P. Krishna Kumar, J.

1. O.S. No.167/2010 was instituted by Sri. Hashim Abu Nabeel against Sri. P.A. Hamza and two others, seeking declaration of title over the plaint schedule immovable properties, with an alternative relief for recovery of money. The suit was decreed in part. Aggrieved thereby, Hashim Abu Nabeel and P.A. Hamza filed R.F.A. Nos.32/2019 and 192/2018, respectively, challenging the decree to the extent it is adverse to them. P.A. Hamza also instituted a suit (O.S. No.8/2015) against Hashim Abu Nabeel and one Shabeer Abdul Khader, seeking a declaration that the amount claimed by Hashim Abu Nabeel was, in fact, due to Shabeer Abdul Khader and not to Hashim Abu Nabeel. The said suit was dismissed by the trial court. Aggrieved by the decree, P.A. Hamza has preferred R.F.A. No.348/2018.

2. The parties shall hereinafter be referred to as they were arrayed in O.S. No.167/2010. The plaintiff (Hashim Abu Nabeel) alleged in the suit that, while he was abroad, he had sent a sum of Rs.1.96 crores to P.A. Hamza, the 1st defendant, for the purchase of 2.5 acres of land situated alongside the Kozhikode Mini Bye-pass in Panniyamkara Village in his name. However, P.A. Hamza purchased the properties (comprising 12 items) in the name of the 2nd defendant, a company owned by him, and fraudulently concealed the said fact from the plaintiff until 2010. Ext.A1 series receipts evidence the payment of Rs.1.96 crores by the plaintiff to Hamza through Thomas Cook, an overseas money transfer facility.

3. The 1st defendant, P.A. Hamza has set up an entirely different plea. He had earlier been sued by Shabeer Abdul Khader (Shabeer) for recovery of money as O.S.116/2009. The dispute was settled before the Lok Adalat, wherein Hamza agreed to pay Rs.3,75,00,000/- (Ext.A16) to Shabeer, which amount was subsequently paid in execution of the decree. According to the first defendant, Shabeer had entrusted to him a total sum of Rs.8.32 crores for establishing a Dental College under his chairmanship. The amount remitted by the plaintiff (Rs.1.96 crores) to the 1st defendant allegedly formed part of the sum paid by Shabeer. In other words, the plaintiff merely acted as a remitter of funds belonging to Shabeer through a money transfer agency and, therefore, had no proprietary interest in the amount so remitted. Consequently, according to the 1st defendant, no amount is due to the plaintiff. Subsequently, P.A. Hamza instituted O.S. No.8/2015 against the plaintiff and Shabeer seeking a declaration that the sum of Rs.1,96,00,000/- claimed by the plaintiff forms part of the decree debt in O.S.No.116/2009 filed by Shabeer against him, and also seeking a declaration as to whether the plaintiff or Shabeer is entitled to the said amount. Hashim Abu Nabeel and Shabeer were arrayed as defendants in the said suit. Shabeer remained ex parte.

4. Both suits were jointly tried, taking O.S. No.167/2010 as the leading case. On the side of the plaintiff, PW1 and PW2 were examined and Exts.A1 to A28 were marked in evidence. On the side of the defendants, DW1 to DW4 were examined and Exts.B1 to B64 were marked. Upon an appreciation of the oral and documentary evidence, the trial court partly decreed the suit filed by the plaintiff, permitting him to realise Rs.1,96,00,000/- with interest at the rate of 6% per annum from 06.01.2005 from the 1st defendant, and creating a charge over the plaint schedule properties. The suit instituted by P.A. Hamza was dismissed.

5. We have heard Sri. S.V. Balakrishna Iyer, learned Senior Counsel as instructed by Sri.K.V.Pavithran, learned counsel appearing for the plaintiff; Sri. T. Krishnanunni, learned Senior Counsel appearing for the 1st defendant; Smt. Parvathy Menon, learned counsel appearing for the 2nd defendant; Smt. Zohara, learned counsel appearing for the 3rd defendant; and Sri. B.S. Swathi Kumar, learned counsel appearing for the additional 4th defendant, who purchased the properties in question pendente lite. We also heard Sri.S.Sreekumar, learned Senior Counsel appearing for the first respondent in R.F.A.No.348/2018.

