NARENDRASINGJI RANJITSINGJI Vs. UDESINGHJI

JUDGEMENT

(1.) THIS suit was brought by the respondent to obtain a declaration that he had a right to a share in the Toda Giras allowance obtained by the defendants from the Government sub-treasury at Olpad, the share being one-third up to the year 1930 and half after the said year, a permanent injunction directing the defendants and their heirs and descendants to pay the plaintiff, his heirs and descendants a half share of whatever amount the defendants might receive in future as the said allowance and the sum of Us. 8,396-8-0 as arrears due to him with interest from the date of the suit as well as his costs. The material facts in this ease are as under. Pratapsinhji, the common ancestor of the plaintiff and the defendants, was the grantee of a Toda Giras allowance of Rs. 7,197 per year from the British Government. After his death his widow adopted one Khushalsinhji as his son. The allowance was continued to Khushalsinhji and a sanad was granted to him in 1866. On Khushalsinhji's death, disputes arose between Government and Khushalsinhji's sons, as Government wanted to deduct a certain amount from the said sum on the ground that Khushalsinhji was not a natural son of Pratapsinhji and to stop the grant on the death of the last surviving son of Khushalsinhji. Khushalsinhji's sons filed a suit against Government in 1871 praying for a declaration that Government were bound to pay Khushalsinhji's descendants the sum of Rs. 7,197 without any deduction. Government accepted the contentions of Khushalsinhji's sons and the suit was withdrawn. Khushalsinhji had three sons, Raisinhji, Takhatsinhji and Gambhirsinhji and the defendants represent the branch of Raisinhji. Takhatsinhji died in 1874, his son Durjansinhji died in 1898 and Durjansinhji's son Dolatsinhji died on September 30, 1906. On July 1, 1910, Dolatsinhji's widow Mankuverba adopted the plaintiff, who was a minor 12 years old, as the son of her husband. Mankuverba died in 1916. After Takhatsinhji's death Durjansinhji had applied to the Collector, Surat District, for a separate payment to him of his one-third share of the allowance, namely, Rs. 2,399, and the said share had accordingly been separated and continued to be paid to him under an order of the Collector dated November 19, 1878, On Dolatsinhji's death, Ramsinhji, son of Gambhirsmhji, and Ranjitsinhji, the grandson of Raisinhji, who represented the two other branches, applied to the Collector for the deletion of Dolatsinhji's name from the Government records on the ground that the latter had died without leaving any male issue. THIS request was acceded to, and Dolatsinhji's share was amalgamated with the other two shares in 1907. Dolatsinhji's widow thereupon appealed to Government against the said order which had been passed by the Collector and confirmed by the Commissioner, and on October 1, 1908, Government decided that the one-third share of Dolatsinhji should be entered in Mankuverba's name and that Rs. 2,399 should accordingly be paid to her during her life-time or till her re-marriage in case she married again. It seems that in 1909 Ramsinhji and Ranjitsinhji addressed a petition to the Viceroy and Governor General in Council against this order by the Government of Bombay contending that at the most Mankuverba was entitled to have a lien on the share of her deceased husband for her maintenance while the whole allowance vested in themselves. They accordingly prayed that the order of the Government of Bombay should be set aside and the widow's name deleted from the record, or in the alternative that they should be declared as the reversionary heirs after the widow. THIS petition was apparently not forwarded by the Government of Bombay who, however, granted the applicants' prayer that they should be declared as the reversionary heirs after the widow. Up to the date of Mankuverba's death on July 10, 1916, her name remained on the Government records and she continued to draw one-third of the allowance. On July 23, 1917, the plaintiff applied to the Collector for a certificate under Section 6 of the Pensions Act, XXIII of 1871, authorising the First Class Judge's Court, Surat, to entertain his suit against Ramsinhji and Ranjitsinhji for a declaration that he was entitled to receive the amount of Rs. 2,399 out of the grant. THIS application was refused on August 4, 1917, and the said order was upheld by the Commissioner of the division and Government. In the same year 19. 1. 7, the plaintiff filed a suit against the members of the two other branches in the civil Court at Navsari in the Earoda State for a. declaration that he was the legally adopted sen of Dolatsinhji and that he was accordingly entitled to his due share in the properties belonging to the family within the jurisdiction of the said Court. In the same year, again, the plaintiff applied for letters of administration in respect of the property of Dolatsinhji situate within the limits of the Surat and Broach districts on the allegation that he was the adopted son of the said Dolatsinhji. The properties mentioned in the plaint included the Toda Giras allowance enjoyed by his father. The factum and the validity of the adoption were disputed by the defendants, who were Ramsinhji and Ranjitsinhji. The Court held the adoption proved and accordingly granted the letters of administration applied for, with the exception of the claim to a share in the Toda Giras allowance, on the ground that the said allowance was governed by the Pensions Act. The letters of administration were granted on July 14, 1921. In 1926 the plaintiff made a second application to the Collector for a certificate under the Pensions' Act in respect of bis share in the allowance, but the said application was also refused on the ground that the matter had already once been decided by Government. In the year 1926 Kesarisinhji, son of Ramsinhji, made a will in respect of his property in favour of "all his legal heirs according to Hindu law and shastras" with the exception of the plaintiff, whose claim as the adopted son of Dolatsinhji was denied. The said Kesarisinhji died on March 14, 1932, leaving three widows, his only son having predeceased him in 1918. In 1933 the plaintiff made a third attempt to obtain a certificate under the Pensions Act in respect of the allowance, and this time he was successful in obtaining one on November 17, 1933. On February 15, 1934, he filed the present suit. Thereafter on November 28, 1934, at the direction of Government, the Collector cancelled the certificate granted on November 17, 1933.

