Fazl Ali, C.J:— This is a defendant's appeal arising out of a suit instituted by the plaintiffs respondents to recover from the appellant a sum of Rs. 9,500 on account of arrears of a certain maintenance allowance which according to the plaintiffs was payable to them under a will dated the 17th December, 1890, left by Maharaja Sir Radha Prasad Singh Bahadur who was at the date of the will the holder of the impartible estate known as Dumraon Raj. At the time the will was executed Sir Radha Prasad Singh had no son. By the will he affirmed a previous deed authorising his wife Rani Beni Prasad Koeri to adopt a son to him in the event of no son being born to him and bequeathed the whole estate to his eldest son and in the event of no son being in existence to his wife for the term of her natural life. In paragraph 15 of the will it is stated that a sum of Rs. 50 per month was payable as maintenance allowance to Babu Thakur Prasad father of the plaintiff till he was alive and after his death to his sons, namely, the present plaintiffs. The plaintiffs' case as set out in the plaint is that as directed under the will a monthly allowance of Rs. 50 was regularly paid to Babu Thakur Prasad Singh their father during his life-time and after his death it was paid to them, but subsequently no payments were made for some time. They also assert that the defendant as holder, of the Dumraon Raj is bound by the terms of the will, executed by his predecessor in interest and is liable to pay the maintenance allowance as provided therein. On these allegations the plaintiffs pray for a decree for payment to them of the arrears of maintenance allowance for a period of 12 years.

The defendant's main pleas were (1) that the defendant being neither an executor under the will nor an heir of the executor was not bound by its terms (2) that the suit is barred by limitation. The defendant's case as set out in the written statement was that in 1913 the plaintiff no. 1 had approached his father and claimed the allowance under the will, but the defendant's father denied the right alleged by the plaintiffs and refused to pay the said sum of Rs. 50 per month and as a matter of fact never paid the said allowance. Thereafter the plaintiffs again approached the defendant's father and prayed for monetary help and then the latter being moved by the plaintiffs' poverty ordered payment of Rs. 30 per month to them by way of help but made the payment conditional upon the good behaviour of the plaintiffs and also made it clear that the allowance was liable to be stopped at any moment at, his will. Plaintiff no. 1 thereupon agreed to receive the allowance of Rs. 30 per month on the terms and conditions imposed by the defendant's father. In 1919 information reached the defendant's father that the plaintiff no. 1 was disloyal to him and thereupon the allowance was totally stopped in July 1919.

The learned Subordinate Judge after hearing the evidence adduced by the parties at the trial came to the conclusion that the defendant was bound by the terms of the will specially because the defendant's father had brought a suit against the widow of Sir Radha Prasad Singh in her capacity as the executrix of the testator's will to recover certain properties which had been bequeathed to him under the will left by Sir Radha Prasad. He further held that the sum of Rs. 30 was received by the plaintiff no. 1 in his capacity of a Sardar or dignitary of the Dumraon Raj and there was no tangible evidence on the record to show that the plaintiffs had relinquished their right under the will. He negatived the plea of limitation and held that the claim of the plaintiffs for recovery of maintenance allowance was governed by Article 123 of the Limitation Act and the plaintiffs were entitled to recover arrears of maintenance allowance which had accrued within 12 years of the date of suit.

The defendant being dissatisfied with the decree of the learned Subordinate Judge has preferred this appeal.

The two principal questions which arise in this appeal are (1) whether the defendant is bound by the terms of the wall and (2) whether the suit is barred by limitation.

The first question is a somewhat difficult one and depends on the answer to the question as to whether the rule of survivorship is applicable to an impartible estate. It was conceded by both parties that if the defendant succeeded to the properties as an heir of Sir Radha Prasad he was bound by the terms of the will;, but if he succeeded to the estate by the right of survivorship, then he was not bound by the terms of the will. The will makes no express provision as to who was to get the property upon the death of Rani Beni Prasad Koeri, widow of Sir Radha Prasad in the event of her dying without leaving any son. The appellant's case is that the will ceased to have any force on the death of Rani Beni Prasad Koeri and his father succeeded to the estate not under the will but quite independently of it as the senior surviving member of the Hindu joint family to which Sir Radha Prasad belonged. It is common ground that there was a prolonged litigation after the death of Rani Beni Prasad Koeri about the right of succession to the Dumraon Raj and the only evidence which we have on the record of the case with reference to this litigation consists of the oral evidence of the first witness for the defendant who has deposed that after the death of the Rani the defendant's father brought a suit to recover possession of the estate from one Jang Bahadur Singh who claimed to be the adopted son of Sir Radha Prasad Singh and this suit was decreed. No documents have, however, been filed by either of, the parties to show the exact terms of the decree passed in favour of the defendant's father. Therefore at the hearing of the appeal Mr. P.R Das, who appears for the defendant-appellant, made an application before us to admit in evidence certain documents bearing upon the litigation in question and we would have been disposed to admit them in evidence but for the fact that in our opinion it is not absolutely necessary for the purpose of disposing of this appeal to decide the difficult question as to whether the defendant is bound by the terms of the will. That question becomes immaterial because upon the evidence on the record the suit must be held to be barred by limitation.

