MAHANT MAHABIR DAS Vs. RAM LAKHAN SINGH

JUDGEMENT

(1.) In the suit which is the subject-matter of this appeal the plaintiff, Mahant Mahabir Das, alleged that on the 15th of January, 1915, Bhola Prasad Singh and the mother of Bhagwan Prasad Singh executed a zarpeshgi deed in favour of the plaintiff's guru for a sum of Rs. 13,000/-. After attaining majority Bhagwan Prasad Singh, defendant No. 1, brought Title Suit No. 157 of 1918 for recovery of possession of his share of the zarpeshgi properties and for a declaration that the zarpeshgi had not been executed for legal necessity or for his benefit and was not, therefore, binding upon him. The Title Suit No. 157 of 1918 was decreed in part and it was declared by the court that out of the consideration of Rs. 13.000/- only a sum of Rs. 8,462/- was for legal necessity and was binding upon the joint family property which had been given in zarpeshgi and that the said sum could be legally realised from the joint family consisting of Bhola Prasad Singh and Bhagwan Prasad Singh. The balance of Rs. 4,538/- was held to be the personal liability of Bhola Prasad Singh. It appears that Bhagwan Prasad Singh filed a suit for redemption (Title Suit No. 64 of 1943) on the basis of the zarpeshgi deed against the plaintiff. The sons of Bhola Prasad Singh were subsequently made co-plaintiffs in that suit. The allegation of the plaintiffs in the redemption suit was that on taking an account it appeared that the entire zarpeshgi amount of Rs. 8,462/- had been satisfied and accordingly the plaintiffs prayed to be put in possession of the zarpeshgi properties. It was admitted in that suit that according to the terms of the zarpeshgi document Rs. 730/- and odd was the annual usufruct of the zarpeshgi property, while the interest on Rs. 13,000/- amounted to Rs. 682-8-0 per year, and, therefore, Rs. 48-6-3 was the amount fixed as the annual Haque Azri payable to the mortgagors. The judgment of the High Court in First Appeal No. 49 of 1945 Ext. 1) shows that so far as Bhagwan Prasad Singh was concerned the interest was calculated on half of the amount of Rs. 8,462/- and the excess of the usufruct enjoyed by the mortgagors was ordered to be set off against the principal amount of the zarpeshgi money. The following paragraph of the judgment of the High Court is important in this connection:

(2.) The main Question involved in this case is whether Article 97 of the Indian Limitation Act applies to this case and whether the suit of the plaintiff is barred by limitation.

(3.) On behalf of the plaintiff appellant the argument put forward is that the starting point of limitation is not the date of the decree of the Title Suit No. 157 of 1918, but the starting point would be the date of dispossession, namely, the 16th of September, 1948, under Article 97 of the Indian Limitation Act. In our opinion the argument addressed on behalf of the appellant is well founded and must prevail. We consider that article 97 is the proper Articles to be applied to this case and under the provisions of that Article the limitation is three years from the date of the failure of consideration. The matter has been clearly dealt with by the Madras High Court in H.M.K.V. Sankara Variyar v. T.K. Ummer, ILR 46 Mad 40: (AIR 1923 Mad 46) (A) where a purchaser under a voidable sale-deed from a qualified owner was found to be dispossessed in execution of a decree obtained by person entitled to avoid the sale. It was held by the Division Bench of the Madras High Court that a suit by the purchaser for the return of the price was governed by Article 97 of the Limitation Act and that limitation began to run not from the date of the decree but from the date of actual dispossession. A similar view has been expressed by the Bombay High Court in Narsing Shivbakas v. Pachu Ram-bakas, ILR 37 Bom 538 (B) where it was held that the suit was governed by Article 97, inasmuch as possession given under the purchase to the plaintiff was an existing consideration so long as it lasted. The question has also been elaborately dealt with by a Division Bench of this High Court consisting of Fazal Ali and Shearer, JJ. in Dhani Sahu v. Bishun Prasad Singh, AIR 1942 Pat 247 (C) where all the authorities on the point have been elaborately examined and dealt with. It was laid down by the learned Judges in that case that the plaintiff's claim in respect of the specific sum of money was governed by Article 97 of the Limitation Act and was not barfed by Limitation Act and was not barred by limitation inasmuch as the consideration could not be said to have failed until the plaintiff was dispossessed from the property which he had acquired under the sale-deed and the plaintiff had been dispossessed within three years of the suit. In our opinion, the principle laid down in these authorities applies to the present case and it must be held that the suit of the plaintiff is not barred under the Indian Limitation Act and the view taken by the lower Courts on this point must be overruled.