam "S.R.M.S.L." and the third brother Muthiah Chetty another new firm with the Vilasam "S.M.". The assets and liabilities were divided between these two firms in the proportion of 2/3rds to 1/3rd, and the sum of money due to the 1 plaintiff underwent a similar division. It remained in these firms until 1925, notwithstanding certain demands made by the 2nd plaintiff on his wife's behalf. In that year the plaintiffs filed two suits, O.S. No. 39 of 1925 against the one firm and O.S. No. 40 of 1925 against the other. They were tried together and the learned Subordinate Judge has in each given a decree for the amount of the plaintiffs claim. The defendants in each case preferred an appeal. That arising out of O.S. No. 39 of 1925 (Appeal No. 206 of 1928) has been adjusted. We are now concerned with the appeal preferred by Muthiah Chetty's sons (he having died) against the decree in O.S. No. 40 of 1925.

(2.) It is not now contested that the money was deposited in the circumstances alleged by the plaintiffs. The only question which has been argued before us was whether the suit for the re- payment of the money is in time. We have to see in the first place whether when the money came into the hands of the defendants firm it amounted to an entrustment; and if it did not so amount, whether it was a deposit and, if so, whether the suit would be in time under Article 60 of the Limitation Act. Under the first aspect, it has been suggested, although not very vigorously, that Section 10 of the Limitation Act would apply. That section requires that the property should have become vested in trust for a specific purpose, a phrase which has been held in Bhurabhai V/s. Rai Ruxmani (1908) I.L.R. 32 Bom. 394, to be merely a more expanded mode of expressing the same idea as that conveyed by the phrase "express trust" in English Law. I do not think that in the present case it can be said that an express trust was created, nor do the circumstances resemble those dealt with in Pachaiyappa Chetty V/s. Sivakami Ammal in so far as in that case a separate fund, which was held to be a necessary condition for the application of the section, was created. It is then urged that, although Section 10 may not apply, yet the transaction, being between persons who bore a fiduciary relationship to each other, was in the nature of a trust although it might have fallen short of an express trust. The case, it is said, bears a resemblance to that dealt with in James V/s. Holmes (1862) 31 L.J. Ch. 567, where a man with whom a woman was living on intimate terms obtained money from her, it being found that he had received it on the understanding that he would invest it for her benefit. There was there certainly no express trust, but it was held that considering the position of the parties, the relationship in which they stood the one to the other was that of a trustee and of cestui que trust. In In re Richards. Shenstone V/s. Brock (1887) 36 Ch. D. 541 the facts were that a lady handed a promissory note to her solicitor with instructions to pay the amount of it to a female servant, if still in her service at the time of her death. It was held that the solicitor was constituted a trustee of the note for the servant by the circumstance that it was handed to him for the purpose described and with the intention expressed by the lady who gave it. The inference I draw from cases such as these is that the Court on finding that a fiduciary relationship exists will put a wide construction on the expression "trust" rather than regard the transaction in the light of its mere formal characteristics. In Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar (1930) L.R. 58 I.A. 1 : I.L.R. 8 Rang. 645 : 60 M.L.J. 1 (P.C.) it was held by the Privy Council that an equitable claim against a trustee liable to account would fall under Art. 120 of the Limitation Act, which provides six years from the date on which the cause of action arose; and it is not disputed that on this view the suit would be within time, there having been an acknowledgment of liability within less than that period before suit.

(3.) If it be held that the circumstances do not amount to the constitution of a trust, the only alternative view is that the money was deposited under an agreement that it should be pay able on demand, and under Art. 60 time would run from the date when demand was made. There were two written demands, Ex. I (a) on the 17 April, 1920 and Ex. I on the 1 April, 1922. Each of these was embodied in a letter written by the 2nd plaintiff. The point has been raised whether a demand made by him would bind his wife and the real owner of the money, but the deposit was made in his name, and since there is evidence that according to the custom of the community he was to transact all business relating to it, I do not think that his competence can be successfully disputed. There is no doubt that the terms of Ex. I are sufficiently explicit to start time running; but that demand was within three years of the suit. There is some reference in this letter to previous demands, which with the exception of Ex. I (a) must have been oral. But we have no evidence as to their terms and the defendants have not succeeded in showing that they were more than for sums on account. The case, therefore, turns upon whether Ex. I (a) contains such a demand as is contemplated in Art. 60. In order to satisfy this requirement a demand must, I think, be an unqualified demand for the whole sum due. That was laid down in Madhavbhai Shivbhai V/s. Fattesingh Nathubai (1873) 10 Bom. H.C.R. 487 in the case of promissory notes. In Jogendra Nath Chuckerbutty V/s. Dinkoo Ram (1920) 25 C.W.N. 981 it was held that mere requests for money on account would not amount to such a demand and in Motigavri V/s. Naranji (1926) 29 Bom. L.R. 423 it was held that time would run from the date on which a demand for the whole balance due had been made. I think that a perusal of Ex. I (a) will show that it was not an unconditional demand of this kind. The writer certainly states that he is in need of the money for expenses, but he does not unequivocally demand the whole money, only asking for Rs. 500 to be sent to him and so much as can be collected or is available of the balance to be remitted to his firm in Rangoon. As I read the letter he asks for the payment of the whole if it suits the convenience of his correspondent to pay it, but in any case he asks them to send such money as they may be able to collect. It can hardly be said that nothing short of paying the whole money would be compliance with a request conveyed in this language, and I think it would be unfair to hold that a qualified demand like this should cause time to run for the whole amount due. This letter may be compared with the terms to the letter, Ex. I, which is very different worded and in clearly unequivocal terms. In think accordingly then that even if the transaction is viewed merely as a deposit the suit will be in time. It is upon this ground that the learned Subordinate judge has answered the question of limitation in plaintiffs favour, and I agree with his conclusion. I would accordingly dismiss the appeal with costs. Sundaram Chetty, J.