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HIGH COURT OF ORISSA
NARASIMHAM,S.P.MOHAPATRA, JJ.
Anem Pedda Siva Parvathmma
Versus
Krushna Chandra Sahani
Second Appeal No. 334 of 1951,
Decided On : 26-04-1955
LIMITATION ACT - ART. 62, 89, 120 - SUIT FOR RECOVERY OF SHARE OF DECRETAL AMOUNT - WHETHER BARRED BY LIMITATION - INTERPRETATION OF WILL - AGENCY - RELATIONSHIP BETWEEN CO-SHARERS.
Fact of the Case:
Plaintiff, as transferee of a half share in a mortgage decree, sued to recover his share of the amount realized by the deceased husband of defendant 3, who was the elder brother of the transferor. The transferor and his brother were entitled to 6 annas and 10 annas shares, respectively, in the decree amount as per the will of their father. The suit was filed more than 3 years after the realization of the amount but within 6 years from the date of demand and refusal.
Finding of the Court:
The court held that the suit was not barred by limitation. It held that Art. 62 of the Limitation Act did not apply as the money was not received by the defendant for the plaintiff's use. It also held that Art. 89 did not apply as there was no agency relationship between the plaintiff and the deceased husband of defendant 3. The court further held that Art. 120 applied and the period of limitation started to run from the date of demand and refusal, which was within 6 years of the filing of the suit.
Issues: 1. Whether the suit was barred by limitation under Art. 62, 89, or 120 of the Limitation Act? 2. Whether there was an agency relationship between the plaintiff and the deceased husband of defendant 3? 3. When did the period of limitation start to run under Art. 120?
Ratio Decidendi: 1. Art. 62 did not apply as the money was not received by the defendant for the plaintiff's use. 2. Art. 89 did not apply as there was no agency relationship between the plaintiff and the deceased husband of defendant 3. 3. The period of limitation under Art. 120 started to run from the date of demand and refusal, which was within 6 years of the filing of the suit.
Final Decision: The appeal was dismissed with costs.
Judgement
MOHAPATRA, J. :- This appeal has been filed by defendant 3 against the confirming judgment of the lower appellate Court arising out of a suit for recovery of Rs. 1000/- in the following circumstances :
2. One Anem Tatayya had two sons, Anem Basanna and Anem Narasimhulu. The present defendant 1 is Anem Narasimhulu and his son is defendant 2. Defendant 3 the appellant, is the widow of Anem Basanna, who died on 10-1-1942. Anem Tatayya obtained a mortgage decree against Agadhu Bissoi and others (who are not parties to the present suit) in original suit No. 11/1924 and eventually obtained a final decree for a sum of Rs. 5700 and odd on 2-11-1932. The decree-holder Anem Tatayya had realised a sum of Rs. 2900/- from the judgment-debtors. Defendant 1 (Anem Narasimhulu) executed a deed of transfer (Ex. 10) on 13-8-1934 in favour of the present plaintiff in respect of his half share in the above mortgage decree.
It is to be mentioned here, Anem Tatayya died nearly a month prior to this deed of transfer on 3-7-1934. Anem Basanna, the elder son, realised a further sum of Rs. 2000/- towards the decretal amount on 3-9-1935. The present plaintiff-transferee in respect of the half share of Anem Narasimhulu in the mortgage decree put in a petition for recognition of his transfer by the executing Court which was in the first instance dismissed but was ultimately allowed on 17-8-1942 (Ex. 3).
The plaintiff asserts that as he is interested in respect of eight annas of the mortgage decree on the basis of the transfer by defendant 1, he is entitled to recover Rs. 1000/- as a moiety share of the sum of Rs. 2000/- realised from the judgment-debtors by the deceased husband of defendant 3.
3. This claim was resisted on the ground that in any event the plaintiff is not entitled to more than 6/16 the of the amount realised as according to the provisions of the will left by the father of defendant 1 (Anem Tatayya), the elder brother Anem Basanna will be entitled to ten annas share and Anem Narasimhulu to six annas share. The Courts below have decreed the plaintiffs suit in accordance with the provisions of the will, that is for a sum of Rs. 750/-. The plaintiff-respondent does not challenge this decree for the reduced amount.
3a. A further plea also was taken by defendant 1 challenging the transfer in favour of the plaintiff; but the finding of the courts below accepting the plaintiffs position as a transferee from Anem Narasimhulu is not challenged.
4. Mr. Sovesh Chandra Roy, appearing on behalf of defendant 3, the appellant, however, has taken up three points before us. The first contention is that the suit is premature as according to the terms of the will and according to the direction given in the judgment of the High Court (Ext. 2) in Misc. Appeal No. 7 of 1937 disposed of on 8-3-1939, the plaintiff will be entitled to his dues only after complete realisation of the decretal amount and after the expenses for the realisation of the decretal amount have been deducted from out of the realisation.
On a perusal of the relevant paragraphs of the will (Ext. C.), that is, paragraphs G and N, we find that the testator had provided that the elder brother Anem Basanna would be entitled to collect all the debts in general and the mortgage debt in particular and would be further entitled to disburse from the amount realised all the expenses incurred in the process of realisation of the debts. It is further provided that Anem Basanna will be entitled to ten annas share and Anem Narasimhulu will be entitled to six annas share in all the debts due to Anem Tatayya, the testator.
It is important to note that there is no specific provision that even though the debts or the decretal amounts are realised piecemeal from time to time Anem Narasimhulu will not be entitled to get anything till after the complete realisation of each item of debt. We are not inclined to accept that it was the intention of the testator that all the collections piecemeal would be retained by A
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