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Tej Bahadur and ors. Vs. (Firm) Kothi Radha Kishan-gopi Kishan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1936All858; 166Ind.Cas.182
AppellantTej Bahadur and ors.
Respondent(Firm) Kothi Radha Kishan-gopi Kishan and ors.
Cases Referred and Fulsingh v. Ganesh Prasad Fulsingh
Excerpt:
- - learned counsel for the defendants-appellants concedes execution of the bond in suit, which in the case of a pardanashin lady means intelligent execution. 6. we are clearly of opinion that a new law of limitation or an amendment in the law cannot divest a person of a right or title which has vested in him under the previous law of limitation. the right of the opposite party to make the application was lost under the provisions of article 164, schedule 2, limitation act of 1877, long before act 9 of 1908 was passed, and section 6, general clauses act, distinctly provides that the repeal of the old act would not have the effect of reviving any right not in force or existing at the time the repeal was made. in other words, for an order directing enforcement of the order nisi which bad..........out of a suit for sale upon the foot of a simple mortgage bond which was executed by one mt. janki kunwar on 11th november 1898. the claim was for rs. 21,000; but there was also an alternative prayer for possession of the property and for recovery of rs. 10,000 as interest by way of damages. the mortgagor was a pardanashin lady and was a widow, her husband having died as long ago as 1878. the bond in suit was for rs. 11,000 and the mortgaged property consisted of a four annas share in each of four villages. it was stipulated that a sum of rs, 850 should be paid annually as interest and that in default of payment in any year the mortgagees should have a right after four months' grace to enter into possession of two of the mortgaged shares and recover the balance of interest due to.....
Judgment:

1. This appeal arises out of a suit for sale upon the foot of a simple mortgage bond which was executed by one Mt. Janki Kunwar on 11th November 1898. The claim was for Rs. 21,000; but there was also an alternative prayer for possession of the property and for recovery of Rs. 10,000 as interest by way of damages. The mortgagor was a pardanashin lady and was a widow, her husband having died as long ago as 1878. The bond in suit was for Rs. 11,000 and the mortgaged property consisted of a four annas share in each of four villages. It was stipulated that a sum of Rs, 850 should be paid annually as interest and that in default of payment in any year the mortgagees should have a right after four months' grace to enter into possession of two of the mortgaged shares and recover the balance of interest due to them at the rate of Re. 1-4-0 per cent. per mensem. The period agreed upon for payment of the mortgage money was 10 years and the mortgagor was given a right to redeem the property at any time within that period on payment of Rs. 10,000. It appears that Mt. Janki Kunwar paid interest regularly up to within a day or two of her death, which occurred on 23rd November 1918. The present suit was filed by the mortgagees, the firm Kothi Radha Kishan Gopi Kishan, on 13th November 1930 and it was claimed on their behalf that the suit was within limitation by reason of various acknowledgments and payments of interest. The last acknowledgment is said to have been made by Mt. Janki Kunwar on 16th November 1918 in a registered lease which she executed on that day in favour of certain persons; and the last payment of interest is alleged to have been made on the following day, i.e. on 17th November 1918. It is said that this payment was made on the mortgagor's behalf by the lessees under the deed of 16th November.

2. As we have already said, Mt. Janki Kunwar died on 23rd November 1918. The defendants first party are reversioners, being the heirs of her husband; the defendants second party are subsequent mortgagees; the defendant third party was impleaded pro forma as having a right of suit with the plaintiffs and was subsequently transposed as a plaintiff; and the defendant fourth party is a widow in the joint family of the plaintiffs and was impleaded by reason of the fact that she had instituted a suit against the plaintiffs in which she claimed to be her husband's heir.

3. The defence was that the suit was barred by limitation, that the bond in suit was not duly executed, that it was without consideration and that there was no legal necessity for the alienation. The learned Subordinate Judge of Aligarh has found in favour of the plaintiffs on all points and has passed a preliminary decree for sale under Order 34, Rule 4, Civil P.C. The defendants reversioners have come in appeal to this Court. Learned Counsel for the defendants-appellants concedes execution of the bond in suit, which in the case of a pardanashin lady means intelligent execution.' He pleads, however, that the suit is barred by time and he also pleads want of consideration and legal necessity.

