Pt. Narsingh Panda vs Mathura Nath Pande and others

Wort, J.—In my judgment this appeal fails, but not for the reasons which are given by the learned Judge in the Court below. The action was against defendant 3 who was for sometime the karta when the family of which the plaintiff was a member was joint and who received payment with respect to a mortgage bond. This was in 1922 and then in 1929 a partition took place and the present plaintiff who is respondent before me had assigned to him this very mortgage bond which, had been repaid. He brought this action on the mortgage and an alternative claim against defendant 3 who had been the karta of the family, that if the karta had received the money, then there would be a money decree against him.

The only question which is argued before me and which was argued before the Court below is whether the action was barred by limitation. It as said that Art. 62 applied by re sun of S. 18, Limitation Act, as the plaintiff had been kept out of knowledge of his cause of action by the fraud of the defendant. Only by reading into the evidence what was not there, could the learned Judge come to that conclusion. There was no allegation of fraud and the evidence itself made out no such case. Indeed if any case of fraud at all was made, out, it was the fraud of the mortgagor, as it is seen from the evidence of the plaintiff, that the so called receipt acknowledging payment of the mortgage was a collusive one. By that I understand him of mean that no payment had in act been made but that the receipt was a forged document purporting to show payment. This would be entirely opposed to a case of fraud, under S. 18, Limitation Act, on the part of the defendant No. 3. The case is an illustration of fraud being spelled out from the vaguest statement made by witnesses which in my judgment is wholly unjustifiable.

But that does not dispose of the matter. Mr. Mitter contends that the cause of action arose as for money had and received by defendant 3 in 1922. Now an elementary principle of law of limitation is and must be that a cause of action cannot be said to be barred before it arose. If we apply Art. 62, limitation Act, to this section and take the period stated in the third column as applying strictly to the facts of this case, it will be seen that the plaintiffs action was barred before it arose. The period in Col. 3 is when the money is received. The money was actually received in 1922. The plain tiff had no right to sue for it then because he was a member of the joint family. That leads one to suppose that Art. 62 cannot be held to be the Article applicable, and, in my judgment, in the peculiar circumstances of this case, it cannot be so; or, if Art. 62 applies, the money can be said to have been received to the plaintiff''s use only in 1929. But in my judgment it is merely a case of conversion by the defendant, or a case where having held the money for many years from the date of the partition he must be said to hold it in trust for the plaintiff in which event Art. 120 will apply.

For these reasons it seems to me that the result of the hearing in the Court below was right, but the reasons given were erroneous. The appeal is therefore dismissed with costs to defendants 4 to 6. Defendants 1 and 2 are entitled also to their costs, as they have been unnecessarily impleaded in this Court.