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Brijnandan Singh Vs. Bidya Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1915)ILR42Cal1068
AppellantBrijnandan Singh;bidya Prasad Singh
RespondentBidya Prasad Singh;bhup NaraIn Singh
Cases ReferredSurja Prasad v. Golab Chand
Excerpt:
hindu law - mortgage---mitakshara--mortgage by father to secure personal debt--neither antecedant, nor for family purposes, nor immoral--sui brought after his death--limitation--limitation act (xv of 1877), sehedule ii, articles 120, 132.--transfer of property act (iv of 1882), section 85, civil procedure code (act v of 1903), order xxxiv, rule 1. - .....two eases mentioned do not expressly lay down any contrary rule: they do not even mention the full bench decision which was not cited in argument before the judicial committee. it is said, however, that if the principles recognised in the two decisions of the judicial committee are logically developed, a result is reached which is contrary to the decision of the fall bench. but it is important to observe that the decision of the full bench in luchmun dass v. giridhur (1880) i. l. r. 5 calc. 855 was based upon an interpretation of the earlier decisions of the judicial committee in girdharee lal v. kantoo lal (1874) l. r. 1 i. a. 321 : 14 b.l.r. 187 and suraj bunsi v. sheo persad (1879) l. r. 6 i. a. 88 : i. l. r. 5 calc. 148. the two later decisions of the judicial committee in nanomi.....
Judgment:

Jenkins, C.J., Woodroffe, Mookerjee, Holmwood and D. Chatterjee JJ.

1. The questions referred for decision to a Full Bench have been framed in these terms:

(i) Whether the decision, of the Full Bench in the case of Luchmun Dass v. Giridhur Chowdhry (188(sic)) I. L. R. 5 Calc. 855 has been overruled by the Privy Council or superseded by subsequent legislation.

(ii) Whether a suit upon a mortgage effected by a father governed by the Mitakshara Law for a debt which is neither antecedent nor for family purposes and not proved to be immoral brought after the death of the father against the sons, some of whom were adult and some minors at the time of the mortgage, is governed by the twelve years' rule of limitation under Article 182 of the schedule to the Limitation Act so far as it claims to affect the share of the sons.

2. We have been invited by the plaintiffs respondents to answer the first branch of the first question in the affirmative; they rely upon the decision of the Judicial Committee in Nanomi Babuasin v. Modhun Mohun (1885) I. L. R. 13 Calc 21 : L.R. 13 I. A. 1 and Bhagbut Pershad v. Girja Koer (1888) I. L. R. 15 Calc. 717 : L. R. 15 I. A. 99 in support of their contention. The Rules of the Court (Chapter V, Section 6) ordain that every decision of a Pull Bench shall be treated as binding on all Division Courts and Judges sitting singly, upon any point of law or usage having the force of law, determined by the Full Bench, unless it is subsequently reversed by a Bench specially constituted consisting of such number of Judges as in each case shall have been fixed by the High Court, or unless a contrary rule be laid down by the Judicial Committee of the Privy Council. The decision in Luchmun Dass v. Giridhur Chowdhry (1880) I. L. R. 5 Calc. 855 has not yet been reversed by a Special Bench. A Special Bench was constituted in the case of Balaram v. Mangta Dass (1907) I. L. R. 34 Calc. 941 to consider the question: but the reference was disposed of on a preliminary ground. The only question then is, whether a contrary rule has been laid down by the Judicial Committee. The two eases mentioned do not expressly lay down any contrary rule: they do not even mention the Full Bench decision which was not cited in argument before the Judicial Committee. It is said, however, that if the principles recognised in the two decisions of the Judicial Committee are logically developed, a result is reached which is contrary to the decision of the Fall Bench. But it is important to observe that the decision of the Full Bench in Luchmun Dass v. Giridhur (1880) I. L. R. 5 Calc. 855 was based upon an interpretation of the earlier decisions of the Judicial Committee in Girdharee Lal v. Kantoo Lal (1874) L. R. 1 I. A. 321 : 14 B.L.R. 187 and Suraj Bunsi v. Sheo Persad (1879) L. R. 6 I. A. 88 : I. L. R. 5 Calc. 148. The two later decisions of the Judicial Committee in Nanomi Babuasin v. Modun Mohan (1885) L. R. 13 I. A. 1 and Bhagbut v. Girja (1868) L. R. 15 I. A. 99, so far as the question now before us is concerned, do not extend, though they possibly elucidate, the rule enunciated in the earlier Privy Council decisions interpreted by the Full Bench. The decisions by the Judicial Committee on this subject have in a large measure affected the strict doctrines of the Mitakshara Law, and the question now before us is essentially, to quote the language of Sir James Colvile in Lakshman Dada Naik v. Ram Chandra Dada Naik (1880) I. L. R. 5 Bom. 48 : L.R. 7 I. A. 181, 195 'not so much whether an admitted principle of Hindu Law shall be carried out to its apparently logical consequences, as what are the limits of an exceptional doctrine established by modern jurisprudence.' It is plain that the Full Bench decision is still binding on this Court, as no contrary rule has yet been laid down by the Judicial Committee of the Privy Council.

