(PERURI) VISWANADHAM Vs. (PENDELA) NARAYANA DASS

JUDGEMENT

(1.) This is an appeal against the decree declaring that the mortgage executed by defendant 1 in favour of defendant 2 is not binding on the plaintiff who represents the worshippers of the temple to which the mortgaged properties belong. The appeal is argued mainly on the question of limitation which was not raised in the lower Court until the time of arguments. The Subordinate Judge has found that the article of limitation applicable is Art. 120 of the schedule of the Limitation Act and that time has to be computed from the date on which the plaintiff becomes aware of the transaction in suit, and consequently that it would have been necessary to take further evidence in order to establish the fact that the plaintiff became aware of this transaction more than six years before the suit. It is now argued that this decision is wrong and that the period of limitation under Art. 120, Lim. Act, runs from the date of the alienation and not from the date of the knowledge of the plaintiff of the transaction. The words in the article are " when the right to sue accrues." It was held in Ottappurakkal Thazhate Soopi V/s. Cherichil Pallikkal Uppathumma [1910] 33 Mad. 31, that when a karnavathi made an alienation which was sought to be set aside by some of the members of the tarward, the suit was barred as being brought more than six years after the date of the alienation. It does not appear from the report of that case that there was any fraud alleged on the part of the karnavathi, and, therefore, this case is perhaps not entirely applicable to the facts of the one we are considering. That case, Ottappurakkal V/s. Uppathumma [1910] 33 Mad. 31, was referred to in a subsequent case Venkatachella Reddiar V/s. Collector of Trichinopoly [1915] 38 Mad. 1064, where it was approved by one of the two Judges, whereas the other one based his decision on the fact that the plaintiff had knowledge of the transaction more than six years before the suit. It is argued that the decision in the case is applicable here on the ground that the present suit is not one based on fraud. The plaint, however, shows that the plaintiff alleges a breach of trust, and this breach consists in defendant 1's dealing with properties as his own which really belonged to the temple It is difficult to see how this is not an allegation of fraud on the part of defendant 1, for the effect of his action, if left undisturbed, would be to deprive the temple of some of its properties and would have given defendant 2 the right to bring those properties to sale in case of default, as belonging to defendant 1 personally. This element of "fraud in the case, I think, defferentiates it from Ottappurakkal Thazhate Soopi V/s. Cherichil Pallikhal Uppathumma [1910] 33 Mad. 31. There are many subsequent cases in this Court, where, in case of fraud, it has bean held that the right to sue accrues under Art. 120, Lim. Act, when the plaintiff becomes aware of the fraud. I may refer to two cases, Muruga Chetty V/s. Rajaswamy [1915] 29 M.L.J. 574 and Tirumal Rao V/s. Tungamma Shethithi [1914] 1. L.W. 134. Both these refer to cases of denial of plaintiff's title and it was held that until he was aware of that denial his right to sue did not accrue. It is difficult to distinguish cases of denial of title from one like the present which is in effect a denial by defendant 1 of the temple's title to the property. Again in Venkateswara Ayyar V/s. Somasundarani Chettiar [1918] 7 M.L.W. 280, to which I was a party, it was held that until a creditor became aware of the alienation, which he attacked as being in fraud of creditors, his right to sue did not accrue. That, no doubt, was put upon the ground that a creditor has always an option as to whether he will or he will not avoid an alienation and that until he is in a position to exercise that option he cannot be said to have the right to sue. The case, therefore, though not entirely analogous to the present one, is in principle very similar. Here, the mere execution of a deed of alienation will not necessarily give the plaintiff the right to sue; for if that deed was a valid one and the alienation was made for necessity or for other purposes which would render the transaction valid, plaintiff, if he brought a suit, would naturally be nonsuited on the ground that he had no right to impeach the transaction and consequently no right to sue. It is only the fact that the alienation is attacked on the ground of fraud that really entitles the plaintiff to come into Court and impeach it. If there was no fraud, he cannot impeach this alienation and, therefore, until he knows that there is such fraud it cannot be said that he has the right to bring a suit. It is certainly not open to him to bring a speculative suit alleging that something had happened which might or might not be avoidable, for, if that were the sole ground on which he sued he would naturally have his plaint rejected. Here he has alleged that he has become aware of it within six years of the suit. It will be seen in the schedule of the Limitation Act that, in cases of fraud, the period of limitation usually starts from the time at which the fraud becomes known. Applying that principle here the plaintiff's suit is within time and this appeal must fail on that ground.

(2.) The further contention, that the properties mortgaged were not dedicated to the temple under the partition-deed Ex. A cannot be supported in view of the language of the document in which it is recited that the suit properties were purchased by the plaintiff and defendant 1 jointly and "offered" to the aforesaid Swamivaru, namely, the plaint temple. The property itself is not allotted to defendant 1 for his share which it would have been had it been given to him as his own, on the ground that he had incurred and must incur expenses in connexion with the temple. This argument also fails and the appeal is accordingly dismissed with costs. Odgers, J.

(3.) The learned Counsel for the appellant undertook to show that on the plaint itself there was a distinct bar of limitation. Now the plaint alleges that the defendant has alienated the properties dedicated to the temple and that the plaintiff learns that defendant 1 has mortgaged in 1914 temple properties as. his own private properties. The learned Subordinate Judge has disallowed the plea of limitation which was only raised after all the evidence had been completed, on the ground that something more than the mere allegation in the plaint would be required to enable him to decide the matter. The question is whether he is right in this decision. It seems to me that as regards Art. 120 of the schedule of the Limitation Act, something is needed to give the plaintiff notice as to when his right to sue accrues, because it would seem prima facie unreasonable that a. man should lose his right to sue without ever knowing that he had one. It, therefore, appears to me, if I may say so with respect, that the reasons given by my learned brother in the case to which he was a party in Venkateshwara Ayyar V/s. Somasundaram Chettiar [1918] 7 M.L.W. 280 are sound i. e., where he points out that in all cases of fraud, misconduct etc., the period of limitation for a suit begins to run from the time when the fraud, misconduct, etc., becomes known (vide Articles 90 91, 95, 96 etc.) but no such provision could be inserted in Art. 120, for it is a residuary article and thus applicable to every variety of suits not otherwise provided for and is not confined to suits based on fraud.