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Administrator-general of Bengal Vs. Kristo Kamini Dassee - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal519
AppellantAdministrator-general of Bengal
RespondentKristo Kamini Dassee
Cases ReferredWebster v. Webster
Excerpt:
limitation act (xv of 1877) article 145, article 49, article 115 and article 12 - deposit--loan--debtor--executor--assets. - francis w. maclean, c.j.1. the question involved in the present appeal is one of limitation. that practically is the only question which has been argued before us. the learned judge in the court below proceeded upon the footing that there was no real dispute as to the facts; for, he says in the course of his judgment: 'the parties are not at issue either as regards the circumstances under which the government securities of rs. 15,000 came to he deposited by karunaraoyee with indor chunder singh, and it has been taken as admitted in the course of argument that the facts under which the deposit came to be made are correctly stated in the 3rd paragraph of the plaintiff's plaint.'2. some evidence was put in the court below and reference has been made to the judgment of mr. justice jenkins, of.....
Judgment:

Francis W. Maclean, C.J.

1. The question involved in the present appeal is one of limitation. That practically is the only question which has been argued before us. The learned Judge in the Court below proceeded upon the footing that there was no real dispute as to the facts; for, he says in the course of his judgment: 'The parties are not at issue either as regards the circumstances under which the Government securities of Rs. 15,000 came to he deposited by Karunaraoyee with Indor Chunder Singh, and it has been taken as admitted in the course of argument that the facts under which the deposit came to be made are correctly stated in the 3rd paragraph of the plaintiff's plaint.'

2. Some evidence was put in the Court below and reference has been made to the judgment of Mr. Justice Jenkins, of the 5th of July 1897 in a case more or less analogous to the present. But substantially before us, as before the lower Court, the facts, as stated in paragraph 3 of the plaint, were taken as correct and as stating the transaction out of which the dispute arises. I therefore propose to deal with the case upon that footing.

3. I may further add that there has been no dispute as to the 6 history of the case; namely, that the Ranee Karunamoyee, who was the grandmother of Inder Chunder Singh and of the plaintiff, died on the 16th of July 1886, that she made a, will about the same time, appointing her grandson Inder executor, that Inder acted as such executor, that he (Inder) died on the 14th of May 1894 leaving a will, that his will was proved by the Administrator-General as executor on the 30th of Jun$ 1894, and that on the 5th of October 1896 the plaintiff obtained letters of administration to the estate of her grandmother Ranee Karunamoyee.

4. The real question in the suit is whether the transaction, which is stated in paragraph 3 of the plaint, amounted to a deposit by Ranee Karunamoyee of the Government promissory notes of the value of 15,000 Rupees with her grandson Inder or, whether it was a loan to him.

5. The plaintiff's contention is that the transaction amounted to a deposit of the Government notes, and, that, if that is so, Article 145 of the Second Schedule to the Limitation Act applies. The time limited for a suit against a depositary to recover moveabla property deposited is 'thirty years from the date of the deposit.' The present suit is well within that Statutory limit.

6. The defendant, however, as executor of Inder, contends that the case falls within either Article 113 or Article 120. I do not see how Article 113 could apply--the present is not a suit for the specific performance of any contract. The defendant says that, if Article 120 applies, inasmuch as there was a demand by the Ranee for the repayment of the loan (treating it as a loan) during her lifetime, the a Statute runs from the date of such demand. To this the plaintiff replies that, even if the transaction amounted to a loan, as opposed to a deposit, inasmuch as Inder was the executor of his grandmother's estate, and acted as such and took possession of her estate as such, though he never proved the will, the debt was due by him to that estate, and in equity he must be considered to have paid the debt due to himself as executor, and, as executor he would be accountable for the amount of the debt as assets. The Court below has held that the transaction was a deposit, and, that, even if it were a loan, the equitable doctrine, to which I have referred, would apply. The executor of Inder has appealed.

