Varghese Kalliath, J.@mdashThese two appeals come up before us on a reference by a learned single Judge of this Court. Both these appeals arise from one suit -- O.S. No. 144/81. It was filed by the wife against her husband. S.A. No. 827/85 is by the husband and S.A. No. 777/86 is by the wife.
2. The wife instituted the suit against the husband for recovery of the amount of stridhanam and ornaments received by the husband on the occasion of her marriage. She also claimed maintenance from the husband.
3. The trial court found that the wife is entitled to a decree for recovery of an amount of Rs. 3,000/- and jewels of 10 sovereign. The claim for maintenance was disallowed. Both husband and wife preferred appeals before the lower appellate court. Defendant/husband challenged the decree allowing recovery of Rs. 3,000/- and the jewels. Plaintiff/wife challenged that part of the decree refusing to award maintenance.
4. The court below considered the appeals together and passed a common judgment, The court below allowed both the appeals thereby plaintiff''s prayer for maintenance was allowed, but the prayer for recovery of Rs. 3,000/- and the jewels or its value was refused. Both husband and wife filed appeals, S.A. No. 827/85 and S.A. No. 777/86.
5. The court below found that the suit for recovery of Rs. 3,000/- and the jewels or its value is barred by limitation and so that relief was refused. The court below did not agree with trial court in regard to the claim of the plaintiff/wife for maintenance. It found that the wife is entitled to maintenance and granted a decree and thus allowed the appeal filed by the wife. As we said earlier, the husband''s appeal related only to the question of the relief granted to the wife, viz., recovery of Rs. 3,000/- and jewels of 10 sovereigns or its value. The appellate court found that the claim of the wife for jewels and the amount paid on the occasion of the marriage is barred by limitation and it allowed the appeal filed by the husband/defendant.
6. When these two appeals came up for hearing the learned Judge expressed a doubt as to the applicability of Section 10 of the Limitation Act and also the question regarding the application of the correct Article of limitation applicable to the facts of the case. Before considering the question referred to the Division Bench for decision by the learned single Judge, we feel that we must consider the other questions regarding the liability of the defendant. Two distinct claims are made by the plaintiff/wife; (i) recovery of Rs. 3,000/-and jewels of 10 sovereigns and (ii) claim for maintenance. As regards the payment of Rs. 3,000/-, there is clear evidence and so if the claim is not barred by limitation, plaintiff is entitled to a decree for Rs. 3,000/-. As regards the question of return of jewels, the appellate court considered the evidence elaborately and came to the conclusion that the court cannot direct the husband to return it, since there is no evidence as to the fact that the jewels were in the possession and custody of the husband when the wife left the husband''s house. This is purely a question of fact and in a Second Appeal we are expected only to consider substantial questions of law and since the final fact finding court has found on facts proved in the case that the plaintiff is not entitled to recover the jewels, we do not think that it is justifiable on our part to interfere with that part of the judgment. Of course, regard to the question whether the plaintiff is entitled to recovery Rs. 3,000/-, that claim has been rejected solely on the ground of limitation and it is therefore integrally linked with the question now referred by the learned single Judge for our decision.
7. Regarding the second question, viz., whether the plaintiff is entitled to maintenance, we felt that there is not much controversy about it before us, both in regard to the liability as well as the quantum. It has to be noted that as regards the quantum, it is purely a question of fact and we will not be justified in interfering with the quantum of maintenance by the appellate court. As regards the liability of a Christian husband to pay maintenance for his wife, the matter is not covered by any statutory provision. The parties are Christians. Where there is no statutory provision governing the matter, if equity and good conscience and the attendant circumstances would compel the husband to pay maintenance, we are of opinion that the court is not powerless to decree maintenance. In cases where there is no statutory provision in regard to matters like this, it is always profitable to refer to the Common Law of England and the practices followed in India. English Courts have relied on the principles of common law for the purpose of determining these kinds of questions, in the absence of a statutory provision. It is because the matter is not governed by statute or customery law the principles of ''justice, equity and good conscience that should apply'' and the principles of justice, equity and good conscience are supposed to be seen in the Common Law of England. Certainly, we are of definite opinion that the principles of justice, equity and good conscience that should be applied must be Indian and tuned and attuned with the high ideals and the great culture, tradition and heritage of India. It must harmonise the Indian philosophy enshrined in our Constitution. It must consonate with the "Common Law" of India tuned to Indian conditions. Dicocting and distilling Indian precedents courts can and we would say that the court is obliged to evolve a common law of our own. In this process we can legitimately rely on English Common Law. We are attempting an Indian jurisprudential approach for determining what should be the principles of justice, equity and good conscience in the given circumstances in the light of the mandates of the Constitution and the principles followed and accepted in India in the matter in question. It is profitable to note the principles that have been followed in England applying the English Common Law in order to ascertain the principle to be applies in this case.
