Ramgonda Ningonda Patil vs Paragonda Ramgonda Patil

S. Radhakrishnan, J.—The brief facts of this case are that one Ramgonda Satgonda Patil owned considerable moveable and Immovable property. It appears that the said Ramgonda Satgonda Patil died in 1946. The Respondent herein i.e. Paragonda and the lather of the Appellant i.e. Ningonda were the two sons of Ramgonda Satgonda Patil. After the death of the said Ramgonda Satgonda Patil, the Respondent as well as the father of the Appellant continued to act as the members of joint family. It appears that the father of the Appellant i.e. the Ningonda died in the year 1949, and at that time the Appellant herein was a minor, and his natural mother Gaurabai was his guardian. It appears that the Appellant-Plaintiff and his mother had continued to stay and mess together with the Respondent-Defendant as the members of the joint family. It appears that on 18th April, 1955 a partition had taken place between the Appellant and Respondent and at that time, Appellant was a minor and his mother Gaurabai had represented him. It appears that the lands situated at Maroli were actually divided and the present Appellant and the Respondent were allotted their respective shares. However, the open site at Maroli and the house and shop at Jath were not actually divided by metes and bounds and they were kept in common between the Appellant and the Respondent having 1/2 share each. It appears that the present Respondent was the manager of the joint family, and even after the partition which took place on 18th April, 1955 he continued to manage the house and the shop at Jath on his own behalf and on behalf of Appellant also.

It appears that the Respondent herein had leased out the suit property Le. the house and the shop at Jath to the tenants, and he used to recover rents therefrom. It is the case of the Appellant that though from 18th April, 1955 the Respondent used to recover rents of the suit property, he did not give the accounts of the said rents and profits to the Appellant. It appears that the Appellant had attained majority in the year 1967, and even thereafter the Respondent had failed and neglected to give proper accounts to the Appellant. It appears that by a notice dated 22nd August, 1975 the Respondent was called upon by the Appellant to render the proper accounts. However, the Respondent by his reply dated 7th September, 1975 denied the Appellant''s claim. Finally, on failure of the Respondent to render the proper accounts, Regular Civil Suit No. 72 of 1975 was filed before the Civil Judge, Junior Division, at Jath. In the said suit the Appellant-Plaintiff had claimed half share of the amount collected by the Respondent from 18th April, 1955 in respect of the suit property. In the said suit, the Respondent-Defendant had filed his written statement wherein he had admitted that the partition had taken place on 18th April, 1955. It was contended by the Respondent-Defendant that, in the presence of Panchas it was agreed between the Respondent-Defendant and the mother of the Appellant-Plaintiff, that the mother of the Appellant-Plaintiff will be maintained out of the income arising from the suit property. It was contended by the Respondent-Defendant that he was accepting the rent of the suit property for the maintenance of Appellant''s mother for life time. It was also contended that he used to manage the suit property and spend towards the repairs and maintenance of the said property.

The main contention of the Respondent-Defendant was that whatever amount was payable to the Appellant-Plaintiff, was to be adjusted towards the maintenance allowance paid to the mother of the Appellant. In the said suit, the following issues were framed:-

(1) Does the Plaintiff prove that he has one half share in the suit property?

(2) Does he prove that the Defendant was liable to maintain accounts of his share?

(3) Is the Plaintiff entitled to accounts from the Defendant?

(4) Does the Defendant prove that the share of the Plaintiff was set off against Serial No. 58 of Maroli for the maintenance of Girajabai?

(5) What order?

With regard to first Issue, the Trial Court, after recording the evidence and appreciating the same, answered the first issue in the affirmative that the Plaintiff (Appellant herein) had proved that he had one half share in the suit property. With regard to the second issue the Trial Court also came to the finding in the affirmative that the Defendant (Respondent herein) was liable to maintain accounts towards the share of the Plaintiff-Appellant. With regard to the third issue the Trial Court had also come to the conclusion that the Plaintiff (Appellant herein) was entitled to the accounts from the Defendant (Respondent herein) and therefore had answered the third issue in the affirmative. With regard to the fourth issue the Court came to the finding in the negative, holding thereby that the Defendant had failed to prove that the share of the Plaintiff was set off against Serial No. 58 of Maroli for the maintenance of Girajabai, the mother of the Appellant-Plaintiff.

