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Report No. 89

39.41.History.- In the Act of 1908 and 1877, Article 126 reads as unde.-

"126. By a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property.

Twelve years.

When the alienee takes possession of the property."

In the Act of 1871, Article 125 read as unde.-

"125. By a Hindu governed by Mitakshara law to set aside his father's alienation of ancestral property.

Twelve years.

The date of the alienation."

39.42.Property covered by the article.- The article under consideration applies to alienations of ancestral property moveable as well as immovable1. As regards the onus on the Hindu son to challenge the alienation made by his father, the Supreme Court2 has made it clear that after the sale has taken place, the son is bound by the sale, unless tie shows that the debt was non-existent or was tainted with immorality or illegality.

1. Hurajalli Hunia Goundan v. Ramasami Chetti, AIR 1918 Mad 19.

2. Faqir Chand v. Harnam Kaur, AIR 1967 SC 727.

39.43.Period.- The period of 12 years allowed under the article is in symmetry with the general approach of the Act in regard to suits concerning affairs of a Hindu family. Moreover, most of the suits governed by this article are, in practice, suits mainly involving immovable property. The period of 12 years is understandable on that account also.

39.44.No change needed.- No change is needed in the article.

39.45.Article 110.- This takes us to Article 110, which reads as unde.-

"110. By a person excluded form ta joint family property to enforce a right to share therein..

Twelve years.

When the exclusion becomes known to the plaintiff."

Article 127 in the Acts of 1908 and 1877 was in identical terms. In the Act of 1871, Article 127 read as unde.-

"127. By Hindu excluded form joint-family property to enforce a right to share therein.

Twelve years.

When the plaintiff claim and is refused his share."

39.46.Recommendation.- The "exclusion" contemplated by Article 110 of the present Act (and its predecessors) has been held to be a total and absolute exclusion and when a coparcener is in receipt of cash maintenance or in possession of some lands in lieu of the same, he was not entitled to main a suit under this article.1-2 However, certain rulings have expressed a contrary view, namely, that the exclusion need not be total3. To put the matter beyond doubt, we recommend that Article 110 should be revised as unde.-

"110. By a person totally and absolutely excluded form a joint family property to enforce a right to share therein.

Twelve years.

When the plaintiff claim and is refused his share."

1. Nirmal Singh v. Lal Rudra Parab, AIR 1926 PC 100.

2. See V.G. Pamckar v. Velumpikun, AIR 1958 Ker 178 (FB).

39.47.Article 111.- Article 111 reads as unde.-

"111. By or on behalf of any local authority for possession of any part thereof from which it has been dispossessed or of which it has dispossessed the possession.

Thirty years.

The date of the dispossession or discontinuance."

Article 146A of the Act of 1908 was in identical terms.

39.48.Case law as to land in possession of defendant at the time of vesting.- In an Allahabad case1 it was held that the word "dispossess" in this Article should be given a wide meaning, and even if the defendant was in possession of the road much before the road come to be vested in the District Board, the District Board should be deemed to have been "dispossessed" of the road immediately on the date of vesting thereof, and limitation for a suit under Article 146A of the Act (1908 Act) should be deemed to have started from the date of such vesting.

A contrary view was taken in a Calcutta case.2

In our view, it would be straining the language of the article too far to say that a person was "dispossessed" of a property when, on or before the date of alleged dispossession, he was not in possession of the same.

1. Zila Parishad v. Ram Khelawan, AIR 1976 All 209.

2. Dhajadhari Ghosh v. Union Board of Kendrogoria, AIR 1942 Cal 151.

39.49.Change not needed.- It is, we think, probable that the view taken in the Calcutta decision will be followed by other High Courts also. For that reason, we do not suggest any clarificatory amendment of the article on this particular point. The point, in any case, may not recur frequently.