8. In Eversley on Domestic Relations 6th Edition page 117, the learned author said : "The husband, as head of the house-hold, is under an obligation to support and maintain his wife and children, in which latter terms are included the children of which he has been adjudged to be putative father. Their obligation was always rather moral than legal. It was not until his wife became actually chargeable to a parish or union that a man was liable to be punished for refusing or neglecting to support her, and then only as a rogue and vagabond. The wife, in truth, had no claim on her husband, even when starving and deserted by him; the guardians or overseers of the union or parish, the charges of which had been increased by his wrongdoing, alone could bring the offender to justice under the Poor Law (Amendment) Act, 1868, and recover the cost of her maintenance, and the justice in making their order were not limited by the amount already allowed by the guardians, or obliged to wait till the sum was fixed....." One thing is certain from the above quote that the husband has got an obligation to maintain his wife and that obligation is a moral obligation. The English Common Law attaches importance to say that obligation is moral and not legal. We feel that it is only on account of the peculiar and special feature of English law which deems that the husband and wife are one in person and therefore the wife could not sue the husband. Blackstone has said : "By marriage, the husband and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything and is therefore called in our law-french a femecovert, foemina viro co-operata; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage". In Stephen''s Commentaries on the Laws of England (19th Edition, Volume I, page 278), the learned author has said; "In fact, the chief legal effect of marriage at the present time is to impose a burden on the husband. A husband is bound to maintain his wife according to his estate and condition; and so, if his wife manages the domestic side of his establishment, she has a right to pledge his credit for house-hold expenses, unless he has forbidden her to do so or has supplied for with ready money to enable her to defray them. Moreover, if she is living apart from him, not through her own fault, she has an irrevocable right to pledge his credit for necessaries, unless he actually makes her an allowance. But if it is through her own fault that she is living apart from him, his liability to maintain her ceases, for the liability to maintain her is correlative to her duty to cohabit with him". In the same Volume at page 290, it is stated thus : "A father is said to be bound to maintain, to protect, and to educate his children. But this duty is never such that if he neglects it he can be liable to an action at the suit of this aggrieved child, though, as we shall see, he may be criminally liable for cruelty. English Law has maintained to a surprising degree the father''s absolute government of his house-hold. It is just possible that a father may be liable to pay another for the support of his child, whom he has left in a destitute state; but it is clear that a child has no right comparable to that of a wife to pledge her husband''s credit if deserted by him, and so a father cannot be compelled to pay for the necessaries supplied to his child."
9. The "vast gaps and interspaces in the substantive law" were filled by the principles of English common law. The wide door of "justice, equity and good conscience" made it easy for these principles to become, through the decisions of the courts, the governing law of the country -- vide The Common Law in India -- Setalvad.
10. Parties are Catholics. The sacramental dimension of Christian marriage reflects the eternal relationship of Christ to His Church. Marriage is defined in the Canon Law thus : "the marriage covenant established by the Creator and ordered by His laws by which a man and a woman by an irrevocable personal consent establish between themselves a partnership of their whole life, is by its natural character ordered towards the good of the spouses and the generation and education of the offspring. From the institution of Christ a valid marriage between baptised persons is by that very fact a sacrament, by which the spouses, in the image of an indefectible union of Christ with the Church are united by God and, as it were, consecrated and strengthened by sacramental grace" (CCEO, 776). The above definition points to an insight of the mystical, spiritual and theological outlook and perception of marriage characteristic to the oriental mentality. The above definition of marriage is from the oriental code of Canon Law.