The Trial Court had computed the amount payable after recording all the details and calculations, and found that the Defendant (Respondent) had received the sum of Rs. 12,299/- during the period from 1st April, 1957 to 1st March, 1974 as and by way of rent, and that the admissible expenditure out of the said amount, towards the repairs etc. was Rs. 1.238/-. After deducting the amount of expenditure from the amount received by the Defendant, the Trial Court had found that it would come to Rs. 10.761 /-. As the Plaintiff and Defendant were having half share each in the suit property, the Trial Court had held that the amount of Rs. 5,380/- would come to the Plaintiffs share, and therefore, the Defendant was ordered to pay to the Plaintiff Rs. 5.380/- with future interest at the rate of 6% p.a. from the date of the suit till the date of realization. The Defendant was also ordered to pay half share from the rents and the profits arising from the suit property till the time he was managing the same.

Against the aforesaid decree and order, the Respondent herein (Orig. Defendant) had preferred an appeal being Regular Civil Appeal No. 172 of 1982 before the Assistant Judge at Sangli. The Lower Appellate Court by its judgment and order dated 12th June, 1984 had allowed the appeal and set aside the decree passed by the Trial Court, and substituted the same by a decree which reads as under:-

The Plaintiff is entitled to claim mesne profits in the suit property from the Defendant since 15th October, 1972 upto 15th October, 1975. A Commissioner be appointed in execution proceeding for taking accounts. A final decree be drawn after the accounts are rendered by the Commissioner and on payment of appropriate Court fee by the Plaintiff on the same, together with proportionate cost.

The learned Lower Appellate Court has observed, that the only point which was argued before it was whether the Plaintiff could legally claim past mesne profits since the year 1955 and, if not, as to what extent his claim was valid in the eye of law. The Learned lower Appellate Court came to the finding that the Plaintiff (Appellant herein) was entitled to claim mesne profits in the suit property from the Defendant only for the period of three years prior to filing of the suit i.e. from 15th October, 1972 upto 15th October, 1975.

The learned Lower Appellate Court has held that Article 113 of the Indian Limitation Act, which is a residuary Article, would be applicable in the case and the Plaintiff would be entitled only to claim accounts from the Defendant for a period of three years prior to the filing of the suit, i.e. from 15th October, 1972 upto 15th October, 1975. Accordingly, the learned Lower Appellate Court has set aside the Trial Court''s judgment and order to that extent.

Against the aforesaid Lower Appellate Court''s order dated 12th June, 1984 the present Second Appeal No, 241/1985 has been filed by the original Plaintiff, raising thereby a substantial question of law, namely, whether the learned Lower Appellate Court was right in holding that the Defendant (Respondent herein) was liable to render accounts to the Plaintiff (Appellant herein) only for a period of three years prior to the date of filing the suit. To put in other words, whether the Plaintiff was entitled to claim accounts as well as his share only for a period of three years prior to the filing of the suit, or even prior thereto.

The learned Counsel for the Appellant-Plaintiff has strongly relied upon the judgment of the Madras High Court in the case of Visalakshi Amma v. Madhava Menon AIR 1942 29 Mad. 514 : 1942 M.W.N. 239 : 202 I.C. 78. In this case the Madras High Court has construed that the Plaintiff was entitled to claim his share in income even beyond six years, even applying the provisions of Article 120 of the Limitation Act, 1908. Thus, the Madras High Court has held that the Plaintiff was entitled to claim his share in income not only for a period of six years prior to the suit but right from date of division of status i.e. the partition.

The learned Counsel for the Appellant also relied upon a Judgment of Privy Council, in the case of AIR 1930 270 (Privy Council) . In this case, while interpreting Article 120 of the Limitation Act, 1908, the Privy Council has observed as follows:-

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 clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mt. 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.

The learned Counsel for the Appellant also relied upon another judgment of the Supreme Court in the case of C. Mohammed Yunus Vs. Syed Unissa and Others, . In this case, while interpreting Article 120 of the Limitation Act, 1908, the Apex Court has held that the period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could 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. The Supreme Court was of the view that unless there is a categorical threat to infringe that right, the period of limitation cannot start running.

Similarly, the learned Counsel for the Appellant also relied upon a judgment of the Supreme Court in the case of Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI), . In this case also, while interpreting Article 120 of the Limitation Act, 1908, the Supreme Court has observed that there is no right to sue until there is an accrual of 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.

Thereafter, the learned Counsel for the Appellant also relied upon a judgment of Bombay High Court in the case of Sitaram Vinayak Hasabnis Vs. Narayan Shankarrao Hasabnis, wherein also a similar view has been taken. Relying upon the aforesaid Privy Council''s judgment in AIR 1930 270 (Privy Council) the Court has held that the date from which the time begins to run according to Article 120 of the Limitation Act is the date of the accrual of the right to sue, that means when there was an infringement of or some clear or unequivocal threat to infringe the Plaintiffs right. Until that has happened, no bar of limitation can arise at all. In the aforesaid case of Sitaram, the Privy Council''s Order is referred to, in which the Privy Council had ordered an account to be taken of an agency for the whole period of the agency, amounting to about 20 years. If an account for 20 years is to be taken, the amount found due on accounts taken over a period of 20 years is also recoverable.

