1. The defendant in this suit is the appellant here. One Venkataramier had two sons Natesa Aiyar, the defendant, and the plaintiffs husband Viswanathier, a younger brother of the defendant. Viswanathier left the family and went away to Ammapet and set up a coffee shop. He disappeared about 1913 or 1917; it is not quite clear which year. He had in 1912 taken a mortgage bond in his favour from one Pachayyappa Chetti. In 1919 his father sued the mortgagor on the ground that the bond was joint family property and that he was the family manager. Neither the mortgagee nor the present plaintiff nor her minor sons were made parties and the mortgagor raised no objection and he got a decree in his favour. Under this decree he was to receive the money after giving proper security. In 1929 certain moneys were realized towards the decree and were brought into Court. Venkataramier by that time was dead. His eldest son as his legal representative applied to draw the money. The widow of the younger son, who is the plaintiff, came forward and said that it was the separate property of her husband and that she was entitled to it. The suit was brought on 31st July 1930 impleading the only surviving son and not the mortgagor. The suit was for a bare declaration that the money belonged to her. Both the Courts found on the facts that the mortgage bond was the self-acquired property of her husband and gave her the declaration required. Against his the defendant has preferred this second appeal.
2. The first objection is that the suit for a mere declaration without consequential relief asking for the payment of the money is not sustainable. This objection I consider to be good. If the plaintiff had asked for the relief as against the mortgagor the suit would be barred and as against the defendant there is no privity of contract of a legally recognizable nature in the case: vide the decision in Ramaswami Naidu v. Muthusami Pillai AIR 1919 Mad 957. Sadasivaier, J. states:
I shall try to illustrate what I mean by a simple example: B owes money to A; A dies; there is a dispute between C and D, each claiming to be the sole heir of A; B pays the money to C. Can D sustain an action for money had and received against C even if he establishes against C that he is the rightful heir and not C? I am clearly of opinion that he cannot do so, his only remedy being against the debtor B.
3. The case is on all fours with Mt. Sewi Bai v. Wasu Ram, AIR 1929 Lah 290. In that case the husband of the plaintiff, who had separated from his father, died in 1918 leaving certain debts due to him. The father thereafter commenced disposing of these debts without the knowledge or consent of the plaintiff who alone was the legal representative of her husband and transferred inter alia a debt to his son-in-law. The plaintiff instituted the suit for the recovery of the amount against the principal debtor as well as defendant 1 who was alleged to have realized it. It was held that as regards the principal debtor the plaintiff's suit was clearly time barred and her claim against defendant 1 could not succeed in the circumstances of the case merely because the debt is alleged to have been paid to him: Ramaswami Naidu v. Muthusami Pillai AIR 1919 Mad 957 is quoted with approval where it was held that
there must be what might be called some privity of a legally recognizable nature such as some knowledge of particular facts in the man who received the money or some mistake or ignorance of facts on the part of the man who paid the money or some relation of trust and confidence between them on which the Court could fasten as creating the relation of principal and agent (though by fiction) between the plaintiff and the defendant.
4. It is unnecessary to discuss whether in the present case the plaintiff could have sued to recover the money from the defendant on the ground that his father occupied a fiduciary position, for she has not chosen to ask for relief on this ground at all nor to recover the money from the defendant. The whole point of the objection is that she was bound to ask for the consequential relief of recovering the money from defendant 1. It seems to me clear that the mere fact that the money was in the custody of the Court cannot give her any better right to it than she possessed otherwise. The executing Court holds the money received for the decree-holder and cannot deal with the money in any other way except as the property of the decree-holder. Three cases have been quoted on behalf of the respondent to show that a suit for a bare declaration is sufficient. The first is Vedanayaga Mudaliar v. Vedammal (1904) 27 Mad 591. In that case the property in question belonged to a minor S deceased. Prior to his death proceedings had been taken for the appointment of a guardian for him under the Guardian and Wards Act. Pending these proceedings the District Court appointed plaintiff receiver and placed him in possession of the property, removing the minor's mother from the charge thereof. The High Court reversed that order and directed that possession of the property should be handed back to the defendant. This order had not been carried out to any extent at the date of the suit and the suit was by the plaintiff for a declaration of his right to property without asking that the property should be delivered to him. It was held that the suit was maintainable. The possession of the property was, at the time, neither with the defendant nor with the plaintiff, it being in custodia legis and in the hands of an officer of the Court and it being a mere accident that officer was the plaintiff. Inasmuch as the defendant was not in possession, plaintiff could not as against her, have consequential relief and nothing more was required to be done to secure to the plaintiff all his rights than to obtain an order of the Court enabling him to retain possession in his own right. That case is entirely distinguishable as the ownership of the property was not in dispute and nothing more was required to be done than to obtain an order. Here what the plaintiff really wants the Court to do is to say that the money which belonged to the defendant belongs to her and to recover it from the defendant, but she avoids asking for the relief which she is really seeking. The next case is Devarajalu Naidu v. Kondammal : AIR1925Mad427 That was a case where in proceedings taken under Section 145, Criminal P.C., the Magistrate, finding himself unable to say which party was in possession, placed the properties in the possession of a receiver pending the decision of the civil Court in favour of one or other of the parties, and one of the parties brought a suit for an adjudication that he was the person entitled to the properties, but did not pray for possession. It was held that no relief by way of recovering possession from the receiver need be asked and the suit as framed was proper and maintainable. In the case of a receiver the Court does not hold the property for any particular person but on behalf of all the parties before it and only ultimately on behalf of the party who is to be found entitled to it.