4. As regards the plea of limitation, the first point which has been argued before us is that the acknowledgment of 16th November 1918-which was not addressed to the mortgagees-cannot operate to extend the period of limitation inasmuch as it is not shown to have been communicated to the said mortgagees; but it is not necessary for us to consider this point inasmuch as no attempt has been made to challenge the lower Court's finding that on 17th November 1918 interest was paid as such within the meaning of Section 20, Limitation Act. It is next contended that one suit became barred on 11th November 1920 under the law of limitation which as then in force and that there could be no revival of the right of suit by the amendment which was subsequently made by the legislature to Section 21 of the Act. It is an admitted fact that under the law of limitation, as it stood on 11th November 1920, a widow having a life estate was not competent to give an acknowledgment which would bind the reversioners. In 1927 the Limitation Act (Act 9 of 1908), was amended so as to render such an acknowledgment binding on the reversioners-vide, Clause (3), Section 21. Under the terms of the bond in suit the period of redemption was 10 years. Thus time would begin to run from 11th November 1908 and the period of limitation would expire on 11th November 1920. The suit was filed, as we have already shown, on 13th November 1930.

5. Learned Counsel for the plaintiff-respondent contends that the law of limitation applicable to the case is the law which was in force at the date of the institution of the suit; and he has referred us to various authorities for the proposition that the statute of limitation is a law of procedure and that ordinarily it is retrospective in its operation. We do not consider it necessary to quote or discuss those authorities inasmuch as we unhesitatingly accept this proposition of law. Learned Counsel admits that he can show no authority for the view that when under the existing law a right of suit has become barred and a person has consequently acquired a title, such right of suit can be revived and such title can be extinguished by subsequent legislation. Section 6, General Clauses Act, provides that:

Where this Act, or any Act of the Governor-General in Council or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or...(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.

6. We are clearly of opinion that a new law of limitation or an amendment in the law cannot divest a person of a right or title which has vested in him under the previous law of limitation. There are many authorities in support of this proposition, but we will content ourselves with citing the more important of them and such as are more or less directly in point. The first authority to which we will refer is one of Mahesh Narain Munshi v. Taruk Nath Moitra (1892) 20 Cal 487. That was a suit to set aside an adoption. The suit was instituted in 1885 when the Limitation Act of 1877 was in force; but it had already become barred by Article 129 of Act 9 of 1871. At p. 497 their Lord-ships of the Privy Council observed:

It is clear that, on 1st April 1873, the plaintiff's suit was barred by limitation under the Act of 1871, and the Act of 1877 could not revive the plaintiff's right so barred....

7. Their Lordships followed the earlier case in Appasami Odayar v. Subramanya Odayar (1889) 12 Mad 26. In Nehal Chandra Roy Chowdhury v. Niroda Sundari Ghose (1912) 39 Cal 506 a decree-holder applied on 19th February 1907 to execute a decree which had been passed ex parte on 28th March 1906. The property of the judgment-debtor was sold at auction and was purchased by the decree-holder. On 27th June 1911 the defendant judgment-debtor applied under Order 9, Rule 13, Civil P.C., to have the ex parte decree set aside; but the High Court held that the application was time-barred. At p. 509 the learned Judges made the following observation:

The right of the opposite party to make the application was lost under the provisions of Article 164, Schedule 2, Limitation Act of 1877, long before Act 9 of 1908 was passed, and Section 6, General Clauses Act, distinctly provides that the repeal of the old Act would not have the effect of reviving any right not in force or existing at the time the repeal was made.

8. The case in Mahesh Narain Munshi v. Taruk Nath Moitra 20 Cal 487 was referred to by the learned Judges. In Sachindra Nath Roy v. Maharaj Bahadur Singh 1922 49 Cal 203 their Lordships of the Privy Council gave expression to the following dictum:

There is no provision in this latter Act (i. e., Act 9 of 1908) so retrospective in its effect as to revive and make effective a judgment or decree-which before that date had become unenforceable by lapse of time.

