Mt. Rajmani Bibi and Others vs Baldeo Das

Agarwala, J.—This appeal arises out of a suit for maintenance, and only two questions arose for decision, namely limitation, and whether interest was payable on the arrears. The facts were as follows: One Rashbehari Lal died in 1867 leaving a daughter Mt. Bula Bibi by his first wife who predeceased him, a widow Mt. Narayani Bibi and an adopted son Gopal Lal. Gopal Lal died leaving a widow Gulab Kuar and a daughter Rajmani Bibi. Defendants Nos. 2 to 9 are the sons of Rajmani Bibi who is defendant No. 1.

The plaintiff is the surviving son of the Bula Bibi. By the will of Rashbehari an annuity of Rs. 200 out of his estate was bequeathed to Bula Bibi and the remainder of his properties to his widow Narayani and his adopted son Gopal Lal. In 1899 Bula Bibi sued Narayani, Gulab and Rajmani for arrears of maintenance. At that time Rajmani was in possession of the properties of the deceased Rashbehari. The suit was compromised on payment of Rs. 1,600 on account of arrears and on an undertaking to pay the annuity in future in four instalments of Rs. 50 each, every three months. The petition of compromise also stated that, as security for the payment of the annuity, Gulab Kuar hypothecated her properties on the understanding that if the annuitant failed to recover her dues from Rajmani Bibi, they should be recoverable from the properties of Gulab Kuer. A consent decree in terms of the compromise was passed on 22nd September 1900.

The security bond referred to in the compromise was registered on 20th September 1900. In 1919 Bula again sued for arrears of maintenance and obtained a decree on 19th January 1921. Bula Bibi died on 8th August 1924. The plaintiff seeks to recover from the defendants arrears of maintenance with interest, from September 1919, up to the date of Bula Bibi''s death. The defence is that the compromise did not provide for the payment of interest and that the suit is barred by limitation.

The first Court gave the plaintiff a decree for Rs. 900 on account of arrears of annuity and Rs. 273-2-0 as interest up to the date of Bula Bibi''s death and interest after that date at the rate of 12 per cent. per annum.

The appellate Court confirmed the decree of the first Court.

The point which has been raised by the learned advocate for the appellants is that the suit is not governed by Article 116 of the Limitation Act, as it provides a period of six years, and that period of limitation is three years. It is admitted that if the suit is to be regarded as a suit for "compensation for the breach of a contract in writing registered," it is governed by Article 116 of the Limitation Act which provides a period of six years, and that the suit is in time. But it is contended that the suit is not based on a registered contract and that the period of limitation is three years.

In the plaint, as filed, there was simply a claim for money on account of arrears of interest and it made no reference to the security bond. No prayer was made for enforcement of the plaintiff''s dues by sale of the properties hypothecated by that bond. After the case for both parties had been concluded, the trial Court discovered that the security bond that had been referred to in the course of the arguments had not been proved. As the Court considered that it was necessary for the ends of justice that evidence regarding the security bond should be given, the plaintiff was allowed at this stage to prove it. It is to be noticed, however, that although the security bond was thus put in evidence, no steps were taken to amend the plaint or the reliefs claimed therein.

The suit, therefore, remained as a suit for money on account of arrears of interest and not a suit to enforce the charge created by the security bond. Had it been a suit of the latter nature, Article 132 of the limitation Act would have applied and the period of limitation would have been twelve years.

It is contended on behalf of the respondent that the plaint is based on the claim on the compromise and that, as the compromise recited the existence of the security bond, it must be taken that the claim is based on the security bond. Even if this were so, it is difficult to understand what term of the security bond has not been complied with which can be referred to as a breach of contract. The security bond merely hypothecated properties as security in the event of Rajmani Bibi failing to pay the annuity.

No attempt has been made to enforce the charge created by the security bond, and it cannot be said that there has been a breach of any of its terms. The compromise itself was not registered, and, therefore the present suit is not in my view a suit for compensation for breach of a registered contract.

It is next contended that even if the suit be governed by the three years'' rule of limitation, it is within time by reason of certain payments made by the defendants to the plaintiff in 1924, 1925 and 1926, the argument being that these payments were on account of interest and that, therefore, Section 20 of the Limitation Act operates to save the suit from the bar of limitation.

It has not, however, been alleged or proved that the payments by the defendants were made as interest which is a condition for the application of Section 20 of the Limitation Act. These payments, therefore, do not operate to save the suit from the bar of limitation. The suit, having been instituted more than three years after any of the instalments claimed, is barred by limitation. The decree of the Court below must, therefore, be set aside and the appeal allowed with costs.