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HusaIn Batcha Sahib Vs. the Secretary of State for India in Council, Represented by the Collector of North Arcot and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1941)1MLJ374
AppellantHusaIn Batcha Sahib
RespondentThe Secretary of State for India in Council, Represented by the Collector of North Arcot and anr.
Cases ReferredSecretary of State v. Parashram Madhawrao
Excerpt:
- - the appellant then appealed to this court and again was unsuccessful. 306 ,and we consider that this contention is well founded. the privy council decided that the plaintiff's claim was well founded and that his suit was not time-barred, because it was governed by article 131 of the limitation act and had been brought within 12 years of the secretary of state's refusal to accede to the plaintiff's claim......that he was the lawful holder of the office of mutawalli. originally the only defendant was the secretary of state but, on objection being taken by the secretary of state, the widow was added as a party. the district munsif held that the appellant was entitled to the offices of mutawalli and katheeb, but that he was not entitled to claim the yeomiah allowance because the suit had not been brought within six years of the death of mohamed ali. following the decision of this court in ghulam ghouse khan sahib v. jannia : (1920)39mlj492 , he held that the plaintiff's claim fell within article 120. in these circumstances the district munsif did not inquire into the appellant's claim that the yeomiah allowance attaches to the office of mutawalli. the appellant appealed to the district judge.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellant is the mutuwalli and katheeb of a mosque in the village of Sattur, which is situated in the Wallajah Taluk of the North Arcot District. In the days of the Nawabs of the Carnatic a yeomiah allowance of Rs. 88-8-0 per annum was granted to the mutawalli of this mosque. The immediate predecessor of the appellant in the office of mutawalli was one Mohamed Ali, who died in the year 1918, While he held the office of mutawalli he was in receipt of this yeomiah allowance, which is now payable by the Government. After his death the Government paid this allowance to his widow, the second respondent in this appeal. The appellant's formal appointment to the office of mutawalli took place on the 17th December, 1919 and having taken up the duties of mutawalli he claimed to be entitled to the yeomiah allowance by virtue of his appointment, but the Government, refused to recognise the claim. Apparently the attitude taken up by the Government was that they were entitled to pay the allowance to Mohamed Ali's widow as an heir of the original grantee.

2. In 1921 the appellant instituted a suit in the District Court of North Arcot against the widow for a declaration that he was entitled to the office of mutawalli and other offices attached to the mosque. He obtained a decree, but the Government still refused to recognise his claim to be entitled to the yeomiah allowance and consequently the appellant filed the suit out of which this appeal arises to compel payment to him. The suit was filed on the 14th December, 1931 in the Court of the District Munsif of Ranipet. The appellant claimed inter alia a declaration that he was entitled to the yeomiah allowance by reason of the fact that he was the lawful holder of the office of mutawalli. Originally the only defendant was the Secretary of State but, on objection being taken by the Secretary of State, the widow was added as a party. The District Munsif held that the appellant was entitled to the offices of mutawalli and katheeb, but that he was not entitled to claim the yeomiah allowance because the suit had not been brought within six years of the death of Mohamed Ali. Following the decision of this Court in Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 , he held that the plaintiff's claim fell within Article 120. In these circumstances the District Munsif did not inquire into the appellant's claim that the yeomiah allowance attaches to the office of mutawalli. The appellant appealed to the District Judge of North Arcot, but the District Judge concurred in the findings of the District Munsif and dismissed the appeal. The appellant then appealed to this Court and again was unsuccessful. The appeal was heard by Wadsworth, J., who also considered that the suit was governed by the decision in Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 The learned Judge, however, gave certificate which has permitted the filing of the present appeal under Clause 15 of the Letters Patent. If the case is governed by Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 , it is quite clear that the suit is out of time, but the learned Advocate for the appellant contends that this decision has in effect been overruled by the Privy Council in Secretary of State v. Parashram Madhawrao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : I.L.R. 58 Bom. 306 , and we consider that this contention is well founded.

3. In Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 Ayling and Coutts Trotter, JJ., held that a right to a yeomiah allowance must be classified as a perpetual right and not as a periodically recurring right. Consequently they said that such a suit was governed by Article 120 and not Article 131 of the Limitation Act. Article 120 is the residuary article in Part VII of the Act. It fixes the period of limitation at six years which commences from the date when the right to sue accrues. Article 131 prescribes a period of twelve years for a suit to establish a periodically recurring right. The time begins to run when the plaintiff was first refused the enjoyment of the right. The learned Judges who decided Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 , said that:

The mere fact that sums of money are paid periodically does not make the right one which periodically recurs; the right is always there but it is only exercised at such times as the sums fall due.

4. In the Secretary of State v. Parashram Madhawrao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : I.L.R. 58 Bom. 306 , the plaintiff claimed that he was entitled to receive an annuity consisting of a percentage of the assessments from time to time made on certain villages and payment of arrears on that basis. The Secretary of State averred that the plaintiff was only entitled to a fixed annual sum and said that the suit was barred by the law of limitation. The Privy Council decided that the plaintiff's claim was well founded and that his suit was not time-barred, because it was governed by Article 131 of the Limitation Act and had been brought within 12 years of the Secretary of State's refusal to accede to the plaintiff's claim.

5. The learned Government Pleader has rightly conceded that the only distinction which can be drawn between the Secretary of State v. Parashram Madhawarao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : I.L.R.(1934)58 Bom. 306 , and the present case is that in the former case the allowance payable to plaintiff varied from year to year and in this case the allowance is fixed. What difference this makes we are at a loss to understand. If the claim in Secretary of State v. Parashram Madhawrao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : I.L.R. 58 Bom. 306 , was governed by Article 131, as it was, this suit must be governed by the same article. Accordingly we hold that Ghulam Ghouse Khan Sahib v. Jannia : (1920)39MLJ492 , should no longer be followed.

6. The appellant filed the present suit to establish a right to an annual payment which he said was attached to the office of mutawalli of this particular mosque and admittedly it has been filed within twelve years of the Secretary of State's refusal to recognise the validity of the appellant's claim. It has been suggested that because the Secretary of State has conceded that the Government is bound to make this annual payment the suit cannot be classified as one to establish a periodically recurring right, but this argument overlooks the fact that the plaintiff is suing for a declaration that the right to this annual payment attaches to the office which he holds. This is denied. Therefore it is a suit to establish a periodically recurring right alleged to be attached to the office. Looked at in the light of the judgment of the Privy Council in the Secretary of State v. Parashram Madhawrao (1934) 66 M.L.J. 614 : L.R. 61 IndAp 190 : I.L.R. 58 Bom. 306 ,the only Article of the Limitation Act applicable is Article 131.

7. For these reasons we allow the appeal and remand the case to the trial Court to hear and decide the issues left undecided. The appellant is entitled to his costs in the District Court and of the two appeals in this Court. The costs in the trial Court will abide the result of the suit. The appellant is entitled to refund of the Court fee paid on the memorandum of appeal.


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