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Case Number

Letters Patent Appeal No. 132 of 1925.

Advocates

Messrs. B. Sitarama Rao and P. S. Narayanaswami Aiyar for the Appellants.
Messrs. K. Kuttikrishna Menon and P. S. Ramachandra Aiyar for the Respondents.

Judges

Beasley, C.J
Cornish, J.

Acts

Art. 143 of the Limitation Act.
Art. 144 of the Limitation Act

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The present Letters Patent Appeal arises from a judgment of Phillips, J., in S.A. No. 1520 of 1922. The respondent (plaintiff in the underlying suit O.S. No. 26 of 1918, District Munsif at Alathur) sued for recovery of possession of land against the appellants (defendants in that suit). The trial Court dismissed the suit except for a small decree in the plaintiff's favour. The Subordinate Judge of South Malabar dismissed the plaintiff's appeal on the ground that the suit was barred by limitation. The plaintiff then appealed to the High Court: Phillips, J., held the suit was not barred by limitation and remitted the appeal to the lower appellate Court for determination of other points, observing that certain views had not been pleaded definitely in the lower Courts and that the respondents were entitled to a further hearing. The defendants in that earlier suit are the appellants in the present Letters Patent Appeal.

Relevant factual background concerning the disputed tenure: on 7 April 1898 the plaintiff demised the suit property on an adimayavana right to Krishnan Nair and Kunju Nair. In 1900 those lessees assigned their right to the first defendant and to the father of the second defendant. The lease contained a provision for renewal every twelve years upon payment of a renewal fee of Rs.125 and exchange of further documents. In 1913 the assignees brought a suit for renewal and acceptance of the renewal fee; that suit was dismissed on the ground that the adimayavana lease was inalienable. That appellate decision is reported in Venkatagiri Pattar v. Zamorin of Calicut.

Legal Issues Presented

Whether the present suit for recovery of possession is barred by limitation.
Which article of the Limitation Act applies: Article 143 (forfeiture/alienation) or Article 144 (possession becoming adverse after non-renewal at expiry of twelve years)?
What was the legal basis of the plaintiff's claim in the trial and lower appellate Courts — forfeiture on alienation, or non-renewal at the twelve-year expiry?

Arguments of the Parties

Appellant's Arguments

The respondent's claim was based on forfeiture by reason of alienation of the adimayavana right; therefore Article 143 of the Limitation Act is applicable.
If Article 143 applies, limitation began to run from the date of the alienation (1900), and the respondent's suit (instituted more than twelve years after alienation) is barred.

Respondent's Arguments

The respondent contended that the claim was based on non-renewal of the tenure at the expiry of twelve years and that Article 144 of the Limitation Act therefore applied — time would run only when possession became adverse after the twelve-year term expired.
The plaint also pleaded that the plaintiff's predecessor did not become aware of the alienation until the 1913 suit, an attempt to avoid the bar of limitation by alleging lack of knowledge of the alienation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Venkatagiri Pattar v. Zamorin of Calicut	Held that the adimayavana (anubhavam) tenure was inalienable under Malabar law (earlier appellate decision relied on by the plaintiff).	The opinion notes this earlier decision had important bearing because it allowed the plaintiff to found his claim on forfeiture by alienation in the lower Courts.
Zamorin Raja Avergal v. Unikat Karnavan Samu Nair	Held that adimayavana tenure is not inalienable by custom in South Malabar and that the jenmi is not entitled to forfeit it on alienation; oral and documentary evidence did not establish a custom of forfeiture on alienation for the period considered.	The Court treats this as the latest decision on the point and states it decided there is no custom in Malabar against alienation; the Chief Justice says he will not express further opinion on inalienability beyond noting this latest decision.
Ayyakutti v. Krishna Pattar	Full Bench decision that in the santhathi Brahmaswom tenure the landlord has no right of re-entry on alienation of the land by the tenant; adimayavana tenure is similar.	The decision is cited to show a related tenure where landlord has no right of re-entry on alienation; the Full Bench did not decide the general alienability question but decided landlord's lack of re-entry right.
Madavan v. Athi Nangiyar	Authority on Article 143 showing cases where an alienee was a party and relief was claimed against the alienee.	The Chief Justice relied on this example to reject Phillips, J.'s view that Article 143 applies only to parties who themselves incurred the forfeiture; it supports applying Art. 143 against persons in possession by reason of alienation.
Motilal Pal Choudhury v. Chandra Kumar Sen	Where a lease forbade alienation and provided for lessor's right to possession on alienation, the lessee sold; the lessor sued and alienees were parties — held Article 143 applicable; the limitation period is twelve years and time began from date of alienation.	Used by the Court to show that limitation under Art. 143 begins on alienation and that the article applies where alienees are defendants; supports the conclusion that time began to run from the alienation here.
Zamarin Raja of Calicut v. Samu Nair	Referenced for the proposition that Art. 143 applied in a case to recover possession from persons in possession (alienees) and that the starting point of limitation is the forfeiture itself; also noted there is nothing in the article about the lessor's knowledge of the alienation.	The Court cites a statement by Krishnan, J. in that case to show Art. 143 applies to alienees and that the limitation begins with the forfeiture, reinforcing the view that knowledge of alienation is not a condition for the running of limitation under Art. 143.

