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Shyam Charan Tiwari Vs. Kanhaiyalal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 390 of 1963
Judge
Reported inAIR1967Raj176
ActsLimitation Act, 1908 - Sections 9 and 10; Limitation (Amendment) Act, 1963
AppellantShyam Charan Tiwari
RespondentKanhaiyalal
Appellant Advocate Kashi Nath, Adv.
Respondent Advocate C.M. Lodha, Adv.
DispositionAppeal dismissed
Cases ReferredDwijendra Narain v. Jogesh Chandra De
Excerpt:
.....to enable him to overcome the bar of limitation. the case in air 1918 mad 526 (supra) was not of a void trust but the plaintiff himself accepted it as valid, and it was in these circumstances held that if the executors failed to do their duty and refused or neglected to sue, a legatee might sue the executors for his legacy in due course of administration and may join the debtor or his representatives as parties and claim payment of the debt to theestate. judging by this test, from what i have stated above, it would be perfectly clear that in the case before me there was a person who could sue and another who could be sued and there was no lack of forum either for such a suit to be brought and that the plaintiffs right had also been infringed and could be given effect to as soon as the..........suit was barred by time and further that he had spent a sum of rs. 100/ on urgent repairs of the suit property with the consent of the other trustees and, therefore, he was entitled to a deduction of this amount even if it was held that he was liable to pay the arrears of rent alleged to be due against him.4. the trial court held that the suit was within limitation but that the defendant wasentitled to have the sum of rs. 100/- deductedout of the rent due and it decreed the suit for rs. 968/- only with costs, together with interest at 4 per cent. per annum from the date of the decree until realisation.5. the defendant then went up in appeal which was disposed of by the civil judge ajmer by his judgment dated the 14th march, 1963. the learned appellate judge held that arrears of rent.....
Judgment:

I.N. Modi, J.

1. This is a plaintiffs civil regular second appeal in a suit for arrears of rent which had been decreed in full by the trial Court but was dismissed in part by the learned Civil Judge, Ajmer, on appeal on the ground of limitation.

2. The material facts leading up to this appeal may shortly be stated as follows: The plaintiff is a brother of one Bal Mukund Tiwari, deceased, who created a trust with respect to the property in suit of which the defendant was made a trustee along with two other persons with whom we are not concerned. It is admitted that the defendant had been living in the said property as a tenant since 1945 on a rent of Rs. 12/8/- per mensem. The plaintiff's case is that the aforesaid trust had been held to be void by the Senior Civil Judge, Ajmer, by his judgment dated the 30th September, 1959, in civil suit No, 116 of 1958 filed at the instance of the plaintiff himself and that he had been declared to be the nearest heir of Bal Mukund deceased and as such entitled to all the property left by him including the suit premises.

It was further alleged that the defendant defaulted in the payment of rent to the plaintiff or to the trustees appointed under the deed from the 1st May, 1952, to the 30th Tune, 1959, the last-mentioned date being the one on which he had vacated the suit premises, and thus arrears of rent to the extent of Rs. 1062/ 8/- had fallen due against him and after giving the usual notice which is not disputed, he filed the suit, out of which this appeal arises, for the recovery of the aforesaid sum of Rs. 1062/ 8/- together with Rs. 5/8/- as costs of notice, the total amounting to Rs. 1068/-. This suit was brought on the 20th August, 1960. To overcome the bar of limitation, the plaintiff pleaded that the suit was within time by virtue of the provision contained in Section 10 of the Limitation Act, 1908, which Act admittedly governs this case.

3. The defendant resisted the suit. His main plea was that the suit was barred by time and further that he had spent a sum of Rs. 100/ on urgent repairs of the suit property with the consent of the other trustees and, therefore, he was entitled to a deduction of this amount even if it was held that he was liable to pay the arrears of rent alleged to be due against him.

4. The trial Court held that the suit was within limitation but that the defendant wasentitled to have the sum of Rs. 100/- deductedout of the rent due and it decreed the suit for Rs. 968/- only with costs, together with interest at 4 per cent. per annum from the date of the decree until realisation.

5. The defendant then went up in appeal which was disposed of by the Civil Judge Ajmer by his judgment dated the 14th March, 1963. The learned Appellate Judge held that arrears of rent within a period of three years from the date of suit that is from the 29th August, 1957 to 29th August, 1960, would be within limitation; but as the suit property had been vacated by the defendant on the 30th June, 1959, the plaintiff was entitled to recover rent from the 29th August, 1957 to the 30th June, 1959, only, that is, for a period of one year and ten months amounting to Rs. 275/-and dismissed the rest of the claim. Aggrieved by this decision, the plaintiff has come up in second appeal to this Court.

