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Narendrasingji Ranjitsingji Vs. Udesinghji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 180 of 1941
Judge
Reported inAIR1947Bom451; (1947)49BOMLR318
AppellantNarendrasingji Ranjitsingji
RespondentUdesinghji
Excerpt:
indian limitation act (ix of 1908), articles 131, 120-pensions act (xxiii of 1871), section 6-application under pensions act to file suit for declaration of share in toda giras allowance-filing of suit after obtaining certificate-whether such suit governed by article 131 or 120 of indian limitation act-whether section 6 of pensions act is starting point of limitation-toda giras allowance act (bum. vii of 1887), sections 3, 4-'heir' in section s whether includes adopted son--''alienate' in v. 4 whether excludes devise by will.;the plaintiff applied in 1917 to the collector for a certificate under section 6 of the pensions act, 1871, to file a suit against the defendants for a declaration that he was entitled to a share in the toda giras allowance obtained by the defendants from government.....sen, j.1. this suit was brought by the respondent to obtain a declaration that he had a right to a share in the toda giras allowance obtained by the defendants from the government sub-treasury at olpad, the share being one-third up to the year 1930 and half after the said year, a permanent injunction directing the defendants and their heirs and descendants to pay the plaintiff, his heirs and descendants a half share of whatever amount the defendants might receive in future as the said allowance and the sum of us. 8,396-8-0 as arrears due to him with interest from the date of the suit as well as his costs. the material facts in this ease are as under. pratapsinhji, the common ancestor of the plaintiff and the defendants, was the grantee of a toda giras allowance of rs. 7,197 per year from.....
Judgment:

Sen, J.

1. This suit was brought by the respondent to obtain a declaration that he had a right to a share in the Toda Giras allowance obtained by the defendants from the Government sub-treasury at Olpad, the share being one-third up to the year 1930 and half after the said year, a permanent injunction directing the defendants and their heirs and descendants to pay the plaintiff, his heirs and descendants a half share of whatever amount the defendants might receive in future as the said allowance and the sum of Us. 8,396-8-0 as arrears due to him with interest from the date of the suit as well as his costs. The material facts in this ease are as under. Pratapsinhji, the common ancestor of the plaintiff and the defendants, was the grantee of a Toda Giras allowance of Rs. 7,197 per year from the British Government. After his death his widow adopted one Khushalsinhji as his son. The allowance was continued to Khushalsinhji and a sanad was granted to him in 1866. On Khushalsinhji's death, disputes arose between Government and Khushalsinhji's sons, as Government wanted to deduct a certain amount from the said sum on the ground that Khushalsinhji was not a natural son of Pratapsinhji and to stop the grant on the death of the last surviving son of Khushalsinhji. Khushalsinhji's sons filed a suit against Government in 1871 praying for a declaration that Government were bound to pay Khushalsinhji's descendants the sum of Rs. 7,197 without any deduction. Government accepted the contentions of Khushalsinhji's sons and the suit was withdrawn. Khushalsinhji had three sons, Raisinhji, Takhatsinhji and Gambhirsinhji and the defendants represent the branch of Raisinhji. Takhatsinhji died in 1874, his son Durjansinhji died in 1898 and Durjansinhji's son Dolatsinhji died on September 30, 1906. On July 1, 1910, Dolatsinhji's widow Mankuverba adopted the plaintiff, who was a minor 12 years old, as the son of her husband. Mankuverba died in 1916. After Takhatsinhji's death Durjansinhji had applied to the Collector, Surat District, for a separate payment to him of his one-third share of the allowance, namely, Rs. 2,399, and the said share had accordingly been separated and continued to be paid to him under an order of the Collector dated November 19, 1878, On Dolatsinhji's death, Ramsinhji, son of Gambhirsmhji, and Ranjitsinhji, the grandson of Raisinhji, who represented the two other branches, applied to the Collector for the deletion of Dolatsinhji's name from the Government records on the ground that the latter had died without leaving any male issue. This request was acceded to, and Dolatsinhji's share was amalgamated with the other two shares in 1907. Dolatsinhji's widow thereupon appealed to Government against the said order which had been passed by the Collector and confirmed by the Commissioner, and on October 1, 1908, Government decided that the one-third share of Dolatsinhji should be entered in Mankuverba's name and that Rs. 2,399 should accordingly be paid to her during her life-time or till her re-marriage in case she married again. It seems that in 1909 Ramsinhji and Ranjitsinhji addressed a petition to the Viceroy and Governor General in Council against this order by the Government of Bombay contending that at the most Mankuverba was entitled to have a lien on the share of her deceased husband for her maintenance while the whole allowance vested in themselves. They accordingly prayed that the order of the Government of Bombay should be set aside and the widow's name deleted from the record, or in the alternative that they should be declared as the reversionary heirs after the widow. This petition was apparently not forwarded by the Government of Bombay who, however, granted the applicants' prayer that they should be declared as the reversionary heirs after the widow. Up to the date of Mankuverba's death on July 10, 1916, her name remained on the Government records and she continued to draw one-third of the allowance. On July 23, 1917, the plaintiff applied to the Collector for a certificate under Section 6 of the Pensions Act, XXIII of 1871, authorising the First Class Judge's Court, Surat, to entertain his suit against Ramsinhji and Ranjitsinhji for a declaration that he was entitled to receive the amount of Rs. 2,399 out of the grant. This application was refused on August 4, 1917, and the said order was upheld by the Commissioner of the division and Government. In the same year 19.1.7, the plaintiff filed a suit against the members of the two other branches in the civil Court at Navsari in the Earoda State for a. declaration that he was the legally adopted sen of Dolatsinhji and that he was accordingly entitled to his due share in the properties belonging to the family within the jurisdiction of the said Court. In the same year, again, the plaintiff applied for letters of administration in respect of the property of Dolatsinhji situate within the limits of the Surat and Broach districts on the allegation that he was the adopted son of the said Dolatsinhji. The properties mentioned in the plaint included the Toda Giras allowance enjoyed by his father. The factum and the validity of the adoption were disputed by the defendants, who were Ramsinhji and Ranjitsinhji. The Court held the adoption proved and accordingly granted the letters of administration applied for, with the exception of the claim to a share in the Toda Giras allowance, on the ground that the said allowance was governed by the Pensions Act. The letters of administration were granted on July 14, 1921. In 1926 the plaintiff made a second application to the Collector for a certificate under the Pensions' Act in respect of bis share in the allowance, but the said application was also refused on the ground that the matter had already once been decided by Government. In the year 1926 Kesarisinhji, son of Ramsinhji, made a will in respect of his property in favour of 'all his legal heirs according to Hindu law and shastras' with the exception of the plaintiff, whose claim as the adopted son of Dolatsinhji was denied. The said Kesarisinhji died on March 14, 1932, leaving three widows, his only son having predeceased him in 1918. In 1933 the plaintiff made a third attempt to obtain a certificate under the Pensions Act in respect of the allowance, and this time he was successful in obtaining one on November 17, 1933. On February 15, 1934, he filed the present suit. Thereafter on November 28, 1934, at the direction of Government, the Collector cancelled the certificate granted on November 17, 1933.

