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State v. Jathavedan Nambooripad And Another
Factual and Procedural Background
The defendant, the State of Travancore-Cochin, as defendant in O.S. No. 31 of 1954 in the District Court of Trivandrum, is the appellant in this appeal. The plaintiffs (a Madhom) claim an annual Thiruppuvaram entitlement. While the Madhom's entitlement was stated as 28.4 paras of paddy in the plaint, a 19-7-1915 judgment of the High Court of Travancore (Ext. A) fixed the State's liability at 12.5 paras of paddy per year. The suit seeks arrears of Thiruppuvaram at 12.5 paras per year from 1-5-1117 until the date of suit (3-7-1129 / 15-2-1954).
The sole question before the court is the applicable period of limitation under the Indian Limitation Act: the State contends that article 115 (3 years) applies; the respondents contend that article 131 (12 years) applies and alternatively argue that if article 131 is inapplicable the applicable article is article 120 (6 years). The learned District Judge had held that article 132 (12 years) applied, relying on decisions under the corresponding Travancore Limitation Act provision (article 119).
The Indian Limitation Act was extended to the State on 1-4-1951 by the Part B States (Laws) Act, 1951 (Act III of 1951). Section 30 of the Indian Limitation Act provided a transitional two-year window for certain suits, but that two-year period had expired by the time this suit was instituted; accordingly the court did not decide the scope of article 119 of the Travancore Limitation Act.
No relief against property is claimed by the plaintiffs (see paragraph 2 of the replication dated 20-11-1954).
Legal Issues Presented
- Which article of the Indian Limitation Act governs the suit for arrears of Thiruppuvaram: article 115 (3 years), article 131 (12 years), article 132 (12 years), or article 120 (6 years)?
- Whether the suit is one to "establish a periodically recurring right" (bringing it within article 131) or merely a suit to recover arrears (thus excluding article 131)?
- Whether the claim against the State is founded on a contract (which would attract article 115) or on a grant (which would not attract article 115 and would point to the residuary article 120)?
Arguments of the Parties
Appellant (State of Travancore-Cochin)
- The State contended that article 115 of the Indian Limitation Act (3 years) governed the claim.
- In an earlier cited proceeding (I.L.R 1955 T.C 1174) the Government Pleader argued that although Thiruppuvaram may be a charge on property, where no relief against property is granted the period available to enforce relief against the State should be three years, or at most six years.
Respondents (Plaintiffs / Madhom)
- The respondents contended that article 131 (12 years) applied to the suit to recover arrears of a periodically recurring right.
- As an alternative, the respondents argued that if article 131 were inapplicable then the applicable article would be article 120 (6 years).
- The respondents initially relied upon the District Judge's application of article 132 (12 years), but, in light of the Privy Council decision in I.L.R VII Allahabad 502, counsel for the respondents did not seek to support the District Judge's conclusion that article 132 applied.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| I.L.R VII Allahabad 502 (Privy Council) | Article 132 ('For money charged upon immovable property, 12 years') refers to suits to raise money out of immovable property and does not give 12 years for the mere personal remedy against the mortgagor. | Used to show that article 132 is not applicable to a suit that does not seek to raise money out of immovable property; respondents did not press reliance on article 132 in light of this authority. |
| I.L.R XXXVIII Madras 916 | Madras High Court view that article 131 applies to suits to recover sums due under a periodically recurring right even where no declaration of right is sought. | Considered and described; the court rejected this Madras view as incorrect for the present case. |
| I.L.R VII Madras 341 | Madras decision held that the words 'to establish' in article 131 include recovery of arrears. | Referenced as one of the Madras decisions taking the broader view of article 131; not followed by this court. |
| XXVI Madras 291 | Another Madras decision supporting that 'to establish' includes recovery of arrears. | Referenced as part of the Madras line of authorities; not followed by this court. |