6. The principal question for determination which has been raised in this appeal is that the lower appellate Court was in error in dismissing the plaintiff's suit for arrears of rent from 1st May, 1952, to the 28th August, 1957, as barred by limitation. Learned counsel for the appellant places strong reliance on Section 10 of the Limitation Act and on certain general principles applicable to the law of limitation (to which I shall presently refer) in support of his submission. My attention has been invited in this connection to a few decided cases which are Lakshmi Narayana v. Veninterest at 4 per cent per annum from the Kata Subba Rao, AIR 1916 Mad 526; Nataraja Desikar v. Govinda Rao, AIR 1923 Mad 461: Mangani Ram v. Govt. of India, AIR 1953 Hyd 139 and Raj Behari Singh v. Chandrika Singh, AIR 1958 Pat 217.

The way learned counsel put his case is this. According to the terms of the trust deed made by Bal Mukund deceased of his property including the one in suit, the defendant was also one of the trustees. So far as the plaintiff himself was concerned, although he was the next heir at law of the deceased, he came into picture only when the trust-deed had been declared to be void by the competent Court of law by its judgment dated the 30th September, 1959, as a result of suit No. 116 of 1958 which was admittedly filed originally in the Court of the Sub-Judge, First Class, Ajmer on the 13th November. 1956, and from where it had eventually been transferred to the Court of the Senior Civil Judge, Ajmer, who finally disposed of it. That being so, the contention of learned counsel is two-fold.

In the first place, he contends that Section 10 of the Limitation Act applies to his case, the defendant being one of the trustees of the property in question, and, therefore, the present suit against him cannot be held to be barred by any length of time. In the second place, he contends that it was not possible for him to bring any suit against the defendant so long as the trust-deed executed by his brother Bal Mukund deceased had not been declared to be void by a competent Court of law, and, consequently, limitation, if at all, should beallowed to run against him with effect from the 30th of September, 1959, being the date of the judgment of the Court which declared the trust-deed to be void and not earlier. Elaborating his contention, learned counsel further argued that if the plaintiff should have filed his suit prior to the 30th September, 1959, for the recovery of the arrears of rent outstanding against the defendant, there was no hope of his succeeding in such a suit because the latter was one of the trustees under the deed and the Courts should not penalise him for not bringing a suit which had no chance of being successful.

7. On the other hand, it is equally strenuously argued by learned counsel for the defendant that the plaintiff was not entitled to the benefit of Section 10 of the Limitation Act as the so-called trust executed by Bal Mukund was declared to be void, and, therefore, the position in law was that there was no trust at all from the very inception nor the defendant a trustee within the meaning of Section 10 of the Limitation Act and consequently he was not entitled to the benefit of that section.

It was further contended that the case was rightly governed by Article 110 of the Limitation Act which allowed a period of three years for the recovery of arrears of rent from the date when the cause of action accrued, and that once limitation had started running against the plaintiff under Section 9 of the Limitation Act and he was not entitled to the benefit of Section 10, the plaintiff's claim for rent prior to the 29th August, 1957, was and must be held to be barred by time.

8. On having given my careful and anxious consideration to the rival arguments set out above, I have come to the conclusion that the view taken by the Court of first appeal on the question of limitation does not call for any interference. My reasons for this conclusion are briefly these.

9. The first question is whether the plaintiff is entitled to the benefit of Section 10 of the Limitation Act; for, if he is, then the suit is certainly within limitation. The relevant portion of Section 10 reads as follows:

'Notwithstanding anything herein before 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 of such property or proceeds, shall be barred by any length of time.'

The question is whether it can be postulated of this case that the defendant was a person in whom property had become vested in trust for any specific purpose within the meaning of the afore-mentioned provision. The true position in law appears to me to be that even according to the defendant this was a case of a void trust and it had indeed been so declared by a competent Court of law. That being so, the trust became void ab initio, and, consequently, it cannot properly be held that thedefendant in the present case was a person in whom property in question had vested in trust for any specific purpose. Section 10 is, therefore, completely ruled out of account in a case of this nature.Attention may be invited in support of this view to Fidahussein v. Tyabally Mulla, AIR 1941 Bom 507, and Hem Chand v. Pearey Lal, AIR 1962 PC 64. In the first case, Kama J., as he then was, held that a person who claims to be an heir of the settlor and claims to be entitled to the property on the ground that the trust deed was void could not be accepted as a person claiming against a trustee holding the properly for an express purpose. In the next case, it was held by their Lordships of the Privy Council that the law was well-established that where a trustee has been in possession for upwards of 12 years, of property under a trust which is void under the law, an action against him by the rightful owner would be barred by limitation under the statute, the reason being that the possession of the trustee is as much adverse to the true owner as to the trespasser. Referring to Section 10 of the Limitation Act, it was Further pointed out that the property in respect of which the direction in the will creating the trust is void, cannot be said to have 'vested in trust for a specific purpose' within the meaning of that provision and consequently Section 10 can have no application to such a case, and, therefore, me executor must be taken to have held the property adversely to the true owner and if he so holds it for the statutory period, then he would acquire a good title to it.

