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Raghoo Pandey and anr. Vs. Kassy Parey and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1884)ILR10Cal73
AppellantRaghoo Pandey and anr.
RespondentKassy Parey and ors.
Cases ReferredIn Futtehsangji Jaswantsangji v. Desai Kallian Sangji Hukoomut Raiji L.R.
Excerpt:
limitation act (xv of 1877), article 148 - right to officiate as priest, nature of suit to establish. - .....the present suit falls under article 148,++ and not under 145.3. there is no doubt that the right in question ranks amongst immoveable property according to hindu law. we need not here refer to the texts of the hindu law bearing upon this question, as they are all collected in the two judgments of the bombay high court cited below, one of which was cited before us in the course of the argument, krishnabhat bin husgange v. kapabhat bin mahalbhat 6 bom. h.c. a.c. 137 and balvantrav v. purshotram sideshvar 9 bom. h.c. 99.4. in futtehsangji jaswantsangji v. desai kallian sangji hukoomut raiji l.r. 1 i.a. 34 : 13 b.l.r. 254 the judicial committee of the privy council, after referring to the rule of construction adopted by the bombay high court in the two cases cited above, observe (p......
Judgment:

Mitter, J.

1. This is suit for redemption of certain share of Brit Jugmanka. It is a right ot officiate as priest at funeral ceremonies of Hindus. The Munsif awarded a decree in favour of the (plaintiffs) appellants. The lower Appellate Court has reversed that decree, holding that under Article 145+ of the present Limitation Act (No. XV of 1877), the claim is barred. It is of opinion that the right claimed is in the nature of moveable property.

2. It is contended in appeal that the right claimed is in the nature of immoveable property, and therefore the present suit falls under Article 148,++ and not under 145.

3. There is no doubt that the right in question ranks amongst immoveable property according to Hindu law. We need not here refer to the texts of the Hindu law bearing upon this question, as they are all collected in the two judgments of the Bombay High Court cited below, one of which was cited before us in the course of the argument, Krishnabhat bin Husgange v. Kapabhat bin Mahalbhat 6 Bom. H.C. A.C. 137 and Balvantrav v. Purshotram Sideshvar 9 Bom. H.C. 99.

4. In Futtehsangji Jaswantsangji v. Desai Kallian Sangji Hukoomut Raiji L.R. 1 I.A. 34 : 13 B.L.R. 254 the Judicial Committee of the Privy Council, after referring to the rule of construction adopted by the Bombay High Court in the two cases cited above, observe (p. 50): 'To the application pf this rule within proper limits, their Lordships see no objection. The question must, in every case, be whether the subject of the suit is in the nature of immoveable property or of an interest in immoveable property; and if its nature and quality can be only determined by Hindu law and usage, the Hindu law may properly be invoked for that purpose.'

5. In this case 'the nature and quality' of the property in suit can be only determined by Hindu law, because it is not recognized as property in any other system of law.

6. Adopting this principle of construction, therefore, we must come to the conclusion that the present suit falls under Article 148 and not under 145.

7. We reverse the decision of the lower Appellate Court, and remand the case to that Court for the determination of the other question arising in it. Costs to abide the result.

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+[Article 145:

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Description of suit. Period of limitation. Time from which period

Begins to run.

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Against a depository or pawnee to Thirty years.... The date of the deposit or

Recover moveable property deposited pawan.]

Or pawned.

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++[Article 148.-

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Against a mortgagee to redeem or Sixty years.... When the right to redeem or

To recover possession of immoveable to recover possession accrues.

Property mortgaged. Provided that all claims to

redeem, arising under instru-

ments of mortage of immove-

able property situate in British

Burma, which have been exe-

cuted before the first day of

May 1863, shall be governed by

the rules of mimitation in

force in that province imme-

diately before the same day.

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