2. The parties to the suit are related in the manner shown by the following genealogical tree:-

3. The defendants denied that the plaintiff was the adopted son of Dolatsinhji. They further contended inter alia that even if the plaintiff was adopted as alleged, the right to Dolatsinhji's share having already vested in the other two branches, the plaintiff could have no valid claim thereto, that the Collector's certificate given in 1933 was not only ultra vires but that having been cancelled later it had no effect and that the suit was time-barred. The trial Court framed certain preliminary issues, and taking the view that the certificate given in 1933 had been validly cancelled, held that the suit could not proceed. The plaintiff appealed to this Court, and in the judgment given on September 2, 1938, it held that the certificate given in 1933 was a valid certificate under the Pensions Act and that its subsequent cancellation by the Collector on November 28, 1934, was invalid and ultra vires. The High Court, accordingly, remanded the case for disposal of the remaining issues.

4. The lower Court has held that the plaintiff is the adopted, son of Dolatsinhji and that as such he has the same position as a natural born son and is, therefore, entitled to a one-third share in the allowance. It has arrived at this conclusion not only on the evidence regarding the adoption but also on the principle of res judicata, relying on the decision of the District Court of Surat in 1917 on the plaintiff's application for letters of administration wherein it was held that the plaintiff had been validly adopted by Mankuverba. On the question of limitation it has held that the article applicable to the facts of this case is Article 131 of the first schedule to the Indian Limitation Act and that under the said article the suit is not time-barred.

5. Mr, Thakor on behalf of the appellants has not challenged the finding that the plaintiff is the adopted son of Dolatsinhji. We have also not allowed him to dispute the findings of this Court in its judgment of September 2, 1938. The main part of his arguments relates to the question of limitation. He has relied on the finding of the trial Court that the article in the first schedule to the Indian Limitation Act which is applicable is Article 131 and he has sought to show that the plaintiff was first refused the enjoyment of the right which he claims more than 12 years prior to the suit. Article 131 reads thus:-

Description of suit. Period of limitation. Time from which period begins to run.

To establish a periodically 12 years .. When the plaintiff is first refused

recurring right. the enjoyment of the right.

Mr. Daphtary on behalf of the plaintiff-respondent has contended that the article applicable is Article 120 which is as follows:-

Description of suit. Period of limitation. Time from which period begins to run.

Suit for which no period of Six years.. .. When the right to sue accrues.

limitation is provided else-

where in this schedule.

He has further contended that even if Article 131 applies, the word 'refused' in the third column means refusal on demand, and that in this case there has been no refusal on demand or even mere refusal of the plaintiff's enjoyment of the right claimed more than 12 years prior to the suit. The trial Court has relied on the following authorities in support of its view that Article 131 applies to the facts of this case: Sahib-un-Nissa Bibi v. Hafiza Bibi I.L.R.(1887) All. 213 Keskav Jagannath v. Narayan Sakharam I.L.R.(1889) Bom. 236 Sirdar Gurdayal Singh v. Rajah of Faridkote Bhimahai v. Swamiraa 23 Bom. L.R. 100 and Devendra v. Jhumur A.I.R.[1926] Cal. 883. Mr. Thakor has also relied on Raoji v. Bala (1890) I.L.R. 15 Bom. 135, Sakharam Hari v. Laxmipriya Tirtha Swami 12 Bom. L.R. 157, Shri Bala Maharaj v. Sakharam (1926) 28 Bom. L.R. 683 and Jagannath Kishore v. Bipan Mahato : AIR1941Pat116 . There can be no doubt that the present suit is 'to establish a periodically recurring right' within the meaning of Article 131 and prima facie that article would be applicable, and if so there can be no question of the applicability of the residual Article 120. Raoji v. Bala, which was a suit by a co-sharer to establish his title to a share in an annual allowance, namely, a deshmukhi allowance, received by the defendant from Government, appears to be the most closely analogous to the present case, and there it was held that the plaintiffs' claim for a declaration of their title to the allowance was governed by Article 131, though the claim for arrears of the allowance fell under Article 62. This case was one of the authorities followed in Sakharam Hari v. Laxmipriya Tirtha Swami, which was a suit for the recovery by the manager of a temple of the arrears of a cash allowance which the plaintiff was entitled to receive from the property of the defendants. It was held (p. 353) : 'If what is sued for is the establishment of a title to the right itself, then Article 131 applies, whether the defendant is the person originally liable to pay or is a co-sharer who has received payment from that person'. Bhimabai v. Swamirao was a case in which Article 131 was not held applicable, the plaintiff being an inamdar whose right, title and interest had been purchased in execution of a money decree against him by the defendant many years prior to the suit, no attempt having been made by the inamdar to levy assessment or to recover possession for over thirty years. This ease will be relevant in the discussion of the question whether 'refusal' in Article 131 means refusal on demand or mere refusal. In Shri Rala Maharaj v. Sakharam, the plaintiff, an inamdar, sued the tenant for the difference between the survey assessment revised several years before the suit and the assessment actually paid by the latter and it was held that Article 131 applied. In Jagannath Kishore v. Bipan Mahato the defendants who were the plaintiff's tenants had asserted their right to hold the land in suit rent-free and continued to hold it for more than 12 years prior to suit without paying any rent, and it was held that the suit was barred under Article 131.

