Kappara Venkatasesha Lalitamma vs Kappara Kotayya and another

Gangadhara Rao, J.—This letters Patent Appeal has come up before us on leave granted by Ramachandra Rao, J., in Second Appeal No. 325 of 1973. Is Article 125 or Article 120 of the Indian limitation Act of 1908 applicable to the facts of the case? That is the question we have to decide in this appeal.

In order to appreciate this question it is necessary to state a few facts. The plaintiff is the appellant in this appeal. She is the wife of Ramakrishnaiah. His father Narayana and the first defendant''s husband late Raghavaiah were the sons of one Ramakrishnaiah. It is the case of the plaintiff that her father-in-law Narayana died undivided from his brother Raghavaiah in about 1915 or 1916 and thereafter the plaintiff''s husband Ramakrishnaiah and Raghavaiah continued to enjoy the family properties jointly till the year 1928 when Raghavaiah also died leaving behind his widow, the first defendant, so her husband got the properties by survivorship. The first defendant was a minor by the date of the death of her husband and on her behalf her father set up a claim to the properties. Then a family arrangement was arrived at, which is evidenced by Ex. A-1 dated 17th December, 1928. Under that arrangement plaint A Schedule properties were allotted to Ramakrishnaiah with absolute rights and the B Schedule properties were allotted to the first defendant for enjoyment during her lifetime. The plaintiff''s husband died on 11th June, 1940, intestate and without any issue. Thereafter the first defendant settled the first item of the plaint schedule properties on the second defendant on 21st April, 1952, under Ext. A-4. She also alienated Items 2 and 3 in favour of the defendants 3 and 4 under the sale deeds Exts. A-5 and A-6 dated 21st April, 1952, respectively. The 3rd defendant in his turn sold the second item to the 5th defendant. The 5th defendant died during the pendency of the suit and his legal representatives were brought on record as defendants 6 to 9. The 7th defendant was alleged to be in possession of the said item. On 12th April, 1961, the plaintiff has filed the suit for a declaration that the alienation made by the first defendant in favour of Defendants 2 to 4 under Exts. A-4, A-5 and A-6 on 21st April, 1952, did not bind the plaintiff after the lifetime of the first defendant.

The first defendant contended that her father-in-law Narayana became divided about ten years before his death from his brother Raghavaiah and, therefore, the plaintiff''s father-in-law did not get the properties by survivorship. She denied knowledge of the family arrangement dated 17th December, 1928. She further stated that her husband Raghavaiah executed a will on 18th February, 1928, giving away the entire properties covered by & schedule to her with absolute rights. Thus she claimed that she became absolutely entitled to the properties both by virtue of the will of Raghavaiah and also under the Hindu Succession Act. She also contended that the suit was barred by limitation. Defendants 5 to 7 raised similar pleas.

The trial Court on a consideration of the evidence on record held that the first defendant''s husband died intestate while he was a joint coparcener with the husband of the plaintiff, that the family arrangement evidenced by Ext. A-1 dated 17th December, 1928, was true and binding on the first defendant, that the will set up by the first defendant was not true, that the suit was not barred by limitation and that the alienations made by the first defendant would not be binding on the plaintiff beyond the lifetime of the first defendant. In the result, the trial Court decreed the suit of the plaintiff.

Against that decree the defendants 2 and 4 preferred an appeal in the Court of the District Judge, Prakasam District. The learned Judge found that the family arrangement dated 17th December, 1928, was valid and binding on the first defendant and that the will dated 18th February, 1928, was not true. On the question of limitation he held that the suit was governed by Article 125 but not Article 120 of the Limitation Act and the suit was within time. So he confirmed the decree of the trial court and dismissed the appeal.

Against that decree only the 2nd defendant preferred the Second Appeal in this court. It was contended on behalf of the appellant that the first Defendant was not in possession of the properties as a Hindu female with limited estate, but she was in possession of the suit properties under the family arrangement dated 17th December, 1928, under which only a life estate was conferred upon her and. therefore, the provisions of Article 125 of the Limitation Act were not applicable to the case, Ramachandra Rao, J., held that the first defendant got Into possession of the B Schedule property not as a Hindu female but only under the family arrangement and so Article 125 of the Limitation Act was not applicable but it was only the residuary Article 120 of the Limitation Act that was applicable to the suit. So he allowed the Second Appeal and dismissed the suit of the plaintiff on the ground that the suit was barred by limitation.

