Saradamma vs Kerala Varma Kochanujan Thampuran

R. Bhaskaran, J.—Saradamma, the Defendant, who filed the appeal having died, supplemental Appellants 2 to 4, who are her daughters and legal representatives, are presenting this appeal. The Respondent-Plaintiff, Kerala Varma Kochanujan Thampuran, the son-in-law of the Defendant, filed the suit for the recovery of a sum of Rs. 13,639.70 alleged to be the amount due to him on account of a sum of Rs. 10,000 deposited by him on the 2nd Edavam 1122 (corresponding to 5th June 1947) with Soma Varma Kunhikidavu Thampuran, hereinafter referred to as Thampuran, the husband of the Defendant and father of Appellants 2 to 4. The trial court having decreed the suit in terms of the plaint, (but without any order as to costs), the Defendant preferred this appeal.

The plaint averments, briefly stated, are as follows: The Plaintiff had on 5th June 1947 deposited a sum of Rs. 10,000 with Thampuran on his undertaking that he would repay it with interest at the rate of 8 per cent per annum, a sum of Rs. 5000 was repaid by Thampuran on 2nd July 1958; thereafter he had executed a Will dated 4th July 1958, a true copy of which is Ext. A-3, which contained a recital acknowledging this liability and making a direction to the Defendant for its discharge. Thampuran passed away on the 1st May 1960; thereafter the Defendant filed Probate Application O.P. No. 5 of 1969 before the District Court, Ernakulam, a copy of which is Ext. A-4 on 6th January 1969 with an affidavit, a copy of which is Ext. A-5, in support thereof. Item 3 in the Annexure to Ext. A-5 is a sum of Rs. 15,179 shown as the liability to the Plaintiff from the estate of the deceased Thampuran; on 2lst June 1973 the Plaintiff caused a lawyer notice, a copy of which is Ext. A-1, to be issued to the Defendant demanding of her the payment of the amount outstanding in his favour; the Defendant having denied her liability to pay any amount to the Plaintiff in her reply, Ext. A-2 dated 2nd July 1973 sent through her lawyer, the Plaintiff was constrained to institute the suit; and though the interest stipulated at the time of entrustment of the amount by the Plaintiff to Thampuran was 6 per cent per annum, in order to avoid controversy the Plaintiff claimed interest only at the rate of 3� per cent from the date of entrustment, that being the rate of interest admitted in Ext. A-3 Will.

The Defendant in her written statement stated, inter alia, that the Plaintiff did not make a deposit with Thampuran, but he (Thampuran) took a loan of Rs. 10,000 from the Plaintiff on 5th June 1947 agreeing to pay interest at a rate not exceeding 3� per cent. The statement in Annexure B to Ext. A-5 affidavit in support of Ext. A-4 probate application was a mistake overlooking the payments already made in discharge of the liability to the Plaintiff; the liability happened to be shown in Annexure B to Ext. A-5 as Ext. A-3 will referred to such a liability without having occasion to take into consideration the payments in full discharge of the liability to the Plaintiff made on 28th August 1961; the Defendant was advised that the entire liability without reference to the discharge effected by her might and ought to be shown in the Annexure to Ext. A-5 as it was a liability on the estate as on the date of death of Thampuran; the Plaintiff''s claim was barred by limitation, besides the debt having been fully discharged; the Defendant had a sum of Rs. 10,497.02 in her Savings Bank Account Rs. 11,491 in Chittoor Cochin Post Office, and out of that a sum of Rs. 10,000 was withdrawn by Rajakumari, the daughter of the Defendant and the wife of the Plaintiff, as per authorisation given by her on 9th February 1973 the Defendant and the Plaintiffs'' wife Rajakumari had entered into an agreement for sale by the Defendant to the Plaintiff and his wife and children'' the residential house and compound in Sarada Vihar in Chittoor Cochin, exclusively belonging to the Defendant, where the Plaintiff and his wife had been residing. The agreement was for sale for a consideration of Rs. 40,000 a sum of Rs. 10,000 having been paid on 9th February 1973 and a sum of Rs. 20,000 having been paid on the date of execution of the sale on 28th March 1973, for the balance amount of Rs. 10,000 a promissory note was executed by the Plaintiff to the Defendant under the promissory note was paid by the Plaintiff by a cheque drawn on the Canara Bank, Chittoor, Cochin Branch.

Issue Nos. 1, 3 and 5 read as follows:

Is the deposit of Rs. 10,000 repayable on express demand alleged in the plaint true?

Is the discharge pleaded by the Defendant true? and

Is the claim of the Plaintiff barred by Limitation?

These are the issues with respect to which we are mainly concerned in this appeal.

