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Kakumani Rathiah and ors. Vs. Pathan Asha Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 824 of 1959
Judge
Reported inAIR1964AP393
ActsLimitation Act, 1908 - Sections 10 - Schedule - Article 134B
AppellantKakumani Rathiah and ors.
RespondentPathan Asha Bibi and ors.
Appellant AdvocateP. Satyanarayana, Adv.
Respondent AdvocateS. Surya Prakasam, Adv. for A. Raghavaiah, Adv.
DispositionAppeal allowed
Excerpt:
.....134-a and 134-b of limitation act, 1908 - section 10 inapplicable to transfers and conveyances for valuable consideration - 'assign' in section 10 to be given wide interpretation to cover leasehold interest - valuable consideration not synonymous to adequate consideration - consideration too small but not found to be illusory by lower courts having regard to facts and circumstances - consideration can be said to be valuable consideration. - - one other fact to which we would like to advert at this stage is that the rent which was reserved under the lease deed. the first appellate court as well as the trial court have not addressed their minds to this simple question nor does it appear that the judgment of their lordships of the supreme court in gurushiddaswami v. it may be taken..........section 10 would not he applicable to leases for consideration, nonetheless seeks to bring the suit leases within the purview of section 10 on the ground that the consideration was illusory. we are unable to accept this contention. it is clear from exs. b. 16 and a. 2 that in the year 1873, rs. 37 was the rent reserved for 8 acres of dry land and rs. 19-12-7 inclusive of the tax and cess in 1931 for ac. 3-50 cents. these rents cannot be said to be illusory. it may or may not be adequate. but that is far from saying that it is not valuable consideration. in this view of the matter, we think that the suit which is filed beyond 12 years is clearly barred by limitation. 3. it is also contended and fairly conceded by the learned advocate for the appellants that since the claim of the.....
Judgment:

1. This second appeal has been referred to us by our learned brother, Basi Reddy J., as it involves an important question of law as regards the true construction of Section 10 and Articles 134, 134-A and 134-B of the Limitation Act.

2. The brief facts for purposes of determination of this question involved in the case may now be stated. The respondents have filed a suit for recovery of the suit schedule properties and for mesne profits and for future rents on the ground that the mutawallis were not empowered to grant the lease for more than three years. In the instant case, the leases that were granted by Mutawallis under Ex. B. 16, dated 21-5-1873 were for 92 years and under Ex. A-2 dated 16-1-1931 for 36 years. The appellants as defendants stated that they took the leases from the predecessors, in interest of the plaintiffs and that they have a right to be in possession of the suit lands and that, since the suit was filed after 12 years after the death of thehusbands of plaintiffs 1 and 2, it is barred by limitation and further that the suit was not maintainable because the plaintiffs had accepted the rents subsequent to the death of the husbands of plaintiffs 1 and 2 which amounted to an acquiescence. Several issues were framed on those pleadings viz.,

'1. Whether the lease dated 16-1-1931 in favour of the defendants is not true, valid and binding on the plaintiff ?

2. Whether the receipts relied on by the defendants are true, valid and binding on the plaintiffs ?

3. Whether the plaintiffs are entitled to possession ?

4. Whether the grant in favour of plaintiffs is of both the warans ?

5. Whether plaintiffs are entitled to future profits for the years Jaya and Manmadha ?

6. Whether plaintiffs are entitled to any futureprofits at all ?

7. To what relief ?'

An additional issue was also framed which is pertinent for the purpose of this second appeal viz., whether any of the suit claims are barred by limitation. Before dealing with the actual question involved, it may be necessary to state that the suit wasfiled on 30-9-54. The death of the 2nd plaintiff's husband took place on 3-12-1941 as evidenced by the death extract, Ex. B 50 and in so far as the 1st plaintiff's husband is concerned, he died in or about 1940. On the pleadings, the trial Court held that the lease dated 10-1-1931 is true, but not binding on the plaintiffs, that the receipts of rent for two years, Jaya and Manmadha were true, valid and binding on the plaintiffs, that the plaintiffs were entitled to possession of the suit lands, that the grant in favour of the plaintiffs was of both the warams and that the plaintiffs were not entitled to future profits for the years Jaya and Manmadha as the amount was already paid. In so far as the other years are concerned, the trial Court held that the plaintiffs were entitled to recover rents. One other fact to which we would like to advert at this stage is that the rent which was reserved under the lease deed. Ex. B. 16 for an extent of 8 acres was Rs. 37 while the rent which was reserved under the lease deed, Ex. A. 2 for an extent of Ac. 3-50 cents was Rs. 19-12-7. The trial Court held on the additional issue that the suit was not barred, by limitation. In appeal, the first appellate Court also maintained that finding, The simple question in this appeal is whether Section 10 of the Limitation Act applies and if it dues not, then it is conceded that the period prescribed under Article 134-B would apply.

