1. In this case the plaintiff sued for the payment of the value of certain paddy which, he said, he advanced to the defendants for a consideration which had failed. At the trial he sought to prove what, that consideration was by giving secondary evidence of an unstamped document, which is not allowed by law. The plaintiff was therefore, in this position: he proved that he handed the paddy to the defendants, but he could not prove the terms on which he handed it. Mr. Ananthakrishna Aiyar says, that being so, his position is hopeless; and he cannot give any evidence of the circumstances in which he gave the paddy because the moment he attempts to do it, he would offend against the rule of evidence which prohibits oral evidence of an unstamped document. But it is competent to the plaintiff to go thus far; he can prove the handing over of the paddy and state that he got nothing in return. 1 think that is enough to throw upon the defendants the burden, which they have not discharged, showing that it was either given as a gift or that in fact some consideration passed for it. On this point, therefore, the appeal fails.
2. It also fails on the other point which was taken, namely, that the matter was res judicata by reason of the judgment in a prior suit on a promissory note, because in that suit the same issue was raised. No doubt it was raised; but when the trial came on, the Court so far from deciding it declined to go into the question and held that it was not necessary to go into it. That decision cannot, therefore, operate as res judicata.
3. On both grounds therefore, the appeal fails and is dismissed with costs.
In S.A. No. 1453 of 1914.
4. This appeal raises the question of limitation which is not easy; and it is not easy because the action was, so to speak, a sham fight as none of the parties were really fighting on the true facts. The difficulty arises from the fact that the agreement which was come to by the parties is inadmissible in evidence as we have held in the other second appeal [No. 1607 of 1914), and no evidence can be given aliunde of its contents and, therefore, there is no evidence of the contract at all. Accordingly the plaintiff, who sues for the return of the paddy which he handed over to the defendants really in accordance with the inadmissible contract, could not launch his action in that way. He had to launch his action in some other way. How exactly he has launched it, it is difficult to make out. Bat we think that on the facts proved his action is in detinue or in conversion. The defendants having entered into an agreement unenforceable and void had really no right to take the paddy at all or if they took it, they had no right to detain it. In these circumstances I think that either Article 48 or 49 of the Limitation Act applies and that the Judge rightly decided that the plaintiff's suit was barred by limitation.
5. I do not wish to express any final opinion about it, but as at present advised I am not inclined to hold that the payment in kind can be accurately described as payment of money for the purposes of the Limitation Act.
6. The appeal must be dismissed with costs.
Seshagiri Aiyar, J.
7. I am also of the same opinion. I think Article 62 has no application because the receipt of paddy cannot be said to be receipt of money. The observation of Stuart, C.J., in Reference by the Board of Revenue, North Western Provinces (1881) A.W.N. 74 supports this position and, therefore, the action must be regarded as one for goods or their value, which will come under Article 49; and if it does not come under Article 49, it would come under Article 48. The decision is right and the appeal must be dismissed with costs.