In this state of the law, I have no hesitation in coming to the conclusion that the defendant could not be accepted to be a trustee in whom the suit property had vested in trust for any specific purpose within the meaning of Section 10 of the Limitation Act, the reason being that the trust on which the plaintiff relies had been declared to be void, and, therefore, it was non est for all practical purposes. The conclusion is, therefore, irresistible that the plaintiff cannot get the benefit of this section in surmounting the plea of limitation.

10. As for the further contention of learned counsel for the plaintiff appellant in this connection, I find it extremely difficult to accept that it was not possible for him to institute a suit for the recovery of the arrears of rent in question once his brother Bal Mukund had died on the 24th May, 1952. In fact, when he filed suit No. 116 of 1958 in 1956 as already adverted to, his case specifically was that the trust created by his brother Bal Mukund was illegal and void and inoperative in law and that he was entitled to his entire property, being his next heir at law. As I look at the matter, it was perfectly possible for the present plaintiff to have filed a suit against the defendant for recovery of such arrears as had fallen due against the defendant at any time within three years thereof after Bal Mukund's death on the 24th May, 1952. There was no bar to such a suit and it is no answer to say thereto that the defendant might have resisted that suit on the ground that the plaintiff had noright to bring it on account of the trust made by Bal Mukund, which according to the position taken up by the plaintiff himself was void in law, and therefore, of no materiality whatever.

Section 9 of the Limitation Act clearly provides that when once time has begun to run, no subsequent disability or inability to me stops It. There are well-recognized exceptions to this rule and one inch exception is provided by the proviso to the section itself which lays down that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues. The principle behind this proviso is clear enough because in such a case the position of a debtor and creditor becomes intermixed for the time being, and therefore, limitation does get suspended. Another exception to Section 9 is furnished by Section 10, which I have discussed above.

Learned counsel for the plaintiff appellant is not able to place his finger on any other section of the Limitation Act to enable him to overcome the bar of limitation. All that he relies on in this behalf is the general plea that as there was a trust made by his deceased brother Bal Mukuna in this case under which the defendant was himself a trustee, he had no right to bring this suit until the trust was declared to be void and that a cause of action to him in the present case arose for the first time when the said trust was so declared, to be void on the 30th September, 1959. Earliersays he, he had no right to bring this suit at all, and, therefore, the cause of action, so far as he is concerned, arose for the first time on the 30th September, 1959.

11. For the reasons which I have already given, this argument appears to me to be fallacious and without any substance. As I have already indicated, the plaintiff's rights were infringed as soon as the trust-deed had been made by Bal Mukund with respect to his properly on the 29th January, 1951, and thereafter Bal Mukund had died on the 24th May, 1952, and the defendant had defaulted in payment of rent, and once the cause of action started running against him, it could not be arrested under Section 9 of the Limitation Act except under certain specified exceptions which are recognised by the law of limitation Itself and which do not come into play in the present case.

12. It only remains for me to briefly dispose of the cases exemplifying certain general principles relative to the law of limitation on which learned counsel for the plaintiff places his reliance. The case in AIR 1918 Mad 526 (Supra) was not of a void trust but the plaintiff himself accepted it as valid, and it was in these circumstances held that if the executors failed to do their duty and refused or neglected to sue, a legatee might sue the executors for his legacy in due course of administration and may join the debtor or his representatives as parties and claim payment of the debt to theestate. This case is, therefore, entirely distinguishable on facts.

So far as the case in AIR 1953 Hyd 139 (Supra) is concerned, it was a peculiar case where the plaintiff had no forum in which to bring his suit and, therefore, it vyas held that the time would start running against him only when such a forum became available. In AIR 1923 Mad 461 (Supra), there was no person competent to sue because the position of landlord and tenant had got inter-mixed in one and the same person, and, thereafter, limitation could not run for the simple reason that there was no one against whom it could run. The decision in the last case namely AIR 1958 Pat 217 (Supra), as I read it, does not help the plaintiff it all. Adverting to the true test to determine when a causel of action accrues to a plaintiff, that decision extracted a passage from a judgment of Mookerjee, J., in Dwijendra Narain v. Jogesh Chandra De, AIR 1924 Cal 600, which runs as follows :--

'That substance of the matter is that time runs when the cause of action accrues and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief. The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which judgment cannot be obtained. Consequently the true test to determine when a cause or action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.'

With all this, I respectfully agree, if I may say so. Judging by this test, from what I have stated above, it would be perfectly clear that in the case before me there was a person who could sue and another who could be sued and there was no lack of forum either for such a suit to be brought and that the plaintiffs right had also been infringed and could be given effect to as soon as the author of the trust-deed Bal Mukund had died and the defendant had allowed the rent payable by him to fall into arrears. There is, therefore, nothing in the Patna case which lends any support to the case of the plaintiff. In fact it seems to me to go against him.

13. For the reasons mentioned above, thisappeal fails and is hereby dismissed with costs.Leave to appeal is refused.


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