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Achyut Rayapa Shanbhag Vs. Gopal Subbaya Shanbhag - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberAppeal Order No. 59 of 1914
Judge
Reported inAIR1915Bom196; (1915)17BOMLR635; 30Ind.Cas.399
AppellantAchyut Rayapa Shanbhag
RespondentGopal Subbaya Shanbhag
Excerpt:
.....forgery of an instrument attempted to be enforced against the plaintiff-attempt-trying to have a lease recorded under record of rights act (bom. act iv of 1903) is not such an attempt.;the defendant applied, in august 1908, to the mamlatdar to record under the record of rights act, 1903, a lease under which he claimed to be entitled to a rent of 400 cocoanuts from the plaintiff. the plaintiff having complained that the lease was a forgery the mamlatdar declined to record it. on appeal, the collector ordered, on the nth august 1909, that the lease should be recorded. on the strength of that record, the defendant sued in the mamlatdar's court to enforce the terms of the lease and recovered on various occasions the cocoanuts due under it. the plaintiff sued, within three years of the..........a suit to declare the forgery of the instrument runs from the date when the registration, not the attempted registration, becomes known to the plaintiff. we do not think that it can be contended that an attempt to register is an attempt to enforce, otherwise there would be no object in a special article with reference to issue and registration as distinct from the article relating to attempts to enforce, and if registration is not an attempt to enforce, it is clear, we think, that the attempt to record is not an attempt to enforce. in their ordinary and natural meaning the words 'attempt to enforce' would be applicable to an attempt to recover rent under a lease, and the first attempt of that kind took place within three years of the institution of the suit. we are, therefore, of.....
Judgment:

Basil Scott, C.J.

1. The defendant in this case, who is now the appellant, applied to the Mamlatdar of the District in which the land in suit is situate for record under the Record of Rights Act of a lease under which he claimed to be entitled to a rent of 400 cocoanuts. That application was made in or about the beginning of August 1908, and upon notice being given to the respondent-plaintiff, who was the alleged lessee, the plaintiff complained that the document was a forgery. The Mamlatdar, thereupon, declined to record it and returned it to the applicant. The applicant was not satisfied and applied to the Collector to have the document recorded. That application was not disposed of until the following year, and on the 11th of August 1909, the Collector ordered that the lease should be recorded, and from that date it was recorded in the Record of Rights in effect that the defendant was the landlord of the plaintiff. On the strength of that record, the defendant sued in the Mamlatdar's Court for enforcement of the terms of the alleged lease and recovered on various occasions cocoanuts of the value of upwards Rs. 40. Within three years of the recovery of those cocoanuts the plaintiff brought this suit to recover back the value on the footing of the alleged lease being a forgery. It is contended that the suit is barred under Article 93 of the Indian Limitation Act, on the ground that it is filed more than three years after the date of an attempt to enforce it against the plaintiff. Now the attempt to enforce it for the purpose of recovering the rent under it was made well within three years. So the appellant is driven to the contention that an attempt took place at an earlier date.

2. The attempt to have it recorded under the Record of Rights Which is relied upon, was made in August 1908 and failed, and it is contended that although the plaintiff had nothing to fear for upwards of a year owing to the success of his contentions before the Mamlatdar, he nevertheless ought to have sued to have that instrument declared to be a forgery. It appears to us that an attempt, such as that made by the defendant to have the instrument recorded under the Record of Rights Act, cannot be put higher than an attempt to have a document registered in a case in which registration is necessary and the particular attempt relied on in the present case cannot be put higher than an unsuccessful attempt to register. Now cases of registration of forged documents, or documents which, the plaintiff contends, are forged, are dealt with by Article 92, and limitation for the purpose of a suit to declare the forgery of the instrument runs from the date when the registration, not the attempted registration, becomes known to the plaintiff. We do not think that it can be contended that an attempt to register is an attempt to enforce, otherwise there would be no object in a special Article with reference to issue and registration as distinct from the Article relating to attempts to enforce, and if registration is not an attempt to enforce, it is clear, we think, that the attempt to record is not an attempt to enforce. In their ordinary and natural meaning the words 'attempt to enforce' would be applicable to an attempt to recover rent under a lease, and the first attempt of that kind took place within three years of the institution of the suit. We are, therefore, of opinion that the suit is within time. We affirm the order of the lower appellate Court and dismiss the appeal with costs.


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