Nagumilli Narayanamurthy vs Gudimetla Gangaraju

Chandra Reddy, J.—This appeal is against the judgment our learned brother Justice Jaganmohan Redey and involves the interpretation of S. 10 (sic) Art. 120 of the Limitation Act. The quest we are called upon to decide arises in following way.

One Gangadharam who died in year 1923 deposited with his eldest son 1st defendant Rs. 9900/- before his death purposes of investment. In regard to this f(sic) he executed a will by and under which 1st defendant was directed to pay interest (sic)cruing thereon on this amount to his Mahalakshmi and after her the money was be taken in four equal shares by his four including the eldest son, the 1st defendant Mahalakshmi died on 17-5-1937. By the time of her death, a portion of interest was undisbursed. It is to this am(sic) that the plaintiff as a stridhana heir of Mahalakshmi has laid claim which has given to this appeal. We are not concerned the other disputes between the parties therefore we need not refer to them. If appears that there was a prior litigation between the 1st defendant and his brothers in r(sic) to this outstanding interest in which the defendant set up a right of his two sister including the plaintiff to this amount.

It was pleaded by him that as their n(sic) was entitled to all the interest that ac(sic) during her life-time, her stridhana heirs could receive it and none of the sons of (sic) dharam had any manner of right to this defence of his found acceptance with the Court which was ultimately confirmed b(sic) High Court in a second appeal. Some later i.e., in the beginning of 1949 a d(sic) was made by the plaintiff for this money, right to this money was repudiated by t(sic) defendant. Hence the plaintiff was obli(sic) bring the present action.

One of the defences to the su(sic) that it was barred by limitation. Th(sic) Court negatived this objection on the that S. 10 of the Limitation Act exempt suit from the bar of limitation. On the District Judge disagreed with this (sic) the trial Court and dismissed the claim plaintiff in this behalf. He also express opinion that Art. 120 of the Limitation (sic) not avail the plaintiff as the suit w(sic) brought within six years of her mother''s.

In a second appeal from that judge was decided by Justice Jaganmohan that the claim in regard to the inter(sic) within time and that the action was g(sic) by Art. 120 of the Limitation Act a(sic) the suit was well within time as it w(sic)tuted within six years of the denial plaintiffs right to receive this money took the view that S. 10 of the Act application. The learned Judge granted for filing this Letters Patent Appeal.

In this appeal, the conclusion learned brother that the terminus not the death of the mother but the denial the right of the plaintiff to the amount is (sic)vassed. The period of limitation under (sic)t article is six years from the time the right (sic) sue accrues. The question for consideration a is as to when the right to sue can be said (sic) have accrued within the meaning of this (sic)icle.

At the forefront of the arguments, it is (sic)tended by Mr. Ramakrishna Rao that the (sic)t of the plaintiff arose the moment her (sic)ther died and therefore the period of six (sic)rs should be computed from that date. It (sic) submitted by him that there was an essential distinction between the right to sue and cause of action. The learned counsel elated that the plaintiff will have a right to an action although there was no cause of (sic)on for such a suit.

As substantiating this proposition he call(sic) in aid a judgment of a Bench of the Madras (sic) Court in Lakshminarayana Chettiar, In re, (sic)4-1 Mad LJ 403 at p. 419 : (AIR 1954 (sic) 594 at p. 602) (FB) (A). The Full Bench (sic) dealing with the question in regard to (sic)7 of the Court-fees Act sent the matter (sic) to the Bench consisting of Justice Subba(sic) (as he then was) and Justice Ramaswami considering whether in the particular case (sic)stinct cause of action arose in the same (sic)n. In dealing with that topic, the learned (sic) judge (Justice Subba Rao as he then was) (sic) alia observed as follows :

There is no definition of "cause of ac(sic) in the Civil Procedure Code; but it is fundamental right round which many of provisions of the CPC re(sic). It is the basis for the maintainability (sic)e suit. It is the foundation for the add (sic)f parties, and it is an important ingredient working out the principle of res judicata that embodied in O. 2, R. 2, Civil Procedure Code.

It has therefore necessarily become the act of judicial scrutiny. Brett, J., defined (sic) Cooke v. Gill, (1873) 8 CP 107 (B), a (sic)g case on the subject, to mean ''every which is material to be proved to entitle plaintiff to succeed - every fact which the (sic)dant would have a right to traverse.