39.50.Summary eviction after expiry of limitation.- We should mention another question that is somewhat related to Article 111. Various State Acts establishing Municipal Corporations, Zila Parishads and other local authorities contain provisions empowering the local authority to require a person to remove any projection, obstruction or encroachment upon a public road1. Usually, a Municipal Corporation takes recourse to the expeditious process of eviction prescribed by such special Acts, rather than go in for the time consuming process of a civil suit.

However, the question sometimes arises whether the Corporation is legally entitled to take recourse to such summary proceeding if, for the period of thirty years (prescribed by Article 111), the Corporation has acquiesced in the encroachment. There has been a conflict of opinion on this subject. According to the High Courts of Bombay2 and Punjab3, the right of the Corporation to remove the encroachment by the summary procedure is not lost, even after such acquiescence. But a contrary view has been expressed by the Madras4 and Lahore5 High Courts. The question primarily concerns interpretation of the State laws, which is the reason why it cannot be dealt with by amending the Limitation Act.

1. See for example, section 172 of the Punjab Municipal Act 3 of 1911; section 179, Maharashtra Municipalities Act 40 of 1965; section 182, Madras District Municipalities Act, 1920.

2. Tayabali Abdullabhai Vohra v. Dohab Municipality, AIR 1922 Born 9.

3. Pyarelal v. Municipal Committee, Ludhiana, AIR 1955 Punj 185.

4. Baseveswaraswami v. Eellary Municipal Council, AIR 1916 Mad 613.

5. Municipal Committee, Amritsar v. Gujri, AIR 1936 Lah 182.

39.51. Article 112.- This takes us to Article 112, which reads as unde.-

"112. Any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir.

Thirty years.

When the period of limitation would begin to run under this Act against a like suit by a private person."

Article 149 of the Act of 1908 read as unde.-

"149. Any suit by or on behalf of the Central Government or any Provincial Government (except a suit before the federal Court in the exercise of its original jurisdiction).

Sixty years.

When the period of limitation would begin to run under this Act against a like suit by a private person.."

In the Act of 1877, Article 149 reads as under:

"149. Any suit by or on behalf o the Secretary of the State for India in Council.

Sixty years.

When the period of limitation would begin to run under this Act against a like suit by a private person."

In the Act of 1871, Article 150 read as under:

"150. Any suit in the name of the Secretary of State for Indian in Council.

Sixty years.

When the right to sue accrues."

As the period of 60 years available to Government under the earlier Acts for filing any suit was rather on the high side, it was reduced to 30 years by the present Act, on the recommendation of the Law Commission1.

1. Law Commission of India, 3rd Report (Limitation Act, 1908), para. 162.

39.52. Ban.-suggestion considered but not accepted.- In an article published in 1980, a plea has been made1 to extend the benefit of Article 112 of the Limitation Act, to banks and other financial institutions, on the ground that in view of the extensive lending by the banks, several debts are getting barred, and this has happened even though the banks try to keep all the security documents relating to the advances alive and enforceable. It has been stated that the shorter loans granted by the banks, like over-drafts and cash credits, have to be renewed or re-loaned at the expense of vast manpower, just to save the loans from getting barred under the Limitation Act and this process involves considerable delay and expense.

We are afraid that the case of banking institutions can hardly be treated like Government. Unlike the Government is often faced with multiple problems that require decision making at various points (somehow right upto the Cabinet level), and the process is time-consuming. This is not the position in the case of banks which are run on commercial line.

Secondly, if a period of 30 years is made applicable to banks, similar demands for a special treatment would also be put forth by other large business houses, who have a network of offices throughout the country. For example, a large tea industry may claim that it has offices throughout India in every village, and should be given an enlarged period of limitation when it comes to the question of filing suits arising out of supply of tea to its retailers. It would obviously be impossible to extend the concession to all other cases.

We do not, therefore, favour acceptance of the suggestion.

1. K. Chalapati Rao (Law Officer, State Bank of India, Hyderabad) Limitation Act, 19.-Article 112: Necessity to Extend its Benefit to Banks, AIR 1980 Journal 16.



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