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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Messrs. G. Krishnaswami Aiyar, V. V. Srinivasa Aiyangar and K. Desikachari for the Appellants.
  • Messrs. P. R. Ganapathi Aiyar and V. Krishna Mohan for the 1st Respondent.
Judges
  • Sir William Phillips
  • Kt.
  • Odgers, JJ.
Acts
  • Article 120 of the Schedule of the Limitation Act
  • Article 120 of the Limitation Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Messrs. G. Krishnaswami Aiyar, V. V. Srinivasa Aiyangar and K. Desikachari for the Appellants.
  • Messrs. P. R. Ganapathi Aiyar and V. Krishna Mohan for the 1st Respondent.
Judges
  • Sir William Phillips
  • Kt.
  • Odgers, JJ.
Acts
  • Article 120 of the Schedule of the Limitation Act
  • Article 120 of the Limitation Act
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This is an appeal against a decree that declared a mortgage executed by the 1st defendant in favour of the 2nd defendant to be not binding on the plaintiff, who represents the worshippers of the temple to which the mortgaged properties belong. The question of limitation was not raised in the subordinate (trial) Court until the time of arguments. The Subordinate Judge found that Article 120 of the Schedule of the Limitation Act was the applicable provision and that the time must be computed from the date on which the plaintiff becomes aware of the transaction. The Subordinate Judge concluded that further evidence would have been required to establish whether the plaintiff became aware of the transaction more than six years before the suit.

The appellant argues that Article 120's period of limitation runs from the date of the alienation (the deed of alienation) and not from the date the plaintiff acquired knowledge of the transaction. The plaint alleges breach of trust and indicates the plaintiff learned that the 1st defendant mortgaged temple properties in 1914 as if they were his private properties. The appeal also contested whether the properties were in fact dedicated to the temple under the partition deed Ex. A.

Legal Issues Presented

  1. Whether the period of limitation under Article 120 of the Limitation Act runs from the date of the alienation (deed of alienation) or from the date on which the plaintiff became aware of the transaction (knowledge), particularly where the suit alleges fraud or breach of trust.
  2. Whether the plaint, on its face, discloses a bar of limitation such that the plea of limitation could be decided without additional evidence.
  3. Whether the properties in question were dedicated to the temple by the partition deed Ex. A (i.e., whether they were temple properties or allotted as the 1st defendant's share).

Arguments of the Parties

Appellant's Arguments

  • The period of limitation under Article 120 runs from the date of the alienation itself and not from the date on which the plaintiff gained knowledge of the alienation.
  • The plaint, on its face, showed a distinct bar of limitation (the learned counsel for the appellant contended that limitation barred the suit as per the plaint's allegations).
  • The properties mortgaged were not dedicated to the temple under the partition deed Ex. A (i.e., the appellant argued that Ex. A did not create a dedication to the temple).

Respondent / Plaintiff's Position (as reflected in the opinion)

  • The plaint alleges breach of trust and effectively alleges fraud by the 1st defendant in dealing with temple properties as his own; consequently the right to sue arises when the plaintiff (representing the worshippers) becomes aware of that fraud or denial of the temple's title.
  • The plaintiff alleged that he became aware of the transaction within six years of bringing the suit (i.e., that the suit was within time if limitation is computed from knowledge).

Lower Court's Findings (Subordinate Judge)

