1. Second defendant married the first plaintiff on 23-3-1107. A few days before, the second plaintiff who is the father of the first plaintiff is said to have paid to the second defendant's father a sum of Rs. 4000/- as streedhanam. Second defendant's father Avirah Korah who is said to have thus received thestreedhanam died in 1117. Even during his lifetime he had executed Ext. D-1 dhanani-schayam on 15-12-1109 settling his properties in favour of his children defendants 1 to 3. First defendant was his daughter and defendants 2 and 3 were his sons. Though Ext. D-l was so executed it is said to have not taken effect. After his death defendants 1 to 3 and their mother got together and entered into an arrangement of partition evidenced by Ext. P-2 partition deed dated 22-7-1117. The properties of Avirah Korah were divided thereunder.
It is seen from the partition deed that the first defendant, daughter of Avirah Korah, was allotted 23-94 acres of property while the second defendant was allotted 42 acres of property. Out of the property so obtained by the second defendant he executed a mortgage for some on 28-8-1953 under Ext. P-3. This was in favour of a stranger. In regard to some of the properties he executed a sale deed in favour of his wife. This was Ext. D-2 dated 2-2-1955. Apparently Rs. 5000/-was received in cash while reserving a sum of Rs, 9980/-, Later on 14-2-1955, the first plaintiff took a release of the mortgage under Ext. D-5. In regard to a portion of his remaining properties, namely, 10 acres second defendant is seen to have executed a dhananischayam deed, which is Ext. D-3 dated 13-6-1956.
2. The first plaintiff and her father have together filed this suit on 31-8-1960 seeking recovery of the streedhanam paid in 1107. It is necessary in this connection to refer to the relief sought in the plaint which I have referred to as recovery because there is controversy as to whether it is really one for recovery. Plaintiffs claim that the second plaintiff should be allowed to recover the sum of Rs. 4000/- and the costs of the suit with interest thereon charged on the plaint schedule properties. The property scheduled to the plaint is a portion of the property allotted to the first defendant, the daughter, under Ext. P-2 partition deed. Therefore, apparently it can be seen that the relief sought for is against the property and that of the property of the first defendant only. Therefore even though the second defendant and the 3rd defendant got properties under Ext. P-2, it is only the first defendant who is sought to be made liable, though not personally, that is, by scheduling her properties alone as answerable for the plaint claim. There is no explanation in the plaint why that is so limited to the properties of the first defendant.
3. Though the fact that streedhanam of Rs. 4000/- paid was disputed, the Courts below have, on the evidence, found that the payment of streedhanam is true. In this context it is necessary to refer to the normal incidents of a streedhanam andthe obligations which are attendant on the payment of streedhanam. I cannot put it better than in the words of the learned Judges who decided Mathula Louis V. Eapen Rosa, (1916) 6 Trav LJ 464:
'It is well-known that among the Syrian Christians it is customary to settle at the time of the marriage the amount of the Stridhanam or the dowry to be paid to the bride from her own family. It has been repeatedly held by this Court that the Stridhanam has to be looked upon as a substitute for the daughter's share in her father's property. Mathan Kuruvila v. Mathan Maria, 17 Trav LR 46. The Stridhanam is usually paid by the bride's father or other head of her family. But, as happened in this case, the practice seems to be that the Stridhanam is handed over not to the bride herself but to her would be father-in-law or other head of the bride-groom's family. Though legally the bride is entitled to demand that her Stridhanam should be repaid to her, yet, under ordinary circumstances, she never makes such a demand. The general understanding seems to be that when the father-in-law divides his property among his children, or the latter divide among themselves the property of their deceased father, the amount or the Stridhanam brought by each daughter-in-law will be given due consideration in determining her husband's share, and that the daughter-in-law also would agree to this course. It is only when the daughter-in-law feels or fancies that some gross injustice is done to her or to her husband that she comes forward with a demand for her Stridhanam. (For example in the present case it is said that the plaintiffs father-in-law has, by his will, bequeathed all his property to his second wife and his children by her to the prejudice of the plaintiff's husband who is one of the sons by the first wife.)'
