LAWS(PVC)-1923-6-80

BHAGWAN DAS Vs. SUKHDEO KORIE

Decided On June 14, 1923
BHAGWAN DAS Appellant
V/S
SUKHDEO KORIE Respondents

JUDGEMENT

(1.) THIS was a suit by the plaintiffs-appellants for the recovery of money due on account of their share in four bonds which the defendants are stated to have realised from their common debtors. It appears that if the parties formed a joint family at the time when the loans in question were advanced to those persons. They separated seven years ago; but the bonds evidencing the loans in question remained the joint property of the parties. Subsequent to the separation, the defendants are said to have realised the money due on the said bonds to the exclusion of the plaintiffs. The defence was that one of the bonds had fallen to the share of the defendants by partition and that the money due on another bond which was joint was realised by both the parties jointly. It was also alleged that the remaining two bonds were obtained by the defendants after partition and were their exclusive property. The Court of first instance decreed the claim, holding that all the four bonds were obtained when the family was joint, that they remained the joint property of the parties after they had separated seven years prior to the suit, and that the defendants were liable to pay the plaintiffs their share of the said bonds which they had realised. The lower Appellate Court, however, came to the conclusion in respect of one of the bonds that its money was realised by defendants about five years prior to the suit; and, applying Art. 62 of the Indian Limitation Act (IX of 1908), it held that the claim of the plaintiffs in regard to their share of the money due on that bond was barred by limitation. In applying that Art. it followed the decisions of this Court, in Amina Bibl V/s. Najmunnissa Bibi 27 Ind. Cas. 712 : 37 A. 233 : 13 A.L.J. 255 and Abdul Gaffar V/s. Nur Jahan Begum 29 Ind. Cas. 347 : 37 A. 434 : 13 A.L.J. 686. The learned Counsel for the plaintiffs- appellants relies on the decision in Umardaraz Ali Khan V/s. Wilayat Ali Khan 19 A. 169 : A.W.N. (1897) 34 : 9 Ind. Dec. (N.S.) 111 but, as explained in the decisions first cited, the main question for determination in the last mentioned case was, whether Art. 123 or Art. 120 was applicable to the case. Art. 62 was not considered because, both under Art. 62 and Art. 120, the claim was in that case beyond time. It is also contended that Art. 127 of the Indian Limitation Act would in any case apply; but that Art. does not apply where a family has, as in this case, separated and divided its property prior to the suit. That Art. pre- supposes the continuation of the joint family and of the joint family property till the date of the suit and an exclusion from the enjoyment of such joint family property of one party by another. The decision in Mahomed Riasat Ali V/s. Hasin Banu 21 C. 157 : 20 I.A. 155 : 17 Ind. Jur. 484 : 6 Sar. P.C.J. 374 Rafique & Jackson's P.C. No. 133 : 10 Ind. Dec. (N.S.) 737 (P.C.) is also inapplicable, because that was a suit by one heir against another heir for the recovery of property which the other had appropriated. It was also contended that by virtue of a decision of a panchayat the money realised by the defendants was allowed to remain with them as a deposit and, that the plaintiffs had no knowledge before that panchayat was held as to whether the defendants had realised the same, but the story of the panchayat was disbelieved by the lower Appellate Court. There was no fraud specifically pleaded or alleged. The appeal is, therefore, rejected.