HANMANT APPARAO DESHPANDE Vs. RAMABAI HANMANT MEGHASHYAM

JUDGEMENT

(1.) The question in this appeal is whether the appellants are entitled to a fourth share of a cash allowance belonging to the descendants of Atmaram, Malhar and Meghashyam, the sons of Tukopant. The three branches of Tukopant s family were entitled each to one-third share of the Vatan property, and the plaintiffs ancestor sued in 1864 to recover his proportionate share of the Vatan. In the course of the suit an agreement, Exhibit 44, was passed by the defendant to the plaintiffs in which the plaintiffs father s right to a third share in certain lands was recognised, and also his right to a quarter share in the cash allowance of Rs. 68.

(2.) The learned Judge holds that the share in the cash allowance was paid according to the agreement from 1865 to 1880, but it does not appear to have been paid after that date. The question of limitation did not arise in the lower appellate Court as that had been decided in favour of the plaintiffs by the trial Judge who held that Article 131 of the Limitation Act applied, and that time only ran from the date of demand and refusal in the case of a periodically recurring right such as a share in the cash allowance. The point of limitation was not pressed in the lower appellate Court. The learned Judge, however, held that according to the Registration Act of 1864, which was in force when the agreement, Exhibit 44, was passed, the document could not be received in evidence as it related to immoveable property. He does not consider whether the provisions regarding the cash allowance were separable from the provisions regarding the immovable property, and whether the cash allowance would fall within the term "immoveable property" in the Registration Act of 1864. But being of opinion that the document was compulsorily registrable, he held that it could not be used as evidence of the plaintiff s claim, and accordingly dismissed the plaintiffs suit.

(3.) The agreement has been set out by the learned Judge of the trial Court in his judgment. It provides that lands which are admittedly of the plaintiffs father s share should be enjoyed by him, but with regard to the cash allowance one-fourth share being kept for remuneration for looking after Vatan business and for charity, according to custom, the plaintiffs father should have one share with Ganesh, Meghashyam and Atmaram. The third clause provides that the one-third share in the one-third income of their branch of the Inam garden land should be given to the plaintiffs father, and that the plaintiffs father should receive his share of any miscellaneous income that might be received. The fifth clause is "there is a debt of a Savkar on account of mortgage of the Vatan effected previously by the Gumasta. Out of it, some has been paid, and there is a balance that will have to be paid to the Savkar hereafter. You should pay that to me according to your third share," The learned Judge of the lower appellate Court reads it as meaning that the plaintiffs father is to be liable for payment of his share of the balance which will have to be paid in future. The correctness of that interpretation is borne out by the opinion of the High Court Translator to whom we have referred the document. There was, therefore, at the time of the agreement no claim by the maker Ganesh, against the plaintiffs father for any debt already matured which the plaintiffs father was bound to pay by way of contribution. The plaintiffs father s liability in that respect lay in the future. There is, therefore, no reason to hold that under the agreement the payment of his share of what might have to be paid to the Savkar in the future would be a condition precedent to the receipt by him of his share of the cash allowance, and we have the opinion of the lower appellate Court that in fact the share of the cash allowance was received from 1865 to 1880.