11. We feel that we are not bound to hold that a Christian husband has no legal liability to maintain the wife. Criminal law of the country and the personal law of Indians of other community make it plainly clear that the husband has got a liability to maintain the wife in certain circumstances. This obligation created by the criminal law is certainly applicable to a Christian husband also. We do not want to elaborate this question any further. We are of opinion that the husband is liable to pay maintenance if conditions which would compel the wife to live separately. In this case, there is no difficulty, on evidence, to hold that the wife has acquired an entitlement to live separately on account of the misconduct of the husband. The court below has found that the husband is liable to pay maintenance.
12. As we have said already, regarding the quantum of maintenance, it is purely a matter of evidence and we do not want to interfere with the quantum determined by the appellate court. In this view, we hold that the husband is liable to pay the maintenance decreed. The appeal filed by the husband against the decree for maintenance is only to be dismissed.
13. Now, we turn to the question referred to us, viz., whether Section 10 of the Limitation Act is applicable or not in this case. Section 10 of the Limitation Act reads thus :--
"Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or, against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time."
Counsel for the husband very strongly relied on the words used in Section 10 of the Limitation Act, viz., "no suit against a person in whom property has become vested in trust for any specific purpose". The marginal note of Section 10 of the Limitation Act reads as suits against trustees and their representatives. The marginal note in the earlier Act, 1908 read as suit again ''express'' trustees and their representatives. The Law Commission has given reason for omitting the word ''express'' in the marginal note that "the Section includes transactions which, though not express trusts are deemed to be trusts for a specific purpose". The basic principle underlying Section 10 of the Limitation Act is the recognition of the dictum; ''once a trust is always a trust''. In Section 25(2) of the English Judicature Act, 1873, it is provided that : "No claim of a cestui que trust against his trustee for any property held on an express trust or in respect of any breach of such trust, shall be held to be barred by any statute of limitation". The Indian Trusts Act defines trust in Section 3 thus; "A ''trust'' is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the "author of the trust"; the person who accepts the confidence is called the "trustee" : the person for whose benefit the confidence is accepted is called the "beneficiary"; the subject-matter of the trust is called "trust-property" or "trust-money" : the "beneficial interest" of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the "instrument of trust".
14. Section 6 of the Trusts Act provides how a trust can be created. As per that provision, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property,.... Illustration (a) to Section 6 is important. A bequeaths certain property to B, "having the fullest confidence that he will dispose of it for the benefit of C". This creates a trust so far as regards A and C. The words used in Section, viz., ''property has become vested in trust for any specific purpose'' should not be given undue importance, so as to form a category of trust which has got certain additional attributes than the attributes of an actual or direct trust, viz., express trust. If from the conduct of the parties, it is possible to hold that an actual direct trust is created, it has to be presumed that it satisfies the requirement of vesting of the property for a specific purpose, which only imports creation of an express trust.
15. Sir William Grant M.R. in Beckford v. Wade (1805) 34 ER 34 observed : "When the Act speaks of one man being seized or possessed to the use of, or in trust for another, I can hardly conceive that it means any other than an actual direct trust; not such possible, eventual trust, as may in case certain facts are established in evidence, be declared by a court of equity against a person who claims to be and who ''prima facie'' is the true owner of the estate". So a direct trust has to be distinguished from any constructive trust. A direct trust may be an ''express trust''. We must also give some significance to the omission of the word ''express'' in the marginal note of the present section as distinguished from Section 10 of the 1908 Act.
16. In Soar v. Ashwell (1893) 2 QB 390, Lord Esher M.R. said : The cases seem to me to decide that, where a person has assumed, either with or without consent, to act as a trustee of money or other property, i.e., to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust. The principal liability of such a trustee is that he must discharge himself by accounting to his cestui que trusts for ail money or property without regard to lapse of time". Bowen, L.J. in the same case said; "That time (by analogy to the statute) is no bar in the case of an express trust, but that it will be a bar in the case of a constructive trust, is a doctrine which has been clearly and long established. It was argued on behalf of the defendant that the present was the case of a constructive trust only, and the learned judge below appears so to have though....." In considering the question Bowen L.J. has said that the constructive trust is therefore as has been said "a trust to be made out by circumstances", Again His Lordship said : "It has been established beyond doubt by authority binding on this Court that a person occupying a fiduciary, relation, who has property deposited with him on the strength of such relation, is to be dealt with as an express, and not merely a constructive, trustees of such property. His possession of such property is never in virtue of any right of his own, but is coloured from the first by the trust and confidence in virtue of which he received it. He never can discharge himself except by restoring the property, which he never has held otherwise than upon this confidence : "Chalmer v. Bradley (1819) 37 ER 294); Marquis of Cholmondeley v. Lord Clinton (1817) 37 ER 527); and this confidence or trust imposes on him the liability of an express or direct trustee". Lord Bowen in this case has said that "there has been some variety and inconsistency both in the language used about constructive trusts and in the line of demarcation that has been drawn between the cases of express and constructive trusts. First, the doctrine that time is no bar in the case of express trusts has been extended to cases where a person who is not a direct trustee nevertheless assumes to act as a trustee under the trust; Life Association of Scotland v. Siddai (1861) 45 ER 800. This extension of the doctrine is based on the obvious view that a man who assumes without excuse to be a trustee ought not to be in a better position than if he were what he pretends. Secondly, the rule as to limitation of time which has been laid down in reference to express trusts has also been thought appropriate to cases where a stranger participates in the fraud of a trustee".