9. The next case to which we will refer is Khunni Lal v. Gobind Krishna Narain (1911) 33 All 356. One Ratan Singh in 1845 embraced Islam. His son Daulat Singh died in 1851 and Ratan Singh died a few months later. Ratan Singh left a widow and Daulat Singh left a widow and two daughters. Disputes arose between Ratan Singh's widow and the heirs of Daulat Singh; but eventually they were compromised. Subsequently the sons of one of the daughters of Daulat Singh instituted a suit in which they alleged, inter alia, that, on the abandonment of Hinduism by Ratan Singh, he had forfeited his half share in the joint property, which had thereupon vested in Daulat Singh and the plaintiffs, as heirs of Daulat Singh, were entitled to the whole of the said property. At p. 366 we find the following, statement of law laid down by their Lordships of the Privy Council:.It may be observed that whatever right Daulat Singh acquired under the Hindu law to the share of his father came into existence in 1845 on the conversion of the latter to the Mohammadan religion. No suit could be brought...to enforce the right after, the lapse of 12 years from the time the cause of action arose (Section 1, Clause 12, Act 14 of 1859). Nothing in Article 142, Act 9 of 1871 or in Article 141, Act 15 of 1877 could lead to the revival of a right that had already become barred.

10. In Jai Singh Prasad v. Suraj Singh (1913) 11 ALJ 167, a Bench of this Court held that no right which had become barred under the Limitation Act of 1871 was revived by the Act of 1877, nor did the introduction of Section 31 in the Act of 1908 revive the right which was so barred. In Abdul Majid v. Jawahir Lal 1914 12 ALJ 624 it was held that where a right to enforce a decree nisi for sale, made in a suit on a mortgage, had, before the passing of the Civil P.C. 1908, become barred by Article 17, Schedule 2, Lim. Act, 1877, no provisions of the Code could revive it. At p. 627 their Lordships of the Privy Council observed:

The present appeal relates to an application to the Subordinate Judge, dated 11th June 1909, for an order absolute to sell the mortgaged properties; in other words, for an order directing enforcement of the order nisi which bad been confirmed by the decision of the High Court of 8th April 1893. It is not necessary to go into the particulars of this application because their Lordships are of opinion that any such application was barred by the statute of limitation, Article 179, at the expiry of three years from the date of the decree, and therefore before the passing of the . Civil Procedure Code of 1908, under which the present proceedings purported to be taken, and their Lordships have no doubt whatever that, inasmuch as the right to enforce the decree had once been barred, no provisions of the Civil Procedure Code, 1908, operate to revive it.

11. The case in Vaithialinga Mudaliar v. Srirangath Anni 1925 48 Mad 883 is a Privy Council case [on Appeal from 40 Mad 846] relating to the High Court of Madras. Their Lordships held that a suit by the reversioners of the original owner for recovery of possession of such portion of the estate as was in the possession of the heirs of the adopted son of the original owner had become barred in 1874 under Article 129, Lim. Act (9 of 1871) and that a title to such property was acquired by the heirs of the adopted son under Section 29 of the same Act and could not be affected by the provisions of the later Limitation Act 15 of 1877 or Act 9 of 1908. There are also various cases of the Bombay High Court, but we will only refer to two of them. In Mahommad Mehdi Faya Tharia Topan v. Sakinabai (1913) 37 Bom 393 a certain person sent a notice to his wife demanding restitution of conjugal rights. The demand was refused on 19th July 1906, but the plaintiff took no further action for more than two years, and eventually on 20th July 1911 filed a suit for restitution. It was held by a Bench of the High Court that since this remedy had become barred under Article 35, Act 15 of 1877, it could not be revived by the passing of the new Limitation Act (9 of 1908). In Dhondi Shivaji v. Lakshman Mhaskuji 1930 Bom 55 a mortgagor had sued to redeem and recover possession of certain property alleged to have been mortgaged by his ancestor in 1799. The mortgagor, relying on an acknowledgment of 1865, brought the present suit on 12th August 1924. It was held by a Bench of the High Court in Bombay that the mortgagor's right to sue for redemption of the mortgage was barred on 1st January 1862, and the acknowledgment, dated 8th September 1865, would not extend the period of limitation as the acknowledgment ought to have been made in writing within 60 years from the date of mortgage. The remedy and the right of the mortgagor having been extinguished, nothing contained in the subsequent Limitation Act would affect the operation of the previous enactments. There are other authorities which give support to our view, but we do not consider that any useful purpose will be served by a multiplication of references. We are clearly of opinion that the suit out of which this appeal arises became barred on 18th November 1920 and that the subsequent amendment of 1927 in the Limitation Act of 1908 did not and could not operate to revive the right of suit.

