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Saranga Sesha Naidu Vs. Periasami Odayar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Judge
Reported in(1921)ILR44Mad951
AppellantSaranga Sesha Naidu
RespondentPeriasami Odayar
Cases Referred(especially Nobin Chunder Chuckerbutty v. Guru Pershad Doss
Excerpt:
limitation act (indian) (ix of 1908), articles 134 and 141 - hindu law--reversioner--suit by reversioner to recover possession after death of daughter of the last male owner--lands mortgaged usufructuarily by last male owner in 1866--sale in 1900 by mortgagee after male owner's death, during daughter's life-time--death of daughter in 1906--suit in 1914 by reversioner against vendee for possession of lands--bar of limitation. - - 3. the transfer by the mortgagee, vasudeva naick, of the absolute title to the defendant was in 1900. a perusal of exhibit iii leaves no doubt in my mind that it was an absolute sale for good consideration. 5. the subordinate judge was therefore right in holding that the present suit in respect of the one-fifth share of lands and house mortgaged by the last male..........not described in the articles 134, 135, 138 to 140, 142,143 and 148, does article 141 apply to suits by reversioners--the discontinuance of possession in article 142 referring to a discontinuance during the last male owner's life-time.12. if the intention of the legislature, when it departed from the act of 1859 and introduced article 141 in the later acts, was to give the reversioners the benefit of a longer period in all suits to recover possession, even where the suits are of the kind described in the other articles, such intention would have been attained and expressed better, not, by the introduction of a separate article like article 141 but a general section somewhat as follows:where in the suits described in articles 134 to 144 and 148 the plaintiff is a person entitled to.....
Judgment:

Spencer, J.

1. In the course of the full and able arguments on either side to which we have listened, no reported case has been cited in which a question arose of a choice between the application of Article 134 or 141 of the Limitation Act, Kannusami Tanjirayan v. Muthusami Pillai (1917) 5 L.W., 250 was an instance of a conflict between Article 134 and Article 144. I then observed that it was clear that the plaintiff could not have resort to Article 141 unless he first showed that Article 134 was inapplicable, the reason being that Article 144 is the residuary article for suits for the possession of immoveable property as is indicated by the words 'not hereby otherwise specially provided for.'

2. There is no indication that Article 134 should not be applied to suits for possession of immoveable property which but for that article might have been governed by the period of limitation prescribed in Article 141. In Seeti Kutti v. Kunhi Pathumma (1917) I.L.R., 40 Mad., 1040 (F.B.), the learned Chief Justice after discussing the law of limitation applicable to similar actions under the English Act pointed out that Article 134 of the Indian Limitation Act was in its origin wholly self-contained and was not appended as a proviso to any other section. A reversioner's disability to sue for possession while a Hindu female is the owner in possession of the estate has not been treated by the legislature on the same footing as the disability of a minor, an idiot, or an insane person, in whose favour, by Section 6 of the Act, an extra period has been allowed for instituting their suits whatever may be the article applicable to a suit of the same description by a person not so disabled.

3. The transfer by the mortgagee, Vasudeva Naick, of the absolute title to the defendant was in 1900. A perusal of Exhibit III leaves no doubt in my mind that it was an absolute sale for good consideration. Kaveriammal, the last female owner, died in 1906. She had six years before her death to sue under Article 134 to recover the property, and the plaintiff had six years after her death till 1912, but he neglected to move in the matter till 1914.

4. Kaveriammal's quiescence during those first six years will not amount to an act of alienation which the reversioner on succeeding to the estate can sue to set aside. Both were equally negligent in preserving the interests of the mortgagor which they in turn represented.

5. The Subordinate Judge was therefore right in holding that the present suit in respect of the one-fifth share of lands and house mortgaged by the last male owner in 1866 and afterwards transferred by the mortgagee in 1900 was time-barred under Article 134. The plaintiff's claim for a three-fifths share of lands and house alleged to have been sold in 1865 is barred by adverse possession that commenced during the life-time of the last male owner, and he failed to prove that there was any other one-fifth share of the house still remaining unalienated. The result is that the Second Appeal fails and is dismissed with costs.

Ramesam, J.