17. Following (1893) 2 QB 390, in AIR 1920 PC 208 (Somasundaram Chetty v. Arunasalam Chetty) Lord Buckmaster quoted the words of Lord Justice Bowen : "An express trust can only arise between the cesti que trust and his trustee. A constructive trust is one which arises when a stranger to a trust already constituted is held by the court to be bound in good faith and in conscience, by the trust in consequence of his conduct and behaviour".
18. In
19. Lewin on Trust has said that ".....but, where moneys or property were entrusted to them for a specified purpose they were dealt with as express trustees and not merely as constructive trustees". The author has relied on several decisions: Foley v. Hill (1848) 2 HLC 28 and Reid Newfoundland Co. v. Anglo-American Telegraph Co. Ltd. (1912) AC 555.
20. In the Indian Trusts Act, Section 3 deals with interpretation of the terms used in the Act and there trust is defined as; "A Trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner." No doubt, the classification of trusts into express and constructive trusts is perhaps the most important. In the Indian Trusts Act, we find no mention of these terms except in the marginal note of Section 94 where the term ''constructive trust'' occurs, but it has to be remembered That in precedents we come across the frequent use of the terms ''constructive trust'' and ''express trust''. Further we find that the expression ''constructive trust'' is used in contra-distinction to express trust; arising by implication of law in order to label a trust as a ''constructive trust''.
21. The intention of the author of the trust is important. Such intention can of course be expressed directly or be a matter of inference from the facts and circumstances. In the latter case, it has also been sometimes called a presumptive trust -- See Cook v. Fountain (1676) 3 Swans 586 (592); 36 ER 984. An express trust may arise by declaration in writing or by word of mouth. A constructive trust on the other hand is one that arises upon an inference of imposing a trust upon the conscience of the person liable for the obligation -- See Cunningha v. Foot (1878) 3 AC 974.
22. The general doctrine of constructive trust is explained in Lewin on Trust at page 160, Fourteenth edition; "A constructive trust is raised by a court of equity wherever a person, clothed with a fiduciary character, gains some personal advantage by availing himself of his situation as trustee; for as it is impossible that a trustee should be allowed to make a profit by his office, it follows that so soon as the advantage in question is shown to have been acquired through the medium of a trust, the trustee, however good a legal title he may have, will be decreed in equity to hold for the benefit of his cestui que trust. A common instance of a constructive trust occurs in the renewal of leases; the rule being, that if a trustee, or executor, or even an executor de son tort, renew a lease in his own name, he will be deemed in equity to be trustee for those interested in the original term. The new lease is deemed to be a graft upon the old one". Lord King said : "I very well see, if a trustee, on the refusal to renew, might have a lease to himself, few trust estates would be renewed to cestui que use. This may seem hard, that the trustee is the only person of all mankind who might not have the lease, but it is very proper that the rule should be strictly pursued, and not in the least relaxed".
23. The seed for a broader approach to the imposition of constructive trusts was sown by Lord Diplock in Gissing v. Gissing (1971) AC 886, where he said; "A resulting, implied or constructive trust and it is unnecessary for present purposes to distinguish between these three classes of trusts is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust or beneficial interest in the land so acquired."