12. We will now deal with the question of consideration and legal necessity. At the outset we may mention that learned Counsel for the plaintiffs-respondents has omitted to have printed those pages of the account books on which he relies and this extraordinary omission on his part has increased our difficulty and has occasioned a waste of time. The alleged consideration for the bond in suit was as follows: (1) Rs. 9,479-11-6 due under a previous bond of 8th July 1891; (2) Rs. 1,520-4-6 on a bahi-khata account. Of this, Rs. 1,041-5-0 represents principal and the balance is on account of interest. There are no recitals in the bond in suit to indicate what items made up the sum of Rs. 1,041-5-0 or for what purpose they were taken. Learned Counsel for the plaintiffs-respondents has only been able to refer us to three entries in the account-books of the plaintiff firm. It may be mentioned here that these account-books are incomplete. There is an application dated 16th July 1912 which shows that on that date Gopi Kishan applied to the Court of a Deputy Magistrate at Azamgarh to the effect that his account-books had been eaten by white-ants; and he prayed that either the tahsildar or a Police Officer should inspect them and pass proper orders. This application is to be found at p. 167 of our paper-book. Phul Chand, an old servant of the plaintiff firm, states that upon this application the Magistrate went and inspected the account-books and ordered them to be thrown away with the exception of a rokabahi which had suffered less than the other books. It is not explained why the Magistrate should have taken the trouble to go and inspect these books; but the fact remains that the rokar which has been shown to us does appear to have been eaten in places. The net result is that for some years prior to the bond in suit only the rokar or cash-book has been produced. The three entries to which reference has been made above are: (1) Rs. 50 taken for expenses. (2) Rs. 20 taken for expenses. (3) Rs. 105 taken for bullocks. (4) Rs. 161, purpose not stated.

13. In respect of the last two items, Phul Chand says 'The sum of over Rs. 200 is that which she had taken for purchasing bullocks.' This witness must have a somewhat phenomenal memory; but since the learned Judge, who saw him in the witness-box, has accepted his evidence and since it finds support to some extent in the account-books, we are not disposed to disagree with the finding that Rs. 266 was for legal necessity. As regards the balance of the sum of Rs. 1,041-5-0, counsel admits that he can point to no evidence of necessity. The alleged consideration for the previous bond of 8th July 1891 was as follows: (1) Rs. 763 previously taken on a bahi-khata account. (2) Rs. 1,600 taken for payment of land revenue. Of this, Rs. 1,000 was paid before the Sub-Registrar and Rs. 600 are said to have been paid on a prior date. We will first deal with the sum of Rs. 763.

14. According to the recital in the bond, this money was all taken for payment of revenue; but, as we shall presently show, this fact does not find support in the evidence of Phul Chand. The only entries in the accounts of 1947 Shambat, which is equivalent to 1890 of the Christian era, to which learned Counsel has been able to refer us, are: (1) Rs. 22 paid to Mt. Janki Kunwar, purpose not given. (2) Rs. 15 paid to Mt. Janki Kunwar for Court expenses. (3) Rs. 325 paid on a date which is equivalent to 29th May 1890 for land revenue. There is an entry to the effect that Rs. 300 were paidin cash.

