1. The plaintiff in this case sues as executor of the will of the deceased V. Nagammal to recover with interest the sum of Rs. 10,680-9-9 alleged to have been deposited by her with her brother's son the defendant on 15th August 1900. It is common ground that this sum was due by the defendant to Nagammal on the date mentioned, but the plaintiff's case is that at that time a suit for waste was about to be filed against Nagammal by the reversioner of her minor son's estate, to which she had succeeded more than twenty years previously, and that, to prevent this sum getting into the hands of the Receiver in that suit, it was arranged between Nagammal and the defendant at the defendant's suggestion that Nagammal should give him a receipt for the money which could be used against the Receiver in case of his seeking to recover the above sum from the defendant as part of the estate of Nagammal's son and that the defendant should execute in her favour a document stating that though she had given a receipt for the money it had not really been paid to her, and that it had been arranged between them that the money should remain on deposit with the defendant who should make her advances for costs of litigation and household expenses and should pay her the amount due with interest at 9 per cent. on the disposal of the suit. The counter-receipt embodying these terms (Exhibit B) which bears the defendant's signature though filed with the plaint, was not in terms referred to in the plaint, and the defendant who was apparently unaware that it was forthcoming pleaded in his written statement that he had paid Nagammal the amount due on the date in question and thus discharged her debt in full and had also a receipt from her of the same date. He also denied that he had agreed to make any further payment to Nagammal, as alleged in the plaint, or that he paid her anything after September 1900. This case was persisted in during the examination of the plaintiff's witnesses, but the only result of the cross-examination was to elicit further confirmation of their evidence and the defendant's vakil was well advised in the interests of his client in not putting him into the box or calling evidence and in relying entirely on the defences that the suit is barred and that the plaintiff is not the proper person to sue.
2. As regards limitation the following dates are material; the deposit was on 15th August 1900, Nagammal died on 16th January 1904, and the appeal of the reversioner against the decree of the District Court dismissing this suit was itself dismissed by the High Court on 1st December 1904 owing to her death while the appeal was pending. To save limitation the plaintiff in the first place relies on Article 145 which in a suit against a depositary or pawnee to recover moveable property deposited or pawned allows 30 years from the date of the deposit or pawn. There has been some difference of opinion in the Calcutta High Court as to whether this article applies to deposits of money, and the plaintiff relies on the decision of Maclean, C.J., and Stevens, J., from which Hill, J., dissented in Administrator-General, Bengal v. Kristo Kamini Dassee (1904) 31 Calc.519, and on the more recent decision of Mookerjee and Holmwood, JJ., in Lola Gobind Prasad v. Chairman of Patna Municipality (1907) 6 C.L.J 535 while the defendant relies on certain observations in the judgment of WILSON and O'Kinealy, JJ., in Ishur Chunder Bhaduri v. Jibun Kumari Bibi I.L.R. (1889) Calc. 25, and on the dissenting judgment of Hill, J., already referred to. This article was first enacted in the Limitation Act of 1871 and the proper course in my opinion is in the first place to see what it meant in that Act because at any rate unless there is some strong reason to the contrary it must be read in the same sense, in the subsequent Act in which it is re-enacted. Mayor of Portsmouth v. Smith (1885) 10 A.C. 354. We should perhaps go further back as the language of Article 145 is taken from Section 1(15) of the Act of 1859. The only other article in the Act of 1871 in which deposit is mentioned is Article 133 ' to recover moveable property conveyed in trust, deposited or pawned, and afterwards bought from the trustee, depositary or pawnee in good faith and for value' which again is founded on Section 5 of the Act of 1859. As to these Articles 133 and 145 the learned Judges observe in Ishur Chunder Bhaduri v. Jibun Kumari Bibi I.L.R. (1889) Calc. 25, that 'it is clear from the context that the deposit meant is a deposit of goods to be returned in specie, and that is in accordance with the old use of 'deposition' (obviously a misprint for depositum) with which all lawyers are familiar.' I would venture to go even further and to say that when as in the Acts of 1859 and 1871 there is nothing to suggest the use of the word deposit in any other sense it must be taken to mean the sort of bailment known to lawyers under that name in the Roman Law of Bailments which was accepted by Bracton and afterwards by Lord Holt in Coggs v. Barnard (1703) 1 Sm. L.C. 173, as fit to be enforced in England. This depositum is a bailment of a specific thing to be kept for the bailor and returned when wanted as opposed to commodatum where a specific thing as a horse or a watch is lent to the bailee to be used by him and then returned; and both are contrasted with mutuum where corn, wine or money or other things are given to be used and other things of the same nature and quality are to be returned instead. In my opinion there is no ground for holding that in the Acts of 1859 and 1871 the word deposit in the sections and articles already referred to included so-called deposits of money or other things which were not intended to be kept but to be used, and there is nothing in the Acts of 1877 and 1908 to show that any different construction should now be put on Articles 133 and 145.
3. The framers of these Acts were lawyers and must be taken to have used the term deposit in the ordinary legal sense. This conclusion is not, I think, in any way affected by the fact that in 1877 the legislature introduced a new Article 60 which speaks of 'money deposited under an agreement that it shall be repayable on demand' thus using the word deposit not in its legal but in its popular sense. On the contrary an examination of what happened strongly supports the same view. No express reason was assigned for the amendment, and doubt has been expressed in some cases as to the meaning of the legislature and the reasons for the change, but it seems to me that those reasons are not very far to seek.