24. In
As we said earlier, ''a trust for a specific purpose'' only denotes that it is an express trust. Further it has to be noted that at the time when that decision was rendered the marginal note of Section 10 of the Limitation Act contained the word ''express'' which was omitted, perhaps for the reason that the use of the words "for a specific purpose" is only to distinguish the trust as an ''express trust''. We are of opinion that particularly in a Christian marriage when the father of a girl makes a payment which has to be considered as stridhanam to her father-in-law though not directly by specific words, but by the very act certainly indirectly an express trust is created and the girl is made its cestui que trustee and in that context is nothing wrong in adopting a purposive interpretation of the content of Section 10 of the Limitation Act by holding that when such a payment takes place, the money paid would constitute in the hands of the husband or the father-in-law the subject matter of an express trust and the amount is a trust property or trust money. The context and circumstance behove and beseem the creation of an express trust. We are of opinion that it may not be very correct to say that the payment of money by the father of the girl to the father-in-law of the husband would not constitute an express tust, though an open and direct declaration did not precede the payment.
25. In
26. In AIR 1959 A&P 186 (V. Balakrishnamurthi v. G. Sambayya), a Division Bench consisting of K. Subba Rao, C.J. and Ranganadhan Chetty, J. as he then was considered the content of Section 10 of the Limitation Act very elaborately and found that Section 10 of the Limitation Act applies to express trust and not to any other kind of trust. The court further considered the question as to how an express trust has to be found from the unfolded facts in the case. The Indian Trusts Act 1882 doesn''t apply to public trust. Nevertheless, the expression trust in Section 10 of the Limitation Act has been construed as carrying the same meaning as in the Trusts Act. The latter Act calls express trusts simply as trusts, while all other types are designated obligations in the nature of trusts. It is well settled that Section 10 of the Limitation Act covers only cases of express trusts and excludes all other categories. The learned Judge (Subba Rao, C.J.) quoted Lewin on Trust for understanding the scope of an express trust. What Lewin has said is this : "Generally speaking, an express trust may be said to arise from the intention of a person to create a trust declared directly or indirectly". From the above definition, the requirements are not complex or difficult to understand. First we have to see the intention of the person who is the author of the trust and that intention must be an intention to create a trust, then it is an express trust. This position can be made clear by contrasting the express trust, with constructive trusts or ''De Facto or De Son Tort'' trust or resulting trust. A trustee who is in actual management of a trust without a lawful title can better be designated a trustee ''De Son Tort'' than as a ''De Facto'' trustee. In ILR (1950) Mad 191 : AIR 1949 Mad 721 (FB) (Sankaranarayana Ayyar v. Sri Poo-vanatha Swami Temple, Koilpatti) Viswanatha Sastri, J. protested against the choice of expression ''De Son Tort'' in the above context and, said that Abdul Rahman, J. in
27. Underbill''s Law of Trusts and Trustees, the author has pointed out that no technical expressions are necessary for the creation of an express trust. It is sufficient if the settlor evinces with reasonable certainty;. (a) an intent to create a trust; (b) the trust property; (c) the persons intended to be beneficiaries; and (d) the purpose of the trust so that the trust is administratively workable and not capricious. If all the above factors are present, there will be an express trust.
28. It is profitable to note that the trusts are divided into two broad classifications, viz., simple trust and special trust, according to the nature of the duty imposed on the trustee. A simple trust is a trust in which the trustee is a mere repository of the trust properly, with no active duties to perform. Such a trustee is called a passive or, more frequently, a bare trustee -- see Underhill''s Law of Trusts and Trustees. In a case where A divised property to B in trust for C there is a simple trust, as the only duty which B has to perform is to convey the legal estate to C if so requested. Here B is a passive or bare trustee. This trust is also an express trust. We are of opinion that in the case of payment by a father of a girl to the prospective father-in-law or the prospective husband is a simple trust. The only duty of the husband is to convey the legal estate of the property to the girl. Though it is a simple trust, it is an express trust and we are of opinion that the specific purpose denoted in Section 10 of the Limitation Act can be understood in a meaningful way that the only duty of the husband or the father-in-law is to convey the legal estate of the trust property to the beneficiary, the girl (wife), if so requested. So the conditionality of the specific purpose specified in the Act is satisfied. It cannot be said that the confluent of circumstances would negative the idea that the trust created in the matter of payment of stridhanam is not in an express trust, but only an implied or resulting trust.
