GIRJABAI SHIVDEORAO VINCHURKAR Vs. NARAYANRAO GANPATRAO VINCHURKAR

JUDGEMENT

(1.) [His lordship after setting out the facts of the case, and deciding questions of fact arising in the case, dealt with the points of Jaw as follows:] First, it has been urged that a certificate under the pensions Act is necessary in view of the provisions of Section 4, and that a suit cannot be entertained without such a certificate. It is contended that the suit so far as it relates to these four items, relates to a grant of money conferred by the British Government within the meaning of Section 4. The learned Judge overruled this objection on the ground that this was a suit for accounts generally of various items, and that a suit of this nature cannot be said to relate to pension or grant of money within the meaning of the section. There are no doubt conflicting considerations, one favourable to the contention and the other against it. In the present case, it is urged on behalf of the respondent that really in virtue of the two arrangements, one in 1869 and the other in 1897, the defendant must be taken to be in the position of a person who, as soon as the money was received, held the money for the other sharers so far as those sharers were concerned and that the money then ceased to be a grant from the Government. The decisions bearing on this point which have been referred to are Damodar V/s. Satyabhamabai (1907) I.L.R. 31 Bom. 512 : s.c. 9 Bom. L.R. 889 on the one hand, and Raghawendra Ayyaji V/s. Gururao Raghawendra,(1913) I.L.R. 37 Bom. 442 on the other. Looking at the point for the moment, apart from the decisions, it is difficult to say that the suit, so far as these four items are concerned does not relate to the grant. of money by the British Government within the meaning of Section 4. It is true that there was an arrangement between the parties, whereby the defendant's husband was to receive the money and then distribute it among the sharers according to their respective shares. But that by itself does not afford a sufficient basis for holding that the suit does not relate to those four items The judgment of Chandavarkar J. in Damodar V/s. Satyabhamabai, in which the earlier decisions on this point have been referred to, is very clear on this point, and, though there are observations to the contrary in Raghavendra v. Gururao Rayhavendra, I think that the contention of the defendant on this point must be allowed. It is true that the section must be strictly construed; but we cannot ignore the plain meaning of the words used. This conclusion necessitates giving time to the plaintiff to produce the necessary certificate. But it would not be necessary in any way under the circumstances of this case to delay the further proceedings in this suit. There is at present only a preliminary decree for faking accounts, and it can be provided in the decree of this Court that after the accounts are taken, before any decree in Aspect of these four items is passed, the plaintiff must produce the necessary certificate under the Pensions Act, and, if he fails to do so, he cannot get any relief in respect of these items.

(2.) The next point relates to limitation. As regards that question the learned Judge has overruled that plea on the ground that the suit would be governed either by Art. 120, in which case the period of sis years would apply or Article 89 in which case no doubt the period would be three years; but it would run from the termination of the agency or from the date of the refusal to render accounts. In the present case it is not suggested that there was any demand and refusal to render accounts, and preferably it seems to me that Art. 89 would apply having regard to the terms of the agreement between the parties. It may be said, however, that when Shivdeorao died in 1918, the arrangement of 1897 came to an end. Without expressing any opinion as to whether or not in virtue of that very arrangement Shivdeorao's widow was in the position of an agent within the meaning of Art. 89, as the suit is brought within three years from Shivdeorao's death, it is clearly not barred.

(3.) It has been urged further in connection with this point, that as after 1890 there has been no rendering of accounts and no payments made by the defendant in respect of those items, the plaintiff's right to recover those items is extinguished. In the first place, though this point is mentioned in the plaint, no issue as to exclusion to the knowledge of the co-sharer for over twelve years from enjoyment of certain immoveable property was raised. It is assumed by the defendant for the purposes of this argument that these Babs should be treated as immoveable property, and it is urged that the right of the plaintiff is extinguished. This point would require investigation on different lines altogether, and without allowing the plaintiff a further opportunity to adduce evidence on the point, it could not possibly be decided as desired by the defendant. There is no reason why such further opportunity should be allowed, and having regard to the facts in the case, it seems to me that the point is without any substance. I have already referred to the various suite, in which the right was asserted by one branch or the other and either allowed by the Court or compromised by the parties. Under the circumstances it would be difficult to hold that there has been exclusion. The letter written by the defendants Kulmukhtya on July 26, 1920, to the present plaintiff is sufficient to negative the suggestion of such exclusion.