7. It is often not an easy matter to say whether any particular transaction constitutes a deposit or a loan for use. In the present case the subject-matter of the transaction was not cash, but Government notes and obviously moveable property, and Inder was bound to return them on being required by the Ranee to do so. If the matter rested there, there could be little doubt but that there was a deposit of these particular Government notes: and if we are at liberty to look at the receipt of the 18th of April 1885 which was proved in the suit before Mr. Justice Jenkins, but does not appear to have been actually proved in this suit, for the reason probably that the parties agreed to proceed on the footing of the accuracy of the statement in paragraph 3 of the plaint, it is reasonably clear that they were 'deposited for safe custody;' and this view is supported by the entries in Inder's own books, in which he speaks of them as a deposit. It is, however, contended by the appellant that, inasmuch as the object of the transaction was to enable Inder to use the notes for raising or obtaining funds where with to pay the purchase-money of the house referred to, the transaction must he regarded as a loan and not as a deposit. Inder was to draw the interest on the Government note and pay it to the Ranee. But if he did pledge or sell the notes, he was bound, in the case of a pledge, to redeem them, or in the case of a sale to replace them, so that the Ranee was entitled, not to the return of the mere money-value of the notes, but to the return of the notes themselves. If the notes had been sold, the actual notes deposited could not be returned; but Inder was bound to replace the Government notes and not cash, and there is no magic in the particular number of any particular Government note. Under these circumstances Inder may, I think, be fairly regarded as a 'Depositary' of the notes within the meaning of Article 145 of the Second Scheduled the. Limitation Act, and I, therefore, agree with Mr. Justice Sale in holding that that Article applies. This view does not clash with that adopted by Mr. Justice Jenkins, for, it is clear from his judgment, although ho spoke of 'a loan of the notes' that he was not directing Ms attention to the question of the application of Article 145 of the Second Schedule to the Limitation Act.

8. But even if the above view be unsound, and even if the transaction amounted to a loan by the Ranee to her grandson Inder, and she did make a demand for the return of the notes, or of their value, during her lifetime, seeing that Inder was her Executor and acted as her Executor, it seems to me that the equitable doctrine to which I have referred, and which is relied on by the Court below, ought to prevail, and that the present plaintiff, who took out administration to the Ranee's estate on the 5th of October 1896, and instituted, the present suit on the 14th of May 1898, is not barred from demanding from the estate of Inder, the debt (assuming it to be a debt), which he contracted with the Ranee. This point, however, does not arise, if the view I have expressed, as to the nature of the transaction, be the true one. Nor in the above view, is it necessary to consider the application of Section 9 of the Limitation Act in the circumstances of the present case.

9. I, however, do not see how in a suit constituted as is the present, the plaintiff can ask for the administration of the estate of the Ranee, for, at the present moment, the plaintiff herself is her legal representative.

10. It appears further that there is a subsisting decree of the 13th of May 1898 for the administration of Inder's estate. That being so, if, as administratrix of the Ranee, she has any claim against the estate of Inder, she ought to prove for that claim in the existing administration suit. She does not in this suit ask for the administration of Inder's estate. So far, therefore, as the decree of the Court below declares the right of the plaintiff to have the Government notes replaced, or their value paid to the plaintiff with interest, it must stand: but so far as it is a decree for the administration of the Ranee's estate, it must fail. As, however, the appeal was really directed to the question of the liability of Inder's estate for the Government notes the variation ought, not to affect the question of costs, and the respondent will have the costs of this appeal.

Stevens, J.

11. I concur in the judgment of my Lord.

Hill, J.

12. I regret that with reference to the question upon which this appeal mainly turns I am not in agreement with the other members of the Court. By the suit, so far as it is necessary for my present purpose is refer to its object, the plaintiff in the character of administratrix of the estate of a lady known as Ranee Karunamoyee sought the replacement of certain Government of India Promissory notes, which had been made over, to the defendant's testator Kumar Inder Chander Singh, to whom I shall refer as the Kumar, under circumstances with which I shall deal presently in detail. Failing the replacement of the notes, the plaintiff claimed their money equivalent. She also claimed interest due on the notes. The Court below decreed the claim and the defendant has now appealed against its decree.

13. The main question contested before us was--whether the suit was barred by limitation--an issue which was raised also in the Court below and upon which that Court found adversely to the defendant.

