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Dulabh Vahuji Vs. Bansidhar Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom111
AppellantDulabh Vahuji
RespondentBansidhar Rai and ors.
Excerpt:
limitation - suit to recover arrears--suit for money had and received--deshpande vatan--suit by one sharer against other--act xv of 1877, sched, 11, article 62. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on..........in the vatan it was not necessary for them to establish their title again and awarded them six years' arrears, as prayed for.2. in raiji manor v. desai kallianrai 6 bom. h.c. r 56 the ruling in which was followed in madvala v. bhagvanta 9 bom. h.c. r. 260 it was held that the cause of action to establish title and the cause of action to recover arrears in the case of. a periodical payment, such as a hak or service vatan, were not distinct and independent, and that when the former was barred, the light to arrears was also barred. in the last two cases it is to be remarked that the action was against the person or persons by whom the hak or vatan was payable but in chhaganlal v. bdpubhai i.l.r. 5 bom. 68 the action was, as here, by one sharer in a vatan, against a co-sharer who had.....
Judgment:

Charles Sargent, C.J.

1. The plaintiffs seek by this action to recover arrears of share in a deshpande vatan for the years 1870 to 1875, which, it was alleged, had been received by the defendant himself, a co-sharer in the vatan. It is not in dispute that since 24th August 1863, on which date plaintiffs obtained a decree against the defendant, declaring their light to the share of one Ganga Vahuji in the vatan, the plaintiffs have received no payment on account of their share. The Subordinate Judge held, on the authority of Madvala v. Bhagvdnta 9 Bom. H.C. R 260 that as there had been no payment on account of the plaintiff's share, nor any recognition of their title within twelve years before the institution of this suit, the cause of action to establish title was barred, and, therefore, also the claim to all arrears. The District Judge, however, was of opinion, on the authority of Chhaganlal v. Bapubhai, I.L.R. 5 Bom. 68 that as the plaintiffs had obtained a declaratory decree in 1863 against the defendant establishing their right to share in the vatan it was not necessary for them to establish their title again and awarded them six years' arrears, as prayed for.

2. In Raiji Manor v. Desai Kallianrai 6 Bom. H.C. R 56 the ruling in which was followed in Madvala v. Bhagvanta 9 Bom. H.C. R. 260 it was held that the cause of action to establish title and the cause of action to recover arrears in the case of. a periodical payment, such as a hak or service vatan, were not distinct and independent, and that when the former was barred, the light to arrears was also barred. In the last two cases it is to be remarked that the action was against the person or persons by whom the hak or vatan was payable But in Chhaganlal v. Bdpubhai I.L.R. 5 Bom. 68 the action was, as here, by one sharer in a vatan, against a co-sharer who had received moneys on account of the vatan, and it was held that the ruling in Raiji Manor v. Desdi Kallidnrai 6 Bom. H.C. R 56 was not applicable in that particular case, as the plaintiff had already obtained a declaratory decree establishing his title, and that it was no longer necessary for him to establish his periodically recurring right against any person who was bound by that decree;' and although the plaintiff had not received any payment for thirteen years, the Court awarded him the arrears for the last six years. We agree in this conclusion, except as to the amount of arrears. The Court has given six years' arrears Instead of three, following the decision in Chhaganlal v. Bapubhdi I.L.R. 5 Bom. 68 which, however, was admitted by Melville, J., in Hormukhgauri v. Harisukhprasad I.L.R. 7 Bom. 191 to be wrong in that respect. We must, therefore, vary the decree of the District Judge by awarding the plaintiffs Rs. 347-6-3 instead of Rs. 694-12-6.

3. Parties to pay their own costs of second appeal.


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