4. It is the contention of the defendant that the father, as he was bound to do, took into account the Stridhanam paid by the plaintiff in allotting properties under Ext. D-1. It is also agreed that though he executed Ext. D-l it did not come into effect. But if the heirs of deceased Korah, when dividing his properties, duly took note of the fact that Stridhanam was received by the father and provided for it in allotting a larger share to the second defendant, there will be no further claim by the 1st plaintiff for recovery of the Streedhanam. On this there is no dispute. But there is dispute as to the question whether it was actually so provided at the time of Ext. P-2 partition. It is contended by the first defendant that when that partition deed was executed the second defendant who stood to benefit by allotment of a larger share in lieu of Stridhanam of his wife did take such a larger share.
It is further said that first plaintiff, her husband the second defendant and their children were all living together amicably and therefore first plaintiff would have necessarily been aware of this arrangement under Ext. P-2, she would have acquiesced in such arrangement and she should have understood that there would no further be any subsisting claim for Stridhanam, It is the first defendant's case that even assuming that there was a subsisting claim in spite of Ext, P-2 that would become barred by limitation since the cause of action arose on the date of Ext. P-2. The suit is filed nearly 18 years after that date.
5. The trial court held in favour of the plaintiff and gave the plaintiff a decree. The appellate Court, while agreeing with the trial court that Stridhanam was given and the adjustment pleaded by the first defendant had not been proved, dismissed the suit on the ground that the claim was barred by limitation. It is urged by the appellants here who are the plaintiffs that the view of the Court below on the question of limitation is wrong.
6. Though the findings on the question of adjustment under Ext. P-2 are concurrent, counsel for the first respondent who is the first defendant in the suit contends that a reading of the judgment of the Courts below would show that this question has not been considered properly on the basis of the evidence available and the circumstances of the case. It is said that this is not a matter on which any oral or documentary evidence would be available, but one which must depend on appreciation of circumstances of the case. That, of course, is true. Normally when the children of deceased Korah enter into a partition deed and take properties thereunder, so long as it is not shown that at that time first plaintiff and her husband were not on good terms, one should assume that the second defendant would have done whatever was necessary to secure his wife's interest. It was to his interest to Ret a larger extent of property in lieu of Stridhanam of his wife and when he enters into a partition it would be natural to expect him to demand and get a larger share which he was entitled to under law. It is very significant here to notice the fact that in the partition deed itself the valuation of the shares of defendants 1 to 3 is shown as Rs. 5000/-, 15,000/- and 10,000/- respectively.
The daughter is entitled only to the share which would be half of that which falls to a son or Rs. 5000/- whichever is less and naturally one can explain the reference to the valuation of the share of the first defendant as Rs. 5000/- as due to this fact. But it is significant that the third defendant who is normally entitled to share equally with the second defendant is not given such an equal share under Ext. P-2.The share of the second defendant is larger than that of the third defendant by a sum of Rs. 5000/-. The explanation is that this valuation was mentioned only for the purpose of registration. One fails to see why for that purpose such different valuation should be given in regard to defendants 2 and 3. It is apparent therefore that the parties were conscious of the fact that the second defendant was taking a share larger than that of the third defendant. The contention therefore that such larger share was an account of Stridhanam of the first plaintiff that had to be provided for at the time of partition is not without merit.
So long as second defendant was living with his wife and children it is difficult to assume that the wife was ignorant on the partition which took place. The parries apparently belong to respectable and well-to-do families. The contention that first plaintiff who was living with second defendant was unaware of the partition of 1117 in regard to the properties of the father-in-law for all these years and until she took Ext. D-2 does not appear to merit serious notice. Therefore whatever may be my view on the question of adjustment of the Stridhanam under Ext. P-2, first plaintiff must be deemed to have been aware of Ext, P-2 at or about the time of execution of the document. Circumstances eloquently speak to that fact. I have already indicated that on the question whether actually there was an adjustment at the time or Ext, P-2 I may perhaps have to say something different from what was found by the Courts below if a decision on that question was called for. But if it is possible to decide the appeal on the question of limitation I need not finally decide that question.