14. The contention for the plaintiff upon this question was that the notes had been deposited for safe custody by Ranee Karunamoyee with the Kumar and that the suit was therefore governed by Article 145 of the Limitation Act, which allows a period of 30 years from the date of the deposit for a suit for the recovery of fee moveable property deposited, In support of this position particular reliance was placed upon a receipt given by the cashier of the Kumar to one Kristo Dhone Ghose, the husband of the plaintiff, from whom the notes were received by the cashier, as well as upon the account books of the Kumar, in the latter of which from the date on which the transfer of the notes took place in the year 1885 down to the year 1890, the notes or their value, i.e., Rs. 16,000 are entered in a 'deposit' account.

15. On the other hand, it was contended for the defendant that the suit was in its nature a suit for specific performance of contract, of a contract that is, by which the Kumar, when the notes were made over to him, undertook to restore or replace them when required to do so: that the notes were not 'deposited' with the Kumar in the sense in which the term is used in the Article of the Limitation Act relied upon for the plaintiff, and that, Ranee Karunamoyee having before her death demanded the return of the notes and her demand not having been complied with, a cause of action on the contract then accrued to her. It was further contended that from the time of the demand the Statute began to run and that, having regard to the provisions of Section 9 of the Act, its running was thereafter incapable of being stayed. It was also contended that the application of the equitable doctrine by which, where a debtor is appointed executor of his creditor, the debt is to be treated as assets of the estate of the testator and upon which the judgment of the Court below to a certain extent proceeded, was excluded by the operation of the same section and was incompatible with it.

16. In order to determine the question thus raised it is necessary in the first place to consider somewhat particularly the nature of the transaction, which resulted in the making over of the notes in question to the Kumar.

17. The facts of the case are not in dispute, and it appears from the judgment of the Court below that the parties there admitted that the circumstances under which the Kumar obtained the notes are correctly set forth in the 3rd paragraph of the plaint in the suit. Nor has it been sought to withdraw from that position before us though one or two matters supplementary of the statement contained in the plaint and for which reference was made to the evidence of the plaintiff's witness Kristo Dhone Ghose were brought to our notice.

18. What appears from the plaint is that the Kumar had apparently, in the year, 1885, entered into an agreement for the purchase of a house with a view to making a gift of it to his sister, the plaintiff. In the month of April of that year he was. pressed by his vendors to complete the purchase, but not having at the time sufficient funds of his own to pay the purchase-money he proposed to Ranee Karunamoyee his grandmother and to the plaintiff that they should make over to him whatever Government Promissory notes they conveniently could, to be kept by him in deposit on their behalf and, if necessary, to he used by him for the purpose of raising the purchase-money. He was to draw the interest accruing on the notes from time to time and pay it to Ranee Karunamoyee and the plaintiff respectively and incase he should have occasion to pledge or sell the notes he was to redeem or replace them on being required to do so. To this proposal Ranee Karunamoyee and the plaintiff agreed and the Ranee accordingly endorsed and made over to the Kumar in the month of April 1885 Government Promissory notes of the nominal value of Rs. 15,000: the plaintiff at the same time also endorsing and mating over to him similar securities of the nominal value of Rs. 14,500. such was the transaction as it is described in the plaint; to which the witness Kristo Dhone Ghose, who it appears acted in the matter on the ladies' behalf, adds the further particulars that the Kumar undertook to return the securities to his grandmother and sister respectively on his getting money into his 'till' and also that, in the event of his having to sell the securities, if he did not afterwards replace them, he would pay their value.

19. Before discussing the nature and effect of this transaction it may be as well that I should here complete the statement of the facts of the case generally as they were placed before us at the hearing. For some of these recourse was had to a judgment of Mr. Justice Jenkins in a suit in this Court between the plaintiff who was then suing in her personal capacity and the defendant for the replacement or value of the securities, which she had herself made over to the Kumar, and in particular, for the terms of the receipt to which reference has been made above as one of the documents upon which the plaintiff placed reliance. It can hardly be said that this receipt is properly in evidence, for all that we have is the reproduction of it contained in the judgment of Mr. Justice Jenkins, It was, however, treated by both parties at the hearing as though it were properly in evidence and there appears therefore to be no reason, why I should not refer to it.

