Padhum Lal and Another vs Tribeni Singh and Others

Wort, J.—This is an appeal by the plaintiffs and the cross-appeal by the defendants in an action in which the plaintiffs sought to recover malikana with regard to some four annas odd interest. Of this malikana interest 10 dams were acquired by the plaintiffs in the year 1906. As regards the four annas odd interest it was obtained in the year 1921 from one Babulal. Both the Courts below have given the plaintiff a decree in respect of the four annas interest and with regard to that the cross-appeal of the defendants is preferred. So far as the 10 dams interest is concerned which is the subject matter of the plaintiffs'' appeal, the grievance which the plaintiffs have with regard to the finding of the learned Subordinate Judge is that Article 131, Lim. Act, applies and therefore their action in respect of that interest is barred.

It is the contention of Mr. S.N. Roy who appears on behalf of the appellants in this appeal, that Article 132 applies. Article 131 is an article governing the establishment of a periodical recurring right, and it was contended by the learned Advocate who appears on behalf of the respondent that that in substance either was or should have been the plaintiffs'' case. But it is argued by Mr. Roy on behalf of the plaintiffs that the question of which article applies to any particular case depends on what that case is, and it is clear at any rate from the plaintiffs'' claim that they were not seeking to establish a periodical recurring right but they were seeking to recover the malikana in respect of this interest. Article 132 enforces the payment of a money charge upon Immovable property, and the explanation states that malikana is deemed to be a money charge on Immovable property and therefore prima facie, Article 132 applies and not Article 131.

The basis of the learned Advocate''s contention on behalf of the defendant respondents was that as it was shown that no malikana had been recovered by the plaintiffs the effect of the action was to establish the malikana right, and that brought it within Article 131. The argument is put in another way. It is said that as it is clear on the face of the record itself that neither the plaintiff nor in one instance the predecessor-in-interest of the plaintiff had recovered the malikana, it was necessary for the plaintiff to show that the malikana had at some time been received.

The suggestion of course was that it had never been paid and consequently in that way the claim of the plaintiff was in substance, although not in form, the establishment of this recurring right within the meaning of Article 131. If any question of the action being barred by limitation arose as it did arise, it seems to me clear that if the defendants intended that the action was so barred, it was necessary in the circumstances of the case, having regard to the manner in which the plaintiff had brought his claim, for the defendants to establish such facts as would show that the action was in fact barred by limitation. In my judgment, the learned Judge was wrong in applying Article 131 as Article 132 quite clearly applied.

That does not necessarily dispose of the case.

Now as regards the document of title if it may be so called, of the plaintiff, the ladavi deed, this appears to have been executed without money consideration. The learned Judge in the Court below has stated that as the parties were near relatives, and as the Contract Act, allowed love and affection as the consideration, the deed was a good one. It is not for me to put the argument on the lips of the learned Advocate, but there was a point here which could have been argued; it was not mentioned in the Court below and it was not mentioned in this Court, and I am going therefore to disregard it. But the point to which I referred seems to me to be quite clear from the record.

I can only assume that the learned Advocate would have put it forward for consideration had he thought it worth while. The point argued however was that the learned Judge was wrong in saying that the relations of these parties were sufficiently near to entitle him to come to the conclusion that the consideration was the love and affection of the parties. That, in my judgment, is a pure question of fact and I do not propose to disturb it in second appeal. I have already mentioned the other point, but I do not. propose to discuss it because it was not argued. In my judgment that would dispose of the appeal and the cross-appeal.

But there is another point argued by the learned Advocate on behalf of the respondents. It is in substance the point first mentioned by me, but it is put in another form. It is contended that the right to malikana had ceased to exist; but before I mention that point I would refer to another to which reference was made. It was contended that the plaintiffs could not succeed as not all the co-sharers of the malikana interest were before the Court. The learned Judge in the Court below has dealt with that point and has found that the action was not defective for want of parties as the party who put forward this point had not shown which if any, of the parties was absent from the record. That disposes of that point.

The point to which I was referring and to which I return was the question of the extinction of the malikana interest. Reference was made to the case of Jagarnath Pershad Singh v. Kharach Lal (1906) 10 CWN 151 as an authority for the proposition that by the non-payment of this malikana for a long period of years the malikana interest disappeared. The learned Judges in the case to which I have just made reference were dealing with a matter in which the original cause of action, if it ever existed, arose at a time prior to 1871 when the present Limitation Act came into force, and the learned Judges therefore pointed out that the provisions of that Act were different from the provisions of the Act of 1871 under which Act the plaintiff''s action would not be barred. The effect of the previous Limitation Act however was that the malikana interest had become extinct before the law was changed or came into force under the Act of 1871.

There was nothing in this case which would entitle the learned Judge to come to a conclusion similar to that in the case to which I have referred, and indeed in a later case in the Allahabad High Court, being the case of Shida Ali v. Phullo (1913) 35 All 185, the learned Judges there distinctly dissent from the opinion expressed by the learned Judges of the Calcutta High Court. In any event it is not a matter which is free from difficulty, but it seems to me in any case not to apply to the particular facts of this appeal.

The result, in my judgment, is that Article 132, Lim. Act, applies, and as this was not a case of a declaration as to the plaintiff''s right for the malikana and as the fact that the malikana had not been paid for many years, does necessarily seem as a denial by the person liable to pay the malikana interest. In my judgment the plaintiff should have succeeded in respect of his full claim, and therefore his appeal will be allowed with costs. For the reasons which I have already stated the cross-appeal of the defendants must be dismissed with costs. Leave to appeal in Letters Patent is refused.