1. In February 1866, one Maujud Ali Shah executed a document whereby, after reciting that a large sum of monfy was due to his wife on account of dower, he undertook to pay her Rs. 12 per mensem during her life, and agreed that she should receive that amount out of the income of certain immoveable property. In 1870, he mortgaged that and other immoveable property to Lachhman Singh and Madho Singh for Rs. 22,700, by a deed which (a sum?) provided that the mortgagees should pay annually out of the profits of the property for the illumination of the dargah of which he was sajjadahnashin, and that of this sum, Rs. 12 a mouth should be paid to his wife, Abadi Begum, and the remaining Rs. 13 a month were to be paid to him. In August 1874, the mortgagees sub-mortgaged their rights to Asa Ram, the father of the defendant to the present suit.
2. The original mortgagees and after them Asa Ram continued to pay the money to Abadi Begum and Maujud Ali Sbah and their heirs until 18s8 or 1899, when Asa Ram stopped payment. In the present suit, instituted in 1909, ' the plaintiff-respondent claims arrears of the sums of Rs. 12 and Rs. 13 per mensem, from 1899 to the date of suit, and interest thereon, at the rate of Rs. 6 per cent, per annum. The Courts below have decreed the claim. The questions for decision in this appeal are, whether the suit is within time, and whether the plaintiff has established her title to recover the amount claimed. On the question of limitation, the Courts below have held that the claim is governed by Article 132 of the First Schedule of the Limitation Act. But that Article, as held by their Lordships of the Privy Council in Ram Din v. Kalka Prasad 7 a. 502 : 12 I.A. 12 is applicable only to suits in which the plaintiff claims to recover money charged upon immoveable property, to raise it out of that property. In the present case the plaintiff claims only a personal decree against the defendant. She does not seek to recover the money out of the property. In this Court it has been contended that if Article 132 does not apply, then the proper Article to apply is Article 131, and two cases decided by the Madras High Court See Zemindar of Ramnad v. Dorasami 7 M. 341 at p. 343 and Ratnamasari v. Akilandammal 26 M. 291 at p. 314 have been referred to in which it has been held that the words to establish' in Article 131 are not confined to a declaration of title but include the r330very of arrears due to the plaintiff in respect of a periodically recurring right. The Punjab Chief Court, on the other hand, in Dost Mohammad Khan v. Sohan Singh 83 P.R. 1906 : 89 P.L.R. 1907 have held that the words to establish' in Article 131 do not extend, and cannot be extended, to cases in which the plaintiff seeks to recover specific sums of money due to him in respect of such recurring right. We prefer the view taken by the Punjab Chief Court. It seems to us that the language of Article 131 'to establish a periodically recurring right' is altogether inapplicable to a suit to recover arrears of payment due under a registered contract such as we have in the present case. We are of opinion that the suit is governed either by Article 116 or Article 120, and that in either1 case no more than six years' arrears or a sum equivalent thereto can be recovered. There remains the question whether the plaintiff has established a right to recover any sum under the deed. The defendant pleaded that the plaintiff was not entitled to sue as she could not be appointed Mutwalli of the shrine and that only a lawfully appointed Mutwalli could recover it, and that the money payable under the deed had nothing to do with the inheritance. It is quite clear that the income of the mortgaged property could not be constituted wahf, and there is no indication whatever that corpus of the property has been constituted wahf. It seems to us that it is no answer to the plaintiff's claim to say that she is not a sajjadahnashin or Mutwalli of the property. She is entitled to recover on the deed if she can show that she is the heir of Maqsud Ali Shah who died in 1899. The plaintiff propounded a pedigree; according to which she is clearly the next heir of Maqsud Ali Shah. The defendant pleaded that the pedigree was incomplete and he gave in his written statement a pedigree in which Fazal Ali Khan is shown to have a daughter, Dargahi Begum, in addition to the two sons and daughter shown in the plaintiff's pedigree. If Dargahi Begum was alive at the death of Maqsud Ali Shah, she was entitled to the property in preference to the plaintiff. It has been contended on behalf of .the plaintiff that if the defendant had intended to plead that Dargahi Begum was entitled to succeed in preference to the plaintiff, this would have been put forward specifically in the Court below. There is a good deal to be said for this argument. But, at the same time, the defendant distinctly pleaded that Fazal Ali Shah had a daughter, Dargahi Begum, and it was the business of the plaintiff to prove either that Dargahi Begum was not the daughter of Fazal Ali Shah, or that she died in the life-time of Maqsud Ali Shah, or to show that although Dargahi Begum was entitled to succeed Maqsud Ali Shah in 1899, she, the plaintiff, was entitled to the property at the date of the suit. The point seems to have been overlooked, and we think that the proper course is to order further inquiry on the subject. We, therefore, remit to the lower Appellate Court for trial the question whether the plaintiff is entitled to the Malikana. Both parties may adduce further evidence. On return of the findings, ten days will be allowed for objections.
3. On return of the findings, the appeal was allowed in part.