Judgment :- 1. Though some other questions were also argued before the lower court, the main question urged before us is whether the particular payment of money involved in this case was a loan attracting Art.59 of the Limitation Act of 1908 or a deposit attracting Art.60. The lower court held that the transaction was a loan; and in the appeal before us that finding is challenged by Mr. S. Narayanan Poti, the counsel of the appellant. Before the lower court the contention of the appellant (the plaintiff) was that, when his father advanced the sum (Rs. 16,000/-) to the first respondent (the first defendant) and took a promissory note in the appellant's name a trust was created in his favour and therefore, S.10 of the Limitation Act applied. As an alternative contention, it was also urged that, in case the lower court did not agree with this contention, it might be held that the transaction was a deposit, which attracted Art.60 of the Limitation Act. The first respondent contended, on the other hand, that the transaction was a loan and consequently, Art.59 of the Limitation Act was attracted. Before us the contention that the transaction created a trust is not urged, the counsel of the appellant contenting himself with the argument that the transaction was only a deposit. 2. Now, the appellant and respondents 2 to 5 are the children of a Sankaran Vaidyan (now deceased) and respondents 6 to 9 are his grandchildren by a predeceased daughter. The first respondent is his son-in-law having married the fourth respondent. On 4th May 1955, Sankaran Vaidyan gave Rs. 16,000/- to the first respondent and took a promissory note (Ex. D3) in the name of the appellant, his eldest son. The promissory note was kept by Sankaran Vaidyan and was not handed over to the appellant. On 4th June, Sankaran Vaidyan sent for the first respondent and returned the promissory note to him asking him to credit Sankaran Vaidyan's account with Rs. 16,000/- debiting the account of the appellant and also directed him to pay the interest on the amount every month to Sankaran Vaidyan. The same day Sankaran Vaidyan gave a letter (Ex. D5) to the first respondent containing the aforesaid directions. The first respondent made an endorsement (Ex. D3 (a)) on the promissory note and also wrote to the appellant (Ex. The same day Sankaran Vaidyan gave a letter (Ex. D5) to the first respondent containing the aforesaid directions. The first respondent made an endorsement (Ex. D3 (a)) on the promissory note and also wrote to the appellant (Ex. D1) regarding the directions of Sankaran Vaidyan and the consequent changes in the accounts. Sankaran Vaidyan died in August 1955; and thereafter, nothing happened until 4th July 1961, when the appellant sent a demand notice to the first respondent claiming that he was entitled to the sum, since a trust was created in his favour when his father advanced the money and took Ex. D3. A reply followed resulting in the suit which has given rise to the appeal. 3. In the original plaint filed by the appellant, the averment was that a trust was created in his favour when his father advanced the money to his brother-in-law and therefore, S.10 of the Limitation Act of 1908 applied to the case, so that there was no limitation. And the appellant claimed the entire sum. The first respondent filed a written statement alleging that the promissory note taken in the name of the appellant was only nominal and that the amount was left with him to be dealt with in accordance with the directions given by Sankaran Vaidyan from time to time. It was also averred in the written statement that on 4th June 1955 Sankaran Vaidyan returned the promissory note and asked the first respondent to credit Sankaran Vaidyan's account debiting the account of the appellant. The further averment was that Sankaran Vaidyan directed him to give the balance remaining, if any, after the amounts taken by Sankaran Vaidyan during his life, to the fourth respondent, the youngest daughter of Sankaran Vaidyan, on Sankaran Vaidyan's death. And it was again alleged that, in accordance with the said direction of Sankaran Vaidyan, the amount was credited in the account of the fourth respondent. The written statement also stated that the amount was taken as a loan for the business of the first respondent. 