1989 PLP 2525 (MLD)

The suit is for recovery of Rs.3,00,000 payable to the late Yousuf Wali Mohammad by late Din Mohammad Wali Mohammad. The plaintiffs right to their shares is denied by the defendants. The defendants case as set out m the written-statement is that Din Mohammad was the sole owner of the above property and Yousuf Wali Mohammad was not a co-owner of the said property. It is an admitted fact that Din Mohammad sold the above property in the year 1977. He received the entire sale consideration of Rs.6,00,000 in the year 1977. According to the plaintiffs the deceased Din Mohammad Wali Mohammad received Rs.3,00,000 for and on behalf of late Yousuf Wali Mohammad. That accordingly Rs.3,00,000 had been received to Yousufs use to the extent of his share. In A.I.R. 1931 Rangoon 645: 58 I.A.I. the Privy Council held that the benamidar is not an express trustee, but he occupies a fiduciary position. In 46 I.A.I. 46 Cal. 566: AIR 1918 P.C. 140, Guru Naram v. Sechal Singh, the judicial Committee said that the benamidar represents the real owner and that so far as their relative legal position are concerned the benamidar is a trustee for the real owner. A.I.R 1931 P.C. 9 related to a suit for an account of money in the hands of benamidars. The question was whether it had been brought in time. Their Lordships expressly held that Article 62 did not apply to an equitable claim against a trustee liable to account for an account and ascertainment of what amount might be due. In such a case the period of limitation was governed by Article

120. Therefore, it is now settled law that Article 62 cannot be applied where the claim is on equitable basis. The two decisions of the judicial committee just referred to were applied by the Madras High Court in A.I.R. 1941 Madras 767: (1941) 2 M L J

222. There two brothers A and B sold immovable property to K for Rs.3,000 and in past discharge of the purchase consideration K executed a promissory note for Rs.1,560 in favour of C, the wife of A.C quarrelled with her husband and left him. She then fraudulently endorsed the pronote to D without consideration, her object being to defeat her husband and his brother D sued the maker of the note and obtained a decree for 1653-80. The suit which gave rise to the appeal was filed by A and B to recover this amount from D. If Article 62 applied, the suit was out of time but within time if Article 120 applied. It was held that in endorsing the pronote to D, C wrongly converted it and D took it with full knowledge of the facts. In these circumstances he acquired no title to it. A and B had obviously-an equitable claim against D and it was held that by reason of the pronouncements of the Privy Council in A I R 1931 P.C. 9 and A I R 1913 P.C. 140 Article 62 could not be applied and that period of limitation was six years under Article

120. In Karanamurthi Thevar v. Ramanatha Thevar (A I R 1946 Madras 248), the facts of the case are that 'A' conveyed certain property to `B' subsequently sold the property to one `C'. A brought a suit for recovery of the amount of consideration received by 'B'. The Full Bench held that the plaintiff's claim against the defendant is certainly an equitable one, being claim against a benamidar, a person in the position of a trustee, in respect of money received and held by him for the benefit of the real owner. This being the position the Courts below rightly held that the case fell within Article 120, Limitation Act. The rule laid down in the above decision A I R 1946 Madras 248 was followed by a Single Judge of this Court in the case of Muhammad Ali and 7 others v. Sakar Khanoo Bai (P L D 1984 K 97). It is now well-settled that where one receives money to which he is not entitled in law, the person legally entitled to that money may maintain an action for recovery of the same from the former even though there is no contract or quasi-contract for such recovery. It also cannot be disputed that such an action is governed by Article 120 of the Limitation Act, 1908 prescribing 'a period of six years for instituting such actions, the time from which such period of six years began to run being when the money was received. 1n the present case the money was received in the year 1977. It is not in dispute that Din Mohammad Wali Mohammad received Yousuf Wali Mohammad's share amounting to 3,00,000 in the year, 1977. The suit was presented on 24-11-1987; i.e., after period of ten years. The suit is clearly barred by limitation as it was filed beyond six years. The case as set cu: in the plaint is that on 9-8-L9.S4 the said Din Mohammad Wali Mohammad executed `Waseeatnama' prior to his death wherein he admitted the debt. It is advantageous to reproduce the same which reads as under:- "I purchased plot No.l/B Fadia Cooperative .Society jointly with my brother Yousuf in 1952. It was constructed with his investment capital. This house was constructed with joint capital of we two brothers. I had executed an "IQRARNAMA" in Favour of my brother. I again confirm it and reiterate that the said house was constructed and purchased by me and my brother Yousuf jointly on equal investment basis. This house was sold out by me in 1977 against sale consideration of Rs.6,00,000 but I could not give any amount to the legal heirs of my brother. Hence I execute this will that my legal heirs have to give Rs.3,00,000 to the legal heirs of my brother, and this would be a legal obligation/duty on them. Because I have tried in my life time to give this amount to the legal heirs of my brother being their right but my legal heirs created hurdle in the way. This Will Deed is voice of nay conscience, implementation of which shall be a duty on my legal heirs, and would be a lien/debt on my property." The execution of the document is denied by the defendants. For the sake of argument the execution is admitted then what is its effect. The document does not only contain acknowledgement but it also contains a definite promise to pay the debt in the following words:- "Hence I execute this will that my legal heirs have to give Rs.3,00,000 to the legal heirs of my brother, and this would be a legal obligation/duty on them." It is advantageous to reproduce provision of Section 25 (3) of the Contract Act, which are as follows: "It is a promise, made in writing and signed by the person to be charged therewith or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits." The legal heirs on the death of the father would be liable to pay the debt of their father to the extent of the estate of the deceased father in their hands or received by them. I, therefore, hold that on the basis of acknowledgement the suit is barred by time but also barred on the basis of the promise because the promise was made on 9-8-1984 and the suit wits filed on 24-11-1987. On a careful consideration of the matter, therefore, in my judgment, Article 120 of the Limitation Act would apply in this case and the suit of the plaintiffs was riled beyond six years of the date of receiving of the amount by late Din Mohammad. Even the suit was filed beyond three years from the date of promise (9-8-1984). That being so, the application is allowed and the plaint is rejected but in the circumstances both the parties are directed to bear their own costs. H.B.T./F-102/K Plaint rejected.