15. Phul Chand states that Rs. 300 were taken for land revenue and that the balance of the sum of Rs. 763 was for costs of litigation, purchase of cloth and miscellaneous expenses. We are prepared to accept the evidence of Phul Chand since it finds support in the rokar-bahi of 1890 and we find that Rs. 325 was for legal necessity. Learned Counsel for the plaintiff-respondent has not been able to show us any evidence of legal necessity in respect of the other two items. As regards the sum of Rs. 1,600, we have already stated that Rs. 1,000 were paid before the Sub-Registrar; and Phul Chand states that Rs. 600 had been paid on the previous day. According to the recitals in the bond of 1891, this sum of Rs. 1,600 was taken for payment of revenue. The recital is to the following effect:

I could not pay the Government revenue this year also because the rents wore not realized from the tenants on account of the inundation of the Ganges in my 'ilaqas,' nor is there any standing crop from which the rent may be realized. It is a case of great helplessness. Now without taking a loan I do not see any way at present to pay the Government revenue.

16. The Ganges does not flow through the District of Azamgarh, but we are prepared to allow that the mention of this river may have been a mistake for the Ghagra. The learned Judge of the Court below, relying on certain authorities, is of opinion that, since this bond and also the bond in suit were executed long ago and many of the persons concerned are dead, paucity of evidence may be treated with indulgence and can be supplemented by presumptions. Such authorities are Chintamani Bhakta Venkata Reddi Pantulu v. Rani Saheba of Wadhwan 1920 P.C. 64, Bhanga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhury 1916 P.C. 110, Ram Narain v. Nandrani Kunwar 1929 50 All 128 and Fulsingh v. Ganesh Prasad Fulsingh v. Ganesh Prasad 1931 Nag 147. But in each of these oases it was the reversioners who had sued after a long period, when it was extremely difficult for the transferees to produce satisfactory evidence of legal necessity. In the present case the mortgagees themselves are responsible for the long period of time which has elapsed. We have to see whether the plaintiffs have or have not discharged the onus which lay upon them of proving legal necessity. There is before us a statement which Gopi Kishan made as a witness in Suit No. 20 of 1920 and in which he said: 'I do not remember whether anyone went to make an inquiry.' In cross-examination he said: 'Khudadad and others might have made an inquiry. I have no personal knowledge thereof.' Plaintiffs were not parties to that suit. Phul Chand says that an inquiry was made through Khuda Dad Khan (who was a mukhtar of the plaintiffs and who is apparently also dead), and he reported that revenue to the extent of more than Rs. 1,600 was in arrears. As we have already said, the learned Judge of the Court below has accepted the credibility of this witness; and no serious attempt has been made before us to impugn his testimony. Learned Counsel for the defendants- appellants con-tends that Mt. Janki Kunwar was in affluent circumstances. He has referred us to a judgment of 3rd March 1879 which shows that at that time she had shares in 15 villages. He also referred us to a deed of lease which was executed by Mt. Janki Kunwar on 16th November 1918 which contains the following statement:

I, the executant, make the collections amounting to Rs. 6,348 in the villages, specified as given below (nine villages). Out of the said amount Rs. 1,204 have to be paid as Government revenue.

17. He also contends that there were no floods in 1890 or 1891 and he has referred us to the depositions of an ex-patwari named Jamuna Mal and a patwari named Sarab Sukh. These two witnesses for the defendants state that Mt. Janki Kunwar's villages are not affected by flood with the exception of Tal Ratoi which is actually benefited when a flood occurs. At p. 6 of the Gazetteer, however, the learned author states as follows:

The Ghagra is a great river, navigable throughout its length in this district, and indeed for a long distance beyond the boundaries of Azamgarh, by boats of as much as one thousand maunds burthen. The river has its origin in the mountains of Kumaun and Nepal, and is formed by the combined waters of the Chauka, Kauriala, Rapti and many smaller streams. It swells during the rains to an immense size, and, as the current is then very strong and rapid, the damage done by flooding is frequently severe.