6. Mr. Daphtary's main argument against the argument based on the language of Article 131 and the authorities relied on by Mr. Thakor was that in this case the cause of action cannot be said to have arisen prior to the date of the certificate granted by the Collector in 1933, and that that being so, limitation could not possibly have begun to run at an earlier date. Under Section 4 of the Pensions Act, XXIII of 1871, except as therein provided, no civil Court can entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the British or any former Government. Section 5 provides that any person having a claim relating to any such pension or grant may prefer such a claim to the Collector of the District or Deputy Commissioner or other officer authorised in that behalf and that such Collector, or Deputy Commissioner or other officer shall dispose of such claim in accordance with rules made by the Chief Revenue-authority. Then Section 6 provides:-

A civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.

It is clear, therefore, that the present suit could not have been instituted unless the plaintiff had obtained a certificate under Section 6 of the Pensions Act from the Collector. Mr. Daphtary has relied in support of his argument on the principle enunciated by Sir Richard Couch in Hurrinath Chatterji v. Mohunt Mothoor Mohun Goswami 'the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right', and on the following dictum of Beaumont C.J. in Ganpat Bhujanga v. Hanamgouda Shidagauda 35 Bom. L.R. 956 :

In construing Acts of limitation the Courts must always remember that the object of the legislature is to induce people to be active in the assertion of their rights, and to penalise those who sleep upon their rights; and if it is possible to avoid giving a statute of limitation a meaning which has the effect of destroying a right to sue before that right has effectively arisen, I think the Court should do so.

Mr. Daphtary has argued that to apply Article 131 in the present case, even if there was evidence that the plaintiff was first refused the enjoyment of the right claimed more than 12 years prior to the suit, would have the effect of destroying the plaintiff's right to sue 'before that right had arisen' and that, therefore, Article 131 cannot be given a meaning which has such a result. He has further relied on the Privy Council decision in Jaggo Bai v. Utsava Lal : (1929)31BOMLR891 in which the material facts were as follows. A Hindu died in 1875 possessed of several villages and a house, and leaving him surviving a daughter, a wife, and a brother's widow. In 1880, the wife and the brother's widow released a portion of one of the villages to Government in return for a perpetual malikana which they divided half and half between them. In 1886, the wife sued the brother's widow and established her claim to her husband's properties, but her claim to the malikana was not dealt with in absence of a certificate under the Pensions Act, 1871. The daughter sued in 1890 to establish her title as reversionary heir to her father subject to the interest of her mother and obtained a decree. The wife died in 1914; and the brother's widow died in 1920 after bequeathing her share in the malikana. On December 15, 1920, the daughter, having first obtained the necessary certificate under the Pensions Act, 1871, lodged against the defendant, in whose favour the aunt had disposed of her share of the malikana by a will, a suit for recovery inter alia of the said share in the malikana. Malikana has been held to be a periodically recurring right within the meaning of Article 131 in Gopi Nath Chobey v. Bhugwat Pershad (1884) I.L.R.Cal. 697 .

In Jaggo Bai's case their Lordships held that Article 120 was the relevant article so far as the malikana was concerned and then proceeded to observe as follows (p. 903):

Under the Pensions Act, 1871, however, there is in their Lordships' opinion, no right of action at all in respect of such a subject matter as the malikana unless and until a certificate under the Act has been obtained. Their Lordships therefore hold that as less than six years had run between the grant of the certificate and the institution of the present suit the plaintiff's claim in respect of the malikana is not statute barred under Article 120.

According to Mr. Daphtary's contention, as this was a case in which there was no right of action unless and until a certificate under the Pensions Act had been obtained, Article 131 could not possibly have applied and that, therefore, their Lordships held that Article 120 was the relevant article so far as the malikana was concerned. He has attempted to show from the facts of this case that the daughter's right to the malikana was in question in the earlier suit filed by her in 1890 and that presumably such a right had been denied by the defendants in that suit. The question of the applicability of Article 131 appears not to have been argued in that case at all, and the only contest appears to have been between Article 141 and Article 120. Having applied Article 120 their Lordships were bound to say, in accordance with the third column of that article,- 'when the right to sue accrued',-that such a right could only have accrued when the certificate under the Pensions Act had been obtained and not earlier.

7. As against this line of argument Mr. Thakor has contended that the obtaining of a certificate under the Pensions Act cannot be regarded as a part of the cause of action in the present case. According to his contention the certificate merely gives the jurisdiction to a civil Court where there was none and it cannot be regarded as the starting point of limitation. In Coburn v. Colledge [1897] 1 Q.B. 702 the plaintiff, a solicitor, having done certain work for the defendant as such which was completed in 1889, had sent him his signed bill of costs in respect of the work done, shortly thereafter, at the address given by the defendant who had gone beyond the seas. The defendant returned to England in 1896 and in the same year the plaintiff commenced an action against him for the amount of his bill of costs. Section 37 of the Solicitors Act, 1843, provided that a solicitor shall not commence or maintain any action for the recovery of fees until the expiration of a month from his delivering a signed bill of costs, and the effect of the statute of limitation (Limitation Act 1623, Section 3) was that an action must be brought within a period of six years from the time when the cause of action arose unless the defendant was beyond the seas when the cause of action arose, in which case it had to be brought within six years of his return. It was held that the cause of action arose immediately on the completion of the work by the plaintiff and that, therefore, the statute of limitation began to run from that time and not from the expiration of a month from the delivery of the bill of costs. Lord Esher M.R. observed (p. 706) :

I think Section 37 of the Solicitors Act, 1848, deals, not with the right of the solicitor but. with the procedure to enforce it in the event of dispute or refusal to pay. It does not provide that no solicitor shall have any cause of action in respect of his costs or any right to be paid till the expiration of a month from his delivering a signed bill of costs, but merely that he shall not commence or maintain any action for the recovery of fees, charges, or disbursements until then. It assumes that he has a right to be paid the fees, charges, and disbursements, but provides that he shall not bring an action to enforce that right until certain preliminary require ments have been satisfied. If the solicitor has any other mode of enforcing his right than by action the section does not seem to interfere with it....Therefore, as soon as the solicitor had done the work, he could have maintained his cause of action for work and labour. The defendant might plead that no bill of costs had been delivered, but that would only be by way of answer to a case which constituted a good cause of action.