Court's Reasoning and Analysis

The Court confined its review to the single question whether the suit is barred by limitation. It addressed two interrelated matters: (a) the legal character of the respondent's claim as pleaded and litigated in the lower Courts, and (b) which provision of the Limitation Act applies — Article 143 or Article 144.

On the scope of Article 143, the Chief Justice rejected Phillips, J.'s view that Article 143 applies only to suits against parties who themselves incurred forfeiture or breached a contractual condition. The opinion reasons (with citation to precedents) that Article 143 is not so limited and can be invoked against alienees in possession by reason of an alienation which may have entailed forfeiture. The Chief Justice cites Madavan v. Athi Nangiyar and Motilal Pal Choudhury v. Chandra Kumar Sen as direct examples in which alienees were parties and Article 143 was applied, and quotes Zamarin Raja of Calicut v. Samu Nair for the proposition that the starting point of limitation is the forfeiture itself and that the article contains no stipulation about the lessor's knowledge of the alienation.

The Court then examined the plaint and the issues framed in the original suit to determine the precise nature of the relief the plaintiff sought. The plaint's paragraphs invoked (a) the asserted inalienability and forfeiture on alienation, (b) an allegation that the adimayavana right was alienated and "has lapsed" and "has been so declared by the High Court decree aforesaid", and (c) a plea that the predecessor-in-interest became aware of the alienation only in the 1913 suit. The issues framed in the trial Court include: nature of the grant; whether the holding had been forfeited by reason of the alleged alienations; whether the plaintiff had a right of re-entry; whether the plaintiff had waived any right to enforce forfeiture; and whether the suit was barred by limitation — with no issue framed about recovery on the ground of non-renewal.

From this record the Chief Justice concluded that the case litigated in the lower Courts was founded on a claim of forfeiture by alienation, and that the plaintiff's present contention in the High Court — that the claim is premised on non-renewal at the expiry of twelve years (to invoke Article 144) — is a materially different case from that pleaded and tried below. The Court held that the plaintiff should not be allowed to advance a fundamentally different case on second appeal from the one that was litigated and decided in the lower Courts.

Applying Article 143 to the pleaded claim of forfeiture by alienation, the Court held that limitation commenced to run from the date of alienation (1900). Given that the suit was instituted more than twelve years after that alienation, the Court concluded that the plaintiff's claim was barred by Article 143.

The Chief Justice expressly stated it was unnecessary to decide the broader question whether adimayavana tenures are inalienable; he limited himself to noting the latest decision (Zamorin Raja Avergal v. Unikat Karnavan Samu Nair) as deciding there is no custom in Malabar against alienation.

Holding and Implications

LETTERS PATENT APPEAL ALLOWED.

