MOHINI MOHAN Vs. RAHMAT ULLAH KHAN

JUDGEMENT

(1.) This is a defendants appeal. On 12 October 1907 Majibullah Khan and Abdul Rahman Khan sold certain zamindari properties to Madan Gopal, Abdulla Khan and Lakshman Prasad, one-third each for Rs. 4000. On 16 June 1908 the parties entered into a registered agreement under which it was provided that the three vendees would each pay to Majibullah Khan a sum of Rs. 12 per annum, in all Rs. 36, as malikana provided Majibullah Khan deposited a sum of Rs. 600 with the vendees as "Zare amanat". It was mentioned that this sum of Rs. 600 was being deposited by Majibullah after borrowing without interest a sum of Rs. 300 from Abdul Eahman Khan. On the death of Majibullah Khan this annuity of Rs. 36 was to cease but the vendees were required to refund the sum of Rs. 300 to Majibullah's heirs and another sum of Rs. 300 to Abdul Rahman Khan or his heirs. The document went on to provide that in case the vendees did not refund the sum of Rs. 600 as mentioned above they were to continue to pay Rs. 18 to Majibullah Khan's heirs and Rs. 18 to Abdul Rahman Khan or his heirs so long as the refund was not made. Majibullah Khan died in the year 1911 leaving plaintiffs 1 to 3, his sons, and plaintiff 4, his widow, as his heirs and legal representatives. Abdul Eahman Khan was, however, alive on the date of the suit. This suit was filed by the plaintiffs for the realisation of the annuity at the rate of Rs. 24 per annum which they called malikana dues for a period of twelve years prior to the suit and also for the refund of Rs. 400 from Madan Gopal who was defendant 1 and Ram Kripal, son of Lakshman Prasad, the other vendee, Lakshman Prasad having died. Abdullah Khan was impleaded as defendant 2 and it was alleged that he had paid his share of Rs. 200 and nothing was, therefore, due from him. The plaintiffs also claimed interest on the annuity claimed by them. The defendants in their written statement pleaded that the claim was barred by limitation.

(2.) The Courts below have, however, applied Art. 145, Limitation Act, and have held that the amount of Rupees 400 was a deposit and therefore it was claimable within thirty years. As regards the annuity they have held that it was a charge on the property and therefore Art. 132, Limitation Act, was applicable and annuity for a period of twelve years from the date of suit could be claimed. The defendants have appealed. Learned Counsel for the defendants has argued that the proper article applicable was Art. 131 so far as the annuity was concerned, but if the case did not come under that article then he would apply Art. 120 both to the claim for annuity as well as for the sum of Rs. 400. If Art. 131, Limitation Act, applies, then under col. 3 limitation of twelve years begins to run when the plaintiff is first refused the enjoyment of the right. In this case the only person examined was defendant 2 Abdullah Khan who came into the witness-box as a witness for the plaintiffs and he stated in the last few sentences of his cross- examination that after the death of Mujibullah Khan the plaintiffs demanded the money from the defendants but the defendants did not pay the same and even a written demand was sent but the deposit had not been refunded. It may be possible to deduce that there was a refusal to pay, but it must be said that the statement as recorded is not clear, though the fact that the defendants in spite of the demand never paid either the sum deposited or the annuity rather points to the conclusion that they refused to pay. If the case came under Art. 120, then the question would arise as to when the right to sue accrued. There can be no manner of doubt that there was no right to sue so long as Mujibullah Khan was alive. If the case fell under Art. 120, the plaintiffs right of suit became barred in the year 1917, six years after Mujibullah's death as the amount was payable on the death of Mujibullah and the right to sue must be deemed to have accrued on that day. Art. 120, Limitation Act, is the residuary article and it would not apply if any other article was applicable. Learned Counsel for the plaintiffs has strongly urged that the decision of the lower Courts is correct and the plaintiffs being the depositary of the sum of Rs. 600 they had a right to claim the amount within 30 years of the date of the deposit. The only difficulty in the case of applying Art. 145 is as to whether the money deposited can be called moveable property. The words moveable property are also used in Art. 89 of the Act which reads as follows : "By a principal against his agent for moveable property received by the latter and not accounted for."

(3.) In Asghar Ali Khan V/s. Khurshed Ali Khan ( 02) 24 All. 27 (P.C.) at p. 43 it was held that the words moveable property in this article included money. Generally the same word used in different parts of a statute should be given the same meaning. Though there is a difference in the language of Art. 89 and Art. 145 and while under Art. 89 it is possible to say that money may be included in the words moveable property it does not necessarily follow that it has the same meaning under Art. 145. In a case reported in Mahomed Habibul Haq V/s. Bhag Chand , the plaintiff had deposited certain Government Promissory Notes as security for the loan to be advanced to him from time to time. In dealing with the question their Lordships of the Judicial Committee have remarked: The notes remained with Tikam Chand as security or at any rate for safe custody and on either view not Art. 49 but Art. 145 is the relevant article and the suit was well within time.