BIBHU BHUSAN DUTTA Vs. ANADI NATH DUTT

JUDGEMENT

(1.) The facts of the case may be stated quite shortly. Three brothers, Rajendra, Debendra and Gobendra, lived in commensality as members of a joint family. They had G P. notes of the face value of Rs. 33,000 as part of their joint family properties. Gobendra held the post of Dewan under the Burdwan Raj. In 1305 (1898) he put in as securities with the Raj for his service G. P. notes of the face value of Rs. 20,000 out of the aforesaid securities. In 1309 (1902) the brothers separated in mess. In 1311 (1905) they had a partition of their properties and as a result thereof, so far as the G.P. notes are concerned, they were divided into three shares. G.P. notes of the face value of Rupees 11,000 going to each of the two brothers, Debendra and Gobendra, and to the sons of Rajendra who had by that time died. Rajendra's sons got the notes that were with the family, but Debendra could not do so as the notes of his share formed a part of the security which Gobendra had lodged with the Burdwan Raj as already stated. In 1319 (1912) Gobendra retired from service, but the notes remained with the Raj. In October 1914 Gobendra died. Defendants 1 and 2 are his sons and defendants 3 and 4 his grandsons. The plaintiffs are the heirs of Debendra No. 1 being one of his two sons and No. 2 being the widow of the other. They instituted this suit to recover the said G.P. Notes of Rs. 11,000 or, in default, the equivalent money-value thereof together with interest. The Subordinate Judge, made a decree in favour of the plaintiffs ordering the defendants to return the securities within a week, failing which the plaintiffs were to recover Rs. 14 thousand odd representing the value of the securities and the interest thereon, together with interest pendente lite. Defendants 1 to 3 have then appealed, and defendant 4, as respondent, has supported them.

(2.) Apart from one other point that was sought to be raised on behalf of the appellants, but which we have not allowed as it was not raised in the Court below and involves investigation of facts, the only ground on which the decree of the Court below has been assailed is the ground of limitation. This contention was overruled by the Court below in the view that the case comes either Under Section 10 or under Art. 145, Limitation Act. The appellants contention is that neither Section 10 nor Art. 145 applies, and that the case is governed by Art. 49.

(3.) To deal with the question, a few more facts have to be stated. After Gobendra's death, the defendants in 1915 applied for and obtained a succession certificate wherein the G.P. notes of the face value of Rs. 20,000 were shown as debts which they were entitled to collect, and thereafter within a short time, but the date does not appear, they withdrew the same from the Burdwan Raj. On 27 February 1922, plaintiff I wrote to defendant 1: The Government papers of the value of Rs. 11,000 are with you; the interest thereon, and the principal amount which are due to me should be paid in full within this month .... if the principal and interest be not paid within, this month, I shall have to sue for it within the month of Chaitra.