Lopes L.J. remarked in the same case (p. 709) :-

Section 37 of the Solicitors Act, 1843, appears to me to assume that there is a cause of action,, and merely to postpone the bringing of an action upon it until the period of one month from the delivery of the bill. There is nothing in the section, so far as I can see, inconsistent with the view that the cause of action arises when the work is completed.

Chitty L.J. observed as follows (p. 710) :-

As has been pointed out, the result of our decision is that a solicitor has only five years and eleven months within which to sue for the amount of his bill of costs. I do not shrink from that result, It is no doubt a restriction imposed upon him. But it is so imposed for the protection of his clients; and on the other hand, if the contention for the plaintiff were successful, it would follow that a solicitor might postpone for any time the delivery of his bill of costs, and so prevent the statute from beginning to run.

It seems to us that these observations have considerable force and application to the facts of the present case. If the starting point of limitation was provided by the Collector's certificate the plaintiff had it in his power, by postponing his application for such certificate, to prevent limitation running against him for any length of time, thus rendering the defendant's refusal of his enjoyment of the right devoid of any meaning and significance for the purposes of limitation. In Sm. Sarat Kamini Dasi v. Nagendra Nath Pal (1925) 29 C.W.N. 973 Mukerji J. pointed out at p. 980 that a careful study of the third column of the schedule

reveals an outstanding fact which cannot be ignored, namely, that the starting point of limitation does not always synchronise with the cause of action; in many cases it does, but in others it dates from some specified events which again are either anterior or posterior to the accrual of the cause of action.

This view received confirmation in the judgment of the Privy Council in Lasa Dm v. Gulab Kunwar I.L.R.(1932) 7 Luck. 442 where their Lordships held in effect that the expression 'When the money sued for became due' in the third column of Article 132 was not synonymous with the accrual of the cause of action. That was a suit brought in 1928 by a mortgagee to recover money due under a mortgage executed by one Bikram Singh in 1912. The mortgage was for a period of six years but contained a clause by which, in case of default, the mortgagee was to have power before the expiration of the stipulated period to realise the principal and. interest by sale of the mortgaged property. The mortgagor defaulted in the payment of interest for the first year, and the question arose whether immediately upon this default the principal moneys 'became due' within the meaning of Article 132 before the expiration of the stipulated period. The full bench of the Allahabad High Court in Gaya Din v. Jhumman Lal I.L.R.(1915) All. 400 F.B. had held that in such cases time ran against the mortgagee from the date of the first default. Their Lordships negatived this view holding that the mortgagor could not, by making default, take advantage of his own default, so that the mortgage money did not become due within the meaning of Article 132 until both the mortgagor's right to redemption and the mortgagee's right to enforce security had accrued; and their Lordships remarked (p. 453) :-

If in the Indian cases the question were 'When did the mortgagee's cause of action arise ?' .e., when did he first become entitled to sue for the relief claimed by his suit-their Lordships think that there might be much to be said in support of the Allahabad decisions.

Thus in this case the starting point of limitation was not held to coincide with the date when it might be said that the mortgagee's cause of action had arisen.

8. Mr. Thakor has further referred to the provisions of Section 86 of the Civil Procedure Code under which a sovereign Prince or Chief may, with the consent of the Crown Representative, certified by the signature of the Political Secretary, but not without such consent, be sued in any competent Court. In Shrimant Sayaji Maharaj Gaikwar of Baroda v. Madhavrao 30 Bom. L.R. 1463 where a suit was filed against the ruling Chief of the Baroda State after the plaintiffs had obtained a certificate under Section 86 of the Civil Procedure Code, it was contended that the plaintiffs were entitled to deduct a period of four years, three months and twenty-one days as time required to obtain the said certificate from the period between the date given as the date of the cause of action, when the plaintiffs had been dispossessed, and the date of the suit. This contention was disallowed on the ground that the argument that the plaintiffs were obliged to obtain the certificate before filing the suit cannot prevail against the express provisions of Section 3 of the Indian Limitation Act, any more than principles of equity can prevail against the provisions of statutory law such as Section 49 of the Indian Registration Act and Sections 91 and 92 of the Indian Evidence Act. It seems to us difficult to say that this case was wrongly decided. A provision regarding the filing of a certificate before legal action can be instituted or continued, similar to the provision under the Pensions Act under consideration, is to be found in Section 17 of the Court of Wards Act, Bombay I of 1905, which says that on the publication of a notice under Section 14, Sub-section (1), no proceeding in execution of any decree against the Government ward or his property shall be instituted or continued until the decree-holder files a certificate from the Court of Wards that the decree-claim has been duly submitted, or until the expiration of one month from the date of receipt by the Court of Wards of a written application for such certificate, accompanied by a certified copy of the decree; and it seems to us that the argument of Mr. Thakor that such a provision should be regarded as one affecting the jurisdiction of the Court rather than as one affecting limitation should be upheld. It has been pointed out again and again by the Privy Council, and recently in Genera (1940) 43 Bom. L.R. 346 Accident Fire and Life-Assurance Corporation, Ltd. v. Janmahomed 1 that in the application of a rule of limitation considerations of equity and hardship have no place. There have been cases in which even the appellate Court has allowed the plaintiff to procure and file a certificate under the Pensions Act in the appellate proceedings. In Sardar Ganpat Rao Moharkar v. Sardar Anand Rao, Baji Sahib : (1910)12BOMLR267 a Subordinate Judge decreed partition of certain villages holding that an order of the Collector, referring the parties to the civil Court to determine whether the said villages were partible, was equivalent to a certificate under Section 6 of the Pensions Act. This view was negatived by the High Court on appeal and the plaintiff was allowed to file such a certificate and, on the said certificate being filed, the decree of the lower Court was confirmed: and there their Lordships of the Privy Council saw no reason to interfere with the High Court's decree on that ground. This decision was followed in Antaji v. Vinayak (1914) 17 Bom. L.R. 153 . Where a similar question arose in Vinayak v. Narayan (1934) 37 Bom. L.R. 343 it was held, following Antaji v. Vinayak, that in a suit regarding a cash allowance the certificate of the Collector which gives jurisdiction, to the civil Court to entertain the suit can be produced in the High Court in appeal. We are of the opinion that the question when it became possible for the plaintiff to file the present suit cannot affect the real starting point of limitation in this case, namely, when the plaintiff's enjoyment of the right claimed by him was first refused and that there is no reason to think that because the plaintiff was enabled to file the suit only after obtaining the certificate under Section 6 of the Pensions Act Article 131 does not apply to the facts of this ease. We hold, therefore, that the lower Court was right in applying that article and not Article 120.