4. In English law and under the Act of 1859 time began to run in the case of loans payable on demand from the date of the loan. In the Act of 1871 the legislature altered this and Under Article 58 'for money lent under an agreement that it shall be payable on demand' made time run from the date of demand In 1877 the legislature changed its mind and decided to go back to the old rule, and by Article 59 made time run, not from the date of demand, but from the date of the loan. They however retained the date of demand as the starting point by a new Article 60 with regard to a particular class of loans repayable on demand described in the new article as 'money deposited under an agreement, but it shall bo repayable on demand.' It was then settled law that what are commonly known as deposits with banks and other bodies doing similar business whether carrying interest or not and whether fixed or repayable on demand, are really loans and it would appear that the framers of the Act of 1877 who of course were aware of this considered very reasonably if I may venture to say so, that in the case of such deposits repayable on demand, seeing that repayment is not contemplated until expressly demanded, the date of demand is a more suitable starting point than the date of the loan; and that they accordingly inserted the new article to effect this. This view appears to me to be in accordance with the decision in Ishur Chunder Bhaduri v. Jibun Kumari Bibi (1889) 16 Calc. 25 and Perundevi-tayar Animal v. Nammalwar Chetti (1895) 18 Mad. 390.
5. It seems to me fairly clear that the legislature in 1877 treated deposits of money repayable on demand as a special class of loans which ought to have a special starting point. Accordingly instead of one article dealing with loans payable on demand (Article 58 in the Act of 1871) they provided two Articles 59 and 60 with different starting points. There is nothing to suggest that they thought deposits of money were covered by Article 145. On the contrary if they had done so, they would scarcely have considered it necessary to provide a new article. The necessity was that otherwise Article 59 would have been held applicable to such deposits.
6. For these reasons I have come to the conclusion that Article 145 is not applicable to deposits for money and does not help the plaintiff. It has not been argued before me that the deposit should be regarded as one repayable on demand within the meaning of Article 60 or that the suit may be treated as against an agent for an account or as a suit against a trustee covered by Section 10. There are serious difficulties in the way of all these contentions, but I do not discuss them as the points have not been argued and the suit fails on another ground than limitation. Treating the transaction as a loan repayable at a fixed date it is governed probably by Article 66 and if not by Article 115 and I can see no sufficient reason for having recourse to Article 120. It is however contended that even if the period is three years the suit is not barred by virtue of Aection 16 because the estate of the deceased was unrepresented from her death in January 1904 until probate of her will was taken out by the plaintiff in 1910. The will is not governed by the Hindu Wills Act and Section 187 of the Indian Succession Act is therefore not applicable. Under Section 4 of the Probate and Administration Act the estate of the deceased vested in the plaintiff as her executor on her death in January 1904 and there is nothing in that Act to prevent him suing the defendant at once. No doubt if ho had omitted to take out probate he could not have obtained a decree without producing a succession certificate, but there is nothing in that Act to prevent his instituting the suit and afterwards obtaining the certificate before decree. In my opinion the plaintiff was capable of instituting the suit within the meaning of Section 17 from the death of the testatrix and that section does not help the plaintiff.
7. I have also come to the conclusion on the third issue that the plaintiff is not entitled to maintain the present suit, because the money sued for belonged to her husband and his son after him and, when she succeeded as heir to her son, she only took a woman's estate for life and on her death the property passed to the heirs of her son as last male owner and they were the proper persons to sue for it. The will of the deceased recites that the property was the self-acquisition of her husband and that she had succeeded as her son's heir though she subsequently purports to dispose of this money in the hands of the defendant. The whole object of the transaction evidenced by Exhibit B was to prevent the receiver in the suit against her for waste from receiving the money in the defendant's hands as part of the estate of her deceased son. The reversioner's suit No. 46 of 1901 in the District Court of Chingleput alleged that the property to which she had succeeded on her SON'S death included RS. 40,000 in deposit with the defendant's father of which at the date of suit RS. 15,000 remained in the hands of the defendant. In her written statement the deceased made the averment which has not been proved in this case that her relations had advanced Rs. 2,000 to her husband to enable him to start business and raised the curious contention that as his property had been acquired with the aid of this nucleus she had succeeded to it as her absolute property. She also pleaded, pursuant to the secret arrangement made with the defendant that she had received payment from him and given him a receipt, but she did not deny that the money in question had been deposited by her husband with the defendant's father. Lastly the conduct of the present plaintiff as executor and legatee under the will of the deceased in not proving the will and suing the defendant from the date of the death of the deceased in 1904 until late in 1910, though admittedly he was aware of all the facts can scarcely be explained except upon the supposition that he well knew that the deceased had no powers of bequest over the money in the hands of the defendant, and that the persons who became entitled on her death were her son's reversioners. On this ground the suit fails.
8. There only remains the question of costs. In view of the defence set up and persisted in until the close of the plaintiff's case that the defendant had repaid the money to the deceased, I direct that each party do bear his own costs.