Raghunath Das vs Gokal Chand And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 251 of 1954

Decision Date: 1 May 1958

Coram: Natwarlal H. Bhagwati, S.K. Das

In the matter titled Raghunath Das versus Gokal Chand and another, decided on 1 May 1958, the Supreme Court of India issued an opinion authored by the bench comprising Natwarlal H. Bhagwati and S. K. Das. The petitioner was Raghunath Das, while the respondents were Gokal Chand and another individual. The case was reported in the law reports as 1958 AIR 827 and 1959 SCR 811. The substantive issue concerned the application of the Indian Limitation Act of 1908, specifically the interpretation of the term “specific moveable property” appearing in Article 49 and the relevance of Articles 120 and Section 14(1) to the computation of limitation periods in suits concerning the division of moveable property among co‑heirs.

The court explained that the phrase “specific moveable property” in Article 49 refers only to distinct items of moveable property for which a plaintiff seeks the immediate possession of the particular item from a defendant who has either taken it wrongfully or is withholding it. The court observed that a suit by one heir against other co‑heirs seeking his share of the deceased’s moveable assets does not fall within the category of a claim for a specific item that has been wrongfully taken, as contemplated by Article 49. Consequently, in the absence of any other special provision, such a suit must be governed by Article 120 rather than Article 49 of the Limitation Act. The court cited the decision in Mohomed Raisat Ali v. Musummat Hasin Banu, (1893) L.R. 20 I, A. 155, in support of this interpretation.

The factual backdrop involved a decree issued on an award that ordered the elder brother to transfer government‑post (G. P.) notes valued at Rs 13,200 to the younger brother out of the total G. P. notes amounting to Rs 26,500 left by their father and held by the elder brother. The decree did not specify particular notes or detail the division. The younger brother, unable to obtain relief through execution of the decree, instituted a suit against the elder brother seeking a division of the G. P. notes and a direction that notes worth Rs 13,200 be transferred to him. The younger brother contended that the entire period covered by the execution proceedings—from their commencement until the final disposal by the High Court—should be excluded when calculating the limitation period.

The Supreme Court held that the suit was essentially a claim for the division of moveable property held in joint ownership and not a claim for possession of any specific item of moveable property. Accordingly, the suit was governed by Article 120 of the Limitation Act, not by Article 49. The court distinguished the earlier case of Gopal Chandra Bose v. Surendra Nath Dutt, (1908) 12 C.W.N. 1010, finding it inapplicable to the present circumstances. The court further noted that the facts and circumstances of the present case satisfied the requirements of Section 14(1) of the Limitation Act, which mandates that the time covered by an execution proceeding be excluded from the computation of the prescribed limitation period.

The Court noted that the appeal arose under Civil Appellate Jurisdiction as Civil Appeal number 251 of 1954. The appeal challenged the judgment and decree dated 22 April 1952 issued by a Division Bench of the Punjab High Court. That judgment had reversed an earlier decree dated 1 July 1947 rendered by the First Class Subordinate Judge of Ambala in favour of the plaintiff and had dismissed the plaintiff’s suit identified as Suit number 239 of 1946. The appellant obtained a certificate of appeal from the Division Bench on 19 December 1952 and consequently filed this appeal. Counsel for the appellant was identified as Tarachand Brijmohan Lal, while counsel for respondent number 1 was Hardayal Hardy. The judgment was delivered by Justice C. T. Das on 1 May 1958. The Court described the case as a plaintiff’s appeal against the High Court’s reversal of the earlier decree.

The factual background presented by the Court began with the death of Lala Beni Pershad in 1910. At the time of his death he left his widow, Mst. Daropadi, as respondent number 2, and two sons born of the same marriage: Gokul Chand, identified as respondent number 1, and Raghunath Das, the plaintiff‑appellant who was a minor at that time. The deceased’s estate comprised substantial movable assets, notably a large collection of Government Pakistan Notes, together with immovable assets such as agricultural land, gardens and houses. The family continued to hold the property jointly until a dispute arose between the two brothers in 1934. On 12 November 1934 the brothers executed an agreement submitting their disagreement concerning the partition of the family property to arbitration before Lala Ramji Das, a relative of both parties. It was alleged that Gokul Chand had already disposed of part of the Government Pakistan Notes and that, at the date of reference to arbitration, only Government Pakistan Notes valued at Rs 26,500 remained in the possession of Gokul Chand, who acted as the family Karta. On 21 June 1936 the arbitrator rendered an award, which both brothers signed as evidence of their acceptance, and the award was subsequently registered on 28 July 1936. The arbitrator’s award divided the immovable property and shops as specified, and regarding the Government Pakistan Notes directed that of the total value of Rs 26,500, an amount of Rs 13,300 should be placed in the names of Gokul Chand and Mst. Daropadi, while the remaining notes worth Rs 13,200 should be entered in the names of Raghunath Das and Mst. Daropadi. Furthermore, the arbitrator stipulated that Mst. Daropadi alone would be entitled to receive the interest on the entire notes of Rs 26,500 until her death, after which the ownership of the respective portions of the notes would vest in the surviving parties as indicated.

