Muthuswami Kavundan and Others vs Ponnayya Kavundan and Others

Kumaraswami Sastri, J.—This appeal arises out of a suit filed by the plaintiffs to recover Rs. 5,035 alleged to be due on a deed of mortgage

executed by the 4th plaintiff in favour of plaintiffs 1 to 3 on the 29th November, 1918.

One Ponnia Gounden died in 1909 leaving a widow (4th plaintiff), three daughters and a son by another wife. On Ponnia Gounden''s death his

son succeeded him and died in 1910. His step-mother, though not the heir under Hindu Law, took possession of the estate, got pattas transferred

to her name and was in enjoyment of the properties. The defendants claiming to be reversioners filed a suit in 1915 which they withdrew and filed

another suit O.S. No. 478 of 1916 to recover possession of the properties on the ground that the 4th plaintiff was not the heir to the last male

holder. The suit was disposed of on an alleged compromise. The widow denied she ever compromised the suit and the case was remanded by the

Appellate Court and finally disposed of in 1920 in favour of the reversioners. The widow all along denied that they were the reversioners or had

any right to the properties. While the widow was in possession she executed a promissory-note, dated 22nd April, 1915 in favour of the 1st

plaintiff for Rs. 850 alleging that the money was borrowed to discharge her husband''s debts. In 1915 this note was renewed (Exhibit B). She again

borrowed alleging that money was required for the marriage of her daughter and executed a promissory-note in favour of the 1st plaintiff for Rs.

1,000 (Exhibit C). In 1918 she executed a pronote Exhibit D in favour of the 1st plaintiff for Rs. 2,350 in renewal of the notes Exhibit B and

Exhibit C. She executed a mortgage Exhibit E for Rs. 4,000 in November, 1918 in favour of the plaintiffs 1 to 3. 2nd and 3rd plaintiffs are the 1st

plaintiff''s sons. The consideration is said to be the amounts due on the prior promissory-notes and further moneys advanced to the 4th plaintiff for

expenses of the litigation.

The Subordinate Judge dismissed the plaintiffs'' suit. As regards the consideration he was of opinion that only Rs. 526-8-0 made up of Rs. 200

spent for the marriage of her daughters and Rs. 101-8-0 paid in respect of L-2 and Rs. 225 Under Exhibit L, her husband''s debt, were for

purposes binding on the reversioners and that the suit was barred by limitation.

O.S. No. 478 of 1916 was filed on the 16th August, 1916 and the final decree was passed on the 31st January, 1920 and the present suit was

filed on the 15th January, 1921.

The appellants'' vakil does not base his right on the mortgage deed, Exhibit E. The mortgagor (4th plaintiff) was not entitled to the property and

it is difficult to see how her mortgage can bind the reversioners.

His contention is that she while in possession of the estate having borrowed moneys to discharge her husband''s debts and to perform the

marriages of her daughters, which obligation was on the defendants as reversioners and heirs of her husband and her step-son, the same are

payable to her by the defendants and that though the mortgage as such is invalid the plaintiffs are entitled to recover so much of the consideration

as is proved to have been spent for purposes which the defendants were bound by. She claims Rs. 100 due under F series, Rs. 225 due under N

series, Rs. 101 due under L-2, Rs. 330 under L-1, Rs. 750 for expenses incurred in connection with the marriages of her daughters. She also

claims Rs. 70 due to Government and paid by her in respect of a loan got by her husband under the Agriculturists Loans Act. As regards this claim

she admits in her evidence that the loan was for the purchase of bulls and that she has the bulls in her possession, It is difficult to see how she can

keep the bulls and claim credit for the repayment of the loan.

Having regard to the income of the estate and the position in life of the parties we think the Subordinate Judge was right in holding that only Rs.

200 can be reasonably allowed for the marriages. We also think that the evidence shows that the only amounts binding on the reversioners are

those found by the Subordinate Judge, namely, Rs. 225 paid under Exhibit L, Rs. 101-8-0 paid under Exhibit L-2 and Rs. 200 spent for the

marriage expenses.

It was open to the widow in her written statement to claim payment of the sums she spent for purposes binding on the reversioners. She did not

do so. There would have been no question of limitation where in a claim to recover possession of the estate the widow in possession claims just

allowances when accounts are taken in respect of sums which would be lawfully payable out of the estate of the last male holder.

We do not think that when a widow who is entitled to maintenance and residence continues to be in possession of the estate after the death of

the last male holder to whom she is not the heir her possession can be wrongful at least till the reversioners entitled assert the right to possession

and demand it from her. In this case no claim was made by the reversioners till they filed the suit in 1915 which they withdrew and filed a fresh suit

in 1916. I do not agree with the contention of the respondents'' vakil that the widow having been in wrongful possession she is not entitled to claim

any sums spent by her for purposes binding on the reversioners. The cases cited by him do not touch the present case. Tiluck Chand v. Soudamini

Dasi ILR (1878) c. 566 was a case where a person took wrongful possession of the estate and held it adversely to the true owner. Swarnamoyee

Debi v. Hari Das Roy 6 C.W.N. 903 and Binda Kuar v. Bhonda Das ILR (1885) A. 660 were also cases of a person in wrongful possession and

the. learned Judges followed Tiluck Chand v. Soudamini Dasi ILR (1878) C 566. In Abdul Wahid Khan v. Shalukha Bibi ILR (1893) C. 496 : 21

I.A. 26 all that was held was that when a person takes legal proceedings for his own benefit and without any authority express or implied from the

plaintiff the fact that the result was also a benefit to the plaintiff does not create any implied contract or give the defendant any equity to be paid a

share of the expenses.

