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Report No. 89

32.81. No change needed.- In this position, no clarificatory amendment of the article is called for.

32.82. Article 48.- Article 48 runs as unde.-

"For contribution by a party who has paid the whole or more then his share of the amount due under a joint decree, or by a sharer in a joint estate who has paid the whole or more than his share of the amount of revenue due from himself and his co-shares.

Three years.

The date of the payment in excess of the plaintiff's own share."

It corresponds to Article 99 of the Acts of 1908, 1877, and to Article 100 of the Act of 1871. In the course of its evolution, it has undergone certain verbal changes, but there is no surviving controversy on the article and no change is needed in the article.

32.83. Article 49.- Article 49 reads as unde.-

"By a co-trustee to enforce against the estate of a deceased trustee a claim for contribution.

Three years.

The date of the payment in excess of the plaintiff's own share."

It is identical with Article 100 of the Acts of 1908 and 1877, and with Article 101 of the Act of 1871.

No change is needed in the article.

32.84. Article 50.- Article 50 reads as unde.-

"By the manager of a joint estate of an undivided family for contribution, in respect of a payment made by him a account of the estate.

Three years.

The date of the payment."

It is identical with Article 107 of the Acts of 1908 and 1877. In the Act of 1871, Article 107 read as unde.-

"By a Hindu Manager of a joint estate for contribution in respect of a payment made by him on account of the estate.

Three years.

The date of the payment."

32.85. When the 1871 Act and other Limitation Acts were sought to be consolidated by the Indian Limitation Bill of 1877, the Government Pleader of Dacca commented1:

"Why should a different rule obtain when a manager of a joint estate is a Muhammadan and not a Hindu? It is well known that Muhammadans in Lower Bengal recognise the joint family system almost as much as the Hindus."

When the variegated nuances of prevalence of the joint family system extending from Dacca to Malabar were explained to the members of the Select Committee, they decided to omit the word "Hindu" from the article, and the article without the word "Hindu" appeared as Article 107 of the Act of 1877. This is the present position also.

1. Mr. O.N. Mitter, Government Pleader, Dacca, Letter No. 1, dated 2nd March, 1877, National Archives File, 1877, Paper No. 1, p. 3.

32.86. Change not needed.- As the article has not given rise to any recent controversies, no change is recommended therein.

32.87. Article 51.- Article 51 reads as unde.-

"For the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant.

Three years.

When the profits are received."

It is identical with Article 109 of the Act of 1908.

Article 109 of the Act of 1877 differed in some particulars and read as unde.-

"For the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant.

Three years.

When the profits are received or where the plaintiff has been dispossessed by a decree afterwards sets aside on appeal; when he recovers possession."

Article 109 of the Act of 1871 was as unde.-

"For the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant.

Three years.

When the profits are received or where the plaintiff has been dispossessed by a decree afterwards sets aside on appeal, the date of the decree of the appellate court."

32.88. Classificati.-Cases of profits wrongfully received.- Cases of wrongful dispossession of property and recovery of profits arising out of that property wrongfully received by the defendant can broadly be classified under two types:

(a) The first is the case of the rank trespasser, against whom the rightful owner files a, suit for recovery of possession and profits wrongfully received by the defendant. In such a case no previous litigation is involved and no problems would present themselves, because the real owner would ordinarily couple a prayer for mesne profits along with a prayer for ejectment and possession of the property in question while filing a suit.

(b) The second type of cases would arise when the wrongful nature of the possession of the defendant and the consequential receipt of profits by him is declared to be so by a judgment or decree of an appellate court. In such a case, the possession, and receipt of profits would have been lawful, but for the reversal of the judgment appealed against and it is in the fitness of things that a department of the court should take upon itself the responsibility of restitution so has it been done by section 144, C.P.C.

32.89. Comments from Small Causes Court Judge, Calcutta.- The second situation1 merits detailed discussion. It would be interesting to take a stock of the comments which were received when the draft bill of 1871 leading to the Act was circulated. Mr. N.H. Thomson,2 Esq. referred to some High Court judgments3 and observed:

"But what should be the rule when the party suing for the mesne profits has been dispossessed of the land in respect of which mesne profits are claimed, by a decree of court afterwards set aside on appeal."

1. Para. 32.88(b), supra.

2. Officiating First Judge, Small Causes Court, Calcutta, Letter dated 19th December, 1870, National Archives File, 1871, Paper No. 1.

3. (a) Joykurun v. Ranee Ashmudh Koer, 5 WR 125; (b) Mashook Ali Khan v. Jowala Bukhs, ILR 2 All 290.

32.90. Restitution.- From the legislative history1 of Article 51, it would be seen that the clause pertaining to recovery of possession consequent upon a decree being set aside an appeal (obtaining in the third column of Article 109 of the 1871 Act and the 1877 Act) has been omitted in the 1908 Act. Commenting on this omission, the Mysore High Court2 after comparing the phraseology of the two Acts, observed:

"In my opinion, this deletion indicates the intention of the legislature that Article 109 (Article 51 in the Act of 1963) would not be applicable to a suit for restitution."

This reasoning has been adopted by the Allahabad3 and Andhra Pradesh4 High Courts.

1. Para. 32.87, supra.

2. Balappa v. Waman, AIR 1962 Mys 235 (237).

3. Ram Krishna Kapoor v. Behari Lal, AIR 1963 All 44.

4. Venkata Ramanayya v. Singayya, AIR 1967 AP 78.



The Limitation Act, 1963 Back




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