The learned Counsel for the Appellant has also referred to another judgment of the Privy Council in the case of AIR 1940 215 (Privy Council) . In this case also the Privy Council has held that the provisions of Article 120 of the Limitation Act are applicable. The learned Counsel for the Appellant also relied upon the Full Bench judgment of the Madras High Court, in the case of Yerukola alias Penta Jogulu and Ors. v. Yerukola alias Penta Tatayya alias Purushottam and Ors. AIR 1922 Mad. 150 : 45 Mad. 648 : 71 I.C. 177. In the said judgment the Full Bench of the Madras High Court, after exhaustively analysing the various judgments and principles, came to the conclusion that in the case of a Hindu family where some of the properties have been actually divided by metes and bounds and the rest are in the possession of various members who have become divided in status though all the properties have not been divided and apportioned among them, a suit by one member asking for his share of the undivided movable and the rents and profits of the immovables after the taking of the accounts is governed by Article 120 of the Limitation Act. On almost similar facts and circumstances, the Full Bench of the Madras High Court was of the view that the person can seek accounts even for a period beyond six years.

On the other hand Mr. Page, the learned Counsel for the Respondent strongly supported the lower Appellate Court''s Order and contended that no amount can be awarded beyond the period of three years. He relied upon the judgment of the Madras High Court in the case of Sri Rajah Bommadevara Naganna Naidu Bahadur Zammindar Garu represented by guarantor and Others Vs. Sri Rajah Bommadevara Venkatarayulu Naidu Bahadur Zamindar Garu (dead) and Others, . In the said judgment the Madras High Court has interpreted the scope of Articles 62 and 120 of the Limitation Act. It was held that wherever the amount was specific and clear Article 62 would come in play, whereas if the accounts were to be taken and the amount were to be determined, then Article 120 of the Limitation Act would come in play. In the said judgment, while referring to the judgment of Bombay High Court in the case of Sitaram Vinayak Hasabnis Vs. Narayan Shankarrao Hasabnis, the Madras High Court has held that Article 120 of the Limitation Act was the proper Article to apply to suit for accounts by one co-owner against another who had received more than his share of the income of the joint property. In paragraph 12 of the said judgment, the Madras High Court has very categorically observed that if Article-120 was applicable, the suit was certainly in time. In the said case, the earliest denial by the Defendant of the Plaintiffs right was on 27.1.1939 when his Advocate addressed the letter to the Sub-Collector in Charge of South Vallur estate that the Appellant had no claim. It was held that suit which was filed on 6.9.1943 was well within six years of that letter, and was filed within proper time. In the said case, the Court finally has held that the Appellant would be entitled to a half share of the net amount ascertained on taking of an account and with interest thereon at 6% p.a. from the date of the suit. Thus, the amount awarded was of a half share of the net amount ascertained on taking of an account, was not restricted only to a period of six years, but for the entire period during which an account was ordered to be taken.

Applying all the above principles enunciated, it is clear that under the present Limitation Act, 1963, the relevant Article would be Article 113 which states that the limitation period would be three years from the date on which the right to sue accrues. In the instant case, obviously, the right to sue accrued only when the Defendant by his reply dated 7th September, 1975 had denied the Plaintiffs claim. Therefore, the suit was very much within time. The next issue is whether the Learned Lower Appellate Court was right in restricting the claim of the Plaintiffs right only for a period of three years prior to the date of filing of the suit. From all the aforesaid judgments cited above, I am clearly of the opinion that, in case of a suit for taking accounts where the accounts are not determined, the period cannot be restricted only for a period of three years prior to the filing of the suit. As has been held in a number of judgments cited above, it is very clear that the accounts can be ordered to be taken even for a period of 20 years.

Under these facts and circumstances. I find that the Appellant-Plaintiff has been able to successfully establish the claim for accounts for the entire period viz. from 1st April, 1957 upto 1st March, 1974, as has been directed by the Trial Court.

Second Appeal is therefore allowed with costs, and the Lower Appellate Court''s order dated 12th June, 1984 is set aside, and the Trial Court''s order dated 8th February, 1982 in Regular Civil Suit No. 72/1975 is restored with costs.