6. In view of the rival contentions, the following points arise for consideration:

                  (i) Whether the amounts remitted by the plaintiff into the account of the 1st defendant formed part of the sum paid by Shabeer to Hamza?

                  (ii) If not, whether the said amounts were paid for the purchase of properties in the name of the plaintiff?

                  (iii) If so, whether the 1st defendant suppressed from the plaintiff the fact that the properties had been purchased in the name of the 2nd defendant?

                  (iv) Whether the suit instituted by the plaintiff is barred by limitation?

                  (v) Whether the decree under challenge warrants interference?

7. There is no dispute that, under Ext.A1 series, a sum of Rs.1.96 crores was remitted into the bank account of the 1st defendant and that the plaintiff was the remitter. Ext.A1 series payment slips disclose the plaintiff as the remitter. Regard being had to the aforesaid circumstances, a prima facie inference arises that the amounts remitted belonged to the plaintiff, unless the contrary is established by the defendants. The following table sets out the details of the amounts received by the 1st defendant through overseas remittance and the claims of the plaintiff in relation to each remittance (According to the defendants, all the amounts were paid by Shabeer, although the remitters may have been different).

                 

                 

8. Sri. S.V. Balakrishna Iyer, learned Senior Counsel appearing for the plaintiff, advanced the following submissions, to support the plaint claim:

                  (i) According to the 1st defendant, Shabeer had paid Rs.4,37,00,000/- on or before 02.12.2004, in four installments. However, the 1st defendant, while being examined as DW1, admitted in cross-examination that Shabeer was inducted as a partner upon contributing Rs.4,00,00,000/- as his share, which amount had been paid prior to the execution of Ext.B1 dated 06.08.2005. Since all the payments made by the plaintiff to the 1st defendant were effected on and after 05.09.2005, those amounts could not have formed part of the sum due from the 1st defendant to Shabeer in connection with the Dental College project. If that be so, the very foundation of the defence that the plaint claim forms part of the amount due from Hamza to Shabeer is untenable.

                  (ii) DW1, in his cross-examination, admitted that the entire amount received from Shabeer had been utilised for the Dental College project. Therefore, it is inconceivable that the properties in question were purchased using monies contributed by Shabeer.

                  (iii) The defence case is that the plaintiff was merely a broker who introduced Shabeer to the 1st defendant when the latter initiated steps for establishing the Dental College. However, Ext.B19 reveals that the Government sanction was obtained only on 15.02.2005, while Ext.B21 shows that the letter of affiliation was issued by Calcutta University only on 27.06.2005. Admittedly, Shabeer had transferred substantial amounts to the 1st defendant even during 2004. Therefore, the said contention is wholly unsustainable.

9. Refuting  the  aforesaid  submissions, Sri. T. Krishnanunni, learned Senior Counsel appearing for the 1st defendant, contended that the amount claimed by the plaintiff forms part of the sums advanced by Shabeer to the 1st defendant as a business loan for the Dental College project, as evidenced by Ext.B5 dated 06.02.2006, and not of the amounts contributed towards the Educational Trust constituted by them. The learned senior counsel further relied upon the following circumstances emerging from the evidence to contend that the plaintiff is not entitled to recover any amount from the defendants:

                  (a) In Ext.B57 statement given by the plaintiff in a criminal case instituted by Shabeer against Hamza, he admitted that the amounts remitted by him in the name of Hamza constituted monies belonging to Shabeer.

                  (b) Exts.B53 to B55 remittance receipts demonstrate that the person who physically delivered the money to the remittance agency did not necessarily have any proprietary right over the funds, and that the payments were, in fact, made on behalf of Shabeer. Exts.B53 to B55 indicate that the remittances were effected by one Cheruvath Azeez, although those amounts admittedly formed part of the larger sums paid by Shabeer.

