Mukhi Singh vs Kishun Singh

Das, J.—Only two questions have been argued before me, first, that the lower Appellate Court erred in coming to the conclusion that evidence of the existence of & separate oral agreement could be given in this case, and secondly, that the lower Appellate Court erred in coming to the conclusion that the case was a case of breach of trust and, therefore, there was no limitation. It appears to me that so far as the first question is concerned, the lower Appellate Court came to a right conclusion. The plaintiff''s case was that at the time of the mortgage he left the consideration money with the mortgagee in order that certain prior mortgage debts may be paid off. His complaint is that those prior mortgage debts were not paid off and, therefore, he was obliged to bring this suit for recovery of the money which remained in the hands of the mortgagee. The learned Vakil for the appellants points out that the mortgage-deed contains a clear recital that the mortgagor received the fall consideration money and paid off the debt due to the prior mortgagees, and he argues that there being a clear recital to that effect, the contemporaneous oral agreement to the effect that the money remained with the mortgagee for the purpose of being applied to the payment of prior mortgage debts is not admissible u/s 92 of the Indian Evidence Act. The learned Government Pleader in his able argument points out that the word deliberately used by the Legislature in section 92 is "terms" and not "recitals", and section 92 excludes all evidence of oral agreements in so far as it contradicts, varies, adds to or subtracts from the terms of any contract, grant or other disposition of property. It will be noticed, therefore, that there is nothing in section 92 of the Evidence Act which excludes evidence of an oral agreement which contradicts, varies, adds to, or substracts from, not the terms of the contract, but some recitals in the contract itself. I am of opinion that the argument of the learned Government Pleader is manifestly sound and must prevail. If any authority is needed for the proposition it will be found in the case of Shah Lal Chand v. Indarjit 22 A. 370 (P.C.) : 4 C.W.N. 455 : 2 Bom. L.R. 558 : 27 I.A. 93 : 7 Sar. P.C.J. 702 : 9 Ind. Dec. (N.S.) 1281. I, therefore, come to the conclusion that the lower Appellate Court came to a right conclusion on this point and that, therefore, the Court of first instance must come to a definite conclusion on the question raised by the plaintiff in his pleading.

The next point urged is that there is no necessity to remand the case to the Court of first instance inasmuch as the plaintiff''s suit is clearly barred by limitation. The learned Vakil points out that the lower Appellate Court is clearly wrong in coming to the conclusion that the case is a case of breach of trust and that, therefore, there is no question of limitation. I agree with him that no case has been made out u/s 10 of the Limitation Act, but I do not agree with the learned Vakil that the suit is necessarily barred by limitation. I do not desire to express a definite opinion on this point, inasmuch as I do not think that I should fetter the judgment of the Court of first instance on this point. I hold, however, that the opinion of the lower Appellate Court that the case comes within section 10 of the Limitation Act and that, therefore, there is no limitation at all is, in my opinion, not correct. In my opinion either Article 62 or Article 115 would possibly apply to the facts of the case; and if Article 62 applies, then it would be for the Court of first instance to consider the starting point of limitation. The Article itself says that the period begins to run from the time when the money is received. Clearly it must mean when the money is received for the plaintiff''s use, that is to say, the period would begin to run from the time when the mortgagee refused to pay to the prior mortgagees but held the money constructively for the use of the plaintiff. If authority is needed for this proposition, it will be found in the case of Johuri Mahton Vs. Thakoor Nath Lukee, . I, however, do not express any opinion on the question whether Article 62 applies or whether Article 115 applies, or whether the suit is, in fact, barred by limitation. All that I say is that there is no case made out of breach of trust in this matter. The appeal is dismissed with costs.