It is common ground that during the life time of the defendant's father the plaintiffs used to get Rs. 30 a month. There are, however, two somewhat different versions as to the nature of this payment. The plaintiffs' version may be reproduced in the words of plaintiff no. 1 as follows:—

“I was getting an allowance of Rs. 30 per mensem from the Raj for some time for my expenses as a Sardar. I got this allowance of Rs. 30 per mensem, till 1919. As a Sardar I had to live at Dumraon. I did not enter into any agreement with the Maharaja that my allowance of Rs. 30 per mensem would be stopped if I turned disloyal and unfaithful to him. I was getting Rs. 30 per month not under the will but for my personal expenses as a Sardar.”

It is quite clear from the evidence of the plaintiff no. 1 that the sum of Rs. 30 which the plaintiffs received till 1919 was in addition to Rs. 50 per month to which they claimed to be entitled under the will. But the question still remains to be decided whether they ever received the latter allowance from the defendant's father. On this question the following statement made by plaintiff no. 1 may be considered:—

“I know that there are papers in the Raj showing payments of those allowances to me before 1913. I cannot assign any reason why I did not ask my lawyers to call for those papers from the Raj. I used to get Rs. 30 per mensem as my personal allowance for staying at Dumraon. I do not know if other Sardars also got allowances for staying at Dumraon. I have no witness to prove that I received allowance of Rs. 50 per mensem. I have no witness to prove that I received allowance of Rs. 30 per mensem before 1913. I have no paper to show that I received allowance of Rs. 30 per mensem before 1913. I have no paper to show that I received allowance of Rs. 50 per mensem. I may have papers at home which may be found out after search.”

Plaintiff no. 1 admitted that in a previous suit instituted against him by the defendant's father he had deposed to the following effect:—

“My father and uncle used to get some monetary help from Maharaja Radha Prasad Singh. After my father's time I also used to get some such help……………Only a year ago I came to know of the execution of the will by the last Maharaja. I cannot say why my father, uncle and myself used to get monetary help from the Raj.”

This statement was made by the plaintiff no. 1 in a previous suit about the year 1921 and if what he then stated was correct, it follows that he came to know of the will about the year 1920. However that may be, there is no reliable evidence on the record to show that the plaintiff no. 1 or his father ever got an allowance of Rs. 50 from the defendant or from Maharaja Kesho Prasad Singh since the latter entered into the possession of the Dumraon Raj.

One of the witnesses examined on behalf of the defendant has stated that some time in 1913 the plaintiff no. 1 made a prayer to Maharaja Kesho Prasad Singh for paying, him Rs. 50 per month as provided under the will of Sir Radha Prasad Singh but the Maharaja said that he did not know anything about the will but would pay him an allowance of Rs. 30 per mensem if he would remain loyal to him. All the witnesses examined by the defendant have stated that this sum was a help from the Raj and was stopped in 1919 because the plaintiff no. 1 became disloyal to the defendants's father. It is common ground that the allowance was stopped in 1919 and the plaintiff admits that from 1919 to 1941 when the present suit was instituted he never demanded the allowance from the defendant or his father.

In my judgment the defendant's version ought to be accepted. The fact that the plaintiffs were never paid the allowance which was fixed under the will, though they asked for it, supports the defendant's assertion that he and his father did not consider themselves bound by the terms of the will. It is common ground that the plaintiffs used to get an allowance of Rs. 30 per mensem from the defendant's father which was stopped. The plaintiffs' conduct shows that they received the allowance by way of help and not as a matter of right because between 1919 and 1941 they did not claim it nor did they take any step to recover the whole or part of the arrears which according to them had fallen due. The allowance was stopped because rightly or wrongly the defendant's father came to the conclusion that the plaintiff no. 1 was disloyal to him and for that reason the defendant's father also instituted a suit against the plaintiffs to recover possession of the properties which had been given to them by Sir Radha Prasad Singh by his will. It seems therefore that from the very outset the defendant's father never allowed the plaintiffs to believe that he was bound to pay them the allowance which was fixed under the will and when the allowance of Rs. 30 per month was stopped in 1919, it was stopped on the ground that the plaintiffs were not entitled to receive any allowance as a matter of right. The plaintiffs did not take any step for a period of more than 20 years either for the recovery of the arrears of maintenance allowance or for an adjudication of their right to receive such an allowance. I have no doubt in my mind that the present suit of the plaintiffs is barred by limitation and they, cannot be granted any relief in this suit.