                  (c) During the first four transactions allegedly made by Shabeer (between 03.09.2004 and 02.12.2004), the plaintiff was residing abroad in a hotel, the expenses of which were evidently borne by the 1st defendant, as reflected by the fact that he was able to produce the original hotel bills before the court (Exts.B49). The contention that the hotel bills were removed by Hamza from the plaintiff's office is wholly unconvincing. The defence case is that the plaintiff, who functioned as a broker arranging funds from financiers, had been sent abroad for canvassing investments from Shabeer for Hamza's proposed venture. This is further corroborated by the circumstance that the plaintiff, who claims to have remitted substantial amounts during 2005, remained passive until 2010 without any plausible explanation.

                  (d) The plaintiff instituted the suit only on 25.02.2010, immediately after the execution of Ext.A16 compromise agreement before the Lok Adalat on 13.02.2010. Shortly before that, he had applied for certified copies of Exts.A3 to A7 sale deeds and obtained the same on 15.02.2010. These circumstances strongly suggest that, while Shabeer made Hamza believe that the disputes had been settled, the plaintiff, acting as the associate of Shabeer, was simultaneously preparing for a fresh round of litigation by taking advantage of the fact that certain remittances had been made in his name.

                  (e) The plaintiff maintained neither a bank account in Kerala nor abroad and had no discernible source of income apart from the alleged illegal business in used engine oil, for which he failed to produce even a single supporting document. Both the suit and the appeal were instituted by the plaintiff as an indigent person. He also failed to produce any evidence showing payment of

income tax. This assumes significance when he claims to have remitted Rs.1.96 crores within a relatively shorter period. Further, although he asserted that he intended to purchase land through Hamza because of his interest in the real estate business, he failed to adduce any evidence whatsoever to establish that he was engaged in such business.

                  (f) The plaintiff feigned ignorance regarding Shabeer, when he testified in cross-examination. However, when confronted with Exts.B1 and B2, in which he appeared as an attesting witness to agreements executed between Shabeer and Hamza concerning the Dental College project, he offered only the implausible explanation that he had signed those documents at a later point of time.

                  (g) Apart from producing the Ext.A1 series remittance slips, the plaintiff failed to adduce any documentary evidence establishing that he and the 1st defendant had entered into an arrangement for the purchase of real estate. The plaintiff admitted that their perfume business was governed by a written agreement. In such circumstances, it is improbable that a transaction involving a substantially larger investment in real estate would have been undertaken without any written documentation.

                  (h) A careful examination of Exts.A3 to A8 sale deeds reveals that the sale consideration was paid through post-dated cheques, suggesting that the payments were not made contemporaneously with the execution of the sale deeds. This circumstance militates against the plaintiff's contention that the monies remitted from abroad had any direct nexus with the acquisition of the properties in question.

10. Let us first consider the circumstances relied upon against the plaintiff and examine whether they reasonably establish that he has no title to the money. Referring to Ext.B57(b), a statement allegedly given by the plaintiff to DW3, a police officer, in connection with the investigation of a crime registered on the basis of Ext.B4 complaint submitted by Shabeer (PW2), it was vehemently contended that the admission emerging from Ext.B57 destroys the very foundation of the plaint claim. According to the said statement, Shabeer had been paying money to Hamza since 2002, and it was the plaintiff who deposited money into Hamza's Federal Bank account on behalf of Shabeer.

11. No doubt, the bar under Section 162 of the Code of Criminal Procedure, 1973, in respect of the use of statements made by a person to a police officer, is not attracted when such a statement is sought to be relied upon in a civil proceeding. This is evident from the very language of Section 162 ("No statement made by any person to a police officer in the course of an investigation …… be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made"). What is interdicted by the provision is only the use of a statement made by a person to a police officer in the course of an investigation at an inquiry or trial concerning the very offence under investigation at the time when such statement was made. The Apex Court in Khatri and Ors. v. State of Bihar and Ors. (AIR 1981 SC 1068) has clarified this position.

12. The statements allegedly given by the plaintiff and Shabeer (PW2) to the police were marked in evidence as Ext.B57 series through the police officers (DW2 and DW3) who claimed to have recorded them, subsequent to the examination of the plaintiff before the court. The relevant statement was not specifically put to the plaintiff when he was examined before the court, nor was his explanation sought in compliance with the procedure prescribed under Section 145 of the Indian Evidence Act, 1872 (corresponding to Section 148 of the Bharatiya Sakshya Adhiniyam, 2023).