20. It appears then that, when the securities had been endorsed over to the Kumar, a receipt was given by his cashier to Kristo Dhone Ghose, from whom they were received, in these terms:

Rs. 29,500

18th April 1885.

Received from Babu K.C. Ghose 30 pieces of Government Promissory notes of different 4 per cent, loans for the aggregate amount of twenty-nine thousand five hundred only for sate-custody.

(Sd.) Sree Jogendra Chandra Singh.

21. When, however, the Kumar desired to obtain money on the security of the notes from the Bank of Bengal a difficulty arose owing apparently to his reluctance to go in person to the Bank and it was accordingly arranged that Kristo Dhone Ghose should be the person to go to the Bank and effect the loan. The securities were accordingly endorsed to him by the Kumar and the receipt was at the same time handed back to the latter; Kristo Dhone Ghose then raised the money required by pledging the notes with the Bank of Bengal, and the purchase of the house was completed on the 14th August 1885. On the 16th July 1886 Ranee Karunamoyee died leaving a will by which she-appointed the Kumar her executor, but probate of this will, I may here say, was never taken out, although, on the death of Ranee Karunamoyee the Kumar took possession of all her effects and may to some very trifling extent have carried out the directions of her will, though I think this is doubtful. Prior to her death the Ranee, it is stated by the plaintiff in her evidence, had on several occasions asked the Kumar to return her the securities, but without result; and it is upon these demands that the defendant places reliance as I have mentioned above, as constituting the starting point for the running of the Statute of Limitations. The Kumar was, however, never, it would seem, in a position to redeem the notes and on the 22nd March 1887 they were sold to the Bank of Bengal under his directions. On the 14th May 1894, the Kumar himself died leaving a will, whereby he appointed the defendant his sole executor, and of which probate was taken out on the 30th June 1894. And then on the 2nd September 1896, Letters of Administration, with the will annexed, of the estate of Ranee Karunamoyee were granted to the plaintiff. The present suit was instituted on the 14th May 1898.

22. Such are the facts of the case, and to revert now to the question, whether the securities were placed in the hands of the Kumar as a deposit in the sense in which the term is used in Article 145 of the Limitation Act, it appears to me that, if the account of the transaction, which both parties have agreed to accept, is to be adopted it would be difficult to sustain that view. An essential characteristic of a deposit properly so called is that the thing deposited should not be used by the depositee, and his liability is to return in specie the very thing deposited, when his right to retain it has determined, the general property in the subject-matter of deposit remaining meanwhile in the depositor. The circumstances that the receipt of the 18th April 1885 was given in the form of a safe custody receipt and that the securities were entered in the Kumar's hooks in a 'deposit account' are not to my thinking sufficient to alter or override the effect of the actual terms upon which, and the purpose for which the securities were made over to the Kumar. It would have been, so far as I can perceive, impracticable to carry out that purpose had he been merely constituted the custodian of the securities in the sense contended for by the plaintiff, and it is to be borne in mind that as soon as the Kumar proceeded to pledge the securities, as by his agreement he was entitled to do, the receipt was returned to him by the person to whom it had been given, and who was acting, as I have already mentioned, on behalf of the ladies. Looked at strictly, moreover, the receipt is not that of the Kumar, but of his cashier and it was given, not to the ladies, but to the person from whom the notes were actually received and with respect to the Kumar's account book the entries appear to me to amount to no more than this, that he admitted that he held himself liable to Ranee Karunamoyee for the notes or their value, that they did not, in other words, belong to him or form a part of his own property and so were kept apart from his own property in his accounts. In point of fact the entries in the books were maintained in the same form down to the year 1890, although in 1885 the notes had passed out of the hands of the Kumar into those of his pledge, and in 1887 were sold and thus passed out of his control irrecoverably. So that for several years after they had ceased to be either deposited with him or under his control they continued nevertheless to find their place in these 'deposit' accounts. However, as I have already indicated, what we have to look at is the description of the nature and purpose of the transaction, which both the parties say is correct and have; agreed to accept, and this seems to me to be inconsistent with the notion of a deposit. If the owner of goods were to endorse over; the bill-of-lading in respect of them to a mercantile friend, who was pressed for money, telling him that he might pledge or transfer it for the purpose of raising the money he required, but must return it on demand or pay its equivalent, the transaction would, I think, be analogous to the present, but it seems to me that it would be difficult to say that the result would be to constitute the endorsee of the bill a depositary in the sense of Article 145 of the Act, so as to impose upon him a liability to restore the bill or its value, that might be enforced 30 years after the transaction. The notes here in question differed, I think, from money or 'currency notes,' and were earmarked just in the same sense that a document such as I have just referred to or one evidencing the ownership of shares in a. Company, for example, is earmarked. They were endorsed over to the Kumar, a fact which can hardly be explained otherwise than on the supposition that it was intended to transfer the property to him so as to place him in a position to transfer it again to some one else should it become necessary and then he was expressly given the power not only to pledge, but also, if necessary, to sell the notes, the undertaking on his part being that, if he pledged them, he would redeem them and, if he sold them, he would replace them, or, as Kristo Dhone Ghose adds, in the latter event pay their value. So that he had the permission of the owner, not only to use them for the purpose of raising the money he required, but also, if necessary, (a question which was apparently left entirely to his own discretion) to sell them. It was, therefore, contemplated, as it appears to me, that he might part with the specific notes altogether and so place them beyond the possibility of restoration without infringing his Contract and that his obligation would have been fulfilled had he given Ranee Karunamoyee other notes similar in kind and of equal value, in place of those she had made over to him.