  • The Subordinate Judge held that Article 120 of the Schedule of the Limitation Act applied and that the time must be computed from when the plaintiff became aware of the transaction.
  • The Subordinate Judge disallowed the plea of limitation which was raised only after evidence was completed, and indicated further evidence would be necessary to establish when the plaintiff first became aware of the transaction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma, 5 Ind. Cas. 698 : 33 M. 31 Held that when a karnavathi made an alienation that was sought to be set aside by some members, the suit was barred as being brought more than six years after the date of the alienation (i.e., limitation computed from date of alienation). No fraud was alleged in that case. The court distinguished this case from the present because Ottapurakkal did not involve allegations of fraud; the present plaint alleges breach of trust/fraud, which makes Ottapurakkal not entirely applicable.
Prasanna Venkatachella Reddiar v. Collector of Trichinopoly, 33 Ind. Cas. 45 : 38 M. 1064 Referred to Ottapurakkal; in that later case Ottapurakkal was approved by one of two judges, while the other judge based his decision on the plaintiff's knowledge of the transaction more than six years before the suit. The court noted the mixed treatment of Ottapurakkal in Prasanna Venkatachella, using it to illustrate that where knowledge of the plaintiff is shown the right to sue may be treated as accruing from that knowledge.
Muruga Chetty v. Rajaswamy, 30 Ind. Cas. 669 : 29 M.L.J. 574 : 2 L.W. 813 : 18 M.L.T. 327 (1915) M.W.N. 701 Held in cases of denial of the plaintiff's title that the right to sue accrues when the plaintiff becomes aware of that denial. The court relied on this principle to support the proposition that where there is denial of title (or effectively denial by conduct), accrual of the right to sue follows knowledge.
Thirumala Rao v. Kadakar Durgi Shettethe, 22 Ind. Cas. 883 : 1 L.W. 134 : (1914) M.W.N. 197 Also concerned denial of title; held that the right to sue accrues when the plaintiff becomes aware of the denial. The court treated this case similarly to Muruga Chetty, as authority for accrual-of-right-on-knowledge in denial-of-title situations.
Venkataswara Aiyar v. Somasundram Chettiar, 44 Ind. Cas. 551 : 7 L.W. 280 : (1916/1918) M.W.N. 244 Held that until a creditor became aware of an alienation which he attacked as fraudulent as against creditors, his right to sue did not accrue; a creditor has an option whether to avoid an alienation and only when he is in a position to exercise that option does the right arise. The court relied on this case as analogous and persuasive: it supported the conclusion that where fraud or misconduct is alleged, limitation runs from the time the fraud becomes known rather than from the date of the deed.
Venkateswara Aiyer v. Somasundram Chettiar (same as above, cited again) Same principle reiterated: in fraud/misconduct cases the limitation period begins when the fraud becomes known (see referenced Articles 90, 91, 95, 96 for similar patterns). Cited for the view that Article 120, although residuary, should be interpreted so that where the suit is based on fraud the period begins from notice; the court agreed with that approach in the present case.

Court's Reasoning and Analysis

The court began by identifying Article 120 of the Schedule of the Limitation Act as the provision in question, noting the operative words in the Article are "when the right to sue accrues." The court considered authority holding the period may run from the date of alienation, notably Ottapurakkal, but distinguished that case on the ground that there was no fraud alleged in Ottapurakkal. Because the plaint in the present matter alleges breach of trust and conveys that the 1st defendant dealt with temple properties as his own (thereby potentially depriving the temple of property and enabling the 2nd defendant to sell those properties), the court treated that allegation as involving an element of fraud.

The court surveyed later authorities which, where fraud or a denial of title is involved, hold that the right to sue accrues when the plaintiff becomes aware of the fraud or denial. The court cited Muruga Chetty v. Rajaswamy and Thirumala Rao v. Kadakar Durgi Shettethe as examples where denial of the plaintiff's title meant accrual followed knowledge. The earlier decision in Venkataswara Aiyar v. Somasundram Chettiar was relied on for the analogous principle that a creditor's option to avoid an alienation means his right to sue arises when he is in a position to exercise that option (i.e., when aware of the alienation and its effect).

Applying these principles, the court reasoned that a mere deed of alienation will not necessarily give the plaintiff an immediate right to sue: if the deed were valid (for example, made for necessity or otherwise justifiable), the plaintiff would have no right to impeach it. It is the attack on the alienation on grounds of fraud that entitles the plaintiff to come into court. Therefore, the court concluded that where the suit is based on fraud or a form of dishonesty (as alleged here), Article 120 must be read so that the period of limitation starts when the plaintiff (or the plaintiff acting in a representative capacity for the temple worshippers) becomes aware of the fraudulent conveyance.

Because the Subordinate Judge had required evidence to determine when the plaintiff became aware of the transaction and had disallowed the late-raised plea of limitation pending such evidence, the appellate court held that the Subordinate Judge was correct in requiring the matter of knowledge to be proved and in rejecting the plea of limitation at that interlocutory stage.

Separately, addressing the contention that the properties were not dedicated to the temple under partition deed Ex. A, the court examined the language of Ex. A and noted that it recites that the suit properties were purchased jointly by the plaintiff and the 1st defendant and "offered" to the Swamivaru (the plaint temple). The document does not allot the property to the 1st defendant as his share; instead it records a dedication/offer to the temple. On that basis the court rejected the appellant's contention that the properties were not dedicated to the temple.

Holding and Implications

Holding: The appeal is dismissed with costs.