7. In considering the question of limitation it is necessary to consider whether the first plaintiff had notice of Ext. P-2 partition deed at about that time or whether she had notice of it only when she took Ext. D-2. The suit is nearly about 18 years after Ext. P-2 and therefore if the wife was aware of the partition deed to which the husband was a party at or about the time of partition deed or some time thereafter, the suit would be barred by limitation as I would attempt to show. For reasons which I have indicated, the circumstances amply warrant the finding that first plaintiff had such notice.
8. Now I will consider the question of limitation. That Section 10 of the Indian Limitation Act, 1908 would not apply to this case is quite clear. That section applies only to a suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds. There is no case that the Stridhanam amount paid to Korah by the first plaintiff became vested in Korah for any specific purpose. Stridhanam, apparently, is not intended to be a trust for a specific purpose. Implied trusts or obligations in the nature of trusts are not within the scope of Section 10 of the Indian Limitation Act, 1908. Therefore it cannot be said that this section applies to the case.
9. The controversy concerns whether the residuary article, Article 120 of the Indian Limitation Act, 1908 applies to the case. Normally it should apply if no other specific Article applies. The only specific Article relied on by the plaintiffs is Article 145. Therefore, I have to consider here whether this is a case to which Article 145 has application, as otherwise the matter would be governed by Article 120. If it is a case to which Article 120 applies, the period is six years and the starting point of the period would be the date when the right to sue accrues. The Supreme Court has said considering the earlier decisions of the Privy Council in Rukhma-bai v. Laxminaravan. AIR 1960 SC 335-
'.....The right to sue under Article 120of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.'
Therefore, if it is Article 120 that applies, I will have to consider when there arose a threat of infringement of the right of the plaintiff which would give rise to the cause of action to sue. Korah is the person who is said to have received the Stridhanam. During his lifetime he did not make any operative arrangement in regard to the return adjustment of the Stridhanam. He died in 1117. His properties were divided between his wife and children in 1117 and all the properties were taken by them between themselves.
If, as a matter of fact, first plaintiff was aware of it in 1117 or some time soon thereafter that would be sufficient to constitute knowledge of the infringement of her right as she could not expect voluntary return of the Stridhanam when once the properties had been taken by the sharers without providing for such payment to her. Therefore the cause of action must be deemed to have arisen when she knew of the partition and the period would be six years from that date. I have already found that she must have come to know of the partition at least some time soon thereafterand even if she had come to know of it some time before 1954 that would be sufficient to find that the suit is barred by limitation. Hence if I am to hold that the residuary article applies, there is no difficulty in finding that the suit is out of time.
10. Article 145 of the Indian Limitation Act, 1908 is sought to be applied because, according to the plaintiff, the payment of Stridhanam on behalf of the first plaintiff by the second plaintiff to the father-in-law was in the nature of a deposit and when the suit is filed for recovery of that money it must be deemed to be against the depositary to recover moveable property deposited. In that event the period would be 30 years from the date of deposit and since deposit is seen to have been made in 1107, the suit would be in time. This necessitates the consideration of the question whether Stridhanam given by a Christian father on behalf of his daughter to her father-in-law can be considered as a deposit within the meaning o Article 145 of the Indian Limitation Act, 1908. It is contended to be not a deposit within the meaning of Article 145 for two reasons.
Deposit contemplated in Article 145 is of moveable property and such moveable property cannot be money but must be something which is sought to be recovered in specie. Secondly it is contended that the word 'deposit' in conjunction with the word 'pawn' must be read as related. In other words the term depositary in Article 145 must take colour from the term pawnee used in the same article with which it is associated and if the matter is looked at from that aspect the Stridhanam paid to the father-in-law cannot be a deposit. These are the questions which I will have to consider here.
