Chhaganlal v. Bapubhai

M. Melvill, J.:— This is a claim to share in the income of a certain vatan, which is admitted to be connected with an hereditary office, but is not, strictly speaking, charged upon immoveable property.

The principal objection to the claim is that it is barred by the law of limitation.

In 1861, the plant iff brought a suit (No. 3023 of 1861) against the present defendents, or some of them, in which he asked for a declaration of his right to share in the vatan, and claimed arrears for preceding years. On the 13th October 1869, he obtained a decree in his favour. By this decree his title to a share was declared, and arrears for six years were awarded to him. The plaintiff has consequently received payment of his share up to the year 1860.

In the present suit, which was instituted in 1874, he claims arrears for 12 years, viz., from 1862 to 1874. He admits in his plaint that he received no payment for 1861, and that his claim for that year is consequently barred.

It is contended, on behalf of defendants, that the period of limitation applicable to a claim of this description is six years, and not twelve years; that, at any rate, this was so, so long as Act XIV of 1859 was in force, and that, therefore, the claim to so much of the arrears as was time-barred under Act XIV of 1859 cannot be revived by Act IX of 1871; and that, even if the period of limitation be held to be twelve years, the claim is nevertheless barred in toto, inasmuch as the plaintiff admits that he has received no payment on account of his share for thirteen years preceding the institution of the suit.

There can he no doubt that under Act IX of 1871, the period of limitation applicable to the present claim, is twelve years. Article 132 of the second schedule fixes this period for claims for money charged upon immoveable property, and the explanation subjoined to the article provides that “the allowances and fees called malikanna and haks shall, for the purposes of this clause, be deemed to be money charged upon inmoveable property.”

Act XIV of 1859 contains no such distinct provision as the above, and under that Act it would perhaps be impossible to hold that all payments, or allowances, coming within the designation of “haks,” could he classed as an interest in immoveable property. But we have no difficulty in holding that all hereditary offices, and all payments or allowances made on account of such offices, are immoveable property within the meaning and intention of Act XIV of 1859. By section 1, clause 1 of Regulation V of 1827 hereditary offices were distinctly classed with immoveable property; and, as observed by the Judicial Committee in Maharand Fatesingji v. Desdi Kallidnrdi, that inactment was not repealed by Act XIV of 1859. In the statutes of limitation, which have followed Act XIV of 1859, hereditary offices have been similarly treated as immoveable property. We do not see the least reason to suppose that the legislators, who enacted Act XIV of 1859, had any intention of treating hereditary offices differently from the legislators who preceded and followed them.

We are, therefore, of opinion, that, whether we apply act xiv of 1859, or act ix of 1871, to the present claim, the period of limitation is twelve years; and, that being so decided, the question which remains is, whether the present claim is barred in consequence of the plaintiff having received no payment on account of arrears for thirteen years.

In support of there contention on this point, the defendants rely on the decisions of this Court in Raiji Manor v. Desdi Kallidnrdi and Madvala v. Bhagvant. In the latter of these cases (and the principle of decision in the former case was the same) it was laid down that the cause of action to establish title, and the cause of action to recover arrears which rest on such title, are not distinct and independent of each other; so that, if the former be barred, even those arrears which may be within the period of limitation cannot be recovered. Some doubt has been thrown upon these decisions by the observations of the Judicial Committee, at the close of their judgment, in Maharand Fattesingji's case already referred to, and it is perhaps not easy to reconcile, them with the decision of the Privy Council in Beema Shankar v. Jamasji Shapurji(3). But assuming those cases to have been rightly decided by this Court (and, as at present advised, we think that they were rightly decided), they establish no more than this, namely, that when a plaintiff has (as he generally has), to establish his title to share in a “hak,” before he can obtain a decree for arrears due on account of such share, he cannot be allowed to recover any such arrears, if he come into Court too late to establish his title. Thus article 131, Schedule II of Act IX of 1871 requires a plaintiff, who seeks to establish a periodically recurring right, to being his suit within twelve years from the date when he was first refused the enjoyment of the right. If such plaintiff were to allow this period to elapse, without suing to establish his right, he could not be allowed indirectly to accomplish the same object by bringing a suit for arrears falling due within the period of limitation. But while this is the rule which, (if the decisions referred to be correct), must be applied to cases in which a plaintiff must establish his title, before he can ask for arrears accruing due under such title, it does not appear to us that the same rule applies, when, as in the present case, the plaintiff has already in a former suit obtained a decree declaratory of his title. It is no longer necessary for him to establish his periodically recurring right against any person who is bound by that decree: and this being so, we find nothing in the law of limitation which can bo construed into a restriction of the plaintiff's right to recover the arrears falling due within the period of limitation. It has been put forward, as an argument against this conclusion, that, if it be so, the plaintiff, might keep his decree in his pocket for 50 years, or more, and might them sue for arrears; and that thus there would be practically no such thing as limitation. Assuming, for the sake of argument, that such would be the case, we do not see that there would necessarily be any violation of legal principles in the conclusion which we have stated. The principle upon which statutes of limitation rest is not so much that long adverse possession creates a presumption of title; (for the law could hardly treat such a presumption as irrebuttable); but, rather, that it would be unfair to call upon a defendant to defend his title when, through lapse of time, his muniments of title would be likely to have been lost. But this consideration can have no application in a case like the present, in which the defendants are not called upon to defend their title. The question of title, as between the plaintiff and the defendants who are bound by the decree of 1869, has already been determined, once and for all, in the plaintiff's favour. If the plaintiff has not exacted all which ho might have recovered under that decree, his omission to do so has been a distinct gain to the defendants; but it affords no answer to the plaintiff's claim to recover ansars which have admittedly accrued due to him within the last twelve years. It might no doubt be unfair to call upon the defendants to meet a claim for arrears of older date; but that is only because it is likely that the evidence of payments made by them is no longer available to them. On this principle, and to this extent only, the statute of limitation operates in their favour.

We think that the Acting Assisant Judge was right in holding the defendant Vullubhbhai to be bound by the decree of 1869. The decree purports to declare his liability; and though he was not sued by name, yet it is clear that he was not prejudiced by the omission, for in a deposition made by him in the suit he himself admitted his liability.

The cross objections taken by the plaintiff are not, we think, sustainable. The Acting Assistant Judge has found, as a fact, that the emoluments of the “vatan.” have been diminished by one-half since 1866, and it has not been shown to us that this conclusion is not supported by the evidence. Under these circumstances the Acting Assistant Judge was justified in holding that the plaintiff was entitled to no more than Rs. 25 from 1866 to 1873.

We, accordingly, confirm the decrees of the Courts below with, costs.

Decree confirmed.