(PERIA) SYED LEVVAI ROWTHER Vs. SYED AMMAL

JUDGEMENT

(1.) Defendants 2 and 4 are the appellants. This second appeal arises out of a suit for partition of the estate of one Syed Kalai Syed Levvai now deceased. He died leaving him surviving his widow, two daughters and his brother and sister. The widow is the plaintiff. The daughters are defendants 6 and 7 and the brother's heirs are defendants 1 to 5. The sister Bathammal is not a party to the suit. Syed Levvai died in February 1909. His brother Peria Narain Levvai died in October 1911. It has been found by the lower Courts that after that time defendant 4 has been in management of the estate. The plaintiff was given her share in the immovable properties. A decree was also given to her against defendant 4, her brother's son, to account for her share of the collections and income from the estate commencing from October 1911. She was also given a decree with respect to the mortgage amount in Ex. 21-a and in respect of Rs. 500 under Exs. D and D- 1. Defendant 2 was made liable to account for the income of the lands till 1915 as admitted in his written statement. The suit has been preferred in 1922.

(2.) In this second appeal objection is taken as regards the period during which defendant 4 has been made liable to account for the income and collections, and also with regard to his liability to account for the amount due under Exs. 21-a and D and D-l. As regards the first point that is the period for which defendant 4 was made liable to account, which I shall deal with first, the argument of the learned Counsel for the appellant is that Art. 120, Limitation Act, applies to the case and that the learned Subordinate Judge was wrong in giving a decree to the plaintiff for the income and collections arising out of the estate for more than six years prior to the suit. The lower Courts found, as already stated, that defendant 4 was in management from the death of his brother in October 1911. It was also found that the plaintiff's demand for her share of the property was refused only in 1921, about a year before the suit. It is conceded that Art. 120 is the article of the Limitation Act applicable to the case. The article prescribes a period of six years for a suit for which no period of limitation is provided in the Limitation Act, the period being calculated from the time when the right to sue accrues. I applying this article it is argued that since the plaintiff's claim is for an account against defendant 4 for the income and collections made by him, it must be held that his cause of action for each year's income and the collections arose on the receipt of such income, and so, in taking the accounts the appellant should not have been asked to account for more than six years, (that is, for years prior to 1916) in this case. On behalf of the respondent, it is argued that the suit is for partition, that the right to sue is a continuing one and accrues in such a case only, when there has been a demand and a refusal and that if the suit has been brought within six years after the demand and refusal then the person liable may be asked to account for the entire period of his management even if it exceeds six years.

(3.) The claim for an account, though made in a partition suit, being in the nature of a suit for an account, it is pointed out that the respondent's argument is open to the criticizm that by calling the suit a suit for partition, which, no doubt it really is, in one sense, the essential nature of the claim is overlooked and the claimant is enabled to keep alive his cause of action indefinitely which in many cases may be a source of hardship to the co-heir who is in management of the estate. This argument is not without some force, but this Court has in a series of cases allowed accounting in partition suits brought against co-heirs for more than six years. In Abdul Rahiman V/s. Pathumal Bivi (1916) 32 IC 83, a case like the present between Mahomedan one of the reliefs claimed by a Mahomedan lady against her co-heir was in respect of the amount of a mortgage debt collected by the defendant more than six years before the suit and it was held that Art. 120 applied to the case and as the right to sue accrued from day today the action was not barred. In arriving at their conclusion the learned Judges relied on the following remarks of Sankaran Nair, J. and Oldfield, J., in Marian Bivi Ammal V/s. Kadir Meera Saheb (1915) 29 IC 275: The defendants having taken up possession of the property as tenants- in-common they must be deemed to have been in possession of such property on behalf of themselves and of the plaintiff and it lies on them to say that so far as the plaintiff is concerned the character of the possession was changed six years before the date of the suit.