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Thakur Sri Sri Raghunath Jieu Vs. Ganga Gobinda Pati and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1937Cal305
AppellantThakur Sri Sri Raghunath Jieu
RespondentGanga Gobinda Pati and ors.
Cases ReferredVithalbowa v. Narayan Daji
Excerpt:
- .....involve the second of these positions. in the case before the special bench, however, plaintiff's right of suit accrued before the amending act. by the amending act the plaintiff in that suit was deprived of a right of suit vested in him at the date of the passing of the amending act. under these circumstances the special bench held that the amending act did not apply to the suit. in the case before us however the plaintiff's right of suit accrued after act 1 of 1929 came into force. there is no question in the present case of confiscation of any vested right of the plaintiff as he had none when the amending act came into force. it is however contended by the plaintiff that though the plaintiff had no right of suit before the amending act came into force, the idol had the right to eject.....
Judgment:

1. The suit out of which this appeal arises was instituted by the appellant in the Court of the Subordinate Judge, Bankura, for khas possession of certain lands and in the alternative for settlement of fair and equitable rent for the lands. The learned Subordinate Judge passed a decree for khas possession in favour of the plaintiff. On appeal by the defendants to the District Judge of Bankura the suit has been dismissed on the ground that it is barred by limitation. Hence this second appeal. The only point for determination in this appeal is whether the District Judge was right in dismissing the suit as barred by limitation. The material facts which are not in dispute now are as follows: The properties in suit belong to a deity called Sri Sri Raghunath Jieu, installed in days gone by, by the then Maharaja of Bishnupur in the Belut Asthal in the District of Bankura. On 3rd March 1868, Ramdas, Mohunt of this Asthal, gave a Mokarari lease of the disputed lands to the predecessor of the defendants at a fixed rent of Rs. 77-8-0 per year though there was no legal necessity for granting such mokarari lease, and went on receiving from the lessee the rent reserved by the lease till his death which took place in the year 1899. His successor Gokuldas Mohunt recognized this tenancy by accepting rent from the lessee. He died in May or June 1929. Plaintiff who succeeded him as Mohunt after his death repudiated the tenancy and brought the present suit on 25th February 1932, for the reliefs mentioned above. On these facts the District Judge held that the suit came under Article 134-B, Lim. Act, and was barred by limitation. It is contended on behalf of the plaintiff-appellant that Article 134-B does not apply to this suit inasmuch as the lease in this case was granted before the amending Act of 1929 which introduced this article in the Limitation Act of 1908 came into force. In support of this contention plaintiff relies upon the following passage in Article 426 of the Right Hon'ble Sir Dinshaw Mulla's Principles of Hindu Law, Edn. 8: 'This Act (Act 1 of 1929) can apply only to transfers made on or after 1st January 1929'. It would be useful to indicate here briefly the state of the law on this subject before the amending Act of 1929 was passed. Article 134 of Act 15 of 1877 was in these terms:

To recover possession of immovable properties conveyed 12 years Date of transferor bequeathed in trust and afterwards purchased from thetrustee or mortgagee for a valuable consideration.

2. There was a conflict of authority on the construction of the word 'purchase' in this article. Calcutta, Bombay, Madras and Allahabad High Courts held that transfer by way of a mortgage or permanent lease came under this article while the Punjab High Court held that the article contemplated only transfer of full ownership. In the year Abhiram Goswami v. Shyama Charan Nandi (1909) 36 Cal 1003 the Privy Council held that Article 134 of the Act of 1877 had no application to a mortgage or lease, that a grantee under a lease was not a purchaser within the meaning of that Article and that a purchaser within the meaning of that Article must be the purchaser of absolute title. In 1908 the word 'purchase' in this Article was substituted by the word 'transfer'. The object of this amendment was to bring all transfers within the scope of Article 134. Prior to the decision of the Privy Council in Vidyavaruthi Tirtha v. Baluswami Aiyer AIR 1922 P C 123 in the year 1921 it was generally assumed that Article 134 applied to transfers of properties belonging to Hindu and Mahomedan religious or charitable endowments by the previous Manager. In Vidyavaruthi Tirtha v. Baluswami Aiyer AIR 1922 P C 123 the Judicial Committee laid down that Article did not apply where the head of Hindu or Mahomedan religious institution granted a permanent lease over a part of the endowed property. The result of this pronouncement of the Judicial Committee was that the residuary Article 144 applied to such cases. The question then arises as to when the adverse possession commenced. In Damodar Das v. Lakhan Das (1910) 37 Cal 885 the Judicial Committee held that adverse possession began from the date of the transfer of possession. In Vidyavaruthi Tirtha v. Baluswami Aiyer AIR 1922 P C 123 it was held that adverse possession did not commence to run during the tenure of the office of the transferor. It was also held in that case that his successor was within his powers to continue his tenancy during: his life and in such circumstances possession did not become adverse till his death. The High Courts in India had great difficulty in reconciling these views and various points of distinction were suggested by different Judges. In Lal Chand Marwari v. Ramrup Gir AI R 1926 P C 9 their Lordships of the Judicial Committee made the following observations on 5th December 1925:

It is unnecessary for their Lordships to deal with the important and difficult question whether here the statute did not commence to run in favour of the defendants from the dates of the wrongful alienation of the properties or at all events from the date of his final abandonment of his office by Bhawan Gir and not only from his death, whether in other words, the case is governed by the decisions of which Damodar Das v. Lakhan Das (1910) 37 Cal 885 may be taken as the leading authority or by the line of authority of which Vidyavaruthi Tirtha v. Baluswami Aiyer AIR 1922 P C 123 may be taken as typical, their Lordships while not pronouncing upon it have given very careful consideration to this interesting and difficult question. Upon it they say no more than this: that they must not be taken to accept the view with reference to it propounded by the High Court. So far as they are concerned the question remains entirely open to be determined when it arises.

3. A question of estoppel has been frequently raised in connexion with these transfers. There was some difference of opinion on the question whether it was open to the shebait or the Mohunt who himself alienated the endowed property to repudiate the alienation and recover possession from the transferee. From what has been stated above it is apparent that before the amending Act 1 of 1929 was passed the law on the subject was uncertain. In order to remove this uncertainty the Legislature intervened and by Act 1 of 1929 enacted a special Article to cover these transfers with the evident object of making the residuary Article 144 inapplicable to such transfers. In Shib Sankar Lal v. Soniram (1910) 32 All 33, Banerjee and Tudball, JJ. of the Allahabad High Court observed as follows:

The law of Limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there is a distinct provision to the contrary.

4. This statement Of the law was approved by the Privy Council on appeal: see Soniram v. Kanaihayalal (1913) 35 All 227 On the authority of Gopeswar Pal v. Jiban Chandra AIR 1914 Cal 806 the plaintiff contends that where in accordance with the provisions of the amending Act a suit could be brought after the passing of the amending Act, it may be that the amendment would apply but when it could not, then the amendment would have no application and that the facts of Soniram v. Kanaihayalal (1913) 35 All 227 did not involve the second of these positions. In the case before the Special Bench, however, plaintiff's right of suit accrued before the amending Act. By the amending Act the plaintiff in that suit was deprived of a right of suit vested in him at the date of the passing of the amending Act. Under these circumstances the Special Bench held that the amending Act did not apply to the suit. In the case before us however the plaintiff's right of suit accrued after Act 1 of 1929 came into force. There is no question in the present case of confiscation of any vested right of the plaintiff as he had none when the amending Act came into force. It is however contended by the plaintiff that though the plaintiff had no right of suit before the amending Act came into force, the idol had the right to eject the lessee and that right would be confiscated if the amending Act be applied to the transfer in the present case. The obvious answer to this contention is that the right to recover possession from the transferee was vested in the Mohunt and not in the idol: see Jagadindra Nath v. Hemanta Kumari (1904) 32 Cal 129. Gokuldas had no right to eject the transferee during his lifetime as he had recognized the tenancy by acceptance of rent from the tenant. The idol therefore had no right of suit before the amending Act came into force. It is also argued by the plaintiff that it would be inequitable to apply Article 134-B to the present suit in view of the peculiar facts of the present case:

But the fixation of period of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide: Nagendra Nath v. Suresh .