18. Further on he says:

The sudden changes to which the Ghagra's course is liable have been well illustrated during the last 40 years. For two or three years before 1872 the river began cutting away much of the high land on its bank in Natthupur (one of the parganas containing villages of Mt. Janki Kunwar); three or four deep nalas were also excavated by it towards the south, through which large rapid streams flowed into the Ratoi Tal (one of the villages of Mt. Janki Kunwar), and out again into the Ghagra by the Haha Nala. To prevent this again occurring a large embankment over 8 miles in length was constructed from Surajpur to Dubari. This embankment, however, proved insufficient to divert the course of the river; further works were constructed on an extensive scale in 1895....

19. There is nothing in the Gazetteer to show that a flood occurred in 1891; but at p. 22 we find that there was a serious flood in 1890, which may well have affected Mt. Janki Kunwar's capacity for paying revenue in 1891. The defendants-appellants have produced receipts which purport to show that between 21st May 1891 and 3rd July 1891, Rs. 800-2-8 were paid by Mt. Janki Kunwar as land revenue. The Court below doubts the genuineness of these receipts on the ground that they do not bear the seal of the Madhuban tahsil. One of them, dated 3rd June 1891 for Rs. 150, does bear a seal, but the others do not and the omission is certainly odd; but apart from this we can see no indicia of forgery in them. Assuming them to be forged, however, we find that a demand notice for Rs. 818 was issued to Mt. Janki Kunwar and one Sarju Prasad jointly on 8th May 1891, and another was issued to Mt. Janki Kunwar for Rs. 47-8-3 on 23rd May 1891. This shows that two months before the bond Mt. Janki Kunwar was being dunned for Rs. 865. It is true that these documents also bear no seal, but learned Counsel for the plaintiffs-respondents has not challenged them. In any case we are inclined to think that the absence of a seal on them and on the receipts may have been due to carelessness on the part of the tahsil officials. The learned Judge points out that, after the death of Mt. Janki Kunwar, the reversioners themselves had to transfer some of this property in order to borrow money for payment of revenue; and since this was so, it seems by no means improbable that a pardanashin lady, who would be largely in the hands of her servants and karindas, might have had to do the same. Finally there is the positive evidence of Phul Chand who swears that this sum of Rs. 1,600 was taken for the payment of revenue.

20. Taking into consideration the recitals in the bond, the demand notices, the fact that there were floods in Azamgarh in 1890, and the direct and positive evidence of Phul Chand, we think there are no sufficient grounds to differ from the finding of the Court below to the effect that this sum of Rs. 1,600 was taken for legal necessity. As regards consideration, we are inclined to think upon the account-books, the oral evidence and the probabilities that it passed in full; but we find for reasons already given that the items of Rs. 325 and Rs. 1,600 only in the bond of 1891 and Rs. 266 only in the bond of 1898 are proved to have been for legal necessity. We may mention here that the learned Judge appears to have relied in considerable measure upon a judgment of this Court dated 16th February 1925 in first appeal No. 471 of 1921. That was a suit to which the plaintiffs were not parties to set aside a deed of lease which had been executed by Mt. Janki Kunwar in favour of certain persons on 16th November 1918. A part of the alleged consideration for that lease was a sum of money payable as interest upon the bond in suit, and it was held that there was legal necessity for taking that money. Now, in the first place, learned Counsel for the plaintiffs-respondents has been unable to show us under what section of the Evidence Act this judgment is admissible; and in our opinion it is inadmissible as evidence in this case. In the second place, as we have already said, the suit was not for enforcement of the bond now in suit, and the observations of the learned Judges at p. 340 of our paper-book seem to indicate that the learned Judges would have required stricter proof if the original mortgagees of the bond now in suit had been seeking to enforce that bond.

21. The last plea which has been taken before us is that there was no necessity to borrow money at so high a rate of interest under the bond of 1891. The rate of interest was 21 per cent, compoundable annually, and learned Counsel for the plaintiffs-respondents has not attempted to show that there was any necessity for agreeing to pay interest at such rate. We are of opinion that the mortgagees have failed to show that there was legal necessity for so extortionate a rate of interest; but in view of our finding on the plea of limitation, it is not necessary for us to state what rate of interest should be charged in the decree. In view of our finding that the suit is barred by limitation, we allow this appeal and set aside the decree of the Court below, and we dismiss the suit of the plaintiffs with costs in both Courts.


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