Implications:

  • The court held that where a suit challenges an alienation on grounds of fraud or breach of trust (effectively a denial of the temple's title), Article 120 of the Limitation Act is to be applied so that the period of limitation runs from the time the plaintiff becomes aware of the fraud/denial (i.e., accrual upon knowledge), not necessarily from the date of the alienation.
  • Because the plaint alleges such fraud and the plaintiff asserted that he became aware of the alleged mortgage within six years of instituting the suit, the suit was found to be within time on the basis adopted; consequently the Subordinate Judge was correct to require evidentiary inquiry into the date of knowledge rather than to decide limitation against the plaintiff on the face of the plaint.
  • The court also directly rejected the appellant's argument that the partition deed Ex. A did not dedicate the properties to the temple, holding that the deed's language indicated the properties were offered to the temple and were not allotted to the 1st defendant as his own share.
  • No broader new principle beyond applying established authorities to the facts was announced; the direct effect is that the appeal fails and the decree below (holding the mortgage not binding on the plaintiff representing the temple worshippers) stands for the reasons set out above.

This summary has been prepared strictly from the content of the provided opinion. No information not present in the opinion has been added.

Show full summary ...

    Peruri Viswanadham v. Pendela Narayana Doss

    1. This is an appeal against the decree declaring that the mortgage executed by the 1st defendant in favour of the 2nd defendant is not binding on the plaintiff who represents the worshippers of the temple to which the mortgaged properties belong. The appeal is argued mainly on the question of limitation which was not raised in the lower Court until the time of arguments. The Subordinate Judge has found that the Article of the limitation applicable is Article 120 of the Schedule of the Limitation Act and that time has to be computed from the date on which the plaintiff becomes aware of the transaction in suit, and, consequently, that it would have been necessary to take further evidence in order to establish the fact that the plaintiff became aware of this transaction more than six years before the suit. It is now argued that this decision is wrong and that the period of limitation under Article 120 of the Limitation Act runs from the date of the alienation and not from the date of the knowledge of the plaintiff of the transaction. The words in the Article are "when the right to sue accrues." It was held in Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Up-pathumma 5 Ind. Cas. 698 : 33 M. 31 that when a karnavathi made an alienation which was sought to be set aside by some of the members of the tarwad, the suit was barred as being brought more than six years after the date of the alienation. It does not appear from the report of that case that there was any fraud alleged on the part of the karnavathi and, therefore, this case is perhaps not entirely applicable to the facts of the one we are considering That case, Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma 5 Ind. Cas. 698 : 33 M. 31 was referred to in a subsequent case Prasanna Venkatachella Reddiar v. Collector of Trichinopoly 33 Ind. Cas. 45 : 38 M. 1064 where it was approved by one of the two Judges, whereas, the other one based his decision on the fact that the plaintiff bad knowledge of the transaction more than Six years before the suit. It is argued that the decision in the case is applicable here on the ground that the present suit is not one based on fraud. The plaint, however, shows that the plaintiff alleges a breach of trust and this preach consists in the 1st defendant's dealing with properties, as his own, which really belonged to the temple. It is difficult to see how this is not an allegation of fraud on the part of the 1st defendant for the effect of his action, if left undisturbed, would be to deprive the temple of some of its properties and would have given the 2nd defendant the right to bring those properties to sale in case of default as belonging to the 1st defendant personally. This element of fraud in the case, I think, differentiates it from Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma 5 Ind. Cas. 698 : 33 M. 31. There are many subsequent cases in this Court, where, in case of fraud, it has been held that the right to sue accrues under Article 120 of the Limitation Act when the plaintiff becomes aware of the fraud. I may refer to two cases, Muruga Chetty v. Rajaswamy 30 Ind. Cas. 669 : 29 M.L.J. 574 : 2 L.W. 813 : 18 M.L.T. 327 : (1915) M.W.N. 701 and Thirumala Rao v. Kadakar Durgi Shettethe 22 Ind. Cas. 883 : 1 L.W. 134 : (1914) M.W.N. 197. Both these refer to cases of denial of plaintiff's title and it was held that until he was aware of that denial his right to sue did not accrue. It is difficult to distinguish cases of denial of title from one like the present which is in effect a denial by the 1st defendant of the temple's title to the property. Again in Venkataswara Aiyar v. Somasundram Chettiar 44 Ind. Cas. 551 : 7 L.W. 280 : (1916) M.W.N. 244, to which I was a party, it was held that, until a creditor became aware of the alienation which he attacked as being in fraud of creditors, his right to sue did not accrue. That, no doubt, was put upon the ground that a creditor has always an option as to whether he will or he will not avoid an alienation and that until he is in a position to exercise that option he cannot be said to have the right to sue. The case, therefore, though not entirely analogous to the present one, is in principle very similar. Here, the mere execution of a deed of alienation will not necessarily give the plaintiff the right to sue ; for if that deed was a valid one and the alienation was made for necessity or for other purposes which would render the transaction valid, plaintiff, if he brought a suit, would naturally be non-suited on the ground that he had no right to impeach the transaction and consequently no right to sue. It is only the fact that the alienation is attacked on the ground of fraud that really entitles the plaintiff to come into Court and impeach it. If there was no fraud he cannot impeach this alienation and, there fore, until he knows that there is such fraud it cannot be said that he has the right to bring a suit. It is certainly not open to him to bring a speculative suit alleging that something had happened which might or might not be avoidable, for, if that were the sole ground on which he sued he would naturally have his plaint rejected. Here he has alleged that he has become aware of it within six years of the suit, It will be seen in the Schedule of the Limitation Act that in cases of fraud the period of limitation usually starts from the time at which the fraud becomes known. Applying that principle here the plaintiff's suit is within time and this appeal must fail on that ground.

