9911796707
Advanced Search 
TMI Blog1928 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... hakan together with Kul Bab and Kul Kanu exclusive of Hakdars and Inamdars. *** 3. It was a grant of the royal share of the revenue. The lands in suit, viz., Survey Nos. 1, 2, 3, 81, 89, 100, 101, 340, 343, 368 and 369 situate in the said village of Davdi were in the possession and enjoyment of the Gaikwar family from about 1834 to 1854. 4. In 1862 the then Gaikwar Khanderao made a grant of the village Davdi to Limbaji, the ancestor of the Plaintiff, in the following terms: Knowing that you have been devotedly serving the State, the Sarkar has graciously conferred upon you the village of Davdee Taraff Chakan, Zilla Poona, which is held by the State as a hereditary grant x (torn) x together with rates and taxes (torn) rights of Patilship, four boundaries being defined, exclusive of share and grant holders and inclusive of water, grass, herbs, wood and trees, stone quarries, mines and buried treasure has been granted to you in perpetuity and without condition enjoying this grant according to the prevailing system from generation to generation continue to serve the State loyally, faithfully and obediently. The English Government will be addressed regarding the carrying out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a for permission to file a suit against the Gaikwar of Baroda in connection with these lands; but he did not get permission to file the suit until over four years afterwards, namely on November 15, 1920. Plaintiff filed the present suit on June 2, 1922 In his plaint he claimed that he was entitled to exclude the period from July 25, 1916, to November 15, 1920, which had been spent in obtaining the necessary certificate under Section 86 of the Code of Civil Procedure. 9. The trial Court held that the Plaintiff was the validly adopted son of Raghunathrao Dhavale, that he was the owner of the lands in suit on the ground that in spite of resumption and regrant of the village Davdi to the present Gaikwar by the British Government the mirasi rights enjoyed by the Dhavale family in the lands in suit remained unaffected, that he was entitled to exclude the time spent in obtaining the necessary certificate under Section 86 of the Code of Civil Procedure and that the suit was in time by reason of Section 13 of the Indian Limitation Act and decreed the Plaintiff's claim as per its decree dated April 6, 1925. Defendant No. 1 appealed to the High Court. 10. H.C. Coyajee, with R.W. Desai, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is successors. 11. Moreover, the Plaintiff's claim is clearly barred. The Plaintiff is not entitled to claim exemption of the period required for getting the certificate under Section 86 of the Code of Civil Procedure Code. There is nothing in the Indian Limitation Act to allow such an exemption. The case of Rupchand Makundas v. Mukunda Mahadev (1914) 38 Bom. 656. is clearly distinguishable, as it was a case under Section 48 of the Dekkhan Agriculturists' Relief Act, which section expressly provides for exclusion of the period required in obtaining a conciliator's certificate. The maxim " lex non cogit ad impossibilia " cannot apply to the present case. There was no real hardship or impossibility in the case. The Plaintiff allowed nine years to pass before applying for permission and waited another eighteen months after getting the permission before he brought the suit: see Jamini v. Nagendra. (1925) 43 Cal. L.J. 155. and Jag Lal v. Har Narain Singh. (1888) 10 All. 524. 12. Section 13 of the Indian Limitation Act does not apply for two reasons. First, the section must be read with Sections 84, 85, 86 of the Code of Civil Procedure Code. The residence of a Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Madhavrao Raste v. Imam. (1925) 50 Bom. 195. A grant of mirasi tenure is not an alienation but an act of management binding on the successors of the Saranjam estate: see Sakharam v. Trimbakrao (1920) 23 Bom. L.R. 314. and Madhavrao Raste v. Imam.(1) Rule 5 does not expressly prohibit alienation by way of mirasi rights. The Privy Council case of Secretary of State for India v. Girjabai (1927) L.R. 54 I. A. 359. does not decide the question whether a Saranjamdar can create mirasi rights in favour of strangers, but it leaves the question open. The grant in favour of Plaintiff's ancestors has never been impeached: the Defendants' ancestors have acquiesced in it. 15. As regards limitation, although the Plaintiff's right to recover possession accrued in 190607, still he is entitled to deduct the time required in. obtaining the permission of the Governor General in Council to file a suit against Defendant No. 1, under Section 86 of the Code of Civil Procedure Code. The maxim " lex non cogit ad impossibilia" applies: see The Generous (1818) 2 Dodson Adm. R. 322.; Hick v. Rodocanachi (1898) 25 Cal. 496; Mayer v. Harding [1891] 2 Q. B. 626 at p. 638; and Rupchand Mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute that the Plaintiff was in fact validly adopted by Raghunathrao's widow Chandrabai in (1) (1927) L.R. 54 I. A. 859. (1924) 26 Bom. L.R. 1173. October 1905. The main question in dispute is whether these lands vested in the Plaintiff at his adoption, or, as the Gaikwar of Baroda alleges, had been validly resumed by him prior to the Plaintiff's adoption. Then there is a subsidiary issue as to whether the Plaintiff's suit is not in any case time barred . 