4. After the filing of this written statement, the appellant amended his plaint claiming, in the alternative, that the amount paid by Sankaran Vaidyan was a deposit to be repaid on demand, so that limitation could not start until a demand was made. 4. After the filing of this written statement, the appellant amended his plaint claiming, in the alternative, that the amount paid by Sankaran Vaidyan was a deposit to be repaid on demand, so that limitation could not start until a demand was made. It was further averred in the amended plaint that such a demand for the money was made only on 4th July 1961 and the suit was therefore within time. The prayer in the original plaint was also amended adding an alternative prayer that, in case it was found that the amount was a deposit and no trust was created, a decree might be passed in favour of the appellant and the other heirs of Sankaran Vaidyan giving the appellant the entire costs of the suit since the costs came from his own pocket. And it was at this stage that the other heirs of Sankaran Vaidyan were also impleaded. A further written statement was filed by the first respondent, which was followed by two replications by the appellant. On behalf of the fourth respondent, as her power-of-attorney-holder, the first respondent filed another written statement supporting his contentions. The other respondents do not appear to have filed any written statement; but the eighth respondent appears to have appeared through counsel. 5. There is a memorandum of cross-objections; and we shall dispose of that at the very outset. The Subordinate Judge found that the first respondent did not establish his claim that Sankaran Vaidyan directed him to give the balance remaining on Sankaran Vaidyan's death to the fourth respondent; and in the memorandum of cross-objections this finding is challenged. Firstly, there is nothing in writing to show that Sankaran Vaidyan gave such a direction: the first respondent has just said so in the box. Secondly, though Sankaran Vaidyan died in August 1955, the transfer of the account came only in 1957. 6. If there was a direction that the amount should be paid to the fourth respondent on the death of Sankaran Vaidyan, the fourth respondent's account would have been credited in August 1955 itself. Thus, that case is only an afterthought; and the Subordinate Judge was right in rejecting it. 7. Before us, as already stated, there is no dispute regarding the finding of the lower court that no trust was created when the amount was advanced by Sankaran Vaidyan. The only contention of Mr. Thus, that case is only an afterthought; and the Subordinate Judge was right in rejecting it. 7. Before us, as already stated, there is no dispute regarding the finding of the lower court that no trust was created when the amount was advanced by Sankaran Vaidyan. The only contention of Mr. Poti is that the amount advanced was a deposit and not a loan. 8. The way the lower court has approached the question is that, when Sankaran Vaidyan advanced the money and took the promissory note in favour of the appellant, no trust was created and the passage of the money was only as a loan. For this the lower court has relied solely on the contents of the promissory note the recitals in the promissory note. The Subordinate Judge has said in Para.5 of his judgment. "So, we have to look into the contents of the pro-note itself." And on the strength of the recitals in the promissory note that the money was taken for the temporary requirement of the first respondent, the Subordinate Judge has come to the conclusion that the amount was advanced as a loan. The Subordinate Judge has then proceeded to consider whether on 4th June 1955, when Sankaran Vaidyan wrote Ext. D5 and had the amount credited to his account, there was a change in the nature of the transaction; and on this the Subordinate Judge has held that there was no change, with the result that the loan continued to be a loan until Sankaran Vaidyan died. We are constrained to remark that the above approach of the Subordinate Judge on the question whether there was a deposit is erroneous, because it is directly against an observation of the Supreme Court which we may come to by and by. 9. Mr. Poti has brought to our notice a few decisions: and we think it is necessary to consider particularly three of them, the more important ones, two, of the Privy Council and one, of the Supreme Court. Of course, we shall refer to the other decisions also cited by Mr. Poti just to complete the discussion. The first decision of the Privy Council is Mohammad Akbar Khan v. Attar Singh (AIR. 1936 PC. 171). Lord Atkin spoke for the Judicial Committee; and his Lordship has observed: "It should be remembered that the two terms (loan and deposit) are not mutually exclusive. Poti just to complete the discussion. The first decision of the Privy Council is Mohammad Akbar Khan v. Attar Singh (AIR. 1936 PC. 171). Lord Atkin spoke for the Judicial Committee; and his Lordship has observed: "It should be remembered that the two terms (loan and deposit) are not mutually exclusive. A deposit of money is not confined to a bailment of specific currency to be returned in specie. As