23. If that be the correct view of the matter, it seems to me that the transaction amounted to what is known in law as a loan for use ; while, that it was gratuitous, follows from the fact that the Kumar gave nothing to Ranee Karunamoyee as an equivalent or consideration for it. He was no doubt to pay her the interest accruing on the notes, but that merely meant that she lent him the notes reserving the interest for herself. It appears to me further that, although the loan was of the kind genetically described as a loan for use, it fell under that particular species of gratuitous bailments, to which the term mutuum has been applied and of which the distinguishing characteristics are that the property in the subject of the bailment passes to the borrower, and that he satisfies the obligation cast upon him by the contract, if he restores, not the actual thing lent, but some other thing of the same kind. In this view I am borne out by the judgment of Mr. Justice Jenkins in the suit to which I have referred above, in which he had to consider the nature of the same transaction in relation to the Government Promissory notes placed in the hands of the kumar by the plaintiff. There he says: 'Practically the only point in the case is on what terms the notes were placed with the Rajah (i.e. the Kumar). The conclusion I draw from the evidence is, that though both parties described the transaction as a deposit, it really was a loan of the notes.'

24. Looking at the suit then as one founded upon a contract of loan for use, Article 145 of the Limitation Act would, I think, be excluded, for that article seems to me to contemplate a suit for the recovery of the specific thing deposited, or a deposit in the legal acceptation of the term, and, I think, that in interpreting an act of the Legislature it ought to be taken, unless there are good reasons to the contrary, that, where a term is employed to which a definite and well recognized meaning is in legal phraseology attached, the intention of the Legislature was to use the term in that sense. Article 133, where the term 'deposited' again occurs, relates to suits against the purchaser from a depository and not the depository himself. It however likewise seems to me to contemplate the recovery of the specific thing deposited. Article 60, which is the only other article to which our attention was called, in which the term 'deposited' occurs, relates to deposits of money payable on demand and could not, I think, for reasons I have indicated above, apply. Article 49 would seem to come nearer the mark, for, although the present suit may not be in strictness for the recovery of specific moveables it might possibly perhaps be regarded as a suit for compensation for the wrongful detention of specific moveables. If the loan had been of such a nature that the borrower was bound to return the thing lent in specie the article would, I think, be applicable. Failing Articled 49 then the case might be brought perhaps within Article 115 or, failing it, within Article 120. But, if Article 145 be inapplicable the important question arises whether the right of suit upon which the action is based accrued during the lifetime of Ranee. Karunamoyee, and, if so, whether the running of the Statute had since been suspended for, if it did accrue, while she was alive and the Statute has since been running continuously, the suit would, I think, be barred at law.

