HUSAIN BATCHA SAHIB Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF NORTH ARCOT

JUDGEMENT

(1.) The appellant is the mutuwalli and katheeb of a mosque in the village of Sattur, which is situated in the Wallajah Taluk of the North Arcot District. In the days of the Nawabs of the Carnatic a yeomiah allowance of Rs. 88-8-0 per annum was granted to the mutawalli of this mosque. The immediate predecessor of the appellant in the office of mutawalli was one Mohamed Ali, who died in the year 1918, While he held the office of mutawalli he was in receipt of this yeomiah allowance, which is now payable by the Government. After his death the Government paid this allowance to his widow, the second respondent in this appeal. The appellant's formal appointment to the office of mutawalli took place on the 17 December, 1919 and having taken up the duties of mutawalli he claimed to be entitled to the yeomiah allowance by virtue of his appointment, but the Government, refused to recognise the claim. Apparently the attitude taken up by the Government was that they were entitled to pay the allowance to Mohamed Ali's widow as an heir of the original grantee.

(2.) In 1921 the appellant instituted a suit in the District Court of North Arcot against the widow for a declaration that he was entitled to the office of mutawalli and other offices attached to the mosque. He obtained a decree, but the Government still refused to recognise his claim to be entitled to the yeomiah allowance and consequently the appellant filed the suit out of which this appeal arises to compel payment to him. The suit was filed on the 14 December, 1931 in the Court of the District Munsif of Ranipet. The appellant claimed inter alia a declaration that he was entitled to the yeomiah allowance by reason of the fact that he was the lawful holder of the office of mutawalli. Originally the only defendant was the Secretary of State but, on objection being taken by the Secretary of State, the widow was added as a party. The District Munsif held that the appellant was entitled to the offices of mutawalli and katheeb, but that he was not entitled to claim the yeomiah allowance because the suit had not been brought within six years of the death of Mohamed Ali. Following the decision of this Court in Ghulam Ghouse Khan Sahib V/s. Jannia , he held that the plaintiff's claim fell within Art. 120. In these circumstances the District Munsif did not inquire into the appellant's claim that the yeomiah allowance attaches to the office of mutawalli. The appellant appealed to the District Judge of North Arcot, but the District Judge concurred in the findings of the District Munsif and dismissed the appeal. The appellant then appealed to this Court and again was unsuccessful. The appeal was heard by Wadsworth, J., who also considered that the suit was governed by the decision in Ghulam Ghouse Khan Sahib V/s. Jannia The learned Judge, however, gave certificate which has permitted the filing of the present appeal under Clause 15 of the Letters Patent. If the case is governed by Ghulam Ghouse Khan Sahib V/s. Jannia , it is quite clear that the suit is out of time, but the learned Advocate for the appellant contends that this decision has in effect been overruled by the Privy Council in Secretary of State V/s. Parashram Madhawrao (1934) 66 M.L.J. 614 : L.R. 61 I.A. 190 : I.L.R. 58 Bom. 306 (P.C.), and we consider that this contention is well founded.

(3.) In Ghulam Ghouse Khan Sahib Vs. Jannia Ayling and Coutts Trotter, JJ., held that a right to a yeomiah allowance must be classified as a perpetual right and not as a periodically recurring right. Consequently they said that such a suit was governed by Art. 120 and not Art. 131 of the Limitation Act. Art. 120 is the residuary article in Part VII of the Act. It fixes the period of limitation at six years which commences from the date when the right to sue accrues. Art. 131 prescribes a period of twelve years for a suit to establish a periodically recurring right. The time begins to run when the plaintiff was first refused the enjoyment of the right. The learned Judges who decided Ghulam Ghouse Khan Sahib V/s. Jannia , said that: The mere fact that sums of money are paid periodically does not make the right one which periodically recurs; the right is always there but it is only exercised at such times as the sums fall due.