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(Peria) Syed Levvai Rowther and anr. Vs. Syed Ammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1933Mad200
Appellant(Peria) Syed Levvai Rowther and anr.
RespondentSyed Ammal
Cases ReferredMidnapur Zamindari Co. v. Kumar Naresh Narayan A.I.R.
Excerpt:
- - pathumal bivi (1916)32ic83, a case like the present between mahomedan one of the reliefs claimed by a mahomedan lady against her co-heir was in respect of the amount of a mortgage debt collected by the defendant more than six years before the suit and it was held that article 120 applied to the case and as the right to sue accrued from day today the action was not barred. it is true that this particular point did not arise for decision in those cases but the reasoning on which the learned judges held that article 120 applied and not article 62 clearly shows that the liability to account would extend for more than six years prior to the suit, the right to partition being a continuing one......it is pointed out that the respondent's argument is open to the criticizm that by calling the suit a suit for partition, which, no doubt it really is, in one sense, the essential nature of the claim is overlooked and the claimant is enabled to keep alive his cause of action indefinitely which in many cases may be a source of hardship to the co-heir who is in management of the estate. this argument is not without some force, but this court has in a series of cases allowed accounting in partition suits brought against co-heirs for more than six years. in abdul rahiman v. pathumal bivi (1916)32ic83, a case like the present between mahomedan one of the reliefs claimed by a mahomedan lady against her co-heir was in respect of the amount of a mortgage debt collected by the defendant more.....
Judgment:

Madhavan Nair, J.

1. Defendants 2 and 4 are the appellants. This second appeal arises out of a suit for partition of the estate of one Syed Kalai Syed Levvai now deceased. He died leaving him surviving his widow, two daughters and his brother and sister. The widow is the plaintiff. The daughters are defendants 6 and 7 and the brother's heirs are defendants 1 to 5. The sister Bathammal is not a party to the suit. Syed Levvai died in February 1909. His brother Peria Narain Levvai died in October 1911. It has been found by the lower Courts that after that time defendant 4 has been in management of the estate. The plaintiff was given her share in the immovable properties. A decree was also given to her against defendant 4, her brother's son, to account for her share of the collections and income from the estate commencing from October 1911. She was also given a decree with respect to the mortgage amount in Ex. 21-a and in respect of Rs. 500 under Exs. D and D-1. Defendant 2 was made liable to account for the income of the lands till 1915 as admitted in his written statement. The suit has been preferred in 1922.

2. In this second appeal objection is taken as regards the period during which defendant 4 has been made liable to account for the income and collections, and also with regard to his liability to account for the amount due under Exs. 21-a and D and D-l. As regards the first point that is the period for which defendant 4 was made liable to account, which I shall deal with first, the argument of the learned Counsel for the appellant is that Article 120, Limitation Act, applies to the case and that the learned Subordinate Judge was wrong in giving a decree to the plaintiff for the income and collections arising out of the estate for more than six years prior to the suit. The lower Courts found, as already stated, that defendant 4 was in management from the death of his brother in October 1911. It was also found that the plaintiff's demand for her share of the property was refused only in 1921, about a year before the suit. It is conceded that Article 120 is the article of the Limitation Act applicable to the case. The article prescribes a period of six years for a suit for which no period of limitation is provided in the Limitation Act, the period being calculated from the time when the right to sue accrues. I applying this article it is argued that since the plaintiff's claim is for an account against defendant 4 for the income and collections made by him, it must be held that his cause of action for each year's income and the collections arose on the receipt of such income, and so, in taking the accounts the appellant should not have been asked to account for more than six years, (that is, for years prior to 1916) in this case. On behalf of the respondent, it is argued that the suit is for partition, that the right to sue is a continuing one and accrues in such a case only, when there has been a demand and a refusal and that if the suit has been brought within six years after the demand and refusal then the person liable may be asked to account for the entire period of his management even if it exceeds six years.

3. The claim for an account, though made in a partition suit, being in the nature of a suit for an account, it is pointed out that the respondent's argument is open to the criticizm that by calling the suit a suit for partition, which, no doubt it really is, in one sense, the essential nature of the claim is overlooked and the claimant is enabled to keep alive his cause of action indefinitely which in many cases may be a source of hardship to the co-heir who is in management of the estate. This argument is not without some force, but this Court has in a series of cases allowed accounting in partition suits brought against co-heirs for more than six years. In Abdul Rahiman v. Pathumal Bivi (1916)32IC83, a case like the present between Mahomedan one of the reliefs claimed by a Mahomedan lady against her co-heir was in respect of the amount of a mortgage debt collected by the defendant more than six years before the suit and it was held that Article 120 applied to the case and as the right to sue accrued from day today the action was not barred. In arriving at their conclusion the learned Judges relied on the following remarks of Sankaran Nair, J. and Oldfield, J., in Marian Bivi Ammal v. Kadir Meera Saheb (1915)29IC275:

The defendants having taken up possession of the property as tenants-in-common they must be deemed to have been in possession of such property on behalf of themselves and of the plaintiff and it lies on them to say that so far as the plaintiff is concerned the character of the possession was changed six years before the date of the suit.

4. In that case which was similar to the one before them the learned Judges held that the plaintiff's claim was not barred though the moveables for which she claimed a share had come into the defendant's hands more than 20 years before suit. In Subba Row v. Rama Row (1917)40Mad291, the plaintiff and the defendant were cosharers in a jaghir which was originally granted to their ancestor. The defendant had been appointed by the Government as the manager thereof in 1886 and was liable to account to the plaintiff for his share of the net income accruing due in every year. In 1913 the plaintiff sued for the recovery of his share of the income due for the years 1905 to 1907, for a period prior to six years before the suit.

