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Report No. 89

33.31. Law Commission Report.- The present article applies only to suits for declaration simpliciter and combines Articles 93, 119 and 129 of the Act of 1908. The different periods of limitation in the earlier Act are, now made uniform (three years) in the Act. This amalgamation of articles follows the recommendation of the Law Commission.1

1. Law Commission of India, 3rd Report (Limitation Act, 1908).

33.32. Comment in 1877.- Some comments received at the time of drafting of the 1877 Act have been discussed earlier1, but one additional comment deserves notice. One Mr. N.H. Thomson2 expressed the following view on the subject matter of Articles 119 and 129 'of the Act of 1877 (the gist whereof is now combined in Article 58.-

"No. 124.- Where no maintenance has been received I would make the period begin to run from the time when the right to maintenance accrued. Where the suit is for arrears, from the time they were payable.

No. 125.- There seems to be a doubt whether a suit to set aside an adoption will lie unless consequential relief be asked."

1. See discussion of Articles 56 and 57, supra.

2. Letter in National Archives File, 1877, Paper No. 2, p. 3.

33.33. Applicabili.-Suits for declaration with consequential relief.- The doubts expressed by Mr. N.H. Thomson about the applicability of the article to suits for a declaration coupled with consequential relief persist even now. In a case which went upto the Supreme Court1 (though not directly concerned with the implications of this article) it was observed as unde.-

"A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter: it is a suit for declaration with further relief. Whether the further relief claimed in a particular case is consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. A suit for a declaration of a right and an injunction restraining the defendants from interfering with the exercise of that right is governed by Article 120 of the Limitation Act and in such a suit the right to sue arises when the cause of action accrues."

1. Mohd. Yunus v. Syedunnissa, AIR 1961 SC 808 (810).

33.34. Calcutta view.- Though the Supreme Court did not refer pointedly to Article 58, the above observations have been interpreted by the Calcutta High Court1 to mean that a suit for declaration of title and for permanent injunction restraining the defendants from interfering with possession is governed by Article 58, when the properties are not trust properties and the plaintiffs are not in possession. However, the Orissa High Court2 has held that Article 58 will apply only to a suit for declaration simpliciter and will have no application to a suit seeking a declaration that the plaintiff's adoption, in fact, took place and claiming partition.

1. Radha Gohinda v. Kewala Devi, AIR 1974 Cal 283.

2. Gouranga v. Bhaga Sahu, AIR 1976 Ori 43.

33.35. Recommendation.- The tenor of the passage from the judgment, of the Supreme Court quoted above1 shows that the court regards this article to be applicable only to a suit for declaration simpliciter. We recommend that the matter should be put beyond doubt by revising Article 58 as follow.-

"To obtain any other declaration without seeking further relief.

Three years.

When the alleged adoption becomes known to the plaintiff."

1. Mohd. Yunus v. Syedunnissa, AIR 1961 SC 808, supra.

The Limitation Act, 1963 Back

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