13. Referring to the decision in Biswanath Prasad and Ors. v. Dwaraka Prasad and Ors. (AIR 1974 SC 117), Sri. T. Krishnanunni, learned Senior Counsel appearing for the 1st defendant, contended that, unlike in the case of an ordinary witness, it was unnecessary to draw the attention of a party to the proceedings to a previous statement made by him in accordance with the procedure prescribed under Section 145 of the Evidence Act. It was argued that where such a statement amounts to an admission within the meaning of the Evidence Act, and admissions constitute substantive evidence, the requirement contained in Section 145 has no application.

14. In Biswanath Prasad, the Honourable Apex Court followed the law laid down in Bharat Singh v. Mst. Bhagirathi (AIR 1966 SC 405), wherein it was held that a previous statement made by a party to the proceedings amounts to an admission and, therefore, the procedure prescribed under Section 145 of the Evidence Act need not be followed. The observations in Biswanath Prasad are thus a reiteration of the law settled in Bharat Singh. However, a three-Judge Bench of the Honourable Apex Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil (AIR 1977 SC 1712) considered the law on the point in detail after distinguishing the ratio in Bharat Singh. It was held that, unless the procedure contemplated under Section 145 of the Indian Evidence Act is complied with, the relevant portion of a previous statement cannot be treated as proved, even if it amounts to an admission by a party to the proceedings. Following the law laid down in a decision of the Privy Council, it was further held that the procedure prescribed under Section 145 forms part of a fair procedure and that compliance therewith is mandatory, particularly when the document was not brought on record before the examination of the party concerned. Distinguishing the law laid down in Bharat Singh, the larger Bench held that mere proof of an admission after the person concerned has concluded his evidence is of no avail and cannot be utilised against him. Paragraph 16 of the judgment reads thus:

                  “If admission is proved and if it is thereafter to be used against the party who has made it the question comes within the provisions S.145 of the Evidence Act. The provisions in the Indian Evidence Act that 'admission is not conclusive proof' are to be considered in regard to two features of evidence. First, what weight is to be attached to an admission? In order to attach weight it has to be found out whether the admission is clear, unambiguous and is a relevant piece of evidence. Second, even if the admission is proved in accordance with the provisions of the evidence Act and if it is to be used against the party who has made it, "it is sound that if a witness is under cross examination on oath, he should be given an opportunity, if the documents are to be used against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule" (see Bal Gangadhar Tilak v. Shrinivas Pandit, 42 Ind App 135 at p. 147 : AIR 1915 PC 7 at p. 11). The Judicial Committee in that case said, "it has to be observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed". The general principle is that before any person is to be faced with any statement he should be given an opportunity to see that statement and to answer the same. The specific statutory provision is contained in S.145 of the Indian Evidence Act that "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Therefore, a mere proof of admission, after the person whose admission it is alleged to be has concluded his evidence, will be of no avail and cannot be utilised against him."

15. An admission carries probative value only when it is clear and unambiguous. However, in the present case, the very existence of the aforesaid statement is stoutly challenged by the learned Senior Counsel appearing for the plaintiff. According to the plaintiff, the 1st defendant, being the son-in-law of a former Chief Minister and the brother-in-law of the then Minister, wielded considerable influence and manipulated the statement with the assistance of police officials. Be that as it may. However, apart from the issue of non-compliance with Section 145 of the Evidence Act, we notice several other circumstances which dissuade us from placing reliance on the said statement for non-suiting the plaintiff on that basis. DW3, the police officer concerned, has offered no explanation as to the circumstances under which the plaintiff allegedly appeared before the police and made such a statement. It is admitted by him that, no notice, (as contemplated under Section 160 of the Code of Criminal Procedure, 1973), was served upon the plaintiff requiring his appearance before the police or calling upon him to make such a statement. Further, Ext.B57 does not disclose the date on which it was recorded. It is, indeed, an unsigned statement and, therefore, its probative value is inherently diminished. It also does not contain the crime number, the seal of the Station House Officer, or that of the Police Station. The investigation was ultimately closed by the police, evidently taking Ext.B57 statements also into account. Significantly, the aforesaid criminal case was referred/closed by the police only on 05.12.2011, that is, subsequent to the institution of the present suit. For all these reasons, no evidentiary value can be attached to the said statements.

