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Bidya Prosad Singh Vs. BhupnaraIn Singh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in29Ind.Cas.629
AppellantBidya Prosad Singh
RespondentBhupnaraIn Singh and ors.
Cases ReferredSurja Prasad v. Golab Chand
Excerpt:
hindu, law (mitakshara) - mortgage by father--debt neither antecendent nor for family purposes, nor immoral suit against sons--limitation act (ix of 1908), schedule i, articles 120, 132. - .....two cases 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, full bench. but it is important to observe that the decision of the full bench in luchmun dass v. giridhur chowdhury 5 c. 855 : 6 c.l.r. 473 : 3 shome l.r. 143 was based upon an interpretation of the earlier decisions of the judicial committee in girdharee lall v. kantoo lall; muddun. thakoor v. kantoo lall 14 b.l.r. 187 : 22 w.r. 56 : 1 i.a. 321 and suraj bansi koer v. sheo persad singh 5 c. 148 at p. 171 : 6 i.a. 88 : 4.....
Judgment:

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

2. (1) Whether the decision of the Full Bench in the case of Luchmun Dass v. Giridhur Chowdhry 5 C. 855 : 6 C.L.R. 473 : 3 Shome L.R. 143 has been overruled by the Privy Council or superseded by subsequent legislation.

3. (2) 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 132 of the Schedule to the Limitation Act, so far as it claims to affect the shares of the sons.

4. 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. 13 C. 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 682 and Bhagbut Pershad Singh v. Girja Koer 15 C. 717 : 15 I.A. 99 : 12 Ind. Jur. 289 : 5 Sar. P.C.J. 682 in support of their contention. The Rules of the Court (Chapter V, Section 6) ordain that every decision of a Full 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 5 C. 855 : 6 C.L.R. 473 : 3 Shome L.R. 143 has not yet been reversed by a Special Bench. A Special Bench was constituted in the case of Balaram v. Mangta Das 84 C. 941 at p. 947 : 6 C.L.J. 275 : 11 C.W.N. 959 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 cases 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, Full Bench. But it is important to observe that the decision of the Full Bench in Luchmun Dass v. Giridhur Chowdhury 5 C. 855 : 6 C.L.R. 473 : 3 Shome L.R. 143 was based upon an interpretation of the earlier decisions of the Judicial Committee in Girdharee Lall v. Kantoo Lall; Muddun. Thakoor v. Kantoo Lall 14 B.L.R. 187 : 22 W.R. 56 : 1 I.A. 321 and Suraj Bansi Koer v. Sheo Persad Singh 5 C. 148 at p. 171 : 6 I.A. 88 : 4 C.L.R. 226 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 2 Shome L.R. 242, The two later decisions of the Judicial Committee in Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1 : 10 Ind. Jur. 151 : 4 Sar. P.C.J. 682 and Bhaghut Persad Singh v. Girja Koer 15 C. 717 : 15 I.A. 99 : 12 Ind. Jur. 289 : 5 Sar. P.C.J. 682 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 Jay the Full Bench. The decisions by the Judicial Committee on the 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 Colvill in Lakshinan Dado, Naik v. Ham Chandra Dada Naik 71. A. 181 at p. 195 : 5 B. 48 : 7 C.L.R. 320 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.

5. 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 Full 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 of 1608). In support of this contention, reliance has been placed upon the cases of Bisonath. Prosad Malitn v. Brindesn Prosad Singh 17 Ind. Cas. 577 : 17 C.W.N. 1025 : 40 C. 342 and Sheo Narain v. Mokshoda 1 as Mitra 19 Ind. Cas. 878 : 17 C.W.N. 1022; the former of which was based on Lala Suraj Prosad v. Golab Chand 28. C. 57 : 5 C.W.N. 640. But where in accordance with the ruling of the Full Bench in Luchman Dass v. Giridhur 5 C. 855 : 6 C.L.R. 473 : 3 Shome L.R. 143 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 iftis not been superseded by subsequent legislation.

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

7. 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 enforceable against the sons. Consequently, Article 120 governs the case. The plaintiffs are thus entitled to sue within six 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 exhaustin his remedies against the father, 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 but the question does not require decision in the present case, as more than sit years have elapsed from each of the three possible points of time mentioned. While, therefore, we hold that Article 120 applies to cases 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.

8. The result of this view is that Appeal No. 617 of 1912 will be allowed with costs both here and before the Division Bench; the suit will stand, dismissed as against the appellants is respect of the bond of that 27th October 1901, to which alone the appeal relates. The other Appeal, No. 769 of 1912, will, stand dismissed with costs, here and before the Division Bench. Each party will pay his own costs in both the Courts below. A self-contained decree giving effect to these directions will be drawn up in this Court in supersession of the decree of the Court below.


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