According to the award, after the death of Gokul Chand the ownership of the G. P. Notes valued at Rs 13,300 would vest in Gokul Chand, while the ownership of the G. P. Notes valued at Rs 13,200 would vest in Raghunath Das. The arbitrator also ordered Gokul Chand to pay Raghunath Das a sum of Rs 20,000 in four separate instalments, together with interest as specified in the award. Pursuant to paragraph 20 of Schedule 11 of the Code of Civil Procedure, Gokul Chand filed an application on 31 August 1936 before the District Judge of Ambala seeking the filing of the award. While those proceedings were pending, the two brothers entered into a compromise that altered certain terms of the award; the modifications were not material to the issues now raised on appeal. By an order dated 18 November 1936, the District Judge directed that the award, as altered by the compromise, be filed and that a decree be passed in accordance with the modified terms.

On 15 November 1939 Raghunath Das applied to the District Judge for execution of the decree. The District Judge referred the application to the Subordinate Judge, who issued a notice of the application to Gokul Chand. Gokul Chand objected to the execution, contending that the decree was void because the District Judge lacked jurisdiction to pass a decree for the partition of agricultural lands. The Subordinate Judge accepted this contention and, on 23 December 1942, dismissed the execution application. Raghunath Das appealed this dismissal to the High Court, where a Single Judge admitted the appeal on 5 April 1944. Gokul Chand then filed a Letters Patent Appeal, and the Division Bench, on 15 March 1945, set aside the Single Judge’s order and reinstated the Subordinate Judge’s dismissal. Because the decree could not be enforced due to the alleged jurisdictional defect, Raghunath Das instituted Suit No. 80 of 1945 on 21 August 1945 against Gokul Chand to recover the balance of Rs 7,310‑11‑3 with interest, representing the amount still due from the original Rs 20,000 award. Gokul Chand raised several pleas, all of which were rejected, and the Senior Subordinate Judge of Ambala rendered a judgment on 22 December 1945 decreeing the suit in favour of Raghunath Das. No appeal was filed against that judgment, so the decree became final and binding upon the parties. Subsequently, on 5 June 1946 Raghunath Das filed Suit No. 239 of 1946 in the Senior Subordinate Court of Ambala, the suit from which the present appeal originates. In that suit he sought an order directing Gokul Chand to transfer the G. P. Notes valued at Rs 13,200, which formed the subject matter of his claim.

In this suit the plaintiff asked that the defendant be ordered to transfer Government Promissory Notes worth Rs 26,500 to the plaintiff and to Mst Daropadi, either by endorsement or by any other lawful method, so that those notes could be entered in the Government registers and passed over to the plaintiff. The prayer specified the numbers of the notes, the year of issue, the face values and the interest payable on each note. As an alternative, the plaintiff sought a decree that the defendant pay Rs 13,200 to the plaintiff. The defendant filed a written statement in which he raised a number of defensive pleas. More than twelve issues were raised, but according to the judgment of the Subordinate Judge only issues numbered two and three were substantially pressed. Issue two concerned whether the suit was filed within the prescribed limitation period, and issue three concerned whether the suit was barred by Order 2, Rule 2 of the Code of Civil Procedure. The Subordinate Judge decided both issues in favour of the plaintiff. He held that Article 49 of the Indian Limitation Act did not apply to the facts of this case and, in the absence of any other specific provision, the suit was governed by the residuary Article 120. He further held that the period from 15 November 1939 to 15 March 1945, which had been spent in execution proceedings, should be excluded under section 14 of the Indian Limitation Act when computing the limitation period under Article 120. The judge also concluded that the cause of action in the earlier suit for recovery of Rs 7,310‑11‑3 was not the same as the cause of action in the present suit, and therefore the present suit was not barred by Order 2, Rule 2 of the Code of Civil Procedure. Accordingly, the Subordinate Judge decreed the suit in favour of the plaintiff. The defendant appealed the decree to the High Court. The appeal was heard before a Division Bench of the Punjab High Court, and only two points were urged on behalf of the appellant: first, whether the suit was barred by limitation, and second, whether it was barred by Order 2, Rule 2 of the Code of Civil Procedure. Counsel for the defendant argued that the suit concerned the recovery of “other specific moveable property”, that is, specific moveable property not covered by Articles 48, 48A or 48B of the Indian Limitation Act, and therefore the suit should be governed by Article 49. Article 49 provides a three‑year limitation period for a suit for “other specific moveable property” or for compensation for wrongful taking, injury or detention of the same, and the period commences when the property is wrongfully taken, injured or when the detainer’s possession becomes unlawful. In the opinion of the High Court