in the case of a deposit with a banker, it does not necessarily involve the creation of a trust, but may involve only the creation of the relation of debtor and creditor, a loan under conditions. The distinction which is perhaps the most obvious is that the deposit not for a fixed term does not seem to impose an immediate obligation on the depositee to seek out the depositor and repay him. He is to keep the money till asked for it. A demand by the depositor would therefore seem to be a normal condition of the obligation of the depositee to repay." The next decision of the Privy Council is Suleman Ahmed Ummer v. Haji Abdulla Haji Rahimtulla (AIR. 1940 PC. 132). In this decision the Judicial Committee has just followed its earlier decision quoting with approval the passage we have extracted above. And the third decision cite by Mr. Poti is the decision of the Supreme Court in V.E.A. Annamali Chettiar v. S.V.V S, Veerappa Chettiar (AIR. 1956 SC. 12). The only authority discussed by the Supreme Court in the above decision is the decision of the Madras High Court in Subbiah Chetty v. Visalakshi Achi (AIR. 1932 Mad. 685.) The Madras decision related to a practice prevailing among Nattukottai Chettiars; and the case before the Supreme Court was also such a case. Still, the Supreme Court has laid down the general principle on this question as follows: "Whether a transaction is a transaction of loan or deposit does not depend merely on the terms of the document but has got to be judged from the intention of the parties and all the circumstances of the case". (This is the error we have pointed out in the judgment of the Subordinate Judge, where he attached all importance to the recitals in the promissory note and did not pay any attention to the circumstances with a view to get at the intention of parties.) 10. Mr. (This is the error we have pointed out in the judgment of the Subordinate Judge, where he attached all importance to the recitals in the promissory note and did not pay any attention to the circumstances with a view to get at the intention of parties.) 10. Mr. Poti has cited two or three other decisions as well of some of the High Courts in India. We do not think they are quite essential for the purpose of this case. At any rate, we shall just refer to them as well. One of them is a Division Bench ruling of the Nagpur High Court in Chandiprasad Deokeran v. Judgulkishore Dixit (AIR. 1948 Nag. 377), where the learned judges have considered the two Privy Council decisions and several other decisions and have observed that the result of all those decisions was that where a court found that the plaintiff advanced money to another person and the intention of the parties was that that person should keep the money till asked for by the plaintiff, the transaction was a deposit and not a loan. The next decision is the decision of a Single Judge of the Madras High Court in S. Kr. A. Kr. Adappa Chettiar v. Meenakshi Achi (AIR. 1960 Mad. 146). Subrahmanyam J. has observed in this decision, after considering the two Privy Council decisions mentioned above and a few other decisions, that, while the presence or absence in a document of a promise to repay the money with interest at a specified rate would be material in considering whether the money was received as a deposit or as a loan, that circumstance would not be conclusive on that question. 11. A few decisions have been brought to our notice by Mr. T. N. Subramonia Iyer, the counsel of the first respondent, too. One of them is Gulzari Lal v. Manzoor Ahamad (AIR. 1939 All. 378), a decision of a Single Judge of the Allahabad High Court. 11. A few decisions have been brought to our notice by Mr. T. N. Subramonia Iyer, the counsel of the first respondent, too. One of them is Gulzari Lal v. Manzoor Ahamad (AIR. 1939 All. 378), a decision of a Single Judge of the Allahabad High Court. The learned judge has observed that the burden of proving that a particular transaction was one of deposit was undoubtedly on the person alleging the same, but the answer to the question, whether that burden had or had not been discharged, must depend on the facts and circumstances of each case; and that the true test to determine whether a particular transaction was one of loan or one of deposit was to ascertain whether the money paid or deposited was in the nature of an advance of loan so as to create the relationship of creditor and debtor between the parties or was merely a deposit without bringing into existence such a relationship. By this if the learned judge means that in the case of a deposit there is no liability to repay (we are sure that he does not mean so), we do not agree with the learned Judge. If, on the other hand, the learned judge means that, in