In this appeal, only the question of limitation is argued. It is contended by Sri M.B. Rama Sarma, the learned counsel for the appellant that the first defendant was given the B Schedule properties with a life interest under the family arrangement dated 17th December, 1928, (Ext. A-1) in recognition of her pre-existing right for a half share in the joint family properties and therefore, it is Article 125 of Limitation Act that is applicable but not Article 120 of that Act.

We do not agree with this submission. There was no division between the plaintiff''s father-in-law Narayana and Raghavaiah. After the death of Narayana. Raghavaih the husband of the first defendant, and Ramakrishnaiah, the husband of the plaintiff continued to enjoy the properties jointly and when Raghavaiah died in 1928 all the joint family properties devolved upon Ramakrishnaiah, the plaintiff''s husband by virtue of survivorship. So it was Ramakrishnaiah that was entitled to be in possession of all the properties and the first defendant was only entitled to maintenance being the widow of a coparcener of a joint Hindu family. Since the dispute was raised on behalf of the first defendant by her father, a family arrangement was arrived at on 17-12-1928 (Ext. A-1) under which the first defendant was allowed to be in enjoyment of the B Schedule properties during her lifetime. Thus the first defendant was only entitled to maintenance on the date of the family arrangement and she had no pre-existing right to a half share in those properties. If she came into possession of the family properties, it was by virtue of the family arrangement under which a limited right was transferred in her favour enabling her to enjoy the properties allotted to her, during her lifetime.

If that is her position, the next question is what is the Article of Limitation Act that is applicable. Is it Article 125 or Article 120?

Article 125 reads as follows:

Suit during the life of a Hindu or Muhammadan Female by a Hindu or Muhammadan who, if the female died at the date of instituting the suit, would be entitled to the possession of land, to have an alienation of such land made by the female declared to be void except for her life or until her remarriage.

Twelve years.

The date of the alianation.

In order to attract this Article the following conditions should be satisfied: (1) A Hindu or a Muhammadan female must have alienated the land; (2) The suit should be filed during her life time; (3) It should be filed by a Hindu or a Muhammadan; (4) He could file it provided he was entitled to the possession of the land if the female died at the date of the institution of the suit (5) He could only ask for a declaration that the alienation was void except for her life or until her remarriage.

The crucial question is, what is meant by the words "a Hindu or a Muhammadan female'''' in Article 125. This article occurs in a group of Articles relating to personal law. Article 126 relates to a suit by a Hindu governed by the law of Mitakshara to set aside his father''s alienation of ancestral property. Article 127 refers to a suit by a person excluded from joint family property to enforce a right to share therein. Article 128 relates to a suit for arrears of maintenance and Article 129 to a suit by Hindu for declaration of his right to maintenance.

This scheme of Articles helps us to understand the Article 125, which relates to suits under personal law.

Article 125 has been the subject-matter of some decisions. In Kanhya Lal Missir Vs. Mt. Hira Bibi and Others, Justice Mohammad Noor and Sounders, JJ., observed as follows:-

In our opinion, however, this article applies when the possession is that of a Hindu or Mohommedan female as such, that is to say by virtue of her being a Hindu or Mohammedan and does not apply if her possession is by virtue of a grant or transfer made inter vivos or by virtue of a bequest, or in other words, when her possession is irrespective of her being a Hindu or Mohammedan female. It is inconceivable that the legislature would have provided periods of limitation depending solely upon the sex of the parties or upon their religious persuasions irrespective of the nature of the property involved in the suit or of the nature of the possession. For instance we may suppose that either by grants or bequests one life estate has been created in favour of a Hindu or a Mohommedan female another in favour of a Christian Female and a third in favour of a male person, the remaindermen being persons professing different faiths. If the contention of the defendants be accepted, the result would be that there would be varying periods of limitation for suits to avoid alienations that may have been made by the several life estate holders on the same date and the period in each case would depend upon the sex and the religions of the plaintiff and of the alienor. Thus, if the suit be by the remainderman who is a Hindu male, to avoid alienations by the Hindu female, this article will apply but if the suit be by the same Hindu to avoid the alienation by the Christian female, this article will not apply, nor will it apply if the plaintiff is not a Hindu but the alienation sought to be avoided was by a Hindu female holder of the life estate, nor if the life estate holder is a male of whatever religious persuasion.

