Tottenham and Trevelyan, JJ.
1. In this matter it was first objected that the Judge had no power to make a reference under Section 617 of the Code. This question depends upon whether the suit might have been brought in the Small Cause Court. It is undoubtedly a suit for money; and as the pleader who raised the objection has been unable to suggest under which article of the schedule to the Small Cause Act a suit of this kind is excluded from the jurisdiction of the Small Cause Court, we cannot allow the objection, and must proceed to determine the reference.
2. The plaintiff in this suit seeks to recover from the Secretary of State the surplus sale-proceeds of three taluks which were sold for arrears of Government revenue on the 3rd October 1877.
3. This suit was instituted in November 1889, i.e., more than 12 years after the money came into the Collector's hands. The question which we have to determine is whether the suit is barred by limitation.
4. The residue of the purchase-money of the taluk has remained in the hands of the Collector in accordance with the provisions of Section 31 of Act XI of 1859, which provides how the purchase-money of estates sold for the arrears of Government revenue is to be applied. That section runs as follows: 'The Collector shall apply the purchase-money, first, to the liquidation of all arrears due upon the latest day of payment from the estate or share of an estate sold; and secondly, to the liquidation of all outstanding demands debited to the estate or share of an estate in the public accounts of the district, holding the residue, if any, in deposit on account of the late recorded proprietor or proprietors of the estate or share of an estate sold or their heirs or representatives to be paid to his or their receipt on demand in the manner following; to wit, in shares proportioned to their recorded interest in the estate or share of an estate sold, if such distinction of shares were recorded or, if not, then as an aggregate sum to the whole body of proprietors upon their joint receipt. And if before payment to the late proprietor or proprietors of any surplus that may remain of the purchase-money, the same be claimed by any creditor in satisfaction of a debt, such surplus shall not be payable to such claimant, nor shall it be withheld from the proprietor except under precept of a Civil Court.' The words of this section which are important to the present case are: 'Holding the residue, if any, in deposit on account of the late recorded proprietor or proprietors of the estate or share of an estate sold or their heirs or representatives to be paid to his or their receipt on demand in manner following.' It is upon this provision that the determination of the case mainly depends. The Judge who has referred this case considers that the Collector is a trustee of the money for the parties interested and that under the terms of Section 10 of the Limitation Act the suit is not barred.
5. It has been contended that the monies were deposited with the Collector in the sense intended by Article 145 of the Limitation Act. The Crown contends before us that the right article applicable is Article 62.
6. It has further been suggested that the limitation applicable is to be found in Article 120 which provides for cases to which the other articles do not apply.
7. We think it clear that Section 10 of the Limitation Act has no application to this case. We do not think that the money was in any sense vested in the Collector. He has no control over it personally. He is merely an officer of the Government who is required to deal with or retain the monies in his charge in accordance with the provisions of the law and the lawful directions of his superiors in office. The money is not vested in him in any sense, and unless it be so, we can give no effect to the section in this case. Apart from this objection, we think that for many reasons it would be impossible to hold that Section 10 of the Limitation Act applies to this case. A deposit does not necessarily create a trust.
8. The next question is whether the Collector is a depository of the money within the meaning of Article 145; that article is as follows:
9. 'Against a depository or pawnee to recover moveable property deposited or pawned, 30 years. The date of deposit or pawn.' The Article (147) of Act IX of 1871 which corresponds with this article was held in the case of Radha Nath Bose v. Bama Churn Mookerjee 25 W.R. 415 to apply only to a case of a deposit which is recoverable in specie; and we see no reason to differ from that view. The same view was taken by a Bench of this Court in Issur Chunder Bhaduri v. Jibun Kumari Bibi I.L.R. 16 Cal. 25; and we think that the learned Judge who has referred this case is wrong in considering the case of Upendro Lal Mukhopadhya v. The Collector of Rajshahye I.L.R. 12 Cal. 113 as an authority for the contrary proposition.
10. Article 60 has clearly no application, as there is no agreement in this case.
11. Article 62 does, we think, apply. There is authority Raghumoni Audhicary v. Nilmony Singh Deo I.L.R. 2 Cal. 393 for the proposition that this article was intended to cover the cases to which the English form of Common Law action for money had and received applied; but it is sufficient in this case to accept the more contracted view of the article taken by a Bench of this Court in the case of Nund Lall Bose v. Aboo Mohamed I.L.R. 5 Cal. 597. The surplus proceeds come into the hands of the Collector for the use of the proprietors of the estate sold and are retained by him for such use. This is, we think, within the words of the article.
12. We answer this reference by holding that the plaintiff's claim is barred by limitation. We make no order as to costs.