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Narasingha Bana Goswami Vs. Prolhodman Tevari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.25
AppellantNarasingha Bana Goswami
RespondentProlhodman Tevari
Cases ReferredJato Kar v. Makund Deb
Excerpt:
limitation act (ix of 1901), section 3, schedule i, articles, 120 132 - appeal, second limitation, question of, whether can be raised far first time--tarn of worship at temple whether immoveable property--mortgage of turn of worship, suit to enforce--limitation. - 1. this was a suit brought by the plaintiff to enforce a mortgage of a pala or turn of worship owned and held by the defendant at the temple of the deity dhaneswari in a 2 anna share. the mortgage was dated 29th october 1902, the due date for payment being 30th april 1903. the plaintiff in his plaint alleged that rs. 25 had been paid as interest on 12th october 1905. the suit was filed on 15th april 1915. the question of payment of interest was not gone into by the first court inasmuch as 13th and 14th april 1915 were holidays. the suit was, therefore within time if the period of limitation be taken as 12 years. it seems to have been assumed in both the courts below that the period of limitation would be 12 years, so that in the district judge's court the question of limitation was not.....
Judgment:

1. This was a suit brought by the plaintiff to enforce a mortgage of a pala or turn of worship owned and held by the defendant at the temple of the deity Dhaneswari in a 2 anna share. The mortgage was dated 29th October 1902, the due date for payment being 30th April 1903. The plaintiff in his plaint alleged that Rs. 25 had been paid as interest on 12th October 1905. The suit was filed on 15th April 1915. The question of payment of interest was not gone into by the first Court inasmuch as 13th and 14th April 1915 were holidays. The suit was, therefore within time if the period of limitation be taken as 12 years. It seems to have been assumed in both the Courts below that the period of limitation would be 12 years, so that in the District Judge's Court the question of limitation was not touched upon. In the grounds of appeal, however, to this Court which have been filed by the defendant this question was distinctly raised. The seventh ground is that the suit is barred by limitation upon the pleadings, inasmuch as the turn of worship is not immoveable property. With regard to the objection that this point was not raised in the Courts below we need only refer to the provisions of Section 3 of the Limitation Act, which requires the Court to take notice of a question of limitation even though it has not been set np as a defence. The question of limitation depends on whether a turn of worship is to be regarded as immoveable or moveable property. On this point the authorities of this Court are clear, and there cannot be any longer doubt upon it. In the case of Eshan Chunder Roy v. Monmohini Dassi 4 C. 683 : 2 Ind. Dec. (N.S.) 434 it was held that a suit to enforce the right to the worship of an idol was governed by Article 118 of Act IX of 1871 (the Limitation Act then in force) and that not having been preferred within 6 years it was barred by lapse of time. In the case of Jato Kar v. Makund Deb 11 Ind. Cas. 884 : 39 C. 227 at p. 230, 16 C.W.N. 129 : 14 C.L.J. 369 the point was not one of limitation but of attestation of a usufructuary mortgage bond of a turn of worship under Section 59 of the Transfer of Property Act. It was there held that a turn of worship is not an interest in immoveable property. That being so, it follows that this suit is not governed by Article 132 of the First Schedule to the Limitation Act but by Article 120. The suit having been filed long after 6 years had expired, even if the period be taken as running from the payment of interest in October 1905, it is out of time. The appeal must be allowed and the plaintiff's suit dismissed, but, under the circumstances, without costs.


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