| (1958) 71 Law Weekly 7 | Subsequent Madras decisions following the view that article 131 applies to recovery suits. | Noted as subsequent followings of the Madras view; the court declined to adopt that view. |
| Punj., Rec., 1906, p. 303 (Punjab Chief Court) | Article 131 in its terms refers only to a suit to establish a periodically recurring right and does not extend to cases where the plaintiff seeks to recover specific sums of money due under such a right. | Preferred by this court over the Madras view and relied upon in concluding article 131 does not apply to a suit for recovery of arrears. |
| I.L.R XXXIV Allahabad 246 | Allahabad court preferred the Punjab view that article 131 does not extend to recovery of specific sums due under a recurring right. | Followed by this court to support rejection of article 131 for recovery suits. |
| A.I.R 1926 Patna 205 | Differentiation between a suit to establish a periodically recurring right and a suit to enforce payments due as remuneration arising out of that right. | Quoted to support the distinction and the conclusion that article 131 does not apply to suits merely to recover payments. |
| A.I.R 1931 Bombay 189 | Article 131 applies to suits to establish a periodically recurring right, not to recover sums due under such a right; limitation begins from first refusal of enjoyment. | Quoted as authority supporting the court's interpretation that article 131 is confined to suits to establish rights. |
| A.I.R 1948 Nagapur 397 | Refusal to apply article 131 where the suit was not to establish a right but involved dispute only as to the extent of amount payable. | Cited as another instance where article 131 was not applied to recovery-type claims. |
| A.I.R 1957 Allahabad 575 | Contains a full discussion of the expression 'periodically recurring right' and related matters. | Referenced; the court declined to decide the periodicity question and noted this authority covers that discussion. |
| I.L.R 1955 T.C 1174 | Record of argument that where no relief against property is granted the period against the State should be three or at most six years. | Quoted to show the State's contention (as advanced earlier) that the longer periods were not applicable to relief sought personally against the State. |
| 19 T.L.J 345 | Statement that Thiruppuvaram is an interest created by a grant; Government grants a part of the tax due on property to a third party. | Relied on to indicate that the foundation of the plaintiffs' entitlement appears to be a grant rather than a contract, undermining applicability of article 115. |
| 1952 K.L.T 677 | Also describes the Thiruppuvaram right as founded on a grant. | Noted in support of the view that the right appears to be founded on a grant rather than on a contract. |
| I.L.R XXI Calcutta 157 (Privy Council) | Article 120 is a residuary article providing six years' limitation for suits for which no other article applies; it should be applied unless the suit is clearly within some other article. | Invoked to justify applying article 120 (six years) when no other article clearly governs the suit. |
Court's Reasoning and Analysis
The court framed the limitation question as the sole issue and proceeded in stages:
- Article 132: The court accepted the Privy Council's interpretation (I.L.R VII Allahabad 502) that article 132 is directed to suits to raise money charged on immovable property and does not extend to personal remedies where no relief against property is claimed. Because the plaintiffs sought no relief against property, and in view of that authority, the court did not sustain the District Judge's reliance on article 132; respondents did not press reliance on article 132.
- Article 131: The court examined article 131, which prescribes 12 years for a suit "to establish a periodically recurring right" and noted two prerequisite conditions for its applicability: (a) that the proceeding is a suit to establish a right, and (b) that the right is periodically recurring. The court concluded that the present suit is solely for recovery of arrears and not for the establishment of any right. The court reviewed conflicting authority (Madras decisions adopting a broad construction of "to establish" to include recovery suits) but rejected that line of decisions. Instead, the court preferred decisions (Punjab Chief Court, Allahabad, Patna, Bombay, Nagpur) that confined article 131 to suits to establish rights and excluded suits merely to recover sums due under such rights. Having found article 131 inapplicable, the court explicitly declined to decide whether Thiruppuvaram is a "periodically recurring right."