3. We have next been invited by the plaintiffs respondents to answer the second branch of the first question in the affirmative, on the ground that the Pull Bench decision was superseded by Section 85 of the Transfer of Property Act (now replaced by Rule 1 of Order XXXIV of the Civil Procedure Code, 1908). In support of this contention, reliance has been placed upon the cases of Biswanath Pershad Mahata v. Jagdip Narain Singh (1912) I. L. R. 40 Calc. 342 : 17 C.W.N. 1025 and Sheo Narayan Ray v. Mokshoda Das Mittra (1913) 17 C.W.N. 1922 the former of which was based on Lala Suraj Prasad v. Golab Chand (1901) I. L. R. 28 Calc. 517. But, where in accordance with the ruling of the Fall Bench in Luchmun Dass v. Giridhur Chowdhry (1880) I. L. R. 5 Calc. 855 the mortgage is not operative as such against the sons, no question can arise as to the effect of Section 85 of the Transfer of Property Act. The suit may have been framed as one to enforce the mortgage against the sons; but if, as laid down by the Full Bench, the mortgage as such is not enforceable against them, it is plain that Section 85 cannot touch the question. Consequently, the decision of the Full Bench has not been superseded by subsequent legislation.

4. The first question, in each of its two branches, must be answered in the negative.

5. As regards the second question, it follows that article 132 of the Schedule to the Indian Limitation Act has no application, as there is no charge on immoveable property enforcible against the sons. Consequently, article 120 governs the case. The plaintiffs are thus entitled to sue within sis years from the date when the right to sue accrues. Three alternatives have been suggested for this date: first, the date when the debt incurred by the father matures; secondly, the date when the creditor, after exhausting his remedies against the lather, finds that the debt or a portion thereof is still unsatisfied: and, thirdly, the date of the death of the father. The first of these dates was accepted as the starting point in Surja Prasad v. Golab Chand (1900) I. L. R. 27 Calc. 762 but the question, does not require decision in the present case, as more than six years have elapsed from each of the three possible points of time mentioned. While, therefore, we hold that article 120 applies to eases of the description mentioned in the second question, we do not decide when the right to sue accrues for the purposes of that article. The second question is answered in the negative, and the rule of limitation applicable is held to be that embodied in article 120.

6. The result of this view is that appeal 617 of 1912 will be allowed with costs, both here and before the Division Bench; the suit will stand dismissed as against the appellants in respect of the bond of the 27th October, 1901, to which alone the appeal relates. The other appeal, 769 of 1912, will stand dismissed with coats, here and before the Division Bench. Bach party will pay his own costs in both the Courts below. A self-contained decree, giving effect to those directions, will be drawn up in this Court in supersession of the decree of the Court below.


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