Sri M.C. Sen, the counsel for the Appellants, submitted that the Court below was clearly in error in holding that the suit was not barred by limitation. Under Article 21 of the Limitation Act, 1963 (Corresponding to Article 59 of the Indian Limitation Act of 1908) the period of limitation is 3 years, reckoned from the date on which the loan was made. According to him even when the payment of Rs. 5,000 on 2nd July 1958 is treated as an acknowledgement of the liability, notwithstanding the fact that that itself was long after the expiration of the prescribed period for a suit, giving fresh life u/s 18 of the said Act, the suit filed on 24th November 1973 was hopelessly barred by limitation. The question regarding limitation is allied to the question relating to the nature of the transaction giving rise to the suit, namely, whether the suit claim is based on a deposit as contended by the Plaintiff or a loan as characterised by the Defendant. According to the Plaintiff, it was in June 1973 that he made the demand to the Defendant, for the first time, for payment of the amount deposited and, therefore, the suit filed on 24th November 1973 was within time prescribed under Article 22 of the Limitation Act, 1963 (corresponding to Article 60 of the Old Act). The Appellant''s contention on the other hand, is that the amount having been given only as a loan, not as a deposit, it is only Article 21 not Article 22, that applies to the case. Both, if we may say so, are begging the question. The real question to be decided is whether the suit transaction was one of loan or deposit. Once that is decided, the solution to the problem relating to the Article of the Limitation Act applicable would follow automatically.

And now what is a loan, and what is a deposit? Are those two terms mutually exclusive? Nor there could be some common features both in loan and in deposit, inasmuch as in a limited sense a deposit also is a loan with some distinctive features. Strictly speaking, the description of the transaction either as one of loan or as one of deposit by itself may not in all cases be conclusive of the real character of the transaction. It may depend upon various factors including the circumstances surrounding the transactions and above all the intent of the parties to the transaction at the time of transaction. The distinction which perhaps is the most obvious is that the deposit not for a fixed term does not seem to impose immediate obligation on the depositee to seek out and repay him, he is to keep the money till asked for it. A demand by the depositor seems to be the normal condition of the obligation of the depositee to repay. This view expressed by the Privy Council in Mohammad Akbar Khan v. Attar Singh AIR 1936 P.C. 171, was approved in a subsequent decision of the Privy Council itself in AIR 1940 132 (Privy Council) . It is now well-settled that whether a transaction is a transaction of loan or that of deposit does not always depend entirely on the terms of the document, but also on the intention of the parties and all the circumstances of the case, vide the decision of the Supreme Court in V.E.A. Annamalai Chettiar and Another Vs. S.V.V.S. Veerappa Chettiar and Others, , Ram Janki Devi and Another Vs. Juggilal Kamlapat, . The presence or absence of a provision in regard to payment of interest by itself might not be a decisive or conclusive factor to determine the character of the transaction, whether it was one of loan or deposit. The amount, in case it was paid as a loan, became the property of the debtor; and it could not have any more remained the property of the creditor, subject of course a liability cast on the debtor to seek out the creditor and repay it. A loan is repayable the minute it is incurred. But this is not so with a deposit. In the case of deposit, though the deposited money is not confined to bailments of specific currency to be returned in specie, it may involve the creation of the relation of debtor and creditor, a loan under conditions. The real test to distinguish the loan from deposit is this: Whether it was intended that the amount should remain with the payee indefinitely or not; in other words, whether it was intended that the payee was to seek out the creditor for the payment of the amount paid or whether the payer was to demand the amount from the payee before the amount becomes payable. In the former case the transaction is of a loan and in the latter case it is of a deposit, no doubt, in both cases there is a debt repayable in terms of the transaction. What is material is the intention of the parties at the time of the transaction.

We will examine the nature of the transaction between the Plaintiff and Thampuran in the light of the evidence available and in the background of the main characteristic features of deposit discussed above. It is the admitted fact that no document was executed by and between the Plaintiff and Thampuran in regard to the terms of the transaction which took place on 5th June 1947. We, however, find reference having been made by Thampuran in his Will (Ext. A-3), dated 4th July 1958 to a liability outstanding in favour of the Plaintiff in the following words:

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Neither the word loan nor the word deposit has been used to describe the transaction between Thampuran and the Plaintiff on 1122 Edavam 22 (5th June 1947); nor that that by itself would have always been decisive of the crucial point at issue.

The Plaintiff, of course, is the son-in-law of Thampuran. There is, however, nothing to show that Thampuran was in the habit of receiving amounts by way of deposits either from the Plaintiff or from any other person. No other instance of Thampuran having received a deposit, either from the Plaintiff himself or from any other person, was brought to our notice. There is no evidence to show that Thampuran was having any business in money lending. Ext. A-3 gives the clue that the Thampuran was deeply indebted so much so that Crystal Palace, his very residential house, was under a mortgage. It is, therefore, reasonable to construe from the surrounding circumstances that this was the case of Thampuran having taken a loan from the Plaintiff. The counsel for the Appellants submitted that the expression (***) 10,000 (***) in Ext. A-3 positively indicates that it was a case of loan, not of deposit.