Section 10 of the Act reads as follows :

'Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account ot such property or proceeds, shall be barred by any length of time.

For the purpose of this section any property comprised in a Hindu, Muhammadan or Buddhist religions or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.'

On the language of the Section, it appears to us clear that assignments for valuable consideration fall outside the scope of Section 10 and the only question to be considered is whether the leases granted are assignments for valuable consideration. The first appellate Court as well as the trial Court have not addressed their minds to this simple question nor does it appear that the judgment of their Lordships of the Supreme Court in Gurushiddaswami v. D. M. D. Jain Sabha, : [1954]1SCR235 was taken into consideration though it is said that it was brought to their notice. Having regard to the authoritative pronouncement of Their Lordships of the Supreme Court, it is unnecessary for us to refer to all the previous case law as indeed there is sufficient authority even earlier to that case which hold that Section 10 of the Limitation Act is inapplicable to transfers and conveyance for valuable consideration. Mukherjea, J. speaking for Their Lordships dealt with a ground raised by the Attorney General that Section 10 ot the Limitation Act is applicable to an assignment of a lease, hold interest and that even if it is not, the question of inadequate consideration could be taken into consideration in negativing the other qualification viz., that the assignment is for valuable consideration, Mukherjea, J. observed at p. 518 as follows :

'In order that a suit may have the benefit of Section 10, it must be a suit against a person in whom the property has become vested in trust for any specific purpose or against his legal representatives or assigns, not being assigns for valuable consideration. It may be taken that the word 'assign' is sufficiently wide to cover a lessee as well; but thedifficulty is that as the lease was for valuable consideration the case would come within the terms of the exception laid down in Section 10 and consequently the defendant would not he precluded by reason of the fact that the property was to his knowledge a trust property, from relying on the provisions of the statute which limit the time within which such suits must be brought. The Attorney-General contended rather as strenuously that the transfer here was not for valuable consideration inasmuch as the rent reserved for a large tract of land which had immense potential value was Rs. 50 only for the first six years and then again it was to he reduced to Rs. 25 which would continue all through. We desire to point out that the expression 'valuable consideration' has a well known connotation in law and it is not synonymous with ''adequate consideration' It may be that judged by the standard of modern times, the rent reserved was small, but as has been found by both the Courts below the consideration was not in any sense illusory having regard to the state of affairs prevailing at the time when the transaction took place.

The learned Advocate for the respondents, Sri Suryaprakasam while not being able to controvert the first proposition viz., that Section 10 would not he applicable to leases for consideration, nonetheless seeks to bring the suit leases within the purview of Section 10 on the ground that the consideration was illusory. We are unable to accept this contention. It is clear from Exs. B. 16 and A. 2 that in the year 1873, Rs. 37 was the rent reserved for 8 acres of dry land and Rs. 19-12-7 inclusive of the tax and cess in 1931 for Ac. 3-50 cents. These rents cannot be said to be illusory. It may or may not be adequate. But that is far from saying that it is not valuable consideration. In this view of the matter, we think that the suit which is filed beyond 12 years is clearly barred by limitation.

3. It is also contended and fairly conceded by the learned advocate for the appellants that since the claim of the appellants being based on lease, they cannot prescribe for any greater period than what he claimed viz., for the duration of the period of the lease. He is also supported in this contention by a decision of the Madras High Court in Narsaya Udpa v. Venkataramana Bhatta, 23 Mad LJ 260, Sundara Aiyer and Sadasiva Aiyar, JJ. held that Articles 142 and 144 of the Limitation Act are applicable to cases of prescription of limited interests as mortgagee or permanent lessee. The lease not being a lease from year to year, the appellants could only prescribe for the period stipulated therein. The appellants state that they have no intention of continuing in possession beyond the period of the lease.

4. We accordingly set aside the judgments of both the Courts below and allow the appeal with costs throughout.


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