9. If the proper article applicable is Article 131, the next question that arises is whether the word 'refusal' in the third column of the said article means mere refusal or demand followed by refusal. Mr. Daphtary on behalf of the respondent has contended that refusal necessarily implies refusal on demand and that the word 'refused' has been deliberately used in preference to the word 'denial' which is to be found, for instance, in Article 129. For this interpretation he has relied on Raoji v. Bala, Ganesh Vinayak v. Sitabai 18 Bom. L.R. 950 and Shri Bala Maharaj v. Sakharam : (1926)28BOMLR633 . In all those cases it was held on the facts that there had to be a demand and a refusal of the plaintiff's enjoyment of the right claimed before limitation began to run. In Gadodhar Patra v. Bholanath Choudhury [1939] A.I.R. Pat. 548 it was held that if the legislature intended to mean mere refusal the word 'denial' as used in Article 129 would have been used. Mr. Thakor on the other hand has contended that Faweett J. was right in Bhimabai v. Swamirao in holding that the view that it was necessary under Article 131 for the defendant to show that there had been a definite denial or a refusal should be limited to eases where the circumstances were such that the mere non-compliance with the right did not of itself amount to a refusal. He arrived at this conclusion by comparing Article 131 with Articles 88, 89 and 103 wherein the words used are 'demanded and refused', and he said that it must be seen that it is rather reading into the article words, which were deliberately omitted from it to say that under Article 131 there must be shown to have been a definite demand to which there was a refusal. Mr. Thakor has also relied on Jagannath Kishore v. Bipan Mahato : AIR1941Pat116 where the mere hostile assertion by certain tenants of their right to hold the land in suit rent free was held to amount to a denial or refusal to the landlord of the enjoyment of his right within the meaning of Article 131. Mr. Daphtary, however, has contended that in the present case refusal would necessarily imply refusal after demand. Under Rule 20 of the rules made under the Pensions Act, 1871, it is provided that pensions and grants will be paid only to those persons whose names have been authorisedly entered in the records as the payees thereof, or to their duly empowered attorneys or mukhtyars, or, if they are minors, to their administrators; and Rule 29 provides that the persons recorded as the payees of pensions or grants are not necessarily entitled to appropriate the whole of such pensions, grants or payments to themselves, but are responsible for distributing the same to all co-sharers or sub-sharers in the proportion to which they are respectively entitled. This makes the persons to whom Government pays a pension or grant trustees on behalf of other claimants, and, as remarked in Raoji v. Bala I.L.R.(1890) 15 Bom. 133 mere absence of enjoyment by such claimants would not be enough to show refusal; (p. 144) 'there must be an express repudiation of the claim' (p, 144). It seems to us that in a case like the present refusal would necessarily imply a previous demand. If, therefore, express repudiation or refusal is found proved, it would hardly be necessary to prove the prior demand as well. There can be no doubt that such refusal must be made by the defendant and not, for instance, by Government.

