State v. Jathavedan Nambooripadu — 1958 DIGILAW 194 (KER)

Judgment :- 1. 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 Para.2 of the plaint. By Ext. A dated 19-7-1915, a judgment of the High Court of Travancore, 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 Thiruppuvaram 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 Art.115 of the Indian Limitation Act, 1908 (3 years) and according to the respondents the article applicable should be Art.131 of the said Act (12 years). The respondents have also an alternative contention to the effect that if Art.131 is held to be inapplicable, the article applicable is still not Art.115, but Art.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 Art.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 Art.119 - of the Travancore Limitation Act, 1100. 3. 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). S.30 of the Indian Limitation Act introduced by Act III of 1951 provides: "Notwithstanding 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than the period of limitation prescribed by any law corresponding to this Act in force in a Part B State which is repealed by the Part B States (Laws) Act, 1951, may be instituted within the period of two years next after the coming into force of this Act in that Part B State or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". 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 Art.119 of the Travancore Limitation Act, 1100. 4. No relief against property is claimed by the plaintiffs as can be seen from Para.2 of the replication dated 20-11-1954: "Counsel for the appellant relied upon the language of the 132nd article of the second schedule, 'For money charged upon immoveable property, 12 years'. His contention was that 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 immoveable 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". 5. In the light of I. L. R.7 All 502 counsel for the respondents did not seek to support the conclusion of the trial court that the article applicable is Art.132 of the Indian Limitation Act. 6. Art.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. 7. 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 Art.131 and he cites I.L.R. 38 Mad. 916 Zamorin of Calicut v. Achutha in support of his contention. 7. 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 Art.131 and he cites I.L.R. 38 Mad. 916 Zamorin of Calicut v. Achutha in support of his contention. In that case the Madras High Court took the view that Art.131 did apply to a suit to recover sums due under a periodically recurring right, whether there is a prayer for a declaration of the 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 Art.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". 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" and Oldfield, J., agreed with the Chief Justice "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, Thangaraja Pandyan v. Veeraraghava Iyengar. 8. Chitaley deals with the matter as follows: "Where the plaintiff is entitled to certain 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). 9. We are not prepared to accept the Madras view as correct. As pointed out in Punj. Rec. (Limitation Act, 3rd Edition, Volume II, page 1932). 9. 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". This decision was followed in Lachmi Narain v. Turabunnisa I.L.R. 34 All. 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 Art.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., 1906, p. 303 have held that the words 'to establish' in Art.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." 10. In A.I.R. 1926 Patna 205 Sri Baidyanath Jiu v. Har Dutt 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" and in Janardhan Trimbak v. Dimkar Hari A.I.R. 1931 Bombay 139 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' " 11. A.I.R. 1948 Nag. 397 is a case where Bose, J., refused to apply Art.131. 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' " 11. A.I.R. 1948 Nag. 397 is a case where Bose, J., refused to apply Art.131. He said: "Art. 131 applies when the suit is to enforce a right Here the right is not denied but only the extent of the amount payable under that right". 12. The suit not being for the establishment of any right but only for the recovery of arrears of Thiruppuvaram we must hold that Art.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 All. 575. 13. The only question that remains for consideration is whether it is Art.115 or Art.120 of the Limitation Act that applies to the case. Art.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". Art.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. 14. The question as to which of these two articles will apply was not decided in I. L. R.1955 T-C 1174: "Mr. Art.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. 14. 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 because no charge on property claimed by 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". 15. In order to attract Art.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. 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" 1952 K.L.T. 677, Ouseph v. Sreedharan Moothathu 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. 16. In the light of what is stated above we must hold that Art.115...the only article invoked by the State ...does not apply to the case, and that the article applicable is Art.120 of the Limitation Act. The Privy Council dealt with the application of this residuary article as follows in Reasat Ali v. Hosin Banu I.L.R. 21 Cal. 157: "Art. 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" 17. 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. 18. 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. Partly allowed.