11. There is considerable controversy among the High Courts in India on the question whether movable property referred to in Article 145 would include money also. Of course, if the deposit is of coin which is intended to be returned in. specie, then it would be movable property within the meaning of Article 145. Whether that would be the case with current coin of the realm which is not returnable in specie is a question on which there is no unanimous view. The preponderance of view of the High Courts in India appears to be that which favours the decision of the Calcutta High Court in Lala Gobind Prasad v. Chairman of Patna Municipality (1907) 6 Cal LJ 535. Though some of the High Courts took a view different from that of Justice Mukherjee in that decision, it seems that later even some of those High Courts which took such a different view have veered round to the view expressed by Justice Mukherjee. The other view was very ably expressed by SirCharles Arnold White C. J. in Balakrishnudu v. Narayanaswami, AIR 1914 Mad 4, which was in appeal against the decision of Wallis J. in Balakrishnudu v. Narayana-swamy, AIR 1914 Mad 51. The learned Judge said thus:
'The very fact that the period of limitation is so long goes some way to indicate, to my mind, that the legislature intended that the transaction to which so unusually a long period of limitation is applicable should not be the sort of transaction which is of every day occurrence, the lending of money and an agreement to pay on demand or on a specific date.....I would only add one other reason and that is that the words are 'against a depositary or pawnee to recover moveable property deposited or pawned'. The word pawnee' which occurs in conjunction with the word 'depositary' seems to be wholly inappropriate to the case of money.' Though this was the view taken by the Madras High Court, later a different view has been taken by that Court in Kishtappa v. Lakshmi Ammal, AIR 1923 Mad 578. In Ahilyamba Charram v. Subramania, AIR 1954 Mad 101, the Court followed, AIR 1923 Mad 578. Apparently therefore the Madras High Court is no longer of the view expressed by Sir Arnold White C. J. In AIR 1914 Mad 4.
12. In (1907) 6 Cal LJ 535, Justice Mukherjee was of the opinion that the absence of the word 'specific' qualifying the words 'moveable property' in Article 145 is significant. According to the learned Judge, in the same statute where specific moveable property had to be referred to, that has been so mentioned, as for example, in Articles 48 and 49. Though the learned Judge observed that the term 'deposit' ordinarily implies deposit of specific property returnable in specie, it has a wider meaning in Article 145. The view taken by the Calcutta High Court has been followed by the Patna High Court in Union of India v. Gangadhar Mimraj, AIR 1962 Pat 372. It would appear that the reasoning of Justice Mookerjee that the absence of the word 'specific' qualifying the words 'moveable property' is significant has appealed to the Patna High Court too. There is a reference made in that decision and in fact also in some other decisions on this question to a decision of the Privy Council in Asghar Ali Khan v. Kurshed Ali Khan, (1901) 28 Ind App 227 (PC). That was a case where the Privy Council construed Article 89 of the Indian Limitation Act, 1908. That article concerns a suit by a principal against his agent for moveable property received by the latter and not accounted for.
In that context the Privy Council said that moveable property must include money. I must express here my view that it is not advisable to rely on this decision of the Privy Council to construe Arti-cle 145. The Privy Council rendered the decision on the construction of Article 89 and on the language and context of that article. It appears to me, with great respect to the learned Judges, that to apply this to a case arising under Article 145 would not be prudent. The view expressed by the Patna High Court in AIR 1962 Pat 372, had been expressed in the earlier decision in Ram Ranbijay v. Bachia Kuari, AIR 1939 Pat 688, which again refers to the Privy Council decision to which I have made reference. The Madras view as seen expressed in AIR 1954 Mad 101 has been followed by a single Judge of the Andhra Pradesh High Court in Union of India v. Mohamed Sultan, AIR 1966 Andh Pra 218. Apparently a different view has been taken by the Allahabad High Court and I need refer only to the decision in Khairul Bazhar v. Thannu Lal, AIR 1957 All 553. The view that Article 145 can refer only to specific moveable property is seen expressed in that decision.