It was contended by the learned Advocate for the respondent that the suit is governed by Article 123 of the Limitation Act which provides a period of 12 years as the period of limitation for a suit for a legacy from the time when the legacy becomes payable or deliverable, and in support of his contention he refers us to the decisions in Hemangini Devi v. Anil Kumar Banerjee; Bhola Nath Banerjee v. Sorba Mangala Debi; Sri Raja Parthasarathi Appa Rao v. Sri Raja Venkatadri Appa Rao [affirmed in appeal by the Privy Council—See Venkatadri's case] and Bolo v. Koklan I am, however, of the opinion that the Article which is applicable to the present case is Article 131 under which a suit to establish a periodically recurring right has to be brought within 12 years from the date when the plaintiff is first refused the enjoyment of the right. It may be conceded that the annuity which the plaintiffs claimed was in the nature of a legacy and if the right to receive the legacy had not been repudiated more than 12 years before the institution of the suit, Article 123 could be applied. But once the right to receive a recurring payment is repudiated, then, in my opinion. Article 131 must be held to be the appropriate Article. On principle it seems to me to be illogical to hold that even though the person whose right to an annuity, whether it is payable as a legacy or otherwise, has been denied or repudiated has taken no action for more than 12 years since the denial or repudiation, he may still enforce his right after the lapse of many years beyond the expiry of the period of limitation fixed under Article 131 and say that under Article 123 he is entitled to the annuity for the last 12 years. I think that my view on this point is supported to some extent by the following cases cited by the learned Counsel for the appellant: Akbar Sarkar v. Ramesh Chandra Maitra; Guzan Lal Pathak v. Sm. Parbati Bari; Ganesh Vinayak Joshi v. Sita Bai and Narendra Chandra Lahiri v. Nalini Sundari Devi. These cases do not relate to the payment of a legacy, or an annuity under a will, but on principle they cannot be distinguished from the present case. It is well settled that mere non-payment of, rent by a tenant for any number of years does not bar the land lord's claim to rent but some of the cases cited by the learned Counsel for the appellant do lay down that if the alleged tenant asserts that he is not liable to pay rent at all to the plaintiff or that no relationship of landlord and tenant subsists between him and the plaintiff, the question of limitation may arise. Similarly, under Article 128 a suit by a Hindu for maintenance must be brought within 12 years of the date when the arrears are payable; but nevertheless it has been held in certain cases that when the right to maintenance is denied and there has been no step taken for more than 12 years by the person whose right is denied, he cannot afterwards sue for arrears of maintenance. The point is emphasised in these words by Ghosh and Pargiter, JJ. in Guzan Lal Pathak v. Srimati Parbati Bari.

“We are of opinion that the denial of the plaintiff's right to receive the maintenance in question by the defendant and the cessation to pay the maintenance did constitute an entirely new condition destructive of the condition which had been established by the previous decree, and did afford to the plaintiff a new and a fresh cause of action, upon which she was bound to bring a suit either to establish her right to receive maintenance, or to recover arrears of maintenance, within six or twelve years, as the case might be, from the date of the accrual of the said cause of action.”

In that case the plaintiff's right to receive maintenance on the basis of an ekrar had been established by certain decrees; but after the death of the defendant's father when the plaintiff demanded maintenance from the defendant it was refused and no maintenance was paid to her for more than 12 years. The learned Judges of the Calcutta High Court held that the suit was barred by Article 131 of the Limitation Act. In the, present case the evidence discloses that the plaintiff's right to receive the allowance of Rs. 50 per month under the will was repudiated by the father of the defendant as early as in 1913. After that refusal the plaintiffs did not urge their so-called right under the will but accepted a smaller allowance from the defendant's father which was conditional upon their remaining loyal to him. There is no reliable evidence at all in the present case to show that the plaintiffs ever received the sum of Rs. 50 under the will since the defendant's father entered into the possession of the Dumraon estate. The plaintiffs seem to have accepted the position that they were not entitled to any maintenance from the defendant's father under the will. At any rate, upon the plaintiffs' own case the alleged allowance of Rs. 50 per month was stopped in 1919 and the defendant's father brought a suit in that year to recover possession from the plaintiffs of the property which they had received as a legacy under the will. There is no doubt therefore that at least in 1919 the defendant's father repudiated the claim of the plaintiffs to an allowance under the will. The present suit having been brought nearly 22 years after this repudiation is clearly barred by limitation.

In the result the judgment and decree of the court below are set aside the suit is dismissed and the appeal is allowed with costs throughout.

Ray, J.:— I agree.

Appeal allowed.

S.H