1. Two questions are raised in this second appeal; one is whether the suit is barred by limitation and the other is whether Ex. D-2 was taken benami for the benefit of Nalle Ibrahim, the plaintiff's father. Nalle Ibrahim had three sons, one by the first wife and two by the second wife. Ex. D-2 is a usufructuary mortgage taken in the names of the three sons, Naina Mohamed, the son by the first wife, Kadir Ibrahim the plaintiff, and Mohamed Ibrahim, the sons by the second wife. The sum secured was Rs. 1,825 but it is stated that a sum of Rs. 100 was not paid and the real consideration was Rs. 1,725. The document was executed in the name of the father for and on behalf of his three sons just mentioned. At that time the eldest son was about twelve years of age, the plaintiff was about six years old and his younger brother was about five years of age. The mortgagors who executed Ex. D-2 later on sold the property to a third party and the purchaser had to pay the sum of Rs. 1,725 to the othidars. The sale of the equity of redemption was in 1932. By 1933 the eldest son Naina Mohamed had attained majority and he sent a power of attorney in the name of the defendant authorising the latter to collect his one-third share of the othi amount. That one-third share was collected and we are not concerned with it in this suit. By 1937 both the plaintiff and his younger brother attained majority. The younger brother, Mohamed Ibrahim, was in India, and was in a position to collect his share himself. The plaintiff was, however, in Burma. He therefore executed a power of attorney, Ex. D-5, in the name of the defendant and sent it to the defendant. The defendant and the plaintiff's younger brother Mohamed Ibrahim collected a sum of Rs. 1,150 on the 14th of June, 1937. The plaintiff came to India in 1940 and demanded the amount collected on his behalf. The defendant refused to pay and hence this suit. The main defences, as already stated, are that the consideration for the othi Ex. D-2 came from the father and that the document was taken for the benefit of the father benami in the names of the three sons. The other defence was one of limitation. The trial Court upheld the defences and dismissed the suit. On appeal the learned District Judge of Ramnad reversed the decision of the trial Court on both the points and gave a decree, and hence this second appeal.
2. Mr. V. Ramaswami Iyer, the learned Advocate for the appellant, challenges the finding of the District Judge and urges that the suit was barred by limitation, and relies upon the decision of this Court in Venkatachalam v. Narayanan (1914) 28 M.L.J. 140 : I.L.R. 39 Mad. 376, where it is laid down that where the business of the agency ceases limitation against the agent runs from the cessation of the business and that the fact that the agent did not render account of his agency does not postpone the starting of the limitation. If the agent is to run a business of money-lending in foreign parts under a three years' agency, as is usual among Nattukottai Chettiars, if the agent hands over the account to his succeeding agent and returns to India, limitation for a suit by the principal for an account of the agency starts from the termination of the agency period and this notwithstanding the fact that the agent did not render accounts to the principal. Similarly, where certain goods are entrusted to an agent for sale and all the goods are sold, the agency comes to an end when all the goods are sold and limitation starts then and there, and the fact that the agent did not render an account of his sales to the, principal is not relevant. There is no doubt that those decisions would have been applicable if agency in this case had been only for the collection of the suit amount but Ex. D-5 which is the power of attorney executed by the plaintiff in favour of the defendant is couched in very wide terms and is in fact a general power of attorney to manage all his business, and among other things to represent the plaintiff in suits, to execute documents, to register them and so on. There is no proof that the plaintiff had no other property and that the power of attorney was executed only for the purpose of enabling the defendant to collect the amount due under the suit document and nothing more. There is no such plea in the written statement. All that the written statement says is that the amount having been collected in June, 1937, the suit filed in 1941 is barred by limitation. In paragraph 3, Clause 4 of the plaint there is an allegation that besides the suit mortgage there was another usufructuary mortgage for Rs. 3,000 taken in the names of the plaintiff and his younger brother which also belonged to them. There is a further allegation that the plaintiff's paternal uncle was managing that property and that that property was handed over to the defendant for management. The defendant no doubt denies that the property covered by the other mortgage was handed over to him for management and he also denies the plaintiff's ownership of the other mortgage right. But there is no evidence on the side of the defendant that the plaintiff did not own any other property. Even if the plaintiff did not own any other property at the time of Ex. D-5, it may well be that the parties anticipated that there might be an occasion for the defendant to act for the plaintiff at a future time and therefore executed Ex. D-5, in the terms contained in it. If the power of attorney was intended only to authorise the second defendant to collect this amount and nothing more, there was no need to draft the document as a general power of attorney. All that need be said was that the defendant was authorised to receive the particular amount from the debtor in question. I therefore hold that the agency was not restricted to the collection of the suit amount and that there is no reason for holding that the agency terminated as soon as the collection was made on the 14th June, 1937. If that is so there is no evidence that the agency terminated more than three years before the suit or that there was a demand for account and a refusal more than three years before the suit. The suit must therefore be held to be in time.
3. The next question is whether Ex. D-2 was taken benami for the father and whether the father was the real owner. This is a question of fact and the burden of proving the benami nature is upon the person setting up the benami.
4. [His Lordship after discussing the evidence, held, that there was evidence in support of the conclusion of the lower appellate Court and that the appellant was not entitled to go behind that finding of fact in second appeal.]
5. The result is that the second appeal fails and is dismissed with costs. (No leave).