Direct effect on the parties:

The Letters Patent Appeal by the appellants is allowed; the High Court's disposition (as to limitation) was reversed and the respondent's claim in the original suit was held to be barred by limitation under Article 143.
Costs were awarded to the appellant only: "One set of costs." Cross-objections were allowed with costs.

Broader implications:

The Court confined its decision to the proper application of the Limitation Act to the pleaded cause of action; it did not lay down any new general principle about the alienability of adimayavana tenures. The opinion notes an existing (latest) authority that no custom against alienation in Malabar was proved (Zamorin Raja Avergal v. Unikat Karnavan Samu Nair), but the Chief Justice declined to pronounce a fresh ruling on alienability.
No new precedent on the alienability question was established by this decision; the primary legal point decided is the proper article of limitation applicable to the pleaded cause of action and the consequence that the claim is time-barred.

Additional procedural note: Cornish, J. agreed with the Chief Justice. The formal result is recorded as "Appeal allowed."

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K.V Ayyaswami Pathar And Another (13Th And Party ). v. M.R Ry. Manavikrama Zamorin Rajah Avergal Of Calicut (Dead) And Others S ( And S 1 To 8 And 10 To 12 And L. R. Of 1St ).

The Chief Justice. — This Letters Patent Appeal is from a judgment of Phillips, J., in S. A. No. 1520 of 1922. The respondent here was the plaintiff in O. S. No. 26 of 1918 in the Court of the District Munsif at Alathur. He sued for recovery of possession of land from the appellants here, who were the defendants in that suit. The suit, with the exception of a small item which was decreed in the plaintiff's favour, was dismissed. The plaintiff appealed to the Subordinate Judge of South Malabar and he also dismissed the suit on the ground that it was barred by limitation. The plaintiff then presented a second appeal to this High Court and Phillips, J., held that the suit was not barred by limitation and as there were other points in the case for determination he referred the appeal back to the lower appellate Court for decision on those other points and any other points that might legally arise. He stated that the view of the case set out before him did not seem to have been pleaded definitely in the lower Courts and he therefore thought that the respondents were entitled to a further hearing. The defendants in that suit are the appellants here.