16. Likewise, many of the circumstances relied upon by the learned Senior Counsel for the 1st defendant are too tenuous to displace the presumptive value arising from Ext.A1 series. Although it was shown that the expenses for the plaintiff's hotel accommodation during the period from 03.09.2004 to 02.12.2004 were borne by the 1st defendant, as evidenced by the hotel bills produced before the court, the said period does not substantially overlap with the period during which the plaintiff admittedly remitted the amounts in question. Ext.A1 series remittance slips reveal that, out of the total sum of Rs.1.96 crores remitted by the plaintiff, only Rs.7,00,000/- was remitted during the aforesaid period. All other remittances were effected between 06.09.2005 and 07.10.2005. Similarly, the mere fact that Shabeer had remitted certain amounts through one Cheruvath Azeez, as evidenced by Exts.B53 to B55, does not justify an inference that the remittances covered by Ext.A1 series were also made in the same manner.

17. It was further contended that the plaintiff had failed to produce his bank account statements or other records evidencing income from his business abroad dealing in used engine oil. However, it is not in dispute that the plaintiff had been residing abroad on an employment visa for a considerable period, albeit not as a permanent employee. Such circumstances, by themselves, are insufficient to outweigh the evidentiary effect of his name being shown as the remitter in Ext.A1 series slips.

18. As already observed, the remittance of money in one's own name prima facie indicates title to the money so remitted. Therefore, unless the contrary is reasonably established, no adverse inference is warranted. None of the circumstances enumerated above, whether considered individually or cumulatively, persuades us to hold that the amounts covered by Ext.A1 series belonged to Shabeer and not to the plaintiff.

19. Nevertheless, there is considerable delay in the institution of the suit from the dates on which the payments were allegedly made by the plaintiff. The plaintiff initially professed ignorance regarding Shabeer; however, when confronted with Exts.B1 and B2, he admitted his signatures therein. Further, in Ext.B4 complaint dated 18.03.2009, Shabeer asserted that he had entrusted money to Hamza for the purchase of 2.5 acres of land at Panniyankara, Kozhikode, in his name. These circumstances, taken together with the other aspects discussed above, undoubtedly cast some degree of suspicion on the genuineness of the plaintiff's claim. However, they are insufficient to displace the prima facie evidentiary value of Ext.A1 series documents. We, therefore, conclude that the plaintiff had title to the amounts remitted into the account of the 1st defendant.

20. The next issue that arises for consideration is whether the said payments were made pursuant to the alleged arrangement for the purchase of properties in the name of the plaintiff. To answer this issue, it is necessary to examine the pleadings of the plaintiff in that regard. A summary of the relevant averments in the plaint is as follows:

                  The plaintiff was informed by the 1st defendant that approximately 2.5 acres of valuable land situated along the Mini Bye-pass in Panniyamkara Village, Kozhikode, was available for purchase at a reasonable price. The 1st defendant proposed that the plaintiff contribute two-thirds of the investment while he would contribute the remaining one-third, and that the property would be acquired jointly in the ratio of 2:1. The 1st defendant agreed to act as the plaintiff's agent in the transaction and thereby assumed a fiduciary duty to protect the plaintiff's interests.

                  Initially, the plaintiff was informed that an investment of Rs.10,00,000/- was required, of which his share was Rs.7,00,000/-. Accordingly, the plaintiff remitted Rs.7,00,000/-to the 1st defendant on 02.10.2004. Thereafter, the plaintiff visited Kerala, inspected the property shown by the 1st defendant, and was satisfied about its potential value. The 1st defendant informed him that 2.42 acres were available for purchase at Rs.1,06,000/- per cent and that the acquisition could be completed within two to three months.

                  Relying on these representations, the plaintiff remitted the

following amounts from the UAE:

                  Rs.43,00,000/- on 05.09.2005

                  Rs.50,00,000/- on 08.09.2005

                  Rs.55,00,000/- on 13.09.2005

                  Rs.27,00,000/- on 24.09.2005

                  Rs.14,00,000/- on 06.10.2005

                  Thus, the plaintiff remitted a total sum of Rs.1,96,00,000/-, inclusive of the earlier payment of Rs.7,00,000/-.