the case of a deposit, there is no liability on the depositee to seek out the depositor and repay the amount, we agree with him: and that is nothing new, and that was what the Privy Council held. The next decision is the Division Bench ruling, again of the Allahabad High Court, in Jagannath Prasad v. Mst. Ram Dilarey (AIR. 1956 All. 63). The Division Bench has considered the Privy Council decisions and several other decisions and has observed that, if the intention of the person paying the amount was that the person to whom the amount was paid should keep the amount with him and pay it to the person only when he asked for it and not otherwise, then it was a deposit; and that, if the intention was that the amount was to be paid by the payee without the payer asking for its return, then it was a loan. And the Division Bench has concluded: "The crucial test is whether it was intended that the amount should remain with the payee indefinitely or not; or this may be put in other words, whether it was intended that the payee was to seek the payer for the payment of the amount paid or whether he was not to seek the payer, and the payer was to demand the amount from the payee before the amount became payable." 12. In addition to these two decisions, M. Subramonia Iyer has brought to our notice the decision of the Supreme Court in Kashinath Sankarappa Wani v. New Akot Cotton Ginning & Pressing Co., Ltd. (AIR. 1958 SC. 437). We are not able to appreciate how this decision can advance the contention of the counsel. In that case, a term deposit was made for one year from 1st August 1939 to 31st July 1940; and the question was whether after the end of the terra the amount became payable or it became payable only on a further demand after the term. Bhagwati J., speaking for the Court, has held that, from the dealings between the parties, it could not be gathered that after the expiry of the term the amount became payable only on a further demand. We fail to understand the relevancy of this decision in the present case. 13. Now we shall come to the facts and circumstances of this case. In the promissory note (Ex.D3) it is recited that the amount was taken because of the immediate need or requirement of the first respondent, and there is a provision that the amount would be repaid on demand with 6 per cent interest. The averment of the first respondent in his original written statement was that the promissory note was nominal and that the first respondent had to abide by the directions of Sankaran Vaidyan from time to time. It has come out from the testimony of the first respondent himself that he was a businessman having overdraft facilities for a lakh of rupees with the State Bank of India, where the interest charged was between 7 and 8 per cent. Though he has denied that he had the business of money lending as well, he has admitted that he used to give amounts to some of his relations and from some of them he had taken interest as well. Though he has denied that he had the business of money lending as well, he has admitted that he used to give amounts to some of his relations and from some of them he had taken interest as well. He had admitted that he lent money to a Bhaskaran and received 9 per cent interest from him. He has also admitted that there was an account in the name of his wife. In view of these circumstances and in view of his averment in his first written statement, it is impossible to hold that the money was advanced as a loan. If it were a loan, it must follow that an immediate responsibility was cast on the first respondent to seek out the creditor and repay the money. According to his own averment in the written statement, he had to wait for directions from Sankaran Vaidyan regarding the repayment of the money. This evidently shows that, until such directions emanated from Sankaran Vaidyan, the money was to be kept with him, which means that it was a deposit and not a loan because during the time he had no responsibility to seek out the creditor and repay the money. The crucial test laid down by the Privy Council is that in the case of a loan there is a responsibility cast on the debtor to seek out the creditor and repay the money, whereas in the case of a deposit the person who pays the money has to make a demand for the money when alone the liability of the person who took the money to repay arises. The promise to pay interest is not an indication that the advance was a loan. What emerges from the evidence of the first respondent himself, the facts and the circumstances is that the first respondent was taking moneys of his relations, wife, etc. and using them in his business and repaying the amounts with interest as and when they demanded. To cap, if the money was borrowed to meet a temporary need of the first respondent, some portion of it at least would have been repaid after the need was met. That was not done. For these reasons, we hold that, when the money was taken and the promissory note was given, what was created was not a loan but a deposit. 