VEEYATHUMMAL KATHIJA UMMAL Vs. PARVATHI PILLAI KUNJ AMMA PILLAI
LAWS(KER)-1955-7-15
HIGH COURT OF KERALA
Decided on July 11,1955

VEEYATHUMMAL KATHIJA UMMAL Appellant
VERSUS
PARVATHI PILLAI KUNJ AMMA PILLAI Respondents

JUDGEMENT

- (1.) These appeals are by defendants Nos. 5, 6 and 9 in O.S. Nos. 149 and 9 of 1119 in the District Court of Trivandrum. The two suits were tried and disposed of together by the lower court as the questions arising for decision in the two suits were identical. The plaintiffs in the two suits are members of a Nair Tarwad known as Kodunganoor Valia Veedu. There was a partition in the tarwad and Ext. A in O.S. No. 9 of 1119 is the deed of partition dated 29.5.1105. Before the date of the partition, a creditor of the Tarwad had obtained a decree in O.S. No. 1131 of 1096 of the Trivandrum Munsiffs Court against the Tarwad, for recovery of money charged on certain properties of the tarwad. The properties so charged were allotted in partition to the plaintiffs in the two suits. Govinda Pillai, a member of the Tarwad who was the 36th party in Ext. A was directed to discharge this decree debt. It was stated in the deed that additional properties had been allotted to him for this purpose and that the properties allotted to him would be liable for loss or damage caused to the plaintiffs on account of execution of the said decree consequent on his failure to discharge the debt. Govinda Pillai failed to pay the debt and the properties charged under the decree were sold in court auction on 9.12.1106. The sale was confirmed on 8.1.1107 and the auction purchaser obtained delivery of possession on 23.11.1107. The plaintiffs sued to recover the damages sustained by them on account of Govinda Pillais failure to pay the decree debt. The appellants who had purchased items Nos. 3 and 4 in the plaint schedule resisted the suits contending inter alia that the suits were barred by limitation. It is unnecessary to refer to the other contentions raised by them as the only ground raised in this court is that of limitation. The two suits were decreed by the court below and these appeals have been preferred from the two decrees by defendants 5, 6 and 9.
(2.) The only point pressed in appeal is that the suits, having been brought more than 12 years after the date of the confirmation of the sale, are barred by limitation. Both sides agreed that the suits are governed by Art.132 of the Indian Limitation Act. The controversy is about the starting point of limitation. According to the appellants limitation would begin to run from the date of confirmation of the sale while the respondents would have the date of delivery of possession as the starting point. Limitation begins to run under Art.132 from the date on which the money sued for becomes due. The question for decision therefore is when the money became due, i.e., whether it became due on the date of confirmation of the sale or on the date of delivery of possession. O.S. No. 9 of 1119 was filed on 17.1.1119 and O.S. No. 149 of 1119 on 23.11.1119. If the staring point of limitation is the date of confirmation of the sale, the two suits are barred by limitation. Shri. N. Krishnaswamy Iyengar, learned counsel for the appellant, contended for the position that the words when the money sued for becomes due has to be construed as referring to the date on which the claim for the money became legally enforceable. Reliance was placed on the decision in Ganga Ram v. Raghubana, ILR 27 Pat. 896 which was followed by this court in Rama Panicker v. Rama Panicker, 1954 KLT 311 . The point for decision in those cases was different from that in the present case. In Mukhdeo Singh and Another v. Harakh Narayan Singh and Others, AIR 1931 Pat. 285 Fazl Ali, J. observed that the question has to be decided with reference to the terms of the document in each case. That was a suit for recovery of the amount due under a mortgage deed which provided for payment of the mortgage amount instalments with a further provision that in case of default in the payment of any instalment all the instalments whether expired or unexpired would be payable by the mortgagor. The question for decision was whether limitation began to run from the date of the 1st instalment, payment of which was defaulted. It was held that the mere fact that the mortgagee was entitled to sue for the whole amount when default in payment of the 1st instalment was committed did not mean that he was under an obligation to sue for the whole amount. This decision may not exactly be a parallel one but the principle of the decision goes against the view contended for by the appellants. The decision of the Privy Council in Nilkanth v. Bharathi Swami, AIR 1930 PC 188 also lends support to the view held in AIR 193 Pat. 285. The decision in Sriramulu v. Jambulingom, AIR 1953 Mad. 603 and Harihara Iyer Ramaswamy Iyer v. Augusthy Devassia and Another, AIR 1952 TC 466 relied on by the appellant were cases under Art.83 of the Indian Limitation Act where the starting point is the date on which the plaintiff becomes damnified. These have no application to the present case. The real question is as to what the parties intended when they made the provision in the partition deed. In our opinion what was contemplated was loss resulting from dispossession as a result of steps taken in execution of the decree which Govinda Pillai was bound to discharge. Such dispossession took place within twelve years of the institution of the suit. The suits must therefore be held to be within time and the plea of limitation must fail.
(3.) No other question arises for decision in this case. The decrees of the courts below are therefore confirmed and the appeals are dismissed with costs.;


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