Veeyathumma Kathija Ummal and Others vs Parvathi Pillai Kunjamma Pillai and Others

Joseph, J.—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 iii the tarwad and Exhibit 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 Munsiff''s Court against the Tajwad, for recovery of money charged on certain properties of the Tarwad. The propertiean charged were allotted in partition to that Plaintiffs in the two suits. Govinda Pillai, a msnber of the Tarwad who was the 36th party Exhibit 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 ante that the properties allotted to him would be Sable for loss or damage caused to the Plaintiffs an 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 deliverey of possession on 23-11-1107. The Plaintiffs sued to recover the damages sustained by them on account of Govinda Pillai''s failure to pay the decree debt. The Appellants who had purchased items Numbers 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 coiirt 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.

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 Article 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 Article 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 starting 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 898 (A), which was followed by this Court in - ''Rama Panicker v. Knlllyanl Annua'', 1954 Ker LT 311; AIR 1954 KER 427 The point for decision in those cases WHS different from that in the present case. In - Mukhdeo Singh and Another Vs. Harakh Narayan Singh and Others, , Fa/,1 All 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 first instalment, payment of which was defaulted.

It was held that the mere fact that the mortgagee was entitled to sue for tins 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 r- AIR 1930 188 (Privy Council) , also lends support to the view held in Mukhdeo Singh and Another Vs. Harakh Narayan Singh and Others, ''.

The decision in Jaya Bharat Tiles Works Vs. State of Madras and Others, and Harihara Iyer Ramaswamy Iyer v. Augusthy Devasia'' AIR 1952 Trav-Co 466 (F), relied on by the Appellant were cases under Article 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 Filial was bound to discharge. Such possession 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.

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.