6. The subject matter of the suit is a house and four-fifths share of certain lands. It is common ground that one Rangaswami Naicker was the original, owner of four-fifths share of the house and four-fifths share of the lands. Whether he was also owner of the remaining one-fifth share of the house will be dealt with later on. Rangaswami died in 1867 leaving three daughters and the youngest of these who survived the others died in 1906. The first plaintiff, who is the daughter's son of Rangaswami, being the sole reversioner, brought this suit in 1914, that is, within 12 years after the death of the last daughter, to recover possession of the properties. The defence is (1) as to the one-fifth share in the house and a like-share in the lands, they were mortgaged by Rangaswami in 1866, with possession to one Vasudeva who sold the property in 1900 to the defendant and hence the suit is barred by limitation under Article 184 of the Limitation Act; (2) as to the three-fifths share in the house and a like share in the lands, they were sold with Rangaswami's consent in 1865 by Appavu, a mortgagee of Rangaswami, for discharging the mortgage debt to Vasudeya, who sold it to the defendant in 1900.

7. It is suggested for the appellant that there is a one-fifth share of the house, belonging to Ramaswami and left untouched by these transactions, and the plaintiff is entitled to a decree for this share, as his suit is obviously not barred having regard to Article 141 of the Limitation Act. It does not appear that the plaintiff made this claim in the Courts below. Having regard to the fact that the ownership in the village, depended on the pangu right or share in a mirasi village, and the share in the house generally corresponded with the share in the lands and to the fact that Rangaswami purchased the one-fifth share in the house and a like share in the lands from his brother, Ramaswami, and had a three-fifths share in both, in his own right, it does not appear that Rangaswami had ever possessed the remaining one-fifth share in the house by purchase or otherwise. There is no evidence on record to support the right of Rangaswami to more than a four-fifths share of the house. On this ground, the last contention of the appellant must be negatived.

8. As to the lands said to be sold in 1865, it appears that the sale deed of 1865 was unregistered and the appellant also contends that the secondary evidence of the sale deed has been wrongly admitted. But there is other evidence in the case, including plaintiff's admissions, from which it can be reasonably inferred that Vasudeva got into possession in 1865 under an attempted sale whether the sale was valid or not, and adverse possession began during the life-time of Rangaswami as found by the Subordinate Judge. So, the appellant's case fails as to the three-fifths share also.

9. The only portion that remains to be considered is the one-fifth share mortgaged in 1866 and this turns on a pure question of law, viz., whether Article 141 or Article 134 applies to the case. At the outset, I may point out that the transfer of 1900 was accompanied by possession, thus avoiding the difficult question discussed in Seeti Kutti v. Kunhi Pathumma (1917) I.L.R., 40 Med., 1040 (F.B.). As it is clear that the language of Article 134 applies literally, the argument for the appellant may be stated at its best in the form that where Article 141 is applicable as well as another article, the former prevails and as an illustration Runchordas v. Parvati bai (1899) I.L.R.,23 Bom., 725 (P.C.) was relied on, where it was held that Article 144 did not apply and Article 141 applied. The obvious reply to the argument, so far as it relates to Article 144, is that the case was not a case to which both articles apply, as Article 144 by its language can never be applied if there is another article which is applicable. But, the main argument has still to be considered as to other articles. The articles dealing with suits for recovery of immoveable property, including for this purpose the suit described in Article 148 also, are Articles 134 to 144 and Article 148. Omitting Article 144 from consideration, on the ground that it cannot apply where any other article applies, those that remain are Articles 134 to 143 and 148. As to them, it is contended for the appellant that wherever a suit falls under Article 141 and also under any one of the other articles, the former ought to prevail, as since the enactment, of the Limitation Act of 1871 the intention of the Legislature was to do away with the rule that prevailed under the Limitation Act of 1859 [viz., that adverse possession against the widow is also adverse possession against the reversioner: see Nobin Chunder Chuckerbutty v. Guru Pershad Doss (1868) B.L.R. Sup. Vol., 1008 (F.B.)] and to give the reversioner the benefit of a long period of limitation. Now, the suits of Hindu reversioners which may fall under any of the Articles 134 to 140, 142, 143, and 148 (and to which Article 141 may seem also to apply) may be divided into three classes:

(1) Suits where the cause of action has accrued during the life-time of the last male owner or his predecessor-in-title, and the period of limitation under the specific article has expired during the life-time of one of the intermediate female owners. Will Article 141 help the reversioner in such a case and extend the period under the specific article to 12 years beyond the death of the female and enable him to recover the property? The appellant's counsel concedes that Article 141 does not apply to such cases and the reason he gives is that the reversioner is not 'entitled' within the meaning of Article 141, to recover possession, for, the right would be already barred in these cases.