10. I shall now deal with Mr. Thakor's arguments as to his contention that the defendants refused the plaintiff's enjoyment of the right claimed by him more than twelve years' prior to the suit. Those contentions are based (1) on the fact that the defendants have been enjoying the whole of the allowance for a considerable period, (2) on the revenue-authorities' refusal of the plaintiff's applications since 1917 and even on the earlier fact that Dolatsinhji's share was amalgamated with the defendants' shares and the fact that the defendants' predecessors-in-title were held to be reversioners after the widow, (3) on the defendants' opposition to the suits filed by the plaintiff in 1917 in the civil Court at Navsari and the District Court at Surat and (4) on other acts of the defendants. It does not seem to us that the mere fact of the defendants' enjoyment for a number of years necessarily leads to the inference that the plaintiffs' enjoyment must have been refused by them. As pointed out in Raoji v. Bala. the refusal must be an express repudiation of the plaintiff's right of enjoyment. As to the acts of the revenue-authorities refusing the plaintiff's application since 1917, Mr. Thakor has wanted us to hold that such refusal must necessarily have been at the defendants' instance. It was alleged in the written statement of defendant No. 1 that the plaintiff's right was denied in 1916, 1917 and 1926 (paragraph 24 of exhibit 11). Reliance is placed on the statement made in the plaintiff's application to the Collector (exhibit 41) in 1917 that his earlier application for the transfer of Dolatsinhji's share in the allowance to the plaintiff's name is refused, his guardian being informed that the said share had been ordered to be amalgamated with the allowance of Us, 4,798 that stood in the names of the representatives of the other branches. The plaintiff's evidence on this point in paragraph 11 of his deposition makes it clear that what his guardian had applied for was that his name should be entered in respect of the amount of the allowance which had stood in Dolatsinhji's name during his life-time and that that application was rejected. That certainly cannot be construed as refusal, even by the revenue-authorities, of the plaintiff's claim to a share in the allowance that was drawn by the other branches of the family after the amalgamation ordered by Government. It seems to us that no refusal by the defendants of the plaintiff's right to his share can be spelt out from such orders made by the revenue-authorities. The amalgamation seems to have been ordered under Rule 26 of the rules framed under the Pensions Act which says that as a rule the name of one person only will be entered as payee of the pension or grant; and I have already pointed out that under Rule 29 persons recorded as such payees are held responsible for distributing the grant to all cosharers or sub-sharers in the proportion to which they are respectively entitled. It is not, therefore, possible to hold that the amalgamation amounted to a refusal even on the part of the revenue-authorities of the right of the plaintiff to his share. The fact that the defendants and their predecessors-in-title were regarded by Government as the reversioners after Mankuverba in 1909, again, is hardly relevant to the point under consideration, because the plaintiff had not been adopted at the date of such recognition, and on the circumstances as they then stood the defendants would be entitled to regard themselves as such reversioners. Similarly, the Collector's refusal to give the plaintiff a certificate under the Pensions Act in 1917 and 1926 clearly cannot indicate the defendants' refusal of the plaintiff's right. Mr. Thakor has relied on a passage in paragraph 3 of the plaintiff's deposition to the effect that the plaintiff had to apply for letters of administration as mutation was refused to be made in his favour till his adoption had been established in a Court of law and that in. those proceedings the defendants had opposed him. It does not seem to us that those circumstances can lead to an inference of the defendants' refusal of the plaintiff's right or claim necessitating the filing of the application for letters of administration. Similarly, a passage in the plaintiff's application (exhibit 41) to the Collector made in 191.7 has been relied on, namely, that he was seeking a declaration 'that he, the petitioner, is entitled to receive the said allowance in preference to his cousins the said Ranjitsinhji Chandrasinhji and Ramsinhji Gambhirsinhji'. It has been argued that this passage shows that the defendants must have opposed the plaintiff's claim to a one-third share in the allowance. We do not think that such a conclusion necessarily follows from this sentence. As to the defendants' opposition to the two suits filed by the plaintiff in 1917, it is to be observed that in the Navsari suit no question of the plaintiff's claim to a share in the Toda Giras allowance paid by the Olpad Sub-treasury arose or could have arisen. In the application for letters of administration an issue was no doubt raised relating to the said allowance, namely, 'Is the sanction of Government necessary to an adoption in so far as Toda Giras Hukk is concerned?' It seems, however, that the opposition of the defendants was confined to disputing the factum and the validity of adoption alleged by the plaintiff; that at least, is indicated, by the summary of the pleadings in the judgment, exhibit 93, and the Court recorded no finding on the issue mentioned above on the ground that the petition had nothing to do with the Toda Giras Hukk, 'which being a pension governed by the Pensions Act may or may not be allowed by Government to be continued to an adopted son.' The Court in those proceedings was not entitled to go into questions of the plaintiff's title to particular properties and it was not necessary for the plaintiff to lay any claim to recover a share of the allowance from the defendants. As to the other acts of the defendants, reliance has been placed on (1) a petition addressed to the Viceroy and Governor-General-in-Council, exhibit 207, in 1909 by Ranjitsinghji and Ramsinhji, (2) a statement made in Kesarinsinhji's will in 1926, exhibit 182, to the effect that the plaintiff's claim to be the adopted son of Dolatsinhji had not been accepted by the executors and his bhaubands 'up till now', and (3) the statement in paragraph 11 of the plaint that the defendants 'refused to pay the amount falling to the plaintiff's share'. As to the memorial to the Viceroy and Governor-General-in-Council, its admissibility was in dispute in the trial Court which has not admitted it in evidence, and as I have pointed out its date is prior to the plaintiff's adoption and no question regarding the plaintiff's right could have been raised therein. Kesarisinhji's allegation in his will that the plaintiff's adoption had not been accepted by the other branches 'up till now' can hardly be said to indicate any express refusal by the defendants of the plaintiff's right more than 12 years prior to the suit, that is, at any date earlier than 1922. The passage in the plaint relied on, again, clearly refers to the defendants' refusal after he had obtained the Collector's certificate, for the whole sentence reads thus: 'In spite of the plaintiff having obtained the certificate the defendants refused to pay the amount falling to the plaintiff's share'. We are, therefore, of opinion that the defendants have been unable to show that they refused the plaintiff's enjoyment of the right claimed by the plaintiff within the meaning of Article 131 at any date more than 12 years prior to the suit. In the result, we must, accordingly, hold that the suit is not time-barred.

11. Mr. Thakor has next urged three points with regard to the Collector's certificate: (1) that Government having already denied the plaintiff's claim against Mm the civil Court, even on the issue of the certificate, was incompetent to deal with such claim, (2) that the suit was not in conformity with the certificate in so far as no claim of the plaintiff against defendant No. 2 is mentioned therein and that, therefore, the suit, so far as it is against the said defendant, must fail, and (3) that the decree made by the lower Court affects indirectly the liability of Government to pay the grant in the manner they think fit and that, therefore, the decree cannot stand. As to the first point Mr. Thakor has relied on the provisions of Sections 4, 5 and 6 of the Pensions Act and has contended that it is only when the revenue-authorities have not dealt with and disposed of a claim relating to a pension or grant that a civil Court, on receiving a certificate from the Collector or other officer authorized in that behalf, can try such a claim. In support of this contention he has relied on Babaji Hari v. Rajaram Balla I.L.R.(1878) I Bom. 75 where it was observed (p. 80) :

The true intention of Section 6, we think, is to enable the revenue officer, who may be puzzled by the duty which Section 5 casts on him, to refer the parties to a civil Court for the determination of their respective interests in the income or other benefit which the executive will still, as against either or both of the litigants, be at liberty to allow or to withhold.