20. The main facts may be briefly stated. The village of Davdi was in the year 1728 A.D. conferred by Shahu Maharaj, the Raja of Satara, upon the then Gaikwar, Pilaji, under a Sanad which is Exhibit 180. The lands in suit are proved by evidence in this case to have been in the enjoyment of the Gaikwar or members of his family from about 1834 to 1854. In 1862 the then Gaikwar, Khanderao, made a grant of the village to one Limbaji, who was the grandfather of Raghunathrao. The grant is worded so as to confer even more than what was granted by the original Sanad of 1728 and would certainly cover the particular lands in suit. Limbaji died in 1879 and was succeeded by his son Madhavrao. There is evidence that Madhavrao had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judgment and is common ground before us. Government in their Resolution of 1904, which is Exhibit A in this appeal, held that that grant was one of Saranjam. I may here mention that Exhibit A was admitted by consent in this appeal in view of the fact that a copy of the same Resolution had been tendered in the lower Court but had been rejected as being a copy of a copy and therefore technically inadmissible. This Court also considered it highly desirable that the original Resolution should be on the record of the case. Therefore, it has been admitted as additional evidence in appeal under Order XLI, Rule 27, Code of Civil Procedure Code. The Gaikwar accepts the position that in fact this was a Saranjam grant. It is contended by Divan Bahadur Rao for the Plaintiff Respondent that really it is not a Saranjam grant but an ordinary inam grant without any of the restrictions connoted by the word " Saranjam' Divan Bahadur Rao points out that the grant contains wide words namely " a new, Inam " of the villages mentioned "to be enjoyed in lineal succession from generation to generation " and that the word used is " inam " and not " Saranjam.&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of the powers of management that a Saranjamdar or Inamdar has to utilise vacant lands for the best purpose available, or to dispose of lands that have lapsed either through forfeiture, resignation or want of heirs. There is no evidence of this, but for the purpose of this suit, that may, I think, be taken to be the manner in which the Gaikwar obtained possession, in the absence of anything suggesting that the Gaikwar had acquired any rights in these lands apart from the grant of the village to him in 1728. 23. That being so, Divan Bahadur Rao further contends that these mirasi rights would not be resumable under the Saranjam rules or otherwise, assuming that the original grant of 1728 is one of Saranjam. The Subordinate Judge's remark in paragraph 8 of his judgment that " it is immaterial whether the rights to these lands were held by the Gaikwar before the grant by Raja Shahu or thereafter " is clearly wrong in view of the decision of their Lordships of the Privy Council in Secretary of State for India v. Girjabai (1927) L.R 54 I. A. 359. As I have already stated there is no suggestion in this case that the Gaikwar acquired any right in these lands prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alienation of mirasi rights to a stranger which confers no benefit on the Saranjam estate and a grant of such rights to a cultivator for the benefit of the estate. At page 438 I pointed out that none of the kabulayats conferred a rent free estate. At page 439 I said that each case must stand on its own facts. I further remarked that there had been acquiescence in the grant by the Plaintiff's predecessor in title and under the circumstances I held that there was a legitimate presumption that the grant had been made for necessary purposes and, therefore, was binding on the present Saranjamdar. Such a case is on a quite different footing to the one we have to consider in the present suit. Here the alienation was one which is absolutely rentfree. No benefit is reserved to the Saranjam estate in the way of rent or in any other manner. The rents of these lands all went into the pocket of Limbaji and his descendants. Limbaji appears from the remarks of Sir T. Madhavrao in Exhibit 195 to have been an undeserving favourite of Khanderao; and although he is represented in a better light in Madhavrao's petition of 1880 (Exhibit 186), he had no previous connection with this estate. Far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation from the Baroda Darbar, which is recited in full in the preamble to the Government Resolution of February 26, 1904, Exhibit A. In paragraph 6 of that representation a reference is made to a communication by the Baroda Darbar, asking that the Collector of Poona should not entertain any application from the heirs of Madhavrao to enter their names in the records of the village, until the question of succession to Madhavrao's emoluments was finally disposed of. That is relevant as an admission by Defendant No. 1, which is against him so far as it implies that in 1901 there had been no final orders passed, as to the resumption of the grant. Paragraph 7 says that after Raghunathrao's death in February 1902, a representation was made stating that on his death the village had reverted to His Highness' Government. That is no doubt an admission in favour of the person making the statement, which is not admissible in evidence. But apart from that statement there is clear evidence that the Gaikwar's Government took action to get the order of the Collector entering the name of Chandrabai on the revenue record upset and to have the name of the Gaikwar entered instead. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case where the Plaintiff gave notice to Defendant No. 1 to produce any such order of resumption and Defendant No. 1 failed to comply with such a notice. Mr. Coyajee for the Appellant has, in the course of his arguments, said that, on account of the vague nature of the assertions in the plaint as to the Plaintiff's title, in spite of the attempt made by Defendant No. 1 to get him to state it more clearly, there has been a failure to put on record documentary evidence that might otherwise have been produced. It seems to me that, if the Defendant No. l's advisers had realised the importance of showing that the order of the Divan in paragraph 8 of Exhibit 195 had been followed by " further orders," a plain assertion to that effect would no doubt have been made and the orders produced. The comments of the Subordinate Judge in paragraph 13 of his judgment about there being no plain allegation of resumption in the Defendant No. l's written statement are to some extent justified. But it seems to me that in this matter the Plaintiff is also to blame and that the omission to make such an allegation cannot in. the circumstances be treated as virtually amounting to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion really took place in 19061907 and there is now no dispute before us about this. Therefore, in the ordinary course the suit should have been filed in 1918 or 1919, whereas, in fact it was brought on June 2, 1922. As I have already mentioned the Plaintiff claims that he is entitled to deduct a period of 4 years, 3 months and 21 days from July 25, 1916, to November 15, 1920, as time required to obtain permission to file a suit against Defendant No. 1 under Section 86 of the Code of Civil Procedure. On the 5th issue in the lower Court, the Subordinate Judge has held (paragraph 17 of his judgment) that this period can be deducted, in spite of the provisions of Section 3 of the Indian Limitation Act and although there is no express provision in that Act under which such a deduction can be made. He bases this decision on the principle referred to in Rupchand Makundas v. Mukunda Mahadev, (1914) 38 Bom. 656 at p. 658. namely, that " when the law creates a limitation and the party is disabled to conform to that limitation, without any default in him and he has no remedy over, the law will ordinarily excuse him." This is merely an application of the ordinary maxim " lex n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment he holds that Defendant No. 1 was a Ruling Prince, who livedeat Baroda, which is outside British India and practically must have been so outside, excepting for a few casual visits to Bombay or Poona and that accordingly by reason of Section 13 of the Indian Limitation Act the present suit was in time. Section 13 says " In computing the period of limitation prescribed for any suit, the time during which the Defendant has been absent from British India . . . shall be excluded." This view leads to a somewhat extraordinary result in the case of a suit against a Ruling Chief, viz., that ordinarily a suit against him can never be barred. The same plea might be raised as to a suit against the Secretary of State for India in Council, who resides in London. The point is, therefore, one of considerable practical importance. One thing to be borne in mind is that in a case like the present the suit is really against the Baroda State. Section 87, Code of Civil Procedure Code, requires that ordinarily suits should be brought against a Sovereign Prince or Ruling Chief in the name of his State. The Gaikwar has agents or representatives who manage his business in British India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Poorno Chunder Ghose v. 8assoon (1898) 25 Cal. 496 does not apply. There it was held that to hold that the section did not apply to cases where the Defendants are, during the period of absence, carrying on business in British India through an authorised agent, would be legislating rather than adjudicating upon the section as it stands. But there are provisions of law which go against such an interpretation in the case of a Defendant who is a Sovereign Prince or Ruling Chief. The ordinary law of England is that the English Courts have no jurisdiction over foreign Sovereigns, unless such persons submit to the jurisdiction (Halsbury, Volume VI, Article 278, page 182). Section 86, Code of Civil Procedure Code, alters this by allowing a Sovereign Prince or Ruling Chief to be sued with the consent of the Governor General in Council, but there can clearly be no intention to put him in a worse position than a person, who is a resident