The only question that we have to decide is whether the suit is barred by limitation or not. The plaintiff in the suit demised the suit property to Krishnan Nair and Kunju Nair on adimayavana right on 7th April 1898. In 1900, the lessees assigned their right to the 1st defendant and the father of the 2nd defendant. There is a provision in the lease that on the expiry of every 12 years a renewal fee of Rs. 125 shall be paid by the lessee and further documents exchanged between the parties. The assignees who are some of the defendants in this suit brought a suit in 1913 for the renewal of the adimayavana lease and for the acceptance of the renewal fee which they had tendered to the plaintiff. It was held in that suit that the adimayavana lease being inalienable, the plaintiffs could not obtain a valid assignment and therefore their suit was dismissed. The appellate decision in that suit is reported in Venkatagiri Pattar v. Zamorin of Calicut. It was there held that the tenure known as adimayavana or anubhavam tenure is inalienable under Malabar Law. The Bench in that case consisted of Ayling and Napier, JJ. But a Bench consisting of Ayling and Krishnan, J J., has later taken the contrary view and as Ayling, J., was one of the Bench in Venkatagiri Pattar v. Zamorin of Calicut, his later decision may be taken as altering his former opinion. That case is Zamorin Raja Avergal v. Unikat Karnavan Samu Nair, and it was held that this adimayavana tenure is not inalienable by custom in South Malabar and that the jenmi is not entitled to forfeit it on alienation. Evidence of custom was called for in that appeal and it is quite clear from the judgments that the Bench held the view that a custom of inalienability had not been made out. On page 286 Ayling, J., says: “The oral evidence has been rightly appreciated by the Subordinate Judge and on a survey of the evidence as to custom, oral and documentary, the conclusion is irresistible that for the period to which it relates no legally enforceable custom of forfeiture on alienation has been proved.” The period to which Ayling, J., referred was the period from 1896 onwards. Both the Judges further held that the Subordinate Judge's finding that up to 1896 there was a custom of inalienability involving forfeiture on alienation and that the custom had since fallen into desuetude was unsound; so that this case may be taken as deciding that this tenure is not inalienable and that there is no custom of forfeiture on alienation. Mr. Kuttikrishna Menon argued before us that this decision did not go to the length of deciding that there was no forfeiture on alienation. It clearly goes to that length and it is the latest decision upon the point. In Ayyakutti v. Krishna Pattar, a Full Bench decided that in the case of land in Malabar held on santhathi Brahmaswom tenure the landlord has no right of re-entry on alienation of the land by the tenant. The adimayavana tenure is similar to the santhathi Brahmaswom tenure and although the question whether such tenures are alienable or not was referred to the Full Bench, they did not think it necessary to decide that question but merely decided that the landlord on alienation had no right of re-entry. The fact that the earlier decision, namely, that in Venkatagiri Pattar v. Zamorin of Calicut(3), decided that such a tenure was inalienable has an important bearing on this case because we have to decide what the plaintiff's claim in his suit for recovery of possession was based on. For the appellant here it was argued that the respondent's claim was based on forfeiture on alienation of the property, whilst for the respondent it was contended that it was based on the non-renewal of the tenure at the expiry of twelve years that it was only after the twelve years had expired that limitation commenced to run and that this is a case to which Art. 144 of the Limitation Act applies. The appellant, on the other hand, contended that Art. 143 is the article applicable and that time commenced to run from the date of the alienation and that therefore the suit as barred by limitation. If Art. 143 is the proper one, then clearly the suit is barred by limitation. Phillips, J., however, held that the proper article is Art. 144 and that time only commenced to run when the possession became adverse, namely after the twelve years' lease had expired. He did not apply Art. 143 because, that article only applies to suits to enforce relief claimable by reason of forfeiture or of breach of condition under a contract, which in his view could only apply to suits brought against parties who had incurred that forfeiture or committed the breach. He says:

“In the present case, the defendants are not parties to the lease deed and have not themselves incurred any forfeiture or broken any condition in a contract between them and the plaintiff.”

In my view, Phillips, J., was wrong in thinking that Art. 143 only applies to persons who have themselves incurred the forfeiture because there are decisions of this Court on Art. 143 to which the alienee was a party and against whom relief was claimed. Such a case is Madavan v. Athi Nangiyar. Although it is quite true that in that case the 1st defendant who was the grantee of the demise was the only one of the defendants who pleaded limitation, the alienees supported the written statement of the 1st defendant. In Motilal Pal Choudhury v. Chandra Kumar Sen a lease provided that the lessee was to enjoy the land from generation to generation for purposes of residence without any power of alienation and that in the event of such alienation the lessor would be entitled to khas possession. The lessee sold the land and the lessor sued to recover possession and the alienees were made parties to the suit, and it was held that Art. 143 was applicable and the period of limitation was twelve years and time began to run from the date of alienation and not from the date when the lessee surrendered possession to the transferee. In the case in Zamarin Raja of Calicut v. Samu Nair to which reference has already been made, the suit was to recover possession of properties from the persons in possession of them, namely, the alienees. This is quite clear from a statement of the facts by Krishnan, J., at page 277 where he says “If the defendants are right in their contention that no forfeiture was caused by the alienations in their favour … … . .” so that it is quite clear that the alienees were the defendants and it was held that Art. 143 applied, that the starting point of limitation is the forfeiture itself and more over that there is nor thing in the article about the lessor's knowledge of the alienation. The general scheme of the act with regard to Art. 140 to 144 does not place any such limitation as to parties as in the opinion of Phillips, J., it does. Take, for instance, Art. 140 which is a claim for possession of immoveable property by a remainderman or reversioner or a devisee. That must be against anybody who is in possession of it. Similarly Art. 141. Also 142. Art. 143 it appears to us is not limited to those who have committed the breach of the condition which has entailed forfeiture but also includes those who are in possession by reason of the alienation which may entail forfeiture. On that point I am of the opinion that Phillips, J., was wrong. But I have still to consider what the plaintiff, the respondent here, based his claim upon. The plaint in the suit sets out in paragraph 2 all the details of the grant. It includes at the end, it is quite true, the provision with regard to the renewal at the expiry of twelve years. Then paragraph 3 says:

“The adimayavana right holds good for Itteramkandath tarwad only and it cannot be alienated and if it is alienated, the tarwad forfeits its rights by the alienation and then the plaintiff obtains a right for redemption of the items.”