(2.) THE parties to the suit are related in the manner shown by the following genealogical tree:

(3.) MR, Thakor on behalf of the appellants has not challenged the finding that the plaintiff is the adopted son of Dolatsinhji. We have also not allowed him to dispute the findings of this Court in its judgment of September 2, 1938. The main part of his arguments relates to the question of limitation. He has relied on the finding of the trial Court that the article in the first schedule to the Indian Limitation Act which is applicable is Article 131 and he has sought to show that the plaintiff was first refused the enjoyment of the right which he claims more than 12 years prior to the suit. Article 131 reads thus : Description of suit. Period of limitation. Time from which period begins to run. To establish a periodically 12 years. . When the plaintiff is first refused recurring right. the enjoyment of the right. MR. Daphtary on behalf of the plaintiff-respondent has contended that the article applicable is Article 120 which is as follows: Description of suit. Period of limitation. Time from which period begins to run. Suit for which no period of Six years. . . . When the right to sue accrues. limitation is provided elsewhere in this schedule. He has further contended that even if Article 131 applies, the word "refused" in the third column means refusal on demand, and that in this case there has been no refusal on demand or even mere refusal of the plaintiff's enjoyment of the right claimed more than 12 years prior to the suit. The trial Court has relied on the following authorities in support of its view that Article 131 applies to the facts of this case: Sahib-un-Nissa Bibi v. Hafiza Bibi (1887) I. L. R. 9 All. 213, Keskav Jagannath v. Narayan Sakharam (1889) I. L. R. 14 Bom. 236, Sirdar Gurdayal Singh v. Rajah of Faridkote (1894) L. R. 21 I. A. 171, Bhimahai v. Swamiraa (1920) I. L. R. 45 Bom. 638, S. C. 23 Bom. L. R. 100 and Devendra v. Jhumur [1926] A. I. R. Cal. 883. MR. Thakor has also relied on Raoji v. Bala (1890) I. L. R. 15 Bom. 135, Sakharam Hari v. Laxmipriya Tirtha Swami (1910) I. L. R. 34 Bom. 349, S. C. 12 Bom. L. R. 157, Shri Bala Maharaj v. Sakharam (1926) 28 Bom. L. R. 683, and Jagannath Kishore v. Bipan Mahato [1941] A. I. R. Pat. 116. There can be no doubt that the present suit is "to establish a periodically recurring right" within the meaning of Article 131 and prima facie that article would be applicable, and if so there can be no question of the applicability of the residual Article 120. Raoji v. Bala, which was a suit by a co-sharer to establish his title to a share in an annual allowance, namely, a deshmukhi allowance, received by the defendant from Government, appears to be the most closely analogous to the present case, and there it was held that the plaintiffs' claim for a declaration of their title to the allowance was governed by Article 131, though the claim for arrears of the allowance fell under Article 62 This case was one of the authorities followed in Sakharam Hari v. Laxmipriya Tirtha Swami, which was a suit for the recovery by the manager of a temple of the arrears of a cash allowance which the plaintiff was entitled to receive from the property of the defendants. It was held (p. 353) : "if what is sued for is the establishment of a title to the right itself, then Article 131 applies, whether the defendant is the person originally liable to pay or is a co-sharer who has received payment from that person". Bhimabai v. Swamirao was a case in which Article 131 was not held applicable, the plaintiff being an inamdar whose right, title and interest had been purchased in execution of a money decree against him by the defendant many years prior to the suit, no attempt having been made by the inamdar to levy assessment or to recover possession for over thirty years. This ease will be relevant in the discussion of the question whether "refusal" in Article 131 means refusal on demand or mere refusal. In Shri Rala Maharaj v. Sakharam, the plaintiff, an inamdar, sued the tenant for the difference between the survey assessment revised several years before the suit and the assessment actually paid by the latter and it was held that Article 131 applied. In Jagannath Kishore v. Bipan Mahato the defendants who were the plaintiff's tenants had asserted their right to hold the land in suit rent-free and continued to hold it for more than 12 years prior to suit without paying any rent, and it was held that the suit was barred under Article 131.