in British India, as regards limitation of suits against him. The Sovereign Prince or Ruling Chief only represents his State for the purpose of such suits, as is shown by Section 87 which I have already mentioned. The whereabouts of his personal residenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This point of the residence of a corporation is discussed in a recent case: New York Life Insurance Company v. Public Trustee [1924] 2 Ch. 101. At page 120, Lord Justice Atkin says: Now, when you are dealing with a corporation, ;you are dealing again with a legal notion and you have to examine the question where the debt can be said to be situate. It appears to me plain that a corporation according to our law is deemed to reside for the purposes of suit in the place where it carries on business in its own name and in the case of corporations, you have many activities in many countries, such as the big insurance companies for example, the Plaintiffs in this case. It appears to me that the true view is that The corporation resides for the purposes of suit in as many place as it carries on business and it is to be noticed that in ordinary cases where an obligation is entered into by the corporation without any particular limits of the place where it is payable, inasmuch as that obligation is an ordinary personal obligation which follows the person, you have in each jurisdiction a right to sue the corporation there; the corporation is resident there and the obligation is enforceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dewan of Baroda, Sir T. Madhava Row. This order states that neither Limbaji nor his father had rendered any real services to the State and that Limbaji had originally been a folder of turbans. Most of his allowances and a second inam village in Baroda State were resumed; but by paragraph 8 of the order it is directed that " Let the Poona village of Davdi be continued to the son during life and until further orders as heretofore. The half Patilki, etc., under head No. 2 may also be continued to the son as heretofore." The son was Madhavrao Dhavle who appears to have died in 1899 and to have left a son Raghunathrao who died in 1902. Raghunathrao left no son, his heirs being his two widows. Chandrabai and Sitabai. Chandrabai was the senior widow and in 1905 she adopted the Plaintiff in this case. 34. The original Court has found the adoption proved and this point is not disputed in appeal. The suit was filed in 1922 and was for possession of 6 fields which include 20 survey numbers and for future mesne profits at the rate of ₹ 1,000 a year and costs. 35. The title on which this relief is prayed for is not exactly stated in the pleadings, though information on this po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers was never, formally resumed and that consequently it descended in the ordinary way to the heir on his adoption, as private property. This is the ground on which the learned Subordinate Judge has decided in Plaintiff's favour. 40. Whether the suit is in time and the learned Subordinate Judge is correct in holding that this property was unaffected by the resumption of the village, are the two issues which arise in appeal. 41. The question of limitation comes up for decision in the following manner. Defendant No. 1 being a Sovereign Prince, he could not be sued without the consent in writing of the Governor General, obtained under Section 86 of the Code of Civil Procedure Code. This consent was sought on July 25, 1916 and was received on November 15, 1920. 42. The Plaintiff accordingly claimed to exclude from the period of limitation 4 years 3 months and 21 days, spent in obtaining the necessary consent. The rule is that subject to the provisions of Sections 425 every suit not brought within the period of limitation prescribed shall be dismissed; but Sections 425 contain no statutory provision enabling a Plaintiff to deduct the time spent in obtaining the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . State for India in Council, whose residence is, seldom if ever, in India and who is sued, though nominally in his own name, actually through his agents in India. It has never been suggested that on this ground the period of limitation against the Secretary of State may be indefinitely enlarged and though the analogy is not exact, owing to the varying provisions regulating a suit against the Secretary of State and a Ruling Chief or Sovereign Prince respectively, I think it is close enough to justify the Court in holding that Section 13 of the Indian Limitation Act cannot apply to such a suit in the circumstances. This view does not involve any hardship on litigants in British India, for in fact a suit against such persons can always be brought and it has not even been suggested that opportunity was taken of the temporary residence in British India of H. H. the Gaikwar to bring this one. His Highness has been throughout represented by the Sar Subha of the Baroda State under the provisions of Section 87 of the Code of Civil Procedure Code and the provision in this section is evidently intended to meet the difficulty. I also concur generally in the reasons given by my Lord the Acting ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