In the judgment of this Court in Mahida Udesangji v. Motisingji Ranjitaingji (1938) F.A. No. 8 of 1936, decided on August 18, 1938, by Weston J. (Unrep.) this passage was construed to mean that Section 6 was inserted 'merely to enable a revenue-authority who found difficulty in deciding a claim preferred under Section 5 to get the matter decided by a civil Court'. We are not sure whether this is the correct interpretation of the provisions on this point in the Pensions Act' but even taking this interpretation to be correct it seems to us impossible to hold that it was open to the civil Court to go behind the Collector's certificate, on receipt of which such Court under Section 6 is bound to take cognizance of the claim, the material words in that section being, 'a civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate'. Mr. Thakor has argued that when the revenue-authorities refused the plaintiff's applications in 1917, such refusal amounted to a decision under Section 5 of the Pensions Act, as under Rule 24, Sub-rule (3), of the rules made under the said Act, it is laid down that 'whenever there is any dispute between parties and wherever the Collector doubts whether the pension or grant is any longer continuable, the application shall be regarded by him as a claim under Section 5 of the Act and shall be dealt with accordingly'. Reliance has been placed in this connection on Bhwishankar v. The Municipal Corporation of Bombay 9 Bom. L.R. 417 which was a case under the City of Bombay Municipal Act, 1888, under Section 33 of which the Chief Judge of the Small Causes Court has jurisdiction to determine the validity of a contested election and where it was held that where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. We do not think that in the circumstances of this case on a certificate having been issued by the Collector the civil Court would have been justified in not acting in accordance with the mandatory provision that thereupon 'it shall take cognizance' of the claim in question. Besides, as I have already pointed out, in the proceedings before the revenue-authorities no adjudication was sought by the plaintiff on his claim to recover a one-third share of the allowance which was being paid to the defendants' branches by Government.

12. The contention that the suit is not in conformity with the certificate appears at first sight to have better substance than the last contention. The certificate granted by the Collector is in these terms :-

Whereas Thakor Saheb Umansinhji Dolatsingji of Rajpipla is desirous of preferring a claim against Motisinhji Ranjitsinhji of Rajpipla to establish his right to get payment of his share in Giras cash allowance of Rs. 7,107 entered at General List No. 139 and payable from the Olpad Sub-Treasury.

This is to certify that, I.T.T. Kothawala, Collector of Surat, do hereby authorise under Section 6 of the Pensions Act, 1871, the trial of the said claim by any civil Court competent to try the same.

The certificate is in the form prescribed by Government (see E.N. Joglekar's Alienation Manual, 1921 edition, Appendix B, at p. 33). There is no doubt that the allowance stood at the date of the certificate in the name of Motisinhji Ranjitsinhji and prima facie the expression 'a claim against Motisinhji Ranjitsinhji of Rajpipla' would, it seems to us, be a claim in respect of the cash allowance entered in the name of Motisinhji in the Government records. Mr. Thakor has, however, contended that the Court should be as strict in confining the suit to the parties mentioned in the certificate as in the case of 'consent in writing' given by the Advocate General under Section 92 of the Civil Procedure Code; and he has relied on Pitchayya v. 'Venkatakrishnamacharlu I.L.R(1929) Mad. 223Venkatesha Malta v. Ramaya Hegade I.L.R.(1014) Mad. 1192 Gopal Dei v. Kanno Dei I.L.R.(1903) All. 162 Md. Ishaq v. Md. Husain Khan A.I.R[1927] . Lah. 382 and Abdul Rehman v. Cassum Ebrahim 13 Bom. L.R. 583 as showing that it is not competent to the Court to enlarge the scope of the suit and grant relief other than those included in the terms of the sanction. It does not appear to us, however, that the principle of those decisions should be applicable to a suit instituted on a certificate given under the Pensions Act. The object with which Section 92 of the Civil Procedure Code was enacted, as pointed out in Sajedur Raja Chowdhuri v. Gour Mohun Das Baishnav I.L.R.(1897) Cal. 418 was to 'prevent an indefinite number of reckless and harassing suits being brought against trustees by different persons interested in the trust', whereas the purpose for which a certificate under Section 6 of the Pensions Act is granted is to enable the civil Court to adjudicate upon the claim which normally is intended to be decided by the revenue-authorities. Even as to Section 92 of the Civil Procedure Code it has been held by this Court in Bapugouda Yadgouda v. Vinayak Sadashiv (1940) 48 Bom. L.R. 706 that the amendment of a plaint in a case falling under that section which does not. substantially change the character of the suit or enlarge its scope may be made by the Court itself without the sanction of the Advocate General or the Collector. In Krishnaji v. Anant (1903) 5 Bom. L.R. 950 it was held that the effect of a certificate given under the Pensions Act is to give the party to whom it is given the right to claim in a civil Court 'whatever he is entitled in virtue of that right'. We do not think, therefore, that the inclusion of the name of defendant No. 2 in this suit was not permissible, the certificate having been essentially one in respect of the plaintiff's claim to a share in the allowance that stood in the name of Motisinhji Ranjitsinhji. Motisinhji, defendant No. 1, is now dead and the name of defendant No. 2 has been entered as one of his heirs or legal representatives. So far as the main claim in this suit is concerned, therefore, even though the suit as against defendant No. 2 were to be held to be initially bad, that would make no material difference in the result.

13. The argument based on the wording of the last part of Section 6 of the Pensions Act, namely, that the civil Court 'shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly', is as follows. It is the intention of Government, as evidenced by the orders that they have passed from time to time on the plaintiff's applications, that no part of the cash allowance should be paid to the plaintiff; and it is argued that if the civil Court grants a decree enabling the plaintiff to recover a share in the allowance from the defendants that would amount to a circumvention to the Government's intention and would thus affect the liability of Government to pay the allowance 'indirectly'. Such a contention was raised in Dolatsing Hamirsing v. Joravarsing : (1931)33BOMLR783 and was negatived. Baker J. dealt with the question in the following way (p. 791) :-

Now if this argument is pushed to its logical conclusion, it will be apparent that no suit can be brought under the Pensions Act, whether there is a certificate or not. Because in practically every case relating to pensions the decree or order involving title to such pensions can be held directly or indirectly to affect the liability of Government to pay. If that were the case then the former portion of the section relating to the grant of a certificate would be nugatory, and no suit whatever could be brought relating to a claim to a pension, which would be a curious result.

