MUSAMMAT PARSANDI Vs. MAHABIR PRASAD

JUDGEMENT

(1.) The facts which have given rise to this appeal are shortly as follows. One Musammat Badamo was the original owner of this property. She made a gift of it to her daughter's son Roshan Lal who was, at that time, a minor. Her property was being managed by her son-in-law Fakir Chand, who continued to do the same for his minor son Koshaji Lal, the donee. Roshan Lal died in 1900 and was succeeded by his widow Musammat Parsandi, the present plaintiff. On the 22nd of June, 1911, Musammat Parsandi made a, gift of the said share to her daughter Musammat Ratan Mali. It seems that there was some litigation about this shop between Musammat Ratan Mati aforesaid and some other persons who claimed the property as the heirs of Fakir Chand mentioned above. This led to a suit which was brought in the year 1914 by Musammat Ratan Mati for a declaration of her title against the present defendant Mahabir Prasad, and the other persons who laid claim to the estate of Fakir Chand. The present defendant Mahabir Prasad is a soft of Fakir Chand by a wife other than the daughter of Musammat Radamo. This suit for a declaration of Ratan Mati's title was decreed by the first court on the 8 of March. 1915. The defendants went up in appeal and the learned Judge of the lower appellate court dismissed the suit, holding that it was barred by Section 42 of the Specific Relief Act. The then plaintiff went up in second appeal and this Court by its order of the 4 of June, 1918, held that the suit was not so barred and remanded it to the lower appellate court for disposal according to law. This suit of Musammat Ratan Mati was eventually decreed by the lower appellate court against all the defendants; in other words, it was held that she was the owner of the share in dispute by virtue of the gift made in her favour by Musammat Parsandi. This was on the 12 of April, 1919.

(2.) In the meanwhile, soon after the aforementioned suit had been dismissed by the lower appellate court as barred by section 42 of the Specific Relief Act, the present; defendant Mahabir Prasad brought a suit on the 29 of May, 1916. against Moti Lal, the tenant of the shop, for recovery of rent for the period between the 8 of October, 1906, and the 25 of May, 1916. The suit was based on a kirayanama executed by Moti Lal aforesaid in favour of Fakir Chand, the father of Mahabir Prasad. This suit was decreed by the first court on the 21 of December, 1916, and the decree of the first court was affirmed by the lower appellate court in 1917. Moti Lal deposited the decretal amount on the 4 of August, 1917, and it was withdrawn by the present defendant on the 31 of July, 1919, that is, about three months after the decision of the question of title in favour of Musammat Ratan Mati. The present suit was then brought on the 9 of February, 1920, by Musammat Parsandi for recovery of the amount so realized by Mahabir Prasad, namely, rent for the period between the 8 of April, 1908, and the 21 of June, 1911, that is, for a period little over three years before the date of her gift to Ratan Mati. The defence put forward by Mahabir Prasad was that the property having been gifted in favour of Ratan Mati, the plaintiff had no right to sue. No other questions were raised in the first court. The first court decreed the claim. The defendant Mahabir Prasad then went up in appeal and raised the further defence; that the suit was barred by limitation. This was based on the ground that at the time when Mahabir Prasad brought the suit, any claim by Musammat Parsandi for recovery of the same amount of arrears would have been barred by lime. The learned Judge of the lower appellate court has repelled this contention and affirmed the decree of the court of first instance, holding on the question of title in favour of the plaintiff just as the first court had done.

(3.) The defendant comes here in second appeal, and the first question argued on his behalf was that the present suit was, barred by limitation. The present suit being one to recover moneys realized by the defendant on the 31 of July, 1919, to which the plaintiff was entitled as owner of the property, and having been brought within three years of the date of such realization is not prima facie barred by time but the argument advanced by the learned advocate for the appellant is that-this money was not realized by the defendant for the plaintiff use, because on that day the plaintiff's claim to this money was barred by time.