5. Article 134-B speaks of transfer. There is no qualifying word in this Article to suggest that this transfer must be after Act 1 of 1929 came into force. To give effect to the plaintiff's contention that the transfer contemplated by the Article must be a transfer made on or after 1st January 1929 would be to introduce some qualifying words in the Article which are not to be found there. The word 'transfer' must therefore be taken to be transfer whether before or after the amending Act came into force. It was also argued on behalf of the plaintiff that lease is not a transfer within, the meaning of Article 134-B. The word 'transfer' is, wide enough to include a lease. The substitution of the word 'transfer' in Article 134 by the Act of 1908 in place of the word 'purchase' for the purpose of bringing transfers other than sale within the operation of Article 134 is a sufficient indication of the intention of the Legislature when they used the word 'transfer' in Article 134-B also. The present suit therefore clearly comes under Article 134-B, Limitation Act.

6. The next contention of the plaintiff is that even if the plaintiff's claim for khas possession is barred by limitation he is entitled to get fair and equitable rent from the defendants in respect of the disputed lands as the mokarari lease was without any legal necessity and is therefore not binding on the plaintiff. It cannot be disputed that if the mokarari lease is not binding on the plaintiff and the rent of the tenancy is liable to be enhanced, plaintiff is entitled to have fair and equitable rent settled for the disputed lands. The question therefore is whether the mokarari lease is now binding on the plaintiff by operation of Article 134-B read with Section 28, Limitation Act. If the transfer which comes under Article 134-B is a transfer of full ownership, the right of the plaintiff to the property is extinguished after the lapse of the statutory period by operation of Section 28, Limitation Act. But if the transfer is by way of mortgage or permanent lease, what is the effect of Section 28 upon the plaintiff's right to the property on the expiry of the statutory period prescribed by Article 134-B? In Manavikraman Ettan Thambaran v. Ammu (1901) 24 Mad 471 (F B) Sheppard, J., while construing Article 134 of Act 15 of 1877, observed as follows:

When I put the case of a man purchasing from a trustee and said that by force of limitation he would acquire an absolute title, I did not mean that he would acquire a larger interest than that which was in terms conveyed to him. If the conveyance were by way of outright sale, the title acquired would be absolute. If the conveyance were by way of mortgage or lease, the title acquired would correspond. As the interest which a man can acquire by adverse possession may be limited by the nature of his possession (Radhanath Doss v. Gisborne and Co. (1870-72) 14 M I A 1, as to trust estate and limitation), so the interest which the law gives a man who has taken from a trustee a mortgage cannot be greater than that which was ostensibly conveyed to him. It follows that in the case of a mortgage taken from a mortgagee or trustee the real owner has still a right of redemption against him on the footing of a mortgage under which he claims. The effect of limitation is to put his mortgage given by a mortgagee or trustee on the footing of a mortgage executed by the real owner and on no higher footing.

7. In Bagas Umarji v. Nahabhai (1912) 36 Bom 146 Scott, C.J. observed:

For the words of Article 134 of the Act of 1877 (Act 15 of 1877), 'and afterwards purchased from the trustee or mortgagee for valuable consideration' are substituted the words 'and afterwards transferred by the trustee or mortgagee for a valuable consideration': this we take to be a Legislative recognition of the soundness of the view that the Article was intended to give protection to all transferees for value including mortgagees.

8. The effect of the lapse of the statutory period under Article 134 is therefore to protect all transferees contemplated by that Article. It therefore follows that in cases of transfer by way of mortgage or a permanent lease which comes within Article 134 the transferee acquires on the expiry of the period prescribed by that article the rights of the mortgagee or permanent lessees as if the mortgage or permanent lease had been executed by the original owner. The right of the original owner becomes subject to the rights of the mortgagee or permanent lessee. There is no reason why the same principle should not apply when the right of the Manager of a Hindu or Mahomedan religious endowment to recover possession of endowed property against a transference of such property by the previous manager of the endowment is barred by Article 134-B, Limitation Act. After the lapse of the period prescribed by that article the transfer whether by way of mortgage or permanent lease becomes binding on the endowment,

as the effect of Section 28 of the Statute of Limitation, would only be to extinguish the plaintiff's right as claimed by him to treat the grant as null and void: Per Sargent, C. 3. in Vithalbowa v. Narayan Daji (1894) 18 Bom 507.

9. The mokarari lease granted by Ramdas Mohunt in the year 1868 is therefore binding on the plaintiff. The rent of the tenancy is not liable to be enhanced and consequently the question of settlement of fair and equitable rent does not arise. The plaintiff is therefore not entitled to get any relief in the present suit. The appeal is accordingly dismissed with costs.


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