The result too would be that a change of religion by any of these persons might entail a change in the period of limitation applicable to the case. We are supported in this view by a decision of the Calcutta High Court in ILR (1896) 23 Cal 645, (Girijanand Datta Jha v. Sailajanand Dutta Jha), in which Article 128, providing a period of limitation for a suit by a Hindu for arrears of maintenance, was interpreted. It was held that the word ''Hindu'' in that article must be taken to mean a person claiming under the Hindu law. We are of opinion that this article also refers to cases in which the claim of the Hindu is based upon his right as a Hindu to avoid an alienation by a female who is in possession as a Hindu, and does not apply to cases where the possession and the claim are independent of the status of the parties as is the case here.

The learned Judges differed from the view taken in Mt. Nandan v. Wazira, ILR 8 Lah 215 : (AIR 1927 Lah 198) where religion and sex were taken to be the sole factors determining the application of the articles. They observed:

With the greatest respect to the learned Judges of the Lahore High Court we must differ from them. The reason on which the decision was based was that though a Hindu female takes an estate according to the Hindu law, a Mohomedan female does not do so under Mohomadan law. and therefore, if the interpretation which was sought to be put on the article in that case which is in accordance with the view that we take, the word ''Mahomedan'' would be superfluous. It was not considered, however, that among the Mahomedans also those who are governed by customary laws (as in some cases in the Punjab and the cases of Mahomedans who are governed by the Hindu Law as for instance the Khojas of Bombay) females do take a life interest in the property of their husbands and that it was in order to bring the law into conformity with the law governing the Hindus that the word ''Mohomedan'' was added by the Act of 1877.

We respectfully agree with the reasoning of the decision in Kanhya Lal Missir Vs. Mt. Hira Bibi and Others, nd we follow it.

In Aruna Mal v. Mt. Sandhuran, AIR 1947 Lah 290 (FB), a Full Bench of the Lahore High Court consisting of Abdul Rashid, C.J., Mahajan and Achru Ram, JJ., held that Article 125 "in plain terms contemplates a case where an alienation has to be declared void except for the lifetime of the widow. It must be presumed, therefore that the applicability of this Article is limited to cases where an alienation is good so long as the alienor is alive or so long as she does not re-marry." After referring to Mt. Nandan v. Wazira, (AIR 1927 Lah 198) the learned Judges observed as follows:

In this case it was held, that the Article is not restricted to cases of females governed by Hindu or Mohammadan law and that it also applies to females governed by custom. This case, in my view, has no application to the facts of the present case and is no authority for the proposition that Article 125, Limitation Act, governs cases where a Hindu or a Mohammadan female is in possession of property under a will or a gift inter vivos or in any other capacity. The learned counsel for the appellant referred to a decision of the Patna High Court in Kanhya Lal Missir Vs. Mt. Hira Bibi and Others, . In that case it was held, that Article 125, Sch. II Limitation Act, applied when the possession is that of a Hindu or Muhammadan female as such, that is to say. by virtue of her being a Hindu or Muhammadan. and does not apply if her possession is by virtue of a grant or transfer made Inter Vivos or by virtue of a bequest, or in other words, when her possession is irrespective of her being a Hindu or Muhammadan female. The Bench decision of this court in ILR 3 Lah 215 : (AIR 1927 Lah 198) (Mt. Nandan v. Wazira) was considered by the Patna Judges and they differed from it. It may be pointed out that in a later decision one of the learned Judges who was a party to the Division Bench decision ILR 8 Lah 215 : (AIR 1927 Lah 198) (Mt. Nandan v. Wazira), followed a decision of the Calcutta High Court in (1896) ILR 23 Cal 645 (Girijanand Dutta Jha v. Sailajanand Datta Jha) on which the Patna Division Bench decision has been based......................... It was not laid down by this court that Article 125, Limitation Act, would govern a case where a widow was in possession of her husband''s property under a gift inter vivos or by bequest.