(sic)on this passage that reliance is placed by Ramakrishna Rao in support of his sub(sic). We fail to see how these remarks any colour to the argument advanced by Ramakrishna Rao. On the other hand, furnish an answer to his contention. We (sic) very difficult to appreciate this distinc(sic)d it sounds to us rather novel.

(sic)s repeatedly laid down, ''cause of action'' (sic)undle of essential facts which the plaintiffs to prove in order to sustain his action. connotes that both the right to sue and of action are the same and the cause of is synonymous with the right to sue. As (sic) Lord Esher in Read v. Brown, (1888) (sic)D 128 (C), cause of action comprises fact which it would be necessary for plaintiff to prove, if traversed, in order to support his right to the judgment of the Court." We have no hesitation in rejecting this contention as being devoid of any substance.

It was then urged by Mr. Ramakrishna Rao that on the death of the mother the right to sue. had accrued and there was no impediment in the way of the plaintiff bringing the action. In support of this proposition, reliance is placed on a judgment or the Privy Council in Ranchordas v. Parvatibai, ILR 23 Bom 725 (D). There, one Kalliyanji Sewji a Hindu died in January 1861 making a will, him surviving two widows.

Under the will he made some bequests for enjoying the rent and for making the dharam, and bequeathed the residue of his property movable and immoveable to trustees for dharam. One of the widows died in 1871 and the other in 1888. In the very year of the death of the survivor i.e., in 1888 the heir-at-law of Kalliyanji brought a suit in the High Court of Bombay against the sole surviving executor and trustee for a declaration that the bequests in the will for dharam were void and operative and that the property which was the subject-matter of them was undisposed of by the will, etc.

The suit was inter alia defended on the ground that it was barred by limitation. It was while disposing of this objection that their Lordships observed that the right of the plaintiff to the property accrued at the death of the second of the widows. This observation must be understood in the context in which it was made. The appellate Court held that the claim in regard to the movable property and the rents and profits of the immovable properties in the defendant''s hands was barred at the death of the 2nd defendant and that there was no provision of the Limitation Act which gave the plaintiff a starting point.

It is in disagreement with this view that their Lordships made the observations extracted above. They had not to consider in that case as to when the right to sue accrued within the ambit of Art. 120, for the suit was laid in the same year of the death of the surviving widow. This ruling therefore does not afford us any guidance in the decision of the question.

The analogy of Pydigantam Jagannadha Row v. Rama Doss, ILR 28 Mad 1971 (E) and Venkataratnam v. Venkatramaiah, 27 Mad L J 569 : (AIR 1915 Mad 539) (F), is also not apt. In the first of the two cases, the suit was to establish the right of a person to be a trustee in succession to a widow who succeeded as a trustee to her husband who constructed a temple and died childless. The controversy in that suit centered round the applicability of Arts. 124 and 141 and the Limitation Act.

Justice Boddam who heard the appeal took the view that the matter came within the purr view of Art. 121. In the course of the judgment, the learned Judges remarked that as regards the observations of the Judicial Committee in ILR 23 Bom 725 (D), they must not be detached from the context and must be understood as made only with reference to a case governed by Art. 141.

We cannot comprehend these remarks as lending any help to the contention on behalf of the appellants. 27 Mad LJ 569: (AIR 1915 Mad 539) (F), also does not carry the appellant any further. All that was laid down there was that adverse possession against a widow is not adverse possession against the adopted son and that a suit brought by him for recovery of possession belonging to the estate within 12 years of his adoption is in time. In passing a reference was made to ILR 23 Bom 725 (D), and there is no discussion of the pronouncement of the Judicial Committee.

We are of opinion that the limitation starts only from the time when the right of the plaintiff is infringed. So long as there is no dispute regarding her right there is no cause of action. Unless the right of a person is infringed the right to sue would not accrue. This question arose for consideration before the Privy Council in AIR 1930 270 (Privy Council) .