    2. The further contention, that the properties mortgaged were not dedicated to the temple under the partition deed Ex. A cannot be supported in view of the language of the document in which it is recited that the suit properties were purchased by the plaintiff and the 1st defendant jointly and 'offered' to the aforesaid Swamivaru, namely, the plaint temple. The property itself, is not allotted to the 1st defendant for his share which it would have been had it been given to him as his own on the ground that he had incurred and must incur expenses in connection with the temple. This argument also fails and the appeal is accordingly dismissed with costs.

    Odgers, J.

    3. The learned Counsel of the appellant undertook to show that on the plaint itself there was a distinct bar of limitation. Now the plaint alleges that the defendant has alienated the properties dedicated to the temple, and that the plaintiff learns that the 1st defendant has mortgaged in 1914 temple properties as his own private properties. The learned Subordinate Judge has disallowed the plea of limitation which was only raised after all the evidence had been completed, on the ground that something more; than the mere allegation in the plaint Should be required to enable him to decide the matter. The question is whether he is right in this decision. It seems to me that as regards Article 120 of the Schedule of the limitation. Act, something is needed to give the plaint-ill notice as to when his right to sue accrues, because it would seem prima facie unreasonable that a man should lose his right to sue without ever knowing that he had one. It, therefore, appears to me, if I may say so with respect, that the reasons given by my learned brother in the case to which he was a party in Venkateswara Aiyar v. Somasundram Chettiar 44 Ind. Cas. 551 : 7 L.W. 280 : (1918) M.W.N. 244 are sound, i.e., where he points out that "in all cases of fraud, misconduct, etc., the period of limitation for a suit begins to run from the time when the fraud, misconduct, etc., becomes known, (vide Articles 90, 91, 95, 96, etc.) but no such provision could be inserted in Article 120, for it is a residuary Article and thus applicable to every variety of suit not otherwise provided for and is not confined to suits based on fraud." That seems to me to be an and to be perfectly true. In this case it seems to me that the suit is based on fraud or on a form of dishonesty which consisted in conveying as your own, properties that are not your own. It is suggested that that view is impossible because it must be fraud on the plaintiff before it can give him the right to sue, but the plaintiff is suing in a representative capacity on behalf of the worshippers of the temple and they are in effect complaining of the fraud of the 1st defendant in alienating these properties. If that view is correct it is impossible to say that the right to sue accrues before the plaintiff is aware of the fraudulent conveyance of the property. As my learned brother has pointed out a conveyance may be perfectly valid and may be undertaken for necessary and roost praiseworthy obligations, but the right to sue can accrue only when the plaintiff, representing" a body of worshippers, comes to know that the alienation was in effect in fraud of the temple. The case of Venkateswara Aiyer v. Somasundram Chettiar 44 Ind. Cas. 551 : 7 L.W. 280 : (1918) M.W.N. 244 is perhaps a stronger case than the present. In that case a creditor had an option as to whether he would seek to set aside an alienation or not but once he exercised his option, the case seems to me to be analogous to the present one. I would distinguish the case quoted from Ottapurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma 5 Ind. Cas. 698 : 33 M. 31 on the same ground, namely, that there was no fraud alleged and, therefore, there was really nothing to come to the knowledge of the plaintiff. In Prasanna Venkatachella Reddiar v. Collector of Trichinopoly 33 Ind. Cas. 45 : 38 M. 1064 one of the learned Judges Spencer, J., decided the case on another ground, namely, the knowledge of the plaintiff more than six years before the date of the suit. I, therefore, think that Article 120 applies to the case, but that it will not apply until the plaintiff has had notice of the alienation. It is not disputed that if that is the case, the suit is within time. If this is so there is no doubt that the Subordinate Judge was right in thinking that the evidence would have to be gone into to show the truth or otherwise of the allegation of no lice. The learned Subordinate Judge was right in rejecting the plea of limitation and with regard to this point put forward in this appeal, I agree with my learned brother and would dismiss this appeal with costs.

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    Comments

    Peruri Viswanadham v. Pendela Narayana Doss
    (Mar 5, 1928)