25. Now by Section 159 of the Contract Act it is provided that the lender of a thing for use may at any time and even though he lent it for a specified time or purpose, require its return, if the loan be gratuitous, and, although there may perhaps be difficulties in the application of that rule to a case such as the present, it is nevertheless in terms applicable to all gratuitous loans for use, whether the intention was that the thing lent should be returned in specie or consumed in the using; the underlying principle being that the loan being gratuitous, the lender has the right at any time to reclaim, what he lent, without consideration. On such a requisition being made, the effect must be to determine the bailment and, if so, to give to the lender, if the subject of the loan is not returned, a right of action either for its recovery or for compensation. The duty on the part of the borrower to return the thing lent on being required to do so, must, I think, having regard to Section 159, be read into every contract of bailment, where the loan is gratuitous. In the present case, it appears from the evidence of the plaintiff: herself, that Ranee Karunamoyee on several occasions requested the Kumar to return the securities and, if this be so, it must be taken, I think, that both the intention and effect of her requisitions were to determine the bailment with the consequence that the rights to which I have just adverted must have accrued to her before her death. It is true that the actual sale of the securities did not take place, until after her death, but, if she determined the bailment before her death, she must have determined the contract as a whole and the liabilities of the Kumar thus became fixed and determinate and could not, I think, be extended or altered by anything, which he may afterwards have done in his dealings with the securities, so as to create a new and independent cause of action arising at a subsequent time.

26. Therefore, even if the plaintiff might claim the benefit of Article 120 of the Act, which, of the several articles that I have referred to as possibly applicable to the suit, allows the longest period of limitation namely, six years from the time when the right to sue accrues, the suit would, I think, nevertheless be barred, unless the running of the Statute has been in the meantime suspended. Upon the question of the suspension of the running of the Statute the plaintiff placed reliance upon the equitable doctrine, to which I have already referred, and which is to be found stated at pp. 1178-9 of the 9th Edition of Williams on Executors, and it was argued; that where the hand to pay and the hand to receive are the same, the running of the Statute must of necessity be stayed. But such a consequence does not appear to me to follow from the doctrine in question; the legal result of the principle on which an executor is precluded from recovering for the estate of his testator a debt due from himself is that the debt is extinguished. The result in equity is that the debt is regarded as assets of the estate. But the latter rule has, I think, no bearing upon the running of the Statute. As was said by the Judicial Committee of the Privy Council in the case of Luchmee Buksh Roy v. Runjeet Ram Panday (1873) 13 B.L.R. 177 where a similar contention was put forward, Statutes of Limitation are in their nature strict and inflexible enactments and ought to receive such a construction as the language in its plain meaning imports. Now the Act provides by Section 4 that, subject to the provisions contained in Sections 5 to 25, every suit instituted after the period of limitation prescribed there for by the second schedule shall be dismissed. Unless, therefore, there be something in Sections 5 to 25 which gives to the doctrine in question the effect of suspending the running of the Statute, it cannot control or modify the rule enacted by Section 4. There is nothing of the kind, however, to be found, so far as I am aware, in those sections, and Section 9 appears to me on ordinary principles of construction to exclude the doctrine completely. That section provides that, when once time has begun to run, no subsequent disability or inability to sue stops it--the only exception to the rule being that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt is suspended, when the administration continues. No such exception is made in the case of a debtor-executor--reasons for the distinction being well understood. But the ease of the debtor-executor affords merely an instance analogous to that of the debtor-administrator of an inability sue. He is unable to sue, because he cannot be at the same time plaintiff and defendant. It appears to me, therefore, holding as I do that the contract between Ranee Karunamoyee and the Kumar was one of loan and not of deposit, that the present suit being founded on the cause of action which, as I think, accrued to the former on the failure of the Kumar to restore to her the securities when she demanded them, from which time I think the Statute as against her personally began to run, it must be barred, unless indeed the plaintiff can avail herself in some other way of the equitable doctrine with respect to the position of a debtor-executor.