14. That was not done. For these reasons, we hold that, when the money was taken and the promissory note was given, what was created was not a loan but a deposit. 14. The further question is whether the transaction changed its nature when Ex. D5 was given by Sankaran Vaidyan and the first respondent debited the account of the appellant and credited the account of Sankaran Vaidyan. On this aspect of the same, the Subordinate Judge has held, relying on the language of Ex, D5, that the nature of the transaction could not have changed by reason of Ex. D5. And we are in agreement with this opinion of the Subordinate Judge. Ex. D5 does not indicate any intention on the part of Sankaran Vaidyan to change the nature of the transaction; and if the original transaction was a loan, it continued as a loan even after Ex. D5. In this connection, one document, we think, will throw a flood of light on the intention of the parties. The document is Ex. D1, the letter written by the first respondent to the appellant on 6th June 1955 after getting directions from Sankaran Vaidyan to credit his account and debit the account of the appellant. The body of the letter reads: "You will remember that although the above pro-note was executed in your favour, the actual consideration therefor belongs to your father Sri K. N. Sankaran Vaidyar. Mr. K. N. Sankaran Vaidyar has returned the above pro-note to me on 4-6-1955 invalidating the same and has further asked me to transfer the amount in my books under your credit to his account, debiting the same to yours. This I have done. Please note that I am, therefore, treating this amount as the entire property of Sri K. N. Sankaran Vaidyar." The last sentence of this letter is tell-tale: it says that the money was the property of Sankaran Vaidyan, which could not have been the case if it was already a loan. The amount, in case it was paid as a loan, became the property of the debtor; and it could not have any more remained the property of the creditor. Only, a liability was cast on the debtor to seek out the creditor and repay it. We feel sure that the initial payment was a deposit and it remained a deposit even after Ex. D5. Only, a liability was cast on the debtor to seek out the creditor and repay it. We feel sure that the initial payment was a deposit and it remained a deposit even after Ex. D5. The next contention urged by Mr. T. N. Subramonia Iyer is that the appellant had no authority to file a representative suit and claim the entire money by himself. The counsel also invited our attention to the decision of Horwill J. in Adhilakshmi Ammal v. T. Nallasivan Pillai (AIR. 1944 Mad. 530), which, we may straightaway observe, has no bearing on the question. 15. The appellant is the eldest son of Sankaran Vaidyan; and under S.15 of the Travancore Ezhava Act, which admittedly applies to the case, the children of Sankaran Vaidyan, after his death, were tenants-in¬common regarding this amount. The appellant is the eldest son; and he brought the suit claiming the money on behalf of all the children and the grandchildren by a deceased child impleading all of them. Even now, they are all on the party array. We do not find any ground for dismissing the suit; nor do we find any reason for restricting the decree to the sixth share of the appellant. However, Mr. Narayanan Pott has agreed that the appellant has no objection for this Court passing a decree only for the sixth share of the appellant in his favour with full costs, as the appellant met the entire costs from his pocket. The counsel has also agreed that we pass a decree in favour of the other respondents, the other heirs of Sankaran Vaidyan, for their respective shares. We think that this is a very fair suggestion and quite a reasonable course to be adopted in this case. 16. In the result, we allow the appeal, set aside the decision of the lower court and pass a decree in favour of the appellant for a sixth share in the suit amount with interest at 6 per cent thereon from the date of suit. We also allow him full costs in both the courts, which he spent from his own pocket. We also allow him full costs in both the courts, which he spent from his own pocket. Respondents 2 to 5 will each get a sixth share with interest at 6 per cent from the date of suit; and respondents 6 to 9 together will get the last sixth share, they being the grandchildren by a deceased daughter of Sankaran Vaidyan, again with interest at 6 per cent from the date of suit.