13. This case arises from that area of the Kerala State which formed part of the erstwhile Travancore State. The Tra-vancore High Court had consistently taken the view all along that Article 145 would not apply to a suit of this nature because moveable property referred to in that article will not take in money. Though this question was urged in (1916) 6 Trav LJ 464 the Court held that it was not necessary to express any opinion on that question in that case. In Abraham v. Varki, (1934) 24 Trav LJ 754, the High Court of Travancore held that Article 122 of the Travancore Limitation Regulation corresponding to Article 145 of the Indian Limitation Act, 1908 would not apply to such a suit. The learned Judges said that to read such a long period of limitation as available to such a suit would lead to evident anomalies and inconveniences, and as an instance the learned Judges cited an instance of a woman paying Stridhanam at marriage and living with her husband for a period of 40 or 50 years being unable to claim return of Stridhanam.
The Travancore High Court had in Narayana Pillai v. Chithambaram Pillai, 15 Trav LR 51, considered this question. The article with which it was concerned there was Article 122 of the Travancore Limitation Regulation which corresponds to Article 145. The Full Bench held that the article will apply only to deposit of move-able property which has to be returned in specie. In Chacko v. Mathew, (1918) 8 Trav LJ 346, it was held that even assuming that the words 'moveable property' employed in the article included money, no person could be held to be a depositary unless the identical property left with the person was intended to be returned to the owner.
14. I am aware that the preponderance of view is in favour of holdingthat movable property includes money. Even the High Court of Madras which took the other view has now veered round to the view which has been expressed by the Calcutta High Court in (1907) 6 Cal LJ 535. But all the same I feel that the view expressed by Sir Arnold White C. J. in AIR 1914 Mad 4, is entitled to considerable weight. I am not shown any pronouncement of this Court on this question. It appears to me that there is not that significance in the absence of the word 'specific' in Article 145 as Justice Mookher-jee would point out. In Articles 48 and 49 the word 'specific' was necessary as those concerned suits intended to cover only cases of recovery of specific moveable property and not any moveable property.
But apparently it appears to me that there is no necessity to qualify the terms of Article 145 in the same manner. That is because the term moveable property in Article 145 is itself qualified by the words which follow. When what could be recovered is only moveable property 'which has been deposited or pawned' to mention 'specific' in that context as qualifying 'moveable property' would, in a sense, be redundant. It is especially so when the word 'deposit' must necessarily be read in the context of its conjunction with the word 'pawn' which appears in the article.
15. In this connection I may refer to a Bench decision of the Bombay High Court. The question that arose in Dhanraj Mills Ltd. v. Laxmi Cotton Traders, AIR 1960 Bom 404, was no doubt different. The question of limitation arose in connection with a suit for refund of deposit of Rs. 2500/- made by the plaintiffs with the defendants, apparently as security for the fulfilment of the contract which they entered into with the defendants. The plaintiffs could not carry out the terms of the contract and therefore they sought return of the amount paid which was refused by the defendants. The question was whether the suit would be governed by the residuary Article 120 or the specific Article 145. The question that was decided was not whether the money was to be considered as moveable property within the meaning of Article 145. But there is a reason why I am referring to this decision in this context. It was urged in that case that though the money was paid as a deposit the purpose for which it was paid must be taken as not only mere security but as part payment towards the contract and therefore in deciding the character of the deposit the purpose for which it has been so deposited must be borne in mind. It is in that connection that Chagla C. J. said thus:
'Now, before we turn to the authorities, let us look at the language of the article itself and also consider the place where it is put in the first Schedule tothe Limitation Act. Now, the expression 'depositary' must take colour from the expression that follows, viz. 'pawnee'. In the case of a pawn, an article or a move-able property is entrusted to the pawnee as security for a debt. The property in the article or the goods continues to remain in the pawner. In our opinion, the deposit contemplated by Article 145 is a deposit which must as far as possible be approximated to a pawn. In other words, the deposit to which Article 145 applies is only that deposit where there is an element of entrustment. Whereas in the case of a pawn, entrustment is as security for a debt; in the case of a deposit it may be for safe custody; and no question of security or debt may arise; but still the dominating factor in that transaction is the element of entrustment. It will be noticed that the earlier articles of the Limitation Act beginning somewhere about 51 deal with suits in respect of money claims and suits arising out of contractual obligations and then we come to various articles which deal with other subject-matters. If the intention of the Legislature was to deal in Article 145 with return of deposits made by a party to a contract for the performance of a contract, it is difficult to believe that the proper place of the article would be where it finds itself to be.'