The Court observed that the action brought by the plaintiff was a claim for the recovery of particular Government promissory notes. This characterization was derived, according to the High Court, from paragraph 18 of the plaint, where the plaintiff enumerated the reliefs sought. The plaint specifically mentioned the numbers, the monetary values and the years of issue of the Government promissory notes, together with the rates of interest applicable to those notes, and the High Court regarded these particulars as decisive for concluding that the suit concerned specific movable property. Consequently, the High Court held that the suit fell within the ambit of Article 49 of the Limitation Act. The Court further found that even if the period between 15 November 1939 and 15 March 1945 were excluded, the plaintiff would still be out of time. Because this finding on limitation was sufficient to dispose of the matter, the High Court deemed it unnecessary to examine the relevance of section 14 of the Indian Limitation Act. Relying solely on its limitation finding, the High Court did not address the alternative issue raised under Order 2, Rule 2 of the Code of Civil Procedure. It allowed the appeal and dismissed the suit on the ground that it was barred by limitation.

The Court did not agree with the High Court’s conclusion. It noted that the High Court had overlooked an essential aspect of the decree concerning the Government promissory notes. The decree on the award merely declared the rights of the parties; it did not actually apportion the notes. Under the decree, the plaintiff, Raghunath Das, was entitled to have Government promissory notes worth Rs 13,200 endorsed in his and Mst Daropadi’s names out of a total stock of notes worth Rs 26,500. However, the decree did not specify which particular notes were to be endorsed in the names of Gokul Chand and Mst Daropadi, nor which were to be endorsed in the names of Raghunath Das and his mother. Until the notes were physically divided—either by mutual agreement of the parties or by further court order—neither brother could claim any individual note as his separate property or demand delivery of any specific note in specie. Because Gokul Chand refused an amicable division, Raghunath Das was compelled to seek judicial assistance, requesting that the entire lot of notes valued at Rs 26,500 be divided by the court into two portions, with one portion valued at Rs 13,200 endorsed in his favour and that of his mother, and then delivered to him. The plaint could not claim delivery of particular notes in specie. Accordingly, the Court concluded that the suit could not be regarded as a suit for “specific movable property”.

The Court observed that the phrase “specific moveable property” is appropriate only in a suit where the plaintiff alleges that he is entitled to certain particular movable assets, or to possession of those assets in their actual form, and that the defendant has either taken those assets wrongfully or is unlawfully withholding them. The Court noted that this description does not fit the present case. It was reminded that the two brothers originally owned the G. P. Notes worth Rs 26,500 as joint coparceners, and after the decree on the award they held the same notes as tenants‑in‑common. Until a formal partition was effected, either by agreement of the parties or by a court order, the brother who retained custody of the notes, Gokul Chand, could not be said to have taken them wrongfully from Raghunath Das, nor could Raghunath Das’s possession of the notes be characterised as unlawful. These facts, the Court held, distinguish the present matter from the case of Gopal Chandra Bose v. Surendra Nath Dutt (1) which the High Court had relied upon, because in that earlier case the defendant possessed no right or interest in the notes and therefore had no authority to retain them. Consequently, the Court concluded that the “terminus a quo” described in the third column of Article 49 does not apply to the present situation. The Court further explained that it is now well settled that a suit brought by one heir against other heirs for the recovery of his share of a decedent’s movable estate is not a suit for specific moveable property wrongly taken as contemplated by Article 49, but is instead governed by Article 120. The Court cited Mohomed Riasat Ali v. Mussumat Hasin Banu (1) and observed that the only distinction between that case and the present one is that, here, the parties’ rights had been declared by the decree on the award. The Court found that this difference does not materially affect the application of the Judicial Committee’s principle. In both cases, the plaintiff’s claim consisted of a request to separate his share from the estate and to have that share allotted and delivered to him. Accordingly, the Court described such a claim as essentially a suit for partition or division of movable property held jointly or as tenants‑in‑common, a situation for which no specific provision other than Article 120 exists. The limitation period prescribed by Article 120 is six years from the date the right to sue arises. To stay within that period, the plaintiff sought to exclude from the limitation calculation the interval from 15 November 1939 to 15 March 1945, which was spent in execution proceedings. The Court then quoted Section 14(1) of the Indian Limitation Act, which provides that, in computing the prescribed limitation period for any suit, the time during which the plaintiff has been prosecuting the claim with due diligence in another civil proceeding founded on the same cause of action and pursued in good faith shall be excluded.