                  By the end of October 2005, the 1st defendant informed the plaintiff that slightly more than two acres had been purchased. Since the amount remitted was sufficient to cover the plaintiff's agreed two-thirds share of the entire 2.42 acres, the plaintiff repeatedly enquired about completion of the transaction. A portion of the unutilised funds was subsequently used for constructing a compound wall with the plaintiff's consent.

                  In January 2007 and January 2008, the 1st defendant informed the plaintiff that additional extents aggregating 21.96 cents had been purchased. As the transaction remained incomplete and the 1st defendant failed to provide satisfactory information or accounts despite repeated requests, the plaintiff became suspicious. When the original title deeds were not produced, the plaintiff obtained certified copies of the sale deeds on 05.02.2010.

                  Upon examining the documents, the plaintiff was shocked to discover that the properties had been purchased not in the joint names of the plaintiff and the 1st defendant as agreed, but in the name of the 2nd defendant company, of which defendants 1 and 3 were the sole shareholders/directors. When questioned, the 1st defendant gave evasive replies. Consequently, the plaintiff terminated the agency with effect from 06.02.2010 and instituted the present suit.

21. The submissions advanced at the time of hearing on behalf of the plaintiff in this regard can be summarised as follows:

                  (i) All the properties were purchased by Hamza in the name of the 2nd defendant, a private limited company of which Hamza was the Managing Director and the 3rd defendant, his wife, was a Director. Despite an application having been filed for production of documents disclosing the source of funds utilised by the company for acquiring the properties, the defendants failed to produce any such records.

                  (ii) It is evident from Ext.B3 account statement that Hamza transferred the amounts received from the plaintiff to the account of the 2nd defendant company, and that the properties in question were thereafter purchased. The documents sought to be produced by the defendants at the appellate stage indicate that, at the time of such transfers, the balance available in the account of the 2nd defendant was, on certain occasions, either negative or merely nominal. This circumstance gives rise to a strong inference that the acquisitions were financed substantially, if not entirely, by the amounts remitted by the plaintiff. Consequently, the plaintiff's contention that he was deceived by the 1st defendant, who purchased the properties in the name of the 2nd defendant instead of in the plaintiff's name, appears to be highly probable.

                  (iii) A substantial portion of the sum of Rs.1.96 crores remitted by the plaintiff was transferred by the 1st defendant to the account of the 2nd defendant company immediately upon receipt. Those amounts were ostensibly utilised for the acquisition of the properties covered by Exts.A2 to A13 in the name of the 2nd defendant. Having regard to the proximity between the dates on which the amounts were credited and the dates on which the properties were acquired, a presumption ought to be drawn that the acquisitions were made using the plaintiff's funds. This inference is further strengthened by the defendants' failure to produce the accounts of the 2nd defendant company despite the plaintiff having filed I.A. No.3364/2005 seeking production of those records.

                  Based on the above submissions, learned counsel appearing for the plaintiff contended that, instead of merely permitting the plaintiff to recover Rs.1.96 crores from the 1st defendant or by enforcing a charge against the suit properties, the trial court ought to have decreed the suit by declaring the plaintiff's title over the properties themselves.

22. The essence of the plaintiff's contention lies in the close proximity between the dates on which the plaintiff remitted the amounts to the account of the 1st defendant, the corresponding transfers of those amounts to the account of the 2nd defendant, and the dates on which the respective properties were acquired, on payment of consideration. The facts, set out in the following tabular form, would facilitate a clearer appreciation of the contention.

                

                 

23. Indeed, the above facts indicate that the amounts remitted by the plaintiff were, in all probability, utilised by the 1st defendant for the purchase of the suit properties in the name of the 2nd defendant. Significantly, DW1, the 1st defendant, admitted in cross-examination that none of the amounts received from Shabeer had been utilised for the purchase of the said properties. As rightly noticed by the trial court, the defendants failed to produce the accounts of the 2nd defendant company to establish the source of funds used for the acquisitions, despite the plaintiff having filed an application (I.A. No.3364/2005) seeking production of those records and the Court has passed an order for production. In the above circumstances, it also appears that the 2nd defendant company had no independent source of funds other than the amounts transferred by the 1st defendant upon receipt of the remittances evidenced by Ext.A1 series.

