KARANAMURTHI THEVAR Vs. RAMANATHA THEVAR

JUDGEMENT

(1.) This Full Bench has been constituted to consider whether the Court rightly applied Article 62 of the Limitation Act in Mahabala Bhatta V/s. Kunhanna Bhatta Subbanna Bhatta v. Kunhanna Bhatta (1907) 17 M.L.J. 224 : I.L.R. 30 Mad. 298. R. 8 Rang. 645 (P.C.) and Narayanan V/s. Rangaswami Chetti 1915 M.W.N. 215. These cases are in conflict with the decision of a Division Bench of the Court in an unreported case to which reference will be made later and it is said that two decisions of the Privy Council show clearly that they were wrongly decided in this respect.

(2.) We will first state the facts of the present case as the whole appeal is before us. On the 29 September, 1933, Kandaswami Thevar, father of the plaintiff, conveyed immoveable property to the defendant benami. On the 25 January, 1937, the defendant sold the property to one Arunachalam Pillai for Rs. 750. On the 30 December, 1938, Kandaswami Thevar died. On the 5 October, 1942, the present suit was instituted to recover from the defendant the Rs. 750 which he had received from Arunachalam Pillai. The District Munsiff of Periyakulam in whose Court the suit was instituted, held that the defendant was a benamidar for the plaintiff's father and that the suit was not time-barred as Art. 120 of the Limitation Act applied, but he considered that the plaintiff was only entitled to recover Rs. 375 as the other half of Rs. 750 belonged to his mother. The defendant appealed to the Subordinate Judge of Dindigul, who agreed with the District Munsiff. The defendant then appealed to this Court on the ground that the suit is governed by Art. 62 of the Limitation Act and therefore was filed out of time.

(3.) In Mahabala Bhatta V/s. Kunhanna Bhatta A and B jointly advanced moneys on the security of a usufructuary mortgage in the name of B, their benamidar. Later in 1884 A advanced moneys on the security of other usufructuary mortgages. Here again B acted as his benamidar. A died leaving three sons, two of whom were the plaintiffs. They had separated from their brother and in 1894 they sued B and the mortgagors for a declaration of their rights in the mortgages. No rent had been collected by B for several years before the suit. The Division Bench which heard the appeal held that the plaintiffs were entitled to a declaration of their right to the mortgages, but dismissed their claim for rent as being barred by limitation. Although there is no reference in the judgment to Art. 62, the Court apparently applied it.