Admittedly the suit transaction is of 1947. It was for the Plaintiff to prove that the suit claim was not barred by limitation. The period of limitation for filing the suit, both for money deposited under an agreement that it shall be payable on demand covered by Article 22, and for money payable to the Plaintiff for money paid for the Defendant covered by Article 21, of the Limitation Act, 1963 is 3 years. What marks the distinction in the application of the two Articles is the point of time from which the period of limitation is to be reckoned; in the case of deposit it starts when the demand for the re-payment is made, while in the case of loan the time runs from the point of time at which the loan was made. The Plaintiff definitely had no case that the suit transaction arose out of a loan; nor had he a case that if it was treated as a loan the suit would be within time. The Plaintiff, therefore, could have sustained the suit only by alleging and proving that the suit transaction was one of deposit not of a loan, so that, the demand for deposit having been made before June 1973, time for the purpose of limitation had to be reckoned from that time, and the suit filed in November, 1974 was within time in terms of Article 22 of the Limitation Act, 1963.

No doubt, in paragraph 2 of the plaint the Plaintiff has chosen to use the expression "deposit" to describe the transaction in consonance with the stand taken by him in Ext. A-1 notice issued through his advocate to the Defendant. It is not, however, sufficient for the Plaintiff to allege that the transaction was one of deposit, but it has to be proved by cogent and acceptable evidence. The burden is on the Plaintiff to prove that the suit transaction was one of deposit. In this case, admittedly no document was executed by and between the parties to evidence the exact nature of the transaction entered into by them. Even the reference in Ext. A-3 to the transaction, on the face of it, not only is not helpful to the Plaintiff, but also is suggestive of the possibility of Thampuran, who was steeped in debt, having taken a loan (***) of Rs. 10,000 from the Plaintiff, though the counsel for the Respondent-Plaintiff would argue that the word ''(***) only denotes the act of having received the amount, which he had to do whether it was a deposit or a loan. There is certainly ingenuity in this argument, and in a technical sense it may seem to be attractive; but normally, Thampuran would have referred to the sum of Rs. 10,000 as the amount entrusted to him (***) if it was a deposit made by the Plaintiff, not as an amount taken by Thampuran. There is no indication in Ext. A-3 that the agreement at the time of the transaction was that Thampuran was to keep the amount with him till the Plaintiff demanded repayment; nor was the repayment of Rs. 5,000 on 2nd July 1958 pursuant to demand by the Plaintiff. The Plaintiff has to prove that the intent of the parties was to treat the transaction as a deposit, on the understanding and agreement that the amount, with or without interest, as the case may be, was to be returned to the Plaintiff when demanded. Apart from the interested oral evidence of the Plaintiff who examined himself as P.W. 1, we have only the evidence of P.W. 2, the modikkaran, who was a dependant of the Plaintiff and therefore highly interested in him. The evidence of P.W. 2 has also to be discarded as it proved to be quite artificial and opposed to truth. It is difficult to believe the evidence of P.W. 2. He is examined to prove the nature of the transaction between Thampuran and the Plaintiff. We have to remember that Thampuran and the Plaintiff were during that time staying in the Crystal Palace. The mutual trust and confidence between the two at that time was such that the Plaintiff had no hesitation in giving a sum of Rs. 10,000 to Thampuran without even a receipt. If that be so, it is most unlikely that the services of a person in the position of P.W. 2 would be availed of to witness the transaction between the two. We, therefore, reject the interested and artificial evidence given by P.W. 2 on this point. We are of the opinion that the Plaintiff did not succeed in establishing either that the transaction was one of a deposit to which Article 22 of the Limitation Act, 1963 applies ''or that the suit was not barred by limitation. No burden was cast on the Defendant to prove that the transaction was a loan; that apart, it being a transaction, not evidenced by a document, and on the Plaintiff''s own admission the Defendant was not present on the occasion, what transpired between himself and Thampuran at the time of the transaction is a matter exclusively within the knowledge of the Plaintiff.

The counsel for the Appellants had devoted considerable time in an attempt to establish that the amount outstanding in favour of the Plaintiff had already been discharged by payment to Plaintiff through his wife Rajakumari, who happened to be his agent. He relied on Exts. D-1 to D-5. On the other hand, the counsel for the Respondent sought to rely on Exts. A-4 and A-5, particularly the annexure to Ext. A-5 affidavit in support of the Probate Application No. 5/69 on the file of the District Court, Ernakulam to contend for the position that even long after the alleged date of Exts. B-l and B-2 the Defendant had acknowledged the liability to the Plaintiff and the plea of discharge put forward by the Plaintiff was not correct. In regard to this plea also the Appellants have an explanation that it was the possession of the assets and liabilities as it stood at the time of the death of Thampuran that was shown in the annexure, and nothing turns on that. Except for noting the main features of the contentions advanced by the parties in relation to the plea of discharge raised by the Defendant, we do not think it is necessary for us to consider the merits of this contention and enter a finding thereon inasmuch as we are of the opinion that the suit has only to be dismissed in terms of Section 3 of the Limitation Act, 1963, on the basis of our finding that the suit transaction is a loan, not a deposit; and that the suit has been instituted after the prescribed period.

For the foregoing reasons we allow the appeal, set aside the decree and judgment of the court below and dismiss the suit. In the circumstances of the case, particularly bearing in mind the relationship between the parties to the suit, we will direct the parties to bear their respective costs in the suit and in the appeal.

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