24. Nevertheless, the aforesaid circumstances do not compel us to accept the plaintiff's case that the sum of Rs.1.96 crores was paid to the 1st defendant specifically for the purpose of purchasing properties in the plaintiff's name. The mere fact that the plaintiff's money was utilised for acquiring the properties does not automatically warrant an inference that the remittances were made pursuant to an agreement for purchasing land in the name of the remitter. Money may be advanced for various purposes, including financial assistance or for meeting urgent requirements, one of which may be the acquisition of immovable property. Apart from the ipse dixit of PW1, namely the plaintiff, there is no evidence on record establishing the alleged arrangement between the plaintiff and the 1st defendant for the purchase of properties in the plaintiff's name.

25. It is relevant to note that the payments were not made on a single occasion. The remittances commenced on 02.10.2004 and concluded on 06.10.2005. Ext.A25 passport of the plaintiff reveals that he had visited Kerala on several occasions during the period between 02.10.2004 and 05.02.2010, the date on which he claims to have discovered the alleged fraud perpetrated by the 1st defendant. The plaintiff has no case that he was permanently employed abroad during this six-year period. According to him, he visited the foreign country occasionally and returned to Kerala frequently. He is not a Non-Resident Indian. Had the money been remitted solely for the purpose of acquiring land in the plaintiff's name, it is reasonable to expect that he would have verified the status of the transfer much earlier. It cannot be overlooked that the plaintiff is not an ordinary layman. He claims to have been engaged in the international trade of used engine oil. It appears highly improbable that a person engaged in such business would remain passive for more than five years without verifying the title deeds, tax receipts, or registration records, despite having remitted such a substantial amount for that avowed purpose. Pertinently, it is stated in the plaint itself that, by the end of October 2005, the 1st defendant had informed the plaintiff that, out of the total extent of 2.42 acres, more than two acres had already been purchased. The probabilities, therefore, indicate that the money was not remitted pursuant to the alleged joint venture agreement under which the plaintiff was to hold a two-third share and the 1st defendant a one-third share in the proposed acquisition.

26. Since it has not been proved that the money was paid for the purpose of purchasing the land, the contention that the 1st defendant fraudulently suppressed the fact that the properties had been purchased in his own name instead of in the name of the plaintiff loses its relevance. The evidence adduced by the plaintiff does not also indicate any such possibility. In the said circumstances, the claim for return of money is governed by the ordinary law of limitation. The remittances were made by the plaintiff in between 02.10.2004 and 06.10.2005. Consequently, any claim founded upon those remittances would become barred by limitation upon the expiry of three years from the respective dates of payment. The present suit was instituted only on 25.02.2010, well beyond the prescribed period of limitation under Article 19 of the Limitation Act, 1963. In view of the above conclusion, the trial court was not justified in decreeing the suit by permitting the plaintiff to recover Rs.1.96 crores from the 1st defendant and by creating a charge over the suit properties. The trial court failed to advert to the aforesaid aspects and consequently proceeded to partly decree the suit in favour of the plaintiff. The decree, to that extent, therefore warrants interference. However, no interference is called for with respect to the findings rendered by the trial court in O.S. No.8/2015.

27. In the result, R.F.A.No.192/2018 is allowed and the impugned judgment and decree is set aside. R.F.A.(Indigent) No.32/2019 and R.F.A.No.348/2018 are dismissed.

                  The Division Bench of this Court in Joseph v. Kerala State Electricity Board and Another [2012 (4) KHC 753] held that the court has discretion as to whether an indigent person should be exempted or not, from paying the court fee. It is further held that the discretion extends to, having regard to the totality of the facts and circumstances of each case, direct whether the party has to pay the court-fee; whether court-fee has to be paid at least proportionate to the success; or, even whether any court fee is payable at all. As we are non-suiting the plaintiff only on the ground of limitation, we are of the view that the discretion vested with this court has to be exercised in favour of the plaintiff/appellant. Considering the peculiar nature of this case, we make it clear that the plaintiff/appellant in R.F.A. (Indigent) No.32/2019 is not liable to pay the court fee on the original side as well as on this appeal memorandum.