Section 14(1) of the Indian Limitation Act declares that any period spent in another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant shall be excluded from the limitation period when the proceeding is based on the same cause of action and is conducted in good faith in a court that, because of a defect of jurisdiction or a similar cause, is unable to entertain it. The respondent argues that this statutory provision does not apply to the facts of his case. The Court, however, finds that this argument is not well founded. The execution proceedings that were commenced by Raghunath Das were unquestionably civil proceedings, and there is no doubt that he pursued those proceedings with the required due diligence and good faith. He was plainly motivated by a desire, as noted in the precedent (i) (1893) L.R. 20 I.A. 155, to obtain a separate allocation of his share of the G.P. Notes. Although he lost in the execution court, he appealed to the High Court, where a single judge ruled in his favour. That judgment was subsequently set aside by a division bench, which reversed the earlier order. Consequently, there can be no allegation of lack of diligence or good faith on the part of Raghunath Das. The statute further provides that the time spent in both a court of first instance and a court of appeal may be excluded, provided the remaining conditions are satisfied. Accordingly, the entire period that was previously identified should be excluded from the limitation calculation. The remaining issues for determination are (1) whether the two proceedings were founded upon the same cause of action and (2) whether Raghunath Das prosecuted the proceedings in good faith before a court that was, because of a defect of jurisdiction, unable to entertain them. The execution proceedings were based on his claim to enforce rights that had been declared under the decree relating to the award. The present suit likewise seeks enforcement of the same right; the only distinction is that in the earlier proceedings Raghunath Das was attempting to enforce his rights through execution, whereas in the current suit he is seeking to enforce those rights by way of an ordinary civil suit. He is not asking for any new relief in the present suit. It cannot be denied that he pursued the execution proceedings both in the subordinate court and in the High Court in good faith, especially since the single judge of the High Court affirmed his contention that the court possessed jurisdiction to hear his application. The division bench’s dismissal of the execution proceedings was based solely on the finding that the executing court lacked jurisdiction to entertain the application, because the decree that was to be executed was a nullity, having been issued by a court that itself lacked jurisdiction to pass it. Consequently, the jurisdictional defect of the court that issued the decree became attached to the decree, rendering the executing court unable to proceed with the execution on the same ground of jurisdictional defect.

In this case the Court observed that the question of jurisdiction of the executing court was finally resolved when the Division Bench set aside the earlier order of the Single Judge who had allowed the execution proceeding. The Court further held that, in its view, Raghunath Das was entitled to invoke the protection granted by section 14(1) of the Indian Limitation Act. Because that provision excludes the period mentioned earlier, there was no doubt that the suit had been instituted well within the time prescribed by law, and consequently the judgment of the Division Bench could not be sustained. While dealing with the limitation issue, the Division Bench chose not to address the second question that had arisen, namely whether the suit was barred by Order 2, Rule 2. Since that issue remained unresolved, the Court directed that the matter should be returned to the High Court for a determination of that specific point. Accordingly, the Court concluded that it would allow the present appeal, set aside both the judgment and the decree issued by the High Court, and remit the case back to the High Court solely for a decision on issue number three. The appellant was ordered to be awarded the costs of this appeal together with the costs of the hearing that had taken place in the High Court concerning the decree now under appeal. The general costs of the appeal and any further costs that may arise on the remanded proceedings were left to be fixed by the High Court. The appeal was therefore allowed and the case was remanded.