BALABUX MARWARI Vs. INDER KUMAR TEWARI

JUDGEMENT

(1.) The appellant before us was defendant 2 in the original suit. The claim was for balance due to the plaintiffs on a hathchitha account in respect of money deposited with defendants 1 and 2 as bankers in an account opened in the name of Sheogobind Tewari, husband of plaintiff 3 and father of plaintiff 1 and grandfather of plaintiff 2. The plaintiffs impleaded not only these two defendants who had been partners in the firm, but also the receiver of the estate of Lachmi Narayan; but as against the receiver the suit was dismissed. The Munsif decreed the suit against defendants 1 and 2 and this decision was upheld by the Subordinate Judge on appeal. In this second appeal which is presented by defendant 2, Balabux Marwari, two points are taken. The first is that the claim against Balabux is barred by limitation. The other point is that the plaintiffs are debarred from getting a decree in the suit without having first taken a succession certificate authorizing them to realize debts due to the late Sheogobind Tewari. The Courts below have treated the transactions between the parties as being of the nature of a current account between a customer and his banker, the money standing to the credit of the customer being repayable on demand and have counted the period of limitation under Art. 60, Lim. Act, from the date when the demand is made. It is contended for the appellant that limitation should have been calculated under Art. 59 or Art. 57 from the time when the loan was made, subject to any extension of time to which the plaintiffs might be entitled having regard to Secs.19-21 of the Act.

(2.) Mr. Khurshed Husnain for the appellant invited our attention to the expressions used in some of the entries in the hathchitha which are substantially acknowledgments of receipt of money and acknowledgments of the amount standing at the time of the entries to the credit of Sheogobind Tewari. He points out that the entries do not refer specifically to deposit for which the usual Hindi word is "amanat" and contains expressions "dena nikala" and "dena raha," which he says should be translated as "debt owing" and found owing." Mr. Khurshed Husnain relies on Gobind Chintaman Bhat V/s. Kachubhai Gulabchand 1924 Bom 28 for the proposition that when one person hands over money to another on the understanding that it is not a gift, but has to be repaid when demanded, that would be a transaction ordinarily of the nature of a loan and the onus lies on the person claiming repayment to prove the existence of circumstances which turned the loan into a deposit. When therefore the money had been left in the hands of a trader who was not a banker, the Bombay High Court found difficulty in accepting the contention that it should be treated as money deposited for the purposes of Art. 60. This view seems to be consonant with earlier decision of the Bombay High Court, but a different view has been taken elsewhere.

(3.) In Ishur Chander Bhaduri V/s. Jibun Kumari Bibi (1889) 1 Cal 25 the question was considered with reference to Art. 60, Lim. Act of 1877. It was observed that probably the money of a customer in the hands of his banker is money lent; and that if Art. 60 were cot present the matter might fall within one of the other articles. But it is also pointed out that assuming it to be money lent the loan is of a special kind. For the purposes of Art. 60 the learned Judges observed that in ordinary and popular language the money of a customer standing to his credit in the accounts of a banker is money deposited, although for certain other purposes the term deposit is limited to goods which are placed in the custody of a person with a view to their being returned in specie. In Art. 60, dealing with money it is equally clear that a return in specie is not contemplated. It is so first, because it would be contrary to the ordinary usage of the language to hold such a thing; deposits of money are made, for instance, under many Acts of the legislature with public officers and others, and no one ever heard of the idea of the return of the identical coins deposited.