(2) Suits where the cause of action has accrued during the life-time of the last owner or his predecessor-in-title, but the period of limitation under the specific article has not expired during the life-time of the intermediate female owners. In such a case, the period of limitation has only partly run, leaving a balance of the period within which the suit may be brought by the reversioner successfully. In such a case, will the reversioner's suit be governed by Article 141 so as to give him a period of 12 years from the death of the female, which will be longer than the balance left under the other articles except in the case of a suit under Article 148, when the result of applying Article 141 may be even to cut down the period given by Article 148? The appellant's counsel concedes that Article 141 does not govern such a case. But his former reason that the reversioner is not entitled on the death of the female is not available to him here, for, in this case, the reversioner is entitled to possession on the death of the female whatever article is applied. Why should Article 141 be construed so as to exclude this class of cases, if the appellant's contention that Article 141 should be applied to all cases to which it apparently applies is correct?

(3) Where the causes of action accrued, not during the life-time of the last male owner or his predecessor-in-title, but after his death and during or at the end of the life of the intervening female. Cases falling under this class cannot be governed by Articles 136 and 137, but the other Articles 134, 135, 138 to 140, 142 and 143 and 148 may be applicable to them. As to these the appellant's counsel contends that notwithstanding the applicability of any one of these specific articles, Article 141 applies also to the suit and prevails over the other articles if it is for the benefit of the reversioner. This last qualification has to be added, for, in a suit of the kind described in Article 148, the application of Article 141 may have the effect of cutting down the period of 60 years. This argument of the appellant's counsel depends on the construction of the words 'entitled to possession' as meaning 'entitled to recover possession on any cause of action' thus giving a wide scope to the suits described under Article 141 and, further, apart from the anomaly of giving no explanation why it should not govern the second class of cases mentioned by me involves the two following propositions:

(i) The articles of the Limitation Act may be overlap ping. Two articles may be both applicable to the same class of suits.

(ii) That the Court can pick and choose from the articles that which ought to be applied to the case--sometimes one and sometimes the other, whichever gives the longer period of limitation with reference to the facts of each case.

10. There is no warrant for these propositions and I do not understand Ishur Chunder Bhaduri v. Jibun Kumari Bibi I.L.R., (1889) Calc., 25 and Natesan Chetty v. Soundararaja Ayyangar I.L.R., (1898) Mad., 141, as supporting the first proposition. There is always one article applicable to a case and the Court has to find it, though more than one may seem to be applicable and such a construction of the various articles has to be adopted as to confine each article to one exclusive category of suits. One principle in the working out of this process is the maxim Generalia specialibus non derogant, specialia derogant generalibus.

11. The second proposition is still more untenable, and the fact that the appellant's argument involves it is a very strong argument against it. It is true that this strong argument is furnished only by bringing in suits described in Article 148 for consideration among the suits for recovery of immoveable property. If it is said that such suits are only suits to redeem and there is no analogy between Article 148 and the other Articles 134, 135, 138 to 140, 142 and 143 the reply is that the suit under Article 134 is certainly analogous to the suit under Article 148. Both are based on a mortgage; even in Article 148, the suit may be described as a suit to recover the property if it is the plaintiff's case that a mortgage is discharged; and even in a suit under Article 134 the appropriate relief against a transferee is a decree for redemption as the transferee gets by the transfer at least the rights of his transferor. In this light I would construe Article 141 to cover only those cases in which the cause of action is simply the death of the female and the only obstacle to the reversioner seeking to obtain possession is either an act of the female or her inaction--in either case resulting in the loss of possession to a stranger and the need of a suit on behalf of the reversioner. It does not cover cases where the cause of action includes something more beyond this, e.g., a transaction by the last male owner, such as a mortgage (article 148), a mortgage by him and transfer by the mortgagee (article 134), a purchase in Court auction (article 138), a lease (article 139), or a carving by him of life-estates with a remainder of a reversion following it (article 140) or any transaction involving the possibility of forfeiture (article 143) or loss of possession by him (article 142). In these cases, the specific article applies. This is the respondents' contention and the result of accepting it would be that Article 141 does not apply to the first two classes of cases; and in the third class of cases:

(a) Of the Articles 134, 135, 138 to 144 and 148 no two are overlapping;

(b) Article 144 has to be applied last;

(c) Bach of the other articles has to be applied when the suit is of the kind described in it, even if it is a suit by a reversioner;

(d) Only when the suit is of a kind not described in the Articles 134, 135, 138 to 140, 142,143 and 148, does Article 141 apply to suits by reversioners--the discontinuance of possession in Article 142 referring to a discontinuance during the last male owner's life-time.

12. If the intention of the legislature, when it departed from the Act of 1859 and introduced Article 141 in the later Acts, was to give the reversioners the benefit of a longer period in all suits to recover possession, even where the suits are of the kind described in the other articles, such intention would have been attained and expressed better, not, by the introduction of a separate article like Article 141 but a general section somewhat as follows:

Where in the suits described in Articles 134 to 144 and 148 the plaintiff is a person entitled to the right on the death of a Hindu female, and the cause of action accrues during or at the end of the life of the female the interval between the accrual of, the cause of action and the death of the female shall be excluded from the computation of the period in the second column.

13. I am therefore of opinion that the suit is governed by Article 134.

14. Another argument of the learned Counsel for the appellant is that such a construction will leave the reversioner without a remedy, for the intervening female may allow the suit to be barred and he himself has no right to bring a suit. Apart from the consideration that the fact that some possible hardship cannot stand in the way of accepting a construction of a statute otherwise clear, I am unable to agree with the proposition that the reversioner cannot intervene for the protection of the actual reversioner if the widow neglects to take action. In support of his proposition, the learned Counsel for the appellant relied on (i) the dictum of Srinivasa Ayyangar, J., in Seeti Kutti v. Kunhi Pathumma (1917) I.L.R., 40 Mad., 1040 (F.B.), 1061:

Further, the article cannot, I think, apply to suits where, at the time of the transfer the mortgagor was not entitled to sue for possession, etc.

15. This dictum was not necessary for the decision of the point before the Full Bench and I respectfully dissent from it. When we see the varying attitude of the legislature in respect of the suit described in Article 134 [see Radanath Doss v. Gisborne (1871) 14.M.1.A., 1, 50, on the Act of 1859, Bhagwan Sahai v. Bhagwan Div I.L.R.,(1897) All., 97, on the Act of 1871 and Muthu v. Kambalinga I.L.R., (1889) Mad., 316], it is clear that the object of the article was to cut down the period available to the mortgagor under Article 148 and to compel him to watch the conduct of the mortgagee and to intervene on a transfer, thus making the transfer a cause of action which otherwise did not exist.

(ii) Ram Chandar v. Kallu I.L.R., (1908) All., 497, Vengamma v. Chelamayya, I.L.R.,(1918) Mad., 484 hold that the reversioner cannot sue to redeem during the lifetime of the widow. Ordinarily this is true, but I do not understand the cases to lay down that in a case where the appropriate allegations are made and the facts are proved, to the effect that the intervening female's conduct is such as to raise the apprehension that the property will never be redeemed or altogether lost to a transferee, the reversioner cannot maintain an action for the preservation of the property, on the same principle that actions to retain waste are allowed (see Mayne's Hindu Law, paragraph 647, and cases cited therein (especially Nobin Chunder Chuckerbutty v. Guru Pershad Doss (1868) B.L.R. Sup. 1008 (F.B.) per Sir BARNES PEACOCK).

16. I am therefore of opinion that Article 134 applies to the one-fifth share of the house and of the land mortgaged in 1866.

17. The result is the whole Second Appeal fails and is dismissed with costs.


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