This is what their Lordships observed in regard to the problem we are now called upon to solve:

There can be no ''right to sue'' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted." The next paragraph brings out the distinction between the right to the property and the right to sue:

No doubt Mst. Koklan''s right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted." This was followed by the Privy Council later in a case coming from Rangoon in Annamalai Chettiar v. A. M. K. C. T. Muthukaruppan, ILR 8 Rang 645 : AIR 1931 9 (Privy Council)

In a recent decision of their Lordships'' Board, delivered by Sir Binod Mitter, it is stated, in reference to Art. 120: ''There can be no ''right to sue'' until there is an accrual of the right asserted in the suit ana its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted AIR 1930 270 (Privy Council) Counsel for the appellants admitted that he was unable to specify any date at which the claim to an account here in suit was denied by the appellants.

We think that these pronouncements of the Privy Council are quite appropriate in this enquiry and the doctrine or this case rules the case on hand. There can be little doubt that Art. 120 applies to cases of this nature.

It was maintained by Mr. Ramakrishna Rao that it is not necessary in case that there should be a demand and refusal and the right of the plaintiff can be said to have be(sic) violated without such denial of it and an instance of it could be found in Percy F. Fisher Vs. Ardeshir Hormasji Gazdar, relates to a case of a pledge and it (sic) laid down that the right to sue was sim(sic)taneous with the right to sue on the loan a consequently the right to sue on the secure accrues on the date of the pledge.

The right of a person to recover movable does not, belong to the category of suits ba(sic) on promissory notes and pledges. We do (sic) think therefore that the last-mentioned case (sic) any bearing on the present enquiry. It follow that the suit was within time as it was brou(sic) within six years of the denial of the right the plaintiff. This is sufficient to dispose the appeal.

The learned counsel for the respondent supports the claim also on the basis S. 10 of the Limitation Act. According him, the present case falls within the scope that Section while the stand taken by other side is that it is excluded from the op(sic)tion of the relevant section. The question whether this section is applicable to the sent suit.

Undeniably, Gangadharam entrusted sum of Rs. 9900/- for the specific purpose investment, the interest accruing whereon to be paid to his wife. For that reason money can be said to have become vested the 1st defendant in trust for the express pose of payment of the accruing interest his mother. The position that the 1st defendant was constituted a trustee was not converted but the argument advanced on b(sic) of the respondents which appealed to the (sic) Court as well as Justice Jaganmohan R(sic) was that the action not having been laid the beneficiary herself S. 10 cannot be (sic)ed of.

We do not think that this is the view. There is nothing in the language (sic) section which limits the benefit of it t(sic) beneficiaries. This section grants a exemption from the bar of limitation (sic) gard to suits against the trustees and representatives. It does not denote the can be invoked only by the beneficiaries.

It is reasonable to infer that it cases of the heirs of beneficiaries also as are no words which stand in the way tending it to persons that claim under beneficiaries. In this context, the observation of Justice Muttusami Ayyar in Sathi(sic) Bharati v. Saravanabagi Ammal, ILR 18 266 at 272 (J), are pertinent:

Unlike the provisions of the English S. 10 does not state that the plaintiff to be a beneficiary or beneficiaries while cording to S. 437 of the Code of Civil dure, a trustee represents the persons (sic)ficially interested when the suit is con(sic) property vested in a trustee and the con(sic) is between the persons beneficially int(sic) and a third party.

In our opinion these observations support the view taken by us in regard to the construction of S. 10. To a like effect is the passage in Rustumji''s Law of Limitation (4th edition) page 93 :

To prevent length of time from barring (sic) claim on the ground that defendants possession was fiduciary (e.g., as a trustee) such possession must have been fiduciary as to the plaintiff or those under whom he claims.

We feel that the heirs of the beneficiary cannot be deprived of the benefit of exemption conferred by S. 10 of the Limitation Act. So we are not impressed with the argument that (sic) order to bring a case under S. 10 it should (sic) established that the trust was created for (sic) benefit of the plaintiff himself or herself, (sic)s we have already stated, a person claiming through or under the beneficiary is as much entitled to have recourse to S. 10 as the bene(sic)iary himself and it is not necessary that the plaintiff should be a beneficiary. On this (sic)ound also, the defence should be overruled, (sic)d the claim of the plaintiff could be sus(sic)ned.

In the result, the appeal fails and dismissed with costs.