In Dakhina Mohan Roy v. Saroda Mohan Roy ILR (1893) C. 142 : 20 I.A. 160 their Lordships of the Privy Council held that a person in

possession under a decree which was subsequently reversed is entitled to recover taxes paid by him during the time he is possessor from the

defendants in whose favour the decree was ultimately made. Their Lordships reversed the decree of the High Court which was based on the ruling

in Tiluck Chand v. Soudamini Dasi ILR (1878) C. 566. In Imbichi Mamad v. Manavikramasamathripad (1896) 7 M.L.J. 211 it was held following

Dakhina Mohan Roy v. Saroda Mohan Roy ILR (1893) C. 142 : 20 I.A. 160 that a person dispossessed of property held by him under a title that

was held bad was entitled to claim rents and revenue bona fide paid by him while in possession.

I am of opinion that as regards 4th plaintiff''s claim the amounts found by the Subordinate Judge to be binding on the reversioners is sustainable

and that plaintiffs are entitled to recover this sum if the claim is not barred.

As regards limitation it is clear from the facts that the 4th plaintiff has no charge on the estate. The decrees satisfied by her were simple money

decrees and there can be no charge created on the estate on the mere ground that she discharged them. The only ground urged is that by paying

off decrees against the estate the 4th plaintiff acquired a salvage lien as otherwise the properties would have been attached and sold. I do not think

that the discharge of a money decree which might be realised in execution by the sale of Immovable properties of the judgment-debtor gives a

person making the payment a charge and no authority has been cited by the appellants'' vakil. A claim for contribution is a personal claim and

unless the law gives a charge the remedy is a personal one. In Shivrao Narayan v. Pundlik Bhaire ILR (1902) B. 437 it was held that payment of

assessment by one sharer when the Land Revenue Code does not give a charge did not entitle plaintiff to a charge and that Article 132 of the

Limitation Act did not apply. I may also refer to Gopala Aiyangar v. Mummachi Reddiar (1922) 17 L.W. 254 where Spencer, J., observes:

When one person pays off a debt which another has to pay the ordinary relief that a Court can give is a personal decree against the defendant for

money had and received as Section 69 of the Contract Act does not give any higher remedy. If that remedy is barred owing to plaintiff''s delay he

cannot extend the period of limitation by asking for an enlarged relief by way of a charge on defendant''s property.

Where as in the present case a person has to rest his claim on the ground that he made a payment which another is in law bound to pay and

brings his case within Section 69 of the Contract Act it seems to me that Article 61 of the Limitation Act is applicable when the case cannot be

brought under Article 132. In Rajah of Vizianagram v. Rajah Setrucherla Somasekhararaz ILR (1902) M. 686 : 1902 13 M.L.J. 83 the question

was considered by Bhashyam Aiyangar, J., who held that in the absence of a charge the only article applicable would be. Article 61 or 99 and not

Article 120 of the Limitation Act.

Reference was made to Kaliba Movulvija Muhammad Usan Kadiri Abkan Sahib v. Soran Bivi Saiba Ammal ILR (1913) M. 260 : 1913 28

M.L.J. 347 by the vakil for the appellants as authority for holding that Article 120 is applicable to cases like the present. In that case a person was

appointed a trustee for a mosque during the minority of the trustee entitled to the office. In a suit to recover possession the trustee appointed during

the minority of the plaintiff set up a claim to remain in possession till he was paid advances made by him to the trust but his right to remain in

possession was disallowed and he had to give up possession. He then sued to recover the advance and it was held that Article 120 applied and

not Article 132. It is difficult to see how a widow who is not the heir of the last male holder and who remains in possession of the estate can be in

the position of a trustee remaining in possession after his office has ceased.

It has been argued that even if Article 61 applies the 4th plaintiff could not have sued the defendants till she gave up possession of the estate

after a decree was obtained by them and that limitation will run only from 1920 and the suit having been filed in 1921 will be in time. I do not see

anything which would have prevented the 4th plaintiff from filing her suit when defendants claimed the estate from her. She cannot by holding on

extend the period of limitation when the rightful owners claim the estate and in this case defendants have been held to be the rightful owners. The

widow in possession who has a claim against them is entitled to demand the sum she claims and to sue them. Time will begin to run from the date

she made the payments or at least from the time the rightful person claimed the estate and her act in keeping possession of the estate will not

enlarge the period.

The appeal fails and is dismissed with costs.