The expression “to establish” would include a suit for a declaration as well as a suit for recovery of the arrears of amount due.
There is a conflict of decisions between different High Courts as to whether the expression “to establish would extend to cases in which the plaintiff not only seeks to establish a periodically recurring right but also seeks to recover specific sums of money due to him in respect of periodically recurring right.
In Tangaraja v. Veera Raghava, (AIR 1958 Mad. 319), it has been held that the Article governs suits to obtain adjudication as to the existence of the periodically recurring right as well as the suits to recover money due under that right.
In Manmohan v. Bahauddin, (AIR 1957 All. 575), it has been held that Art. 104 is attracted only to a suit to establish a periodically recurring right and the suit for realisation of sums of money due on the basis of that right is not governed by Art. 104.
In order to attract the Art. 104, two things have to be established, namely, (i) there should be a right; and (ii) it should be periodically recurring one. A periodically recurring right may be a perpetual right in the sense that though it may accrue at fixed intervals it may go on perpetually.
The right may arise perpetually at specified intervals or may arise for a number of years and cease thereafter. Similarly the amount that accrues under that right may be a fixed amount or variable amounts. If the right to receive the amount accrues periodically it would be periodically recurring right whether the amount is fixed or variable.
The right to receive allowances as holder of the office of the Mutawalli or Khatib of a mosque is a right to establish a periodically recurring right and it attracts the Art. 104 (Betcha v. Secretary of State, AIR 1941 Mad. 428).
The claim to get an annual allowance from out of the revenue collection is a periodically recurring right (Senthattikalai v. Rama Iyer, AIR 1936 Mad. 704).
A suit in respect of annual cash grant for maintenance will be governed by Art. 104 (Lal Raghavendra Singh v. Union of India, AIR 1962 MP 257).
A suit for recovery of arrears of rent is not a right to establish a periodically recurring right and is not governed by the Art. 104 (Padmanava Singhdeo v. Rajkishori Devi, AIR 1965 Ori. 138).
A suit for recovery of arrears of salary is not governed by the Article 104 (Raghunath v. State of Bihar, AIR 1966 Pat. 97).
The suit for declaration that the plaintiff is entitled to hereditary office and its emolument does not attract the Art. 104 (Chinnaram Reddy v. Kista Reddy, AIR 1965 AP 471).
In Janak Raman v. Koshalyanandan, (AIR 1961 Pat. 283), it has been held that the starting point of limitation under Art. 104 is “where the plaintiff is first refused the enjoyment of the right” but not from the date of execution from enjoyment. The expression “refused the enjoyment of the right” not only implies the denial of right to the person entitled thereto but also connotes that the intimation of refusal is communicated to the person whose interest would be affected if the property is sold on the enforcement of the charge.
When a person is entitled to periodically recurring right and he is denied of such right he can sue for declaration that he is entitled to such right. Once the right is repudiated the Art. 104 would be the appropriate Article to apply to a suit to establish the same. The suit has to be filed within three years of such repudiation otherwise the suit will be barred.