If the word depositary is therefore understood in the context in which it appears, namely, that in conjunction with pawnee and the suit to recover moveable property within the meaning of that article is only to recover that property which has been deposited with the depositary there is no! particular need to mention 'specific' as qualifying 'moveable property' in that article. This appears to be in accord with what was indicated by Sir Arnold White C. J. in the decision in AIR 1914 Mad 4.
16. In view of the fact that the preponderance of view is otherwise I would have referred this matter to a Division Bench had it not been for the fact that it appears to me that a decision on this matter is now only of academic interest, more or less. The article in the Limitation Act 1963 corresponding to Article 145 in the Limitation Act, 1908 is Article 70. Therein the period of limitation is prescribed as three years and the starting point is the date when demand is made and is refused. Not many cases arising under Article 145 may come up before Courts hereafter and therefore I do not think that I should refer this matter to a Division Bench.
17. I am not resting the decision of this case on this aspect alone. There is another aspect which according to me appears to justify, in a greater measure my view that Article 145 cannot be applied to the suit, and that concerns the question whether Stridhanam paid to the father-in-law could be considered as ft deposit with-to the meaning of Article 145. In AIR 1923 Mad 578 the learned Judges of the Madras High Court took the view that the word deposit in Article 145 has not been used in the limited sense of 'depositum' but in a wider sense as including 'commodatum', that is, a bailment for the use of the bailee. Schwabe C. J. observed that the legislature by using the word depositary meant simply to say that when one man's property was handed by that man to another, he became a depositary of it, unless, of course, there was something in the terms of the handing over which would prevent his being treated as a person with whom it was deposited at all.
As observed by Chagla C. J. in AIR 1960 Bom 404, an entrustment can be by way of security for a debt and an entrustment can also be purely for safe custody. What is significant is that the deposit within the meaning of the article must be one of entrustment. In a case where, as in the one before me, the father-in-law receives Stri-dhanam at the marriage of his son and it is agreed on all hands that he is not under an obligation to return it in specie and does not normally so return, but makes provision to benefit the daughter-in-law and his son by providing a larger share in his properties to his son by way of settlement, the right to claim back the money is not unrestricted. In fact the interest of the person who pays the Stridhanam is only to see that the amount is utilised by him to the benefit of his son which would indirectly benefit his daughter-in-law.
Therefore it cannot be said that it is an entrustment for safe custody nor could it be said that it is an entrustment by way of security. The essence of a deposit, namely the unrestricted right to get it back, is certainly absent in the case of Stridhanam, because it was for the person who receives it to discharge his obligation otherwise than by return of the deposit. In such a case the receipt of money as Stridhanam could not be said to be a deposit in his hands within the meaning of Article 145. For this reason also I do not think that the suit could be held to be barred by limitation as one to which this article would apply.
18. Before parting with the case I must notice certain circumstances. The suit is by the plaintiffs apparently not against all the heirs of the deceased Korah. If plaintiff's claim was genuine, it must necessarily have been against all the heirs of Korah. Though apparently defendants 3 and 3 are also made parties, there is no relief prayed for against them. In fact relief is prayed for only against properties. Defendants 1 to 3 took property for their share. The only property scheduled to the plaint is the property taken by the first defendant, the sister of defendants 2 and 6. There is no explanation why the properties taken by others have not been scheduled to the plaint, when, 3 the plaintiffs are entitled to succeed there is no reason to limit the relief to the property obtained by the first defendant alone.
In the circumstances of the case, I dismiss the second appeal with costs. Leave refused.