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A.N. Sabapathy Alias A. Narthanasabathy Mudaliar Vs. Ponnammal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1970)2MLJ322
AppellantA.N. Sabapathy Alias A. Narthanasabathy Mudaliar
RespondentPonnammal
Cases ReferredShankar Alva v. Ramayya Naik
Excerpt:
- .....were directed to look after the charity, the plaintiff and rajagopala took possession of the suit properties and were conducting gurupooja out of the income from the properties. the said will also provided that the residue of the income from the suit properties after meeting the expenses of the gurupooja were to be divided between the plaintiff and rajagopala in moieties. taking advantage of the said clause in the will, rajagopala seems to have executed a security bond covering the entire suit properties in favour of the defendant who filed a suit, o.s. no. 108 of 1948 on the file of the district munsif, thiruvaiyaru and obtained a decree in the said suit on the foot of the security bond executed by rajagopala. the defendant brought the property for sale and in execution purchased.....
Judgment:

G. Ramanujam, J.

1. This second appeal arises out of a suit filed by Ponnammal, the plaintiff, against A. N. Sabapathy alias A. Narthanasabapathy Mudaliar, the defendant, for partition and separate possession of her half share and for accounts from 7th March, 1951 when the defendant entered into possession of the entire suit property. The plaintiff filed the suit O.S. No. 203 of 1963 on the file of the District Munsif, Thiruvaiyaru under the following circumstances.

2. The suit property consisting of two items i.e., 93 cents in S. No. 36/4 and 6 cents in S. No. 162/25 in Devarajapettai Village, Papanasam Taluk, originally belonged to one Govindasami Mandrayar, the grandfather of the plaintiff. He left a will dated 9th September, 1917, dedicating the property to Gurupooja Charities. As per the said will the testator, Govindaswami Mandrayar and his wife were to conduct the charity till their lifetime and after their death one Dorai Ammal was to conduct the charities. After her death the plaintiff and one Rajagopala Were directed to look after the Charity, The plaintiff and Rajagopala took possession of the suit properties and were conducting Gurupooja out of the income from the properties. The said will also provided that the residue of the income from the suit properties after meeting the expenses of the Gurupooja were to be divided between the plaintiff and Rajagopala in moieties. Taking advantage of the said clause in the will, Rajagopala seems to have executed a security bond covering the entire suit properties in favour of the defendant who filed a suit, O.S. No. 108 of 1948 on the file of the District Munsif, Thiruvaiyaru and obtained a decree in the said suit on the foot of the security bond executed by Rajagopala. The defendant brought the property for sale and in execution purchased the same in Court auction. When he came to take delivery of the property in pursuance of the Court auction sale in his favour, the plaintiff obstructed and the said obstruction was removed by an order dated 4th November, 1950 in E.A. No. 1419 of 1950. Thereafter the plaintiff filed O.S. No. 261 of 1950 on the file of the District Munsif, Thiruvaiyaru to set aside the order passed in E. A. No. 1419 of 1950.

3. During the pendency of the said suit, the defendant took delivery of the entire suit properties on 7th March, 1951, and the defendant is in possession of the same ever since. In the said suit O.S. No. 261 of 1950 the plaintiff got a declaration that she is entitled to a half share in the suit properties and she was directed to file a suit for partition. The plaintiff thereafter filed the present suit O.S. No. 203 of 1963, for partition of her half share and for rendition of the accounts of the income from 7th March, 1951, when the defendant got possession of the suit properties.

4. The defendant conceded the plaintiff's right to partition and separate possession of her half share of the suit properties in view of the judgment of this Court dated 27th March, 1956 in S.A. No. 954 of 1953 as also the judgment of this Court dated 29th January, 1962 in S. A. No. 230 of 1959. However, as regards the plaintiff's claim for an account of the income, the defendant disputed his liability to account and stated that the plaintiff will be entitled for an account only from 29th January, 1962 when this Court declared the right of the plaintiff to a moiety of the properties in S.A. No. 230 of 1959.

5. The learned District Munsif who tried the suit held that the defendant was liable to account for a period of six years prior to suit as provided under Article 120 of the Limitation Act. However, on appeal, the learned Subordinate Judge of Thanjavur modified the decree of the trial Court and directed the defendant to account to the plaintiff from 7th March, 1951, till the date of delivery of possession as prayed for by the plaintiff. In the second appeal, it is contended by Mr. Parasaran, the learned Counsel for the appellant that the learned Subordinate Judge was in error in giving a decree for accounting from 7th March, 1951, notwithstanding the fact that there has been ouster and assertion of hostile title right from 7th March, 1951 upto 20th January, 1962 the date of the decree of the High Court in S.A. No. 230 of 1959. The learned Counsel goes to the extent of submitting that the proper Article to be applied to this case is Article 109 of the Limitation Act and not Article 120. As regards the application of Article 109 of the Limitation Act, both the Courts below have held that on the facts of this case Article 109 of the Limitation Act is not applicable and the proper Article to be applied is Article 120 and I am in entire agreement with the view taken by the Courts below in this regard. The decision in Pazhukath Assankevi v. Velayutha (1955) 2 M.L.J. 224, was cited before me by the learned Counsel for the appellant for the proposition that a co-sharer's suit for his share of the income from the joint property is governed by Article 120 of the Limitation Act and the cause of action in such cases when there is a denial of the co-sharer's right or hostile assertion is made by him. In the said decision, Govinda Menon, J., has expressed as follows:

The mere fact that there is no ouster or assertion of hostile title would not entitle a co-sharer who has not received the income to claim it for any period more than six years. The cause of action in such a case must be deemed to arise when the income accrues and not when there is a denial of co-sharer's right. The rights and obligations inter se between the co-sharers are subject to well defined principles. The Privy Council in Cored v. Appusamy L.R. (1912) A.C. 230, has laid down that possession of one co-sharer is never considered adverse until there is an ouster by the other. But that principle cannot be extended so far as to say that it is the duty of the co-sharer in possession to collect the income and pay their shares to the other co-sharers. No such sense of obligation is cast on a co-sharer. If the broad proposition of law enunciated by Somayya, J., is pushed to its logical conclusion then it will be open to one co-sharer to lie low without taking any interest in the management of the property leaving the other co-sharer to be in possession sometimes against his desire and thereafter claim a share of mesne profits for an indefinite period.

6. The learned Judge has differed from the view taken by Somayya, J., in Visalaksh Ammal v. Madhava Menon : (1942)1MLJ408 , holding that a co-sharer is liable to account to other sharers for their shares of income of the property for not merely for six years prior to the date of the suit but from the date of receipt of the income and the period of six years referred to in Article 120 starts from the time when the right of the plaintiff is denied or from the time when there is ouster. I am not expressing any opinion as to the correctness or otherwise of the view expressed by Govinda Menon, J., in Pazhukkath Assankevi v. Velayutha (1955) 2 M.L.J. 224, that even in the absence of any ouster or assertion of hostile title, a co-sharer is not entitled to claim accounting for any period more than six years prior to suit, for the reason that on the facts established in that case, the decision of Somayya, J., in Visalakshi Ammal v. Madhva Menon : (1942)1MLJ408 , is applicable. Somayya, J., has laid down in that case that in the absence of ouster or assertion of hostile title to the knowledge of the plaintiff, the plaintiff's right to share in the income is not confined to a period of six years before the date of the suit. On the ruling of Somayya, J., in the said decision, the Counsel for the appellant-defendant is right in his contention that there has been an ouster and an assertion of hostile title to the knowledge of the plaintiff more than six years before the date of the suit and that as such, the time has begun to run from 7th March, 1951, when the right to sue accrued, and when the defendant entered into possession of the suit property in assertion of a hostile title to the knowledge of the plaintiff. That being so, it has to be held that the plaintiff in this case is not entitled to the profits for more than six years prior to the date of the suit.

7. The learned Counsel for the respondent in the second appeal contends before me that in fact there is no ouster or assertion of hostile title in this case as the defendant has conceded the right of the plaintiff to a half share in the suit properties and having regard to the conduct of the defendant in the present suit, it cannot be said that the defendant is in possession of the suit property in assertion of a hostile title. According to the learned Counsel the conduct of the defendant in the present suit should alone be taken into account and not his conduct prior to the suit. I am not disposed to agree with the contention of the learned Counsel for the respondent. It is the conduct of the defendant prior to the present suit that is material to find out whether he has been in possession and enjoyment of the income from the suit properties adversely to the plaintiff or not and the concession made by the defendant in the present suit that the plaintiff is entitled to half a share in the suit properties will not stand in the way of the defendant putting forward the plea that he has been in possession of the properties and has been enjoying the income in assertion of a hostile title to the knowledge of the plaintiff. The learned Counsel for the respondent referred before me the decision of the Supreme Court in Rukmabai v. Lala Lakshminarayana : [1960]2SCR253 , and the decision of the Mysore High Court in. Sankar Alva v. Ramayya Naik : AIR1964Kant16 , as supporting the stand taken by the respondent in this case that he is entitled to the relief of accounting for a period beyond six years. It was held by the Supreme Court in Rukmabai v. Lala Lakshminarayana : [1960]2SCR253 , that the right to sue accrues for the purpose of Article 120 when there is an accrual of a right asserted in the suit and unequivocal threat by the respondent to infringe it. In this case the plaintiffs' right to a half share in the suit properties was denied by the defendant even in the earlier proceedings and possession was taken through Court after removing the obstruction put forward by the plaintiff and so, it should be taken that the right to sue has accrued to the plaintiffs on 7th March, 1952, when the defendant got exclusive possession through Court overruling the objections of the plaintiffs. The decision of the Mysore High Court in Shankar Alva v. Ramayya Naik : AIR1964Kant16 , cannot be applied to the facts of the present case, where there is, a clear ouster and assertion of a hostile title by the defendant unlike the facts in that case.

8. In the circumstances, I hold that the defendant is liable to account to the first plaintiff only for a period of six years prior to the suit towards her share of the income from the suit properties. The second appeal is therefore allowed ; the decree and judgment of the learned Subordinate Judge in A.S. No. 52 of 1964 are set aside and the decree and judgment of the trial Court in O.S. No. 203 of 1963 in this regard is restored. There will be no order as to costs. No leave.


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