Thus the Full Bench of the Lahore High Court has agreed with the view taken in Kanhya Lal Missir Vs. Mt. Hira Bibi and Others,

The learned counsel for the appellant has relied upon the decision in Bishwanath Tiwari and Others Vs. Mt. Bachni and Others, but its correctness is questioned by the learned counsel for the respondent. In that case it was found that under the terms of a will the widows who were in possession of the properties got nothing more than the right to remain in possession during their lifetime as Hindu females under the Hindu Law. On those facts, the learned Judges came to the conclusion that the suit was governed by Article 125 of the Limitation Act, 1908. This is evident from the observations of Das, J. when he said,

In the case before us, Mt. Bachni was the heir of Ramjihora under Hindu law and I have already found that she got nothing more under the will than what she was entitled to under Hindu law. It is clear, therefore, that she held possession as a Hindu female as such. The will made no difference to her status as a Hindu female with limited powers of alienation.

After referring to the Full Bench decision of the Lahore High Court in Aruna Mal v. Mt. Sandhuran, (AIR 1927 Lah 290) (FB) the learned Judge observed as follows:

Article 125, however, contemplates cases of alienations by female holders which cannot be ignored by reversioners and which are good unless they are set aside either on grounds of want of consideration or legal necessity or on other grounds. In the case before us, it was necessary for the reversioners to bring the suit for a declaration that the alienation made by Mt. Bachni was without consideration and not justified by legal necessity. As reversioners the appellants could not ignore the alienation made by Mt. Bachni who could, under Hindu law, make an alienation under certain circumstances which would be binding even after her death. It was necessary for the appellants to get this obstacle out of their way and the suit was brought on the footing that Mt. Bachni held the property as a Hindu female.

Thus the learned Judge came to the conclusion that Article 125 applied to the facts of that case because the property was in possession of Mt. Bachni as s Hindu female and that under the will Mt. Bachni got nothing more than what she was entitled to as a Hindu female under the Hindu Law.

The other learned Judge, Mahabir Prasad, J., observed:

I agree, In considering the question of limitation, arising in this case, what has to be borne in mind is that a suit for a declaration that an alienation made by a limited owner is not binding on a person who is entitled to succeed on the death of such a owner as a Hindu female or a Mohammadan female who by custom is governed by law of property applicable to Hindus. For, only such a owner and no other limited owner can make alienation for legal necessity binding beyond her or his lifetime. If in the present case; the contention of Mr. Jha for the respondent, that the daughter in question was not holding the estate as a Hindu female but that, failing to hold as an absolute owner, was only a life tenant under the will is accepted, the declaration sought for by the appellants becomes unnecessary. The impugned alienation in that event, cannot be binding on the appellants even if it be for legal necessity, and even if the suit be dismissed on that finding, either as not being maintainable or barred by limitation, the purpose for which the suit is brought will be achieved. The reason why Article 125 limits itself to suits for declaration that an alienation made by a Hindu or a Muhommedan female is not binding on the reversioners, is that a suit for such declaration in regard to alienation of other life tenants cannot possibly arise. Such an alienation can under no circumstances be good after the death of the life owner making the alienation.

This decision is not applicable to the facts of the case on hand, for as held by us already the first defendant got into possession of the B Schedule properties not as a Hindu female but by virtue of a family arrangement, and on that date she did not also have any right to a share in the joint family properties, but her right was only for maintenance. If it were otherwise, we would have had to determine whether the family arrangement had been arrived at merely for the convenient enjoyment of the properties, in which case Article 125 would apply or whether it was a settlement or determination of disputed rights in which case Article 120 would apply. In the view which we take we are not called upon to decide that question or to pronounce upon the correctness of the decision in the case of Bishwanath Tiwari and Others Vs. Mt. Bachni and Others,

In the result we hold that Article 125 of the Limitation Act 1908 is not applicable to the suit. There being no other Article governing the suit, the only other article applicable is the residuary Article 120 of the Limitation Act, 1908. Under Article 120 of the Limitation Act a suit should be filed within six years from the date when the right to sue accrues. In this case the suit was filed beyond six years from the date of alienation. Therefore, it is barred by limitation.

So, we agree with the conclusion of Ramachandra Rao, J., and dismiss this appeal with costs.