Then in paragraph 5 it states as follows:

“As the adimayavana right which was held by Itteramkandath, tarwad was alienated in favour of the defendants, it has lapsed and it has been so declared by the High Court decree aforesaid”

and in paragraph 6:

“It was only by the aforesaid suit in O. S. No. 148 of 1913 that the plaintiff's predecessor insthanam became aware of the alienation of the right held by Itteramkandath tarwad. There was no occasion previous to that of knowing the fact of the alienation”.

This is an attempt by the plaintiff to get over the bar of limitation by pleading ignorance of the alienation until a subsequent date though in law ignorance would not prevent time running against him. Taking the plaint by itself, it seems to me to claim to recover possession of the property because of the alienation by the original grantees but the matter is made more certain from the issues framed in that suit. They were as follows:

“(1) What is the nature of the grant in favour of Krishna Nair and Kunju Nair? (2) Has the holding been forfeited by reason of the alienations alleged? (3) If so, has the plaintiff any right of re-entry? (4) Has the plaintiff waived his right to enforce the forfeiture, if any? (5) Is the suit barred by limitation? (6) Is the price of paddy claimed correct? (7) Is the suit had for want of 1st defendant's alienees as parties defendant? (8) To what relief is the plaintiff entitled?”

There is no issue there as to a right to recover possession of non-renewal. The suit was fought out in the District Munsif's Court and in the Subordinate Judge's Court on the footing of forfeiture by alienation. It is true that some of the defendants themselves pleaded adverse possession which would be Art. 144. But the case contended for by the plaintiff the respondent here, in the trial Court and in the lower appellate Court was one of forfeiture on alienation and we are satisfied that it was the decision which he had got in his favour in Venkatagiri Pattar v. Zamorin of Calicut and the view taken by that Court as to the custom of inalienability of such a tenure that enabled him to file his suit and claim, that as the property had been alienated, he was entitled to possession of it on the ground of forfeiture. The Subordinate Judge found that, as the tenure was determined by forfeiture, the plaintiff, the respondent here, was entitled to resume the properties, but with regard to the question of limitation he held that as the alienation took place in 1900 the forfeiture was incurred then and, as the suit was instituted more than twelve years after that it was clearly barred by Art. 143 of the Limitation Act. The case presented in the second appeal was, in my view, a totally different case to that in the lower appellate Court and the District Munsif's Court and we are clearly of the opinion that no such claim as is now put forward, namely, that of a right to possession on account of non-renewal of the tenure at the expiration of twelve years was ever in contemplation, I am of the view that the respondent should not be allowed to put forward a totally different case to that upon which the suit was fought in the lower Courts. His plaint is quite clear and the claim is based upon a forfeiture by reason of alienation and nothing else. In this Court we intend to confine ourselves to that claim. The article applicable is clearly Art. 143 and limitation commenced to run from the date of the alienation. In my view, the respondent's claim in the Court below was clearly barred. It is not necessary fur me to express any opinion as to whether or not such tenures are inalienable. I merely content myself with saying that the latest decision upon the point, namely that in Zamorin Raja Avergal v. Unikat Karnavan Samu Nair decided that there is no custom in Malabar against alienation. The Letters Patent Appeal is therefore allowed with costs to appellant only. One set of costs. Cross-objections allowed with costs.

Cornish, J.—I agree.

N. R. R.Appeal allowed.

K.V Ayyaswami Pathar... v. M.R Ry. Manavikrama ...