5. It was held that under Article 120 the claim was not barred by limitation. It is argued for the appellant that in these cases the question for decision was whether Article 62 or Article 120, Lim. Act, would apply and not if, whether Article 120 applied, a person liable to account should be called on to account for more than six years prior to the suit. It is true that this particular point did not arise for decision in those cases but the reasoning on which the learned Judges held that Article 120 applied and not Article 62 clearly shows that the liability to account would extend for more than six years prior to the suit, the right to partition being a continuing one. This appears to be clear from the observations regarding suits for partition in Mohabarat Shaha v. Abdul Hamid Khan (1905)1CL J73 relied on by the learned Judges in Abdul Rahiman v. Pathumal Bivi (1916)32IC83 which are as follows:

We might possibly hold that such suits are not beyond the scope of the Limitation Act, but that in each case the right to sue accrues every moment during the whole of the time, that the right to the property continues to exist; for instance, the liability to be partitioned is one of the incidents of joint property and a co-owner has the right to sue for partition at every moment of the whole period during which he continues to be co-owner.

6. The decisions which I have referred to are relied on in the Full Bench decision in Yerukola v. Yerukola AIR 1922 Mad 150. In that case which was also one for partition and an account, the Full Bench held that Article 120 would apply and not Article 89 and 109 or Article 127 unless from the facts of the case it could be inferred that the person receiving the moneys, rents and profits acted as an agent in which case Article 89 would apply. In holding that Article 120 would apply, the learned Sir Walter Schwabe, C.J., dealt with the question as to whether (see p. 664 of 45 Mad.) the right to sue is to be deemed to accrue on the receipts of the profits or when the account is called for and refused, and his observations on that question deal with the point now pressed by the learned advocate for the appellant. The learned Judge observed as follows:

In my judgment-and I have the support of the authority already referred to, Marian Bivi Ammal v. Kadir Meera Saheb (1915) 29 IC 275, the right to sue arises in this kind of cases when there is a demand and a refusal for account, or, it could be put as, when there is in fact, an ouster. It really follows from what I have already said there is no cause of action on the mere receipt by one of the brothers of any particular amount, and it is clear to my mind that the period of limitation cannot run until the cause of action arises. That cause of action does not come into being until, at any rate, there is something done which shows that the man who got the money into his possession is holding it adversely to the plaintiff.

7. This case was followed in Ayyakutti Thevan v. Sigappi Achi : AIR1928Mad1236 , in which case the plaintiff was given a decree for an account for the period mentioned in the plaint which appears from the papers was for 13 years, i.e. 1910 to 1923. So according to the trend of the decisions of this Court, having regard to the findings that the demand for the income and its refusal in this case was only in the year 1921 the plaintiff's right to demand from defendant 4 an account of the income from October 1911 to the date of the suit though the period is for more than six years cannot be held to be barred under Article 120, Lim. Act.

8. The appellant has not been able to cite any decision of this Court in support of his contention, but he has referred to a few decisions of the other Courts and a decision of the Privy Council which I shall now consider. In Biswambar Haider v. Giri Bala Dasi AIR 1921 Cal 571 the present point did not arise for decision. That suit seems to have been treated mainly as a suit for an account, but however that may be, the only question that was decided was that Article 10, Lim. Act, would not govern a suit for account against a karta and that Article 120 is the article applicable. In Maung Po Nyun v. Ma Saw Pin (A.I.R.1931Rang.150) the suit in which the claimants were decreed six years' profits was a suit for the recovery of rents and profits and not a suit for partition, the share of the property and the income to which the respondents were entitled having been already settled in a prior suit, and further the question whether, if Article 120 applied, the suit would be barred for the recovery of profits for more than six years was not considered, the only question for decision being which of the articles, 109, 62 or 120, would apply. The appellant very strongly relied on the order of their Lordships of the Privy Council reported in Midnapore Zamindari Co. v. Naresh Narayan , overruling their decision in AIR1924PC144. In the main case the plaintiff obtained a decree for the partition of certain lands in which he and the Midnapur Company were cosharers and the company was ordered to pay compensation to the plaintiff for his exclusive use of the land from 20th June 1908 until the partition has been effected and possession of the lands falling to plaintiff has been delivered. It is pointed out in Midnapur Zamindari Co. v. Kumar Naresh Narayan A.I.R. 1925 P.C. 93 : that the above judgment was subsequently amended by their Lordships by inserting the date 8th August 1906 in the place of 20th June 1903, the suit having been filed on 8th August 1912.

9. It is argued that this amendment shows that compensation for only six years under Article 120 was allowed by the Privy Council and not for more than six years. The amendment no doubt justifies the argument urged by the appellants' counsel but the reasoning of their Lordships does not appear in the report and from the bare fact that the previous order was amended in the way indicated in the report I am not prepared to hold that the decisions of this Court which I have noticed require reconsideration. For the above reasons, following the decisions of this Court I agree with the lower Court, in holding that the plaintiff is entitled to claim from defendant 4 her share of the income and collections made by him for the full period commencing from October 1911 and not merely for a period of six years prior to the suit. The next argument relates to the mortgage amount in Ex. 21-A and Rs. 500 under Exs. D and D-l. The arguments urged in connexion with those items, deal with the findings of fact arrived at by the lower Courts which cannot be questioned in second appeal. In the result the second appeal is dismissed with costs.


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