27. The doctrine in question is thus stated in 'Williams on Executors, page 1178 (I assume that the suit may properly be treated as founded on that doctrine.). 'The effect in equity of the appointment of a debtor to the office of executor is that the debt due from the debtor-executor is considered to have been paid to Mm by himself, and upon this supposition it is an established rule in equity that the executor shall be accountable for the amount of his debt, as assessed.' In the case of Freakley v. Fox (1829) 9 B.C. 130, which is referred to in support of these propositions, Lord Tenterden C.J. puts it that it is upon the supposition that the debt has been discharged by the payment of it to himself that the rule in equity depends, which makes the executor accountable for the amount of his debts as assets, and the logical consequence would seem to be that the original liability of the debtor as such, is extinguished by his appointment and is thereupon converted into a liability as an executor to account for the amount of his debts as for assets, which have been actually paid into his hands. If then this were a case of the more ordinary kind, where it is sought to charge the estate of an executor, who has proved the will it may be that the plaintiff would be entitled to avail herself of the doctrine in question, so as to recover, notwithstanding that her remedy on the original contract may be gone, though it would then be necessary to consider the off cot of Section 10 of the Limitation Act; but the fact that the Kumar died without having taken out probate of the will of Ranee Karunamoyee, I think, creates a serious difficulty. He no doubt took possession of her effects on her death, but he seems to have held them up to the time of his own death adversely to the persons properly entitled to them and to have, almost completely if not altogether, ignored the provisions of the will, although he never actually renounced. Can it be said that his estate is now liable P The question perhaps is not altogether free from difficulty, but the case of Ingle v. Richards (1860) 28 Beav. 366 appears to me to be hard to get over. There one Thomas Richards died in the year 1842 leaving a will, by which he appointed, his wife and his three sons joint executrix and executors of his will. One of the sons, Thomas, owed him at the time of his death on a promissory note a sum of 300. The widow and the two other sons shortly after the testator's death proved the will. In 1854 the widow died, and in 1855 one of the sons, who had proved. On the death of the latter, Thomas came in and proved the will. Afterwards by a certain decree an account was directed of the personal estate of the testator, which had come to the hands of Thomas, and the question was raised, whether the amount of the promissory note constituted part of the assets of the testator. The Master of the Rolls, Sir John Romilly, in his judgment says--'Thomas Richards did not at first prove the will, but he never renounced or disclaimed the trusts under it. At law it never could have been recovered, because he was executor and he could not sue himself. In equity it is clear that the debt could not have been recovered from him by the widow and John Bull Richards after six years had elapsed and it is also clear that, if he had died without having proved the will, the debt could not have been proved against his estate.' Then, after considering the effect of Thomas Richards having taken out probate, he adds 'There is no time at which it can be said that the debt was gone except at his death. If he had died without proving the will I think it could not have been recovered after six years had elapsed.' This case it appears to me shows that time will run in favor of a debtor-executor, who dies without taking out probate, and the Master of the Rolls indeed stated in terms that he treated the case as a reviver of a debt barred by the Statute of Limitations, proof by executor having in his opinion the effect of reviving the debt.

28. Lord Eldon L.C. also, in the ease of Webster v. Webster (1804) 10 Vesey, 93 allowed a plea of the Statute of Limitation, where the testator died in 1786, having by his will appointed the defendant his executor, who however, and although he had taken possession of his testator's effects prior to the death of the plaintiff-testator in 1792 did not prove the will, until the year 1802. It, appears to me, therefore, on the authority of these cases, which, so far as I am aware, has not been questioned, that the present suit, unless it can be regarded as one for the recovery of the moveable property deposited, which in my opinion is not its nature, is barred by limitation, and I would therefore allow the appeal, in so far as it relates to the claim for the replacement of the notes or their value. With respect to the suit in its other aspects I quite agree with the judgment of my Lord.


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