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Kunwar Bahadur Vs. Bindraban and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported inAIR1915All130; (1915)ILR37All195
AppellantKunwar Bahadur
RespondentBindraban and ors.
Excerpt:
.....case. for the purposes of the present case it is quite sufficient to say that it must lie heavily on the plaintiff in a suit like the present to explain why he took no action before the period of limitation prescribed for a suit by the nearest reversioner had expired......the execution of the sale-deed in question. there is therefore no question of any extension of the period of limitation on the ground of the plaintiff's minority.2. the learned subordinate judge has found clear authority in certain decisions of the madras high court, referred to in his judgment, for the proposition that the plaintiff's cause of action accrued to him on the date of the execution of the sale-deed of the 12th of february, 1898, and that the period of limitation for the same is that provided by article 120 of the schedule to the limitation act. he has not therefore thought it necessary to examine in any detail the precise pleadings in this particular case. yet these are sufficient in themselves to make the plaintiff's position a very difficult one, even if the propositions.....
Judgment:

Chamier and Piggott, J.

1. This is a second appeal by a plaintiff whose suit for a declaration has been dismissed by the lower appellate Court as barred by limitation. Debi Das, father of the plaintiff, had two brothers, Jwala Prasad and Prag Das; they lived separately. Jwala Prasad died childless, leaving a widow, Musammat Rukmani. This lady, while in possession of the property of her late husband with a Hindu widow's estate, executed a deed of sale on the 12th of February, 1898, transferring to certain persons, who appear as defendants Nos. 1 and 2 in the case, a house which bad belonged to her late husband. By the present suit, instituted on the 11th of April, 1913, the plaintiff ' sought a declaration that this sale deed was ineffectual as against him and enforceable only during the life-time of Musammat Rukmani. He impleaded this lady as a defendant, and also his own father Debi Das, and his uncle Prag Das. Only the defendants vendees contested the suit, no appearance being entered by any of the others. Ordinarily the plaintiff would not be permitted to maintain such a suit, he not being the nearest reversioner to the estate of Jwala Prasad in the presence of his own father and uncle. The plaintiff accordingly pleaded that Prag Das had colluded with Musammat Rukmani and with the vendees at the time of the sale. With reference to Debi Das he pleaded that the latter had 'long since. severed himself from all connection with mundane affairs and elected to reside in solitude in a certain garden.' He claimed that a cause of action accrued to him on the 13th of February, 1910, the date on which a suit by his father or his uncle became barred by limitation under the provisions of Article 125 of the first schedule to the Indian Limitation Act (No. IX of 1908), and that his suit was within time under Article 120 of the same schedule. It may be noted that the plaintiff gave his own age as thirty years in June or July, 1913, so that he attained majority within three years of the execution of the sale-deed in question. There is therefore no question of any extension of the period of limitation on the ground of the plaintiff's minority.

2. The learned Subordinate Judge has found clear authority in certain decisions of the Madras High Court, referred to in his judgment, for the proposition that the plaintiff's cause of action accrued to him on the date of the execution of the sale-deed of the 12th of February, 1898, and that the period of limitation for the same is that provided by Article 120 of the Schedule to the Limitation Act. He has not therefore thought it necessary to examine in any detail the precise pleadings in this particular case. Yet these are sufficient in themselves to make the plaintiff's position a very difficult one, even if the propositions of law contended for on his behalf are correct. So far as his uncle Prag Das is concerned, the plaintiff's allegation that a cause of action accrued to him on the 13th of February, 1910, will not bear a moment's examination. He says that Prag Das colluded with the vendors and vendees at the time of his sale, so that he had his cause of action complete on that date, or at latest on the date on which the fact of Prag Das' collusion became known to him. As regards the plaintiff's father the point may not be quite so clear, because the facts have not been gone into. A comparison of the plaint and the written statement certainly suggests that the parties intended to plead, and did in fact plead, that Debi Das' withdrawal from all interest in worldly affairs took place prior to the execution of the contested sale-deed. The plaintiff uses the vague expression 'long since,' The defendants, while admitting the correctness of the paragraph in the plaint regarding Debi Das' withdrawal from the world, pleaded that the deed in suit had been executed with the knowledge and information of and in consultation with 'the plaintiff and his uncle Prag Das.' The fact that in would have been useless for the vendees to attempt to obtain the consent of Debi Das was presupposed by the pleadings and the frame of the issues. If this fact be admitted, it seems clear that the plaintiff, on his own showing, had a complete cause of action the day on which he knew that Prag Das had wrongfully colluded with the vendor and vendees to execute the sale-deed in suit. Whether he had a valid cause of action is of course quite a different question and one as to which we express no opinion; it is enough to find that it was a cause of action which had become barred by time long before the institution of the present suit.