- Article 115 vs Article 120: The court turned to whether article 115 (three years for compensation for breach of contract, express or implied, not in writing) or article 120 (residuary six years) applied. Article 115 requires the suit to be founded upon a contract. On the evidence before it the court found insufficient material to hold that the foundation of the plaintiffs' claim was a contract; authorities (19 T.L.J 345 and 1952 K.L.T 677) indicate Thiruppuvaram is ordinarily an interest created by a grant. The court therefore held that article 115 (the sole article invoked by the State) did not apply.
- Having excluded articles 132, 131 and 115, and relying on Privy Council authority (I.L.R XXI Calcutta 157) as to the residuary nature of article 120, the court concluded that article 120 (six years) governed the present suit.
- Remedy and relief: Because article 120 prescribes six years' limitation, the court confined the decree to arrears due in respect of the six years immediately preceding institution of the suit.
Holding and Implications
Core Ruling: The court held that article 120 of the Indian Limitation Act (six years) governs the present suit and that the appeal must be partially allowed so that the decree is confined to arrears due in respect of the six years immediately preceding the suit.
Consequences for the parties:
- The plaintiffs' recovery is limited to arrears of Thiruppuvaram for the six years immediately prior to institution of the suit.
- The State's contention that article 115 (three years) applied was rejected; the court found insufficient evidence of a contractual foundation and treated the right as founded on a grant for present purposes.
- The District Judge's reliance on article 132 (12 years) was not sustained in this matter because no relief against property was claimed and article 132 applies to remedies to raise money charged on immovable property.
Broader implications and precedent: The opinion applied and relied upon existing authorities to resolve the limitation issue but did not purport to lay down any novel or broader legal principle beyond the application of settled interpretations of the Limitation Act. In particular, the court rejected a broader Madras line of authority on article 131 and followed decisions that confine article 131 to suits to establish rights; nonetheless, the judgment operates to limit recovery in this specific dispute and does not announce a new general rule beyond its reasoning.
Final disposition: The appeal was allowed in part, the decree confined to six years' arrears immediately preceding the suit, and there was no order as to costs.
M.S Menon, J.:— The defendant (State of Travancore-Cochin) in O.S No. 31 of 1954 of the district Court of Trivandrum is the appellant before us. The Madhom of the plaintiffs is entitled to an annual Thiruppuvaram of 28.4 paras of paddy in respect of the property specified in paragraph 2 of the plaint. By Ext. A dated 19-7-1915, a judgment of the High Court of Trvancore, the liability of the State in respect of the Thiruppuvaram was fixed at 12.5 paras of paddy per year and the claim in the suit is for arrears of Thiruppuvarm at 12.5 paras of paddy from 1-5-1117 till the date of suit, that is, till 3-7-1129 (15-2-1954). According to the State the claim is governed by article 115 of the Indian Limitation Act, 1908 (3 years) and according to the respondents the article applicable should be article 131 of the said Act (12 years). The respondents have also an alternative contention to the effect that if article 131 is held to be inapplicable, the article is still not article 115, but article 120 (6 years). This question of limitation is the only question that arises for consideration in this appeal.
2. The learned District Judge held that the article applicable was article 132 of the Indian Limitation Act (12 years). He based his conclusion on some decisions of the High Court of Travancore on the corresponding article — article 119 — of the Travancore Limitation Act, 1100. The suit was instituted after the Indian Limitation Act was extended to the State on 1-4-1951 by the Part B States (Laws) Act, 1951 (Act III of 1951). Section 30 of the Indian Limitation Act introduced by Act III of 1951 provides:
“Not withstanding anything herein contained, any suit for which the period of limitation prescribed by this Act is shorter than the period of limitation prescribed by any law corresponding to this Act in force in a Part B State which is repealed by the Part B States (Law) Act, 1951, may be instituted within the period of two years next after the coming into force of this Act in that Part B State or within the period prescribed for such suit by such corresponding law, whichever period expires first”.
3. As the period of two years provided by this section was also over by the time the suit was instituted we consider it unnecessary to decide the scope and ambit of article 119 of the Travancore Limitation Act, 1100.