5. The case of money collected by a Court executing a decree is entirely different and the custody of the Court is entirely on behalf of the decree-holder and there is no other owner. The case in Saburi Pande v. Ram Khelavan Pande : AIR1924Pat385 is like the case in Vedanayaga Mudaliar v. Vedammal (1904) 27 Mad 591, and 'it was a suit by the heir of a lunatic for a declaration that he is entitled to the property of the lunatic which was in the custody of the manager and there was no rival claimant to the property itself from whom he wanted to recover it.' I am therefore of the opinion that the suit is not maintainable without the prayer for consequential relief. The effect of holding the suit to be maintainable would be to raise almost insoluble problems of limitation and in fact it has been quite consistently argued before me for the respondent that since the only relief which could be asked was a declaration the cause of action did not arise until that declaration could be given, i.e., until the money came into Court. Consequently Article 120 applied and six years will run from the date when the money came into Court. This is a very startling proposition. It means that the claim to something or to some sum of money which has become time-barred would revive when it has been brought into Court, There is no decision which holds such a thing. Rajah of Venkatagiri v. Isakapalli Subbia (1903) 25 Mad 410 and Govindanarayan Singh v. Shamlal Singh do not certainly hold this view. The learned District Judge traces the starting point of limitation from the date when the plaintiff came to know of the denial of her right, This also has been argued as a secondary basis for the saving of limitation before me. On this point I would say only that the decree having been passed in 1919 it is for the plaintiff to say clearly in her plaint how her suit is not barred by limitation. The statement in para. 7 of the plaint is:
The plaintiff now understands that the said Venkatarama Iyer filed O.S. No. 245 of 1919 on the file of the District Munsif of Tanjore, obtained a decree thereon on 30th August 1919. On obtaining a copy of the preliminary decree in the month of August 1929, this plaintiff was surprised to learn that Venkataramier has suppressed the right of the plaintiff to the mortgages, but fraudulently claimed the same in his capacity as the managing member of an undivided Hindu joint family.
6. She does not say here that she did not know of the institution of the suit and of the decree at the time. In para. 5 she says that she knew all about the mortgage:
Plaintiff and her husband jointly worked in the said hotel and from out of the earnings of the hotel a sum of Rs. 300 was advanced on 4th August 1912 on a mortgage to one Pachayappa Chetty and a duly registered hypothecation deed was obtained therefor in the name of the said Viswanatha Iyer.
7. The plaintiff went away from the place and she has stated that she did not know of the suit filed on this mortgage and of the result of that suit, and that when she got a copy of the decree she understood that in that suit her father-in-law suppressed her right. Owing to such an extremely vague statement in the plaint it is not surprising that the defendant in his written statement is not able to put the matter of limitation more clearly than to say that
the plaintiff's husband left Ammapet in 1913 and not in 1917 as wrongly stated in the plaint and that the present claim even otherwise is barred in law.
8. However, as I said above, it appears to me to hold that the plaintiff can bring a suit for a bare declaration without the consequential relief which is necessary will lead to innumerable difficulties in the matter of limitation such that she could bring the suit until six years after the money is brought into Court no matter how stale the claim itself to the money might be. In my opinion the suit is not maintainable and should have been dismissed. It was also argued for the appellant that the suit was not maintainable under the provisions of Section 214, Succession Act. It is not necessary to go into this as the original debtor is not being sued and there is no doubt that if the plaintiff had asked for the consequential relief in the first instance against defendant Section 214 would not have stood in her way: vide the decision in Sahib Ram v. Mt. Govindi AIR 1921 All 155. If on the other hand she had sued on the original mortgage Section 214 also would not have stood [vide Nanchand v. Yenava (1904) 28 Bom. 630] for the section only applies to a personal decree, but in point of fact as she has asked for no relief against the judgment-debtor or against the defendant the question of the applicability of the section does not arise. The second appeal is allowed with costs throughout.