3. When the facts above noticed were brought out in the course of arguments before us a strong appeal was made to us not to decide the matter on these grounds without remitting issues to the courts below, the point taken being that neither of those courts had considered the question of limitation in this particular light. We are not disposed to remit issues. It cannot be said that such a question as the date of retirement of Debi Das from all interest in worldly affairs, or the precise nature of that retirement, was ever put in issue on the pleadings. The parties went to trial on the admission that this retirement took place so long ago that its precise date was quite immaterial, and practically also on the admission that this retirement was so effective and complete that Debi Das had put himself in such a position that he could not be expected to do anything to protect the interests of his son from the nefarious schemes of the other defendants.

4. Apart from this, as the question of law involved was argued before us at length, we think it right to say that we are not prepared to accede to the proposition of law on which the plaintiff appellant's case rests. In the case of an alienation by a Hindu widow the person or persons who would be entitled at any given moment to succeed to the estate of her late husband have a cause of action from the date of the alienation, and a right to sue under article 125 of the first schedule to the Indian Limitation Act within twelve years of the date of such alienation. The contention for the appellant is that their failure to do so within twelve years ipso facto creates a cause of action for the next reversioner or reversioners, which action may be brought within a further period of six years, under article 120 of the same schedule. It would follow that the expiration of this period would create a fresh cause of action, with a further period of limitation for the reversioner or reversioners one degree further removed, and so on, for the whole life-time of the widow. No direct authority can be quoted for propositions so remarkable.

5. The principal cases referred to in argument may be noted below : - Rani Anand Kunwar v. The Court of Wards (1880) I.L.R. 6 Cale. 764, Abinash Chandra Mazumdar v. Harinath Shaha (1904) I.L.R. 32 Cale. 62, Jhula v. Kanta Prasad (1887) I.L.R. 9 All. 441, Bhagwanta v. Sukhi (1899) I.L.R. 22 All. 33, Ayyadorai Pillai v. Solai Ammal (1901) I.L.R. 24 Mad. 405, Govinda Pillai v. Thayammal (1905) I.L.R. 28 Mad. 87.

6. In the first of these their Lordships of the Privy Council were dealing with a suit to set aside an adoption, a suit for which a period of twelve years from the date of the adoption is specifically provided, by whomsoever the suit may be brought. It is certain therefore that when they spoke of some act or omission on the part of the nearest reversioner by which the latter disabled himself from suing they were not thinking of the reversioner's merely allowing the prescribed period of limitation to run out. In the Allahabad cases no question of limitation arose. The cases in 32 Calcutta and 28 Madras turned on the minority of the plaintiff in each of those cases. The truth appears to be that the various articles in the schedule to the Limitation Act dealing with such suits as the present, and cognate suits to contest an adoption by a widow, were framed with special reference to the provisions of Section 42 of the Specific Belief Act (No. I of 1877). The schedule therefore made no express provision for the rare cases in which a suit like the present is permitted to be brought by a more remote reversioner by reason of collusion or wilful default on the part of the nearest reversioner or reversioners. The result no doubt is that such suits must necessarily be referred to Article 120 of the schedule. It does not follow, however, that a remoter reversioner is thereby entitled to sit still and wait for limitation to run out against every reversioner nearer in degree than himself. An o improper alienation by a Hindu widow is a wrong to the entire body of reversioners, and in a sense it affords an immediate cause of action to all of them. The reasons why such action is ordinarily required to be brought by the nearest reversioner in degree, and the special cases in which this rule may be relaxed have been pretty well settled since the decision of the Privy Council in Rani Anand Kunwar's case. But it is for more remote reversioners to be on the watch to safeguard their own interests, and, when they find that no action is being taken by the nearest reversioner or reversioners, to inquire into the reasons for such inaction and call upon the person or persons entitled to do so to protect the interests of the whole body of reversioners. For the purposes of the present case it is quite sufficient to say that it must lie heavily on the plaintiff in a suit like the present to explain why he took no action before the period of limitation prescribed for a suit by the nearest reversioner had expired. It is not necessary for us to go the full length of the Madras ruling relied on by the learned Subordinate Judge in order to arrive at the Conclusion that he has rightly dismissed the present suit as time-barred. So holding we dismiss this appeal with costs.


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