29. It is difficult for us to agree the observations contained in
30. In (1990) 2 KLT 604 (Swapna v. Thankavelu), Justice Krishnamoorthy, following the decisions reported in
31. The above case has been followed in (1989) 1 KLT 636 by Justice Thomas. His Lordship Justice Thomas said that the husband is liable to be visited with penal consequence for breach of trust, if he fails to return the cash or gold ornaments belonging to his wife and that mere entrusting of the property of the wife to the husband does not attract any of the essential ingredients of the partnership or constitute any co-ownership. It is also stated that this principle applies with equal force to all husbands and wives whether they are Hindus, Muslims or Christians. Obviously His Lordship Justice Thomas has no occasion to consider the import, content and width of Section 10 of the Limitation Act.
32. Cousel submitted that the only decision of this Court that considered the question of the true content and width of Section 10 of the Limitation Act is the decision reported in
33. We have already discussed the nature of the entrustment of the stridhanam amount or the property as the case may be by the father of the girl to the prospective husband or the father-in-law and have expressed our Opinion that in such circumstances, really a trust is formed and that is a simple trust which is an express trust.
34. The only remaining point to the considered is the decision of Justice Viswa-natha Iyer reported in 1980 KLT 353 (Mary v. Cherchi). His Lordship Justice Viswanatha Iyer did not consider the question whether recovery of the stridhanam amount will be governed by Section 10 of the Limitation Act. His Lordship said that the character of the stridhanam being in the nature of a payment intrust and a suit for recovery of that amount is not governed by any specific article of the Limitation Act, the residuary article 113 will apply and that the period starts from the time the right to sue accrues and further found a right to sue in the case is equivalent of the cause of action. The court ultimately found that Article 113 applied and that the suit was within time. In the case at hand, we are of opinion that in case Section 10 is not applicable, the only, Article that is applicable is the residuary Article --Art. 113.
35. In paragraph 9 of the plaint, plaintiff has stated that the defendant is also bound to return the amount of Rs. 3,000/- retained by him. After the decision in Crl. R.P. No. 41/77 by the Sessions Court Ernakulam, plaintiff had demanded the defendant the amount and gold ornaments of her and that the defendant had not complied with the request. The decision in the Crl. R.P. is produced as additional document before this Court and from that document, it is seen that the decision of the Sessions Court in Crl. R.P. No. 41/77 was on 31-3-1978 and so naturally what is stated in para 9 is that the demand made in on or after 3I-3-I978. So the refusal can be only thereafter. The suit was filed in July, 1980, There is no specific denial of the statement in para 9 in the written statement. In the written statement, in para 9, what is stated is that no amount was payable and there was no transaction between the plaintiff and the defendant after March, 1972, the date on which the plaintiff left the husband''s home and further stated that whatever be the position, the claim is barred by limitation. Obviously, there is no clear and proper denial of what is stated in para 9 with respect to the demand made by the plaintiff for the amount claimed in the suit. Article 113 of the Limitation Act provides that the starting point of limitation is, when the right to sue accrues. In this case, obviously the right to sue accrues when there is a denial of the claim made by the plaintiff. An opportunity to deny pre-sup-poses a demand and according to the plaintiff, the demand was made after the date of the decision in Crl. R.P. 41/77, viz., 31-3-1978. So, naturally, as we said earlier, the refusal must be after 31-3-1978, and that is the date of the cause of action and so, the right to sue accrued to the plaintiff only subsequent to 31-3-1978. As stated earlier, suit has been filed in July, 1980. So, it is within time.
36. In
37. From the plaint and the written statement, it is possible to hold that if at all there was a demand and refusal and thereby a right to sue to the plaintiff accrued, it was only after 31-3-1978, if no demand was made by the plaintiff as impliedly stated by the defendant in his written statement, it has to be presumed that the first demand itself is by the suit and so there is no question of limitation, under Article 113 of the Limitation Act.
38. On the aforesaid discussion we answer the references by holding that the observations in the decision reported in
39. In the result, appeal filed by the wife, S.A. No. 777 of 1986 is allowed to the extent of granting a decree for Rs.3,000/- with future interest at the rate of 6% per annum from the date of suit till realisation. Appeal filed by the defendant against the decree of the court below allowing maintenance is dismissed.