4. No relief against property is claimed by the plaintiffs as can be see from paragraph 2 of the replication dated 20-11-1954:
5. and as far as article 132 of the Indian Limitation Act is concerned it is unnecessary to go beyond the decision of the Privy Council in I.L.R VII Allahabad 502 wherein their Lordship said:
“Counsel for the appellant relied upon the language of the 132nd article of the second schedule, ‘For money charged upon immovable property, 12 years’. His contention was that period of 12 years applied to every remedy which the instrument carried with it, and gave 12 years for the personal remedy against the mortgagor as well as against the mortgaged property. Looking at the previous language with reference to personal suits, and at the language of art. 132, their Lordships think great inconvenience and inconsistencies would arise if they did not read the latter as having reference only to suits for money charged on immovable property to raise it out of that property. That seems to their Lordships what the Legislature intended, and they are therefore of opinion that the decision of the High Court was right”.
6. In the light of I.L.R VII Allahabad 502 counsel for the respondents did not seek to support the conclusion of the trial court that the article applicable is article 132 of the Indian Limitation Act.
7. Article 131 of the Indian Limitation Act prescribes a period of 12 years for a suit to establish a periodically recurring right from the date of the first refusal of the enjoyment of that right. The wording of the article makes it quite clear that its applicability depends on the satisfaction of two conditions:
(a) there must be a suit to establish a right; and
(b) the right sought to be established must be a periodically recurring right.
8. The suit before us is solely for the recovery of arrears of Thiruppuvaram and not for the establishment of any right. The contention of counsel for the respondents is that even such a suit is governed by article 131 and he cites I.L.R XXXVIII Madras 916 in support of his contention. In that case the Madras High Court took the view that article 131 did apply to a suit to recover sums due under a periodically recurring right, whether there is a prayer for a declaration of plaintiff's right or not. White, C.J, however, took care to say:
“If this matter had been res Integra I should have been disposed to hold that article 131 should be construed as applying to a suit brought for the purpose of obtaining an adjudication as to the existence of an alleged periodically recurring right, and not to a suit in which it was sought to recover moneys alleged to be due by reason of the alleged right”.
9. Sankaran Nair, J., said:
“The question is not free from doubt. But I am not prepared to differ from the decisions of this Court and I would therefore answer the question in the affirmative”
10. and Oldfield, J., agreed with the C.J “for the reasons stated by him”. The decision has been followed in subsequent cases by the High Court of Madras, the most recent decision to which our attention has been drawn being (1958) 71 Law Weekly 7.
11. Chitaley deals with the matter as follows:
“Where the plaintiff is entitled to certian annual or other periodical payments and the suit is for the recovery of arrears of such payments, there is a conflict of decisions as to whether this article applies to such a suit. The view generally adopted is that such a suit is not a suit to establish a periodically recurring right but one to enforce such right and that, therefore, this article will not apply to such a suit”. (Limitation Act, 3rd Edition, Volume II, page 1932)
12. We are not prepared to accept the Madras view as correct. As pointed out in Punj., Rec., 1906, p. 303.
“Clearly in its terms this article refers merely to a suit to establish a right of a periodically recurring nature, and the cause of action is the refusal of plaintiffs' enjoyment of such right. It does not in terms extend, and cannot, therefore, be extended, to cover cases in which a plaintiff seeks to recover specific sums of money due to him in respect of such recurring right”.
13. This decision was followed in I.L.R XXXIV Allahabad 246:
“Two cases decided by the Madras High Court — I.L.R VII Madras 341 and XXVI Madras 291 — have been referred in which it has been held that the words ‘to establish’ in article 131 are not confined to a declaration of title but include the recovery of arrears due to the plaintiff in respect of a periodically recurring right. The Punjab Chief Court, on the other hand, in Punj., Rec., 19CW, p. 303 have held that the words ‘to establish’ article 131 do not extend and cannot be extended to cases in which the plaintiff seeks to recover specific sums of money due to him in respect of a recurring right. We prefer the view taken by the Punjab Chief Court”.