It seems to us clear that the decree made by the lower Court cannot be said to affect the liability of Government in any way. It does not appear that Government's decision to enter the cash allowance in the name of one person implies or is intended to imply that no other person shall receive any share out of the allowance. On the other hand Rule 29 of the rules made under the Pensions Act clearly shows that the payees of the grant are responsible for distributing the. same to all co-sharers or sub-sharers entitled to share therein.

14. In the result we find that none of the arguments urged by Mr. Thakor in reference to the certificate can be supported.

15. Mr. Thakor's next argument is based on Section 3 of the Toda Giras Allowance Act, Bombay VII of 1887, which provides that every Toda Giras allowance is 'continuable hereditarily to the lineal male heirs in the male descent of the first recipient thereof under British rule'. He has contended that the plaintiff, being an adopted son, cannot claim to be a lineal male heir in male descent of the first recipient Khushalsinhji. He has drawn our attention to a Resolution by the Government of Bombay dated November 27, 1862, a part of which is to be found at p. 442 of volume 4 of I.L. It. Bombay. Paragraph 19 of the said resolution shows that the Government of Bombay decided to continue the Toda Giras allowance 'to the male issue of the first person who received the Giras from the British Treasury', The argument is that the use of the word 'issue' means only the natural born sons and other descendants but does not include adopted sons. In In re Munshi Ram and the Workmen's Compensation Act, I.L.R(1931) . Lah. 658 where the question arose of the interpretation of the expression 'male lineal descendants' within the meaning of Section 59 of the Punjab Tenancy Act, it was held that an adopted son would not come within that description. Mr. Thakor has further argued that the Toda Giras Allowance Act was not intended to apply only to Hindus but to all communities and that, therefore, considerations arising under Hindu law should not be imported in interpreting the language of the Act. That is no doubt true, but we do not think that it was the intention of Government in enacting the Act to interfere with the rules of succession obtaining in the different communities. The defendants were called upon to produce the sanad in this case but they said that it could not be traced. The record in this case, however, contains at least two documents, exhibits 99 and 208, which show that the payment of the allowance was to be continued to the male heirs of Kushalsinhji 'from generation to generation'. It is also to be remembered that the grant was created by the present Government partly as a recognition of the right which the parties' family had of recovering the amount of the grant from certain villages. Under the General Clauses Act, 1897, Section 3, the expression 'son', in the case of any one whose personal law permits adoption, includes an adopted son. The word we are concerned with, however, is 'heir', but we are of the opinion that an heir within the meaning of the section must be deemed to include an adopted son. In Goberdhonedas v. Prafullabala Dasi : AIR1939Cal658 the Court had to construe the somewhat curious expression 'issue heirs' in a will, and it was held that prima facie 'issue', when used in a Hindu will, includes descendants by adoption as well as blood-descendants. We are, therefore, unable to accept Mr. Thakor's contention that adopted sons are excluded from the operation of the Toda Giras Allowance Act.

16. The next contention of Mr. Thakor has been that as Kesarisinhji by his will made in 1926 excluded the plaintiff from all his property including his share in the allowance, the plaintiff will at least not be entitled to the proportionate share claimed by him out of Kesarisinhji's part of the allowance. The lower Court has held that Kesarisinhji was not competent to give his share of the allowance exclusively to the defendants by his will as his directions in that behalf amounted to an alienation within the meaning of Section 4 of the Toda 'Giras Allowances Act. That section lays down that no mortgage, charge or alienation of a Toda Giras allowance, or of any part thereof, or of any interest therein, by any recipient of the same, shall be valid as to any time beyond such recipient's natural life. In Narayan v. Krishnaji : AIR1930Bom534 it was held by Patkar J., sitting singly, that the word 'alienate' used in Section 5(1)(a) of the Bombay Hereditary Offices Act does not exclude a devise by will. That was a case of a devise by will of a watandar within the meaning of the said Act in favour of another watandar of the same watan. Mr. Thakor has contended that that being so, and it being conceded by the appellant that the watandar could make a gift of a watan property to watandars of the same watan, it was unnecessary to decide whether the word 'alienate' included a devise by will. We think, however,, that even apart from Section 4 of the Toda Giras Allowances Act Kesarisinhji was not entitled to devise any share of the allowance enjoyed by him in his lifetime to any person beyond his lifetime in view of the nature of the allowance itself which under Section 34 is continuable hereditarily to the lineal male heirs in male descent of the first recipient thereof. There having been no actual partition of the allowance each holder's interest only lasts during his lifetime and no one of them can deal with the share enjoyed by him as if it was his separate property. We also agree with Patkar J.'s view that the word 'alienate' does not exclude a devise by will. We think, therefore, that this contention of Mr. Thakor also fails.

17. There is one more contention of Mr. Thakor which remains to be dealt with and this is that the appropriate article of the First Schedule to the Indian Limitation Act which is applicable is Article 119, which relates to a suit to obtain a declaration that an adoption is valid, the period of limitation being six years from the date when the rights of the adopted son, as such, are interfered with. It seems to us, however, that as the status of the plaintiff as the adopted son of Dolatsinhji had already been decided in the letters of administration proceedings, it cannot be said that the present suit was to obtain a declaration regarding the validity of the plaintiff's adoption. That decision has been held by the lower Court, on the authority of Kalipada De. v. Dwijapada Das (1929) 32 Bom. L.R. 505 correctly in our opinion, to be res judicata. We are, therefore, unable to accept the contention that as regards limitation this suit falls under Article 119.

18. In the result, therefore, except with regard to the article of limitation applicable, viz. Article 131, all the contentions urged by Mr. Thakor in his appeal have failed and the appeal must, therefore, be dismissed with costs.


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