14. In A.I.R 1926 Patna 205 Dawson-Miller, C.J, (with whom Foster, J., agreed) said:
“It seems to me that there is a vast distinction between a suit brought to establish a periodically recurring right and a suit brought to enforce payments due as remuneration for the performance of services arising out of that right”
15. and in A.I.R 1931 Bombay 189 Madgavkar, J., (with whom Barlee, J., agreed):
“The language of Art. 131 is clear. That article applies in express terms to a suit ‘to establish a periodically recurring right’ not to recover sums due under such a right and limitation begins to run from the date ‘when the plaintiff is first refused the enjoyment of the right’.”
16. A.I.R 1948 Nagapur 397 is a case where Bose, J., refused to apply article 131. He said:
“Article 131 applies when the suit is to enforce a right. Here the right is not denied by only the extent of the amount payable under that right.”
17. The suit not being for the establishment of any right but only for the recovery of arrears of Thiruppuvaram we must hold that article 131 is not attracted. It follows that it is quite unnecessary to consider whether the right to obtain Thiruppuvaram is a “periodically recurring right” or not, and that question is not considered in this judgment. There is a full discussion of the expression “periodically recurring right” and allied matters in A.I.R 1957 Allahabad 575.
18. The question that remains for consideration is whether it is article 115 or article 120 of the Limitation Act that applies to the case. Article 115 prescribes a period of 3 years for suits ‘for compensation for the breach of any contract, express or implied, not in writing registered and not herein specifically provided for’ from “when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases.” Article 120 is the residuary article in Part VII of the Act. It fixes the period of limitation at 6 years from the date when the right to sue accrues.
19. The question as to which of these two articles will apply was not decided in I.L.R 1955 T.C 1174:
“Mr. Shenoi, learned Government Pleader contends in A.S 584/1951 wherein the State is the appellant that the view of the court below that the period of limitation is 12 years is altogether wrong because though Thiruppuvaram may be a charge on property and if such a charge is sought to be enforced the claimant has a period of 12 years for its enforcement, in this case, no relief against the property is granted but what is granted is a relief against the State and the circumstance that a claim that is made may be sought to be recovered also by enforcing a charge upon immovable property will not render the period of limitation available for such enforcement applicable to the enforcement of the same claim personally against a party sought to be made liable. The argument of the learned Government Pleader should be accepted. Not more than a period of three or at the most six years is available to enforce the relief against the State is sought to be enforced in this action. If the period of limitation is only 3 or 6 years, then the suit against the State having been presented only in the year 1120 and the last year for which Thiruppuvaram is claimed being 1112 and the interval being 8 years, no part of the claim made in the suit can be decreed against the State.”
20. In order to attract article 115 the suit must be founded upon a contract between the parties and the evidence before us is not sufficient to hold that the foundation of the suit from which this appeal arises is anything other than a grant by the State. According to 19 T.L.J 345 Thiruppuvaram in all cases is an interest created by a grant:
“The nature of the right appears to be this. The Government, for reasons which it is immaterial to consider and which may vary in different cases, grant a part of the tax due on a property to a third party.”
21. 1952 K.L.T 677 also speaks of the right as one founded on a grant. It is, however, unnecessary for us to decide whether the Thiruppuvaram right is in all cases the subject of a grant, and never that of a contract.
22. In the light of what is stated above we must hold that article 115—the only article invoked by the State—does not apply to the case, and that the article applicable is article 120 of the Limitation Act. The privy council dealt with the application of this residuary article as follows in I.L.R XXI Calcutta 157:
“Article 120 provides a period of limitation of six years for a suit for which no period of limitation is provided elsewhere in the schedule. Their Lordships think this article should be applied, unless it is clear that the suit is within some other article.”
23. It follows that this appeal has to be partially allowed and the decree confined to the arrears due in respect of the six years immediately preceding the suit. Judgment accordingly. The appeal is allowed in the manner and to the extent indicated above; but in the circumstances of the case without any order as to costs.
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