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Narottamdas Bhagwandas Vs. Chitta Bhagwansang - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberSecond Appeal No. 10 of 1937
Judge
Reported inAIR1939Bom464; (1939)41BOMLR896
AppellantNarottamdas Bhagwandas
RespondentChitta Bhagwansang
DispositionAppeal dismissed
Excerpt:
indian contract act (ix of 1872), section 25(3) - minor-de facto guardian-time-barred debts of minor's father-whether de facto guardian can renew such debts -indian limitation act (ix of 1908), sections 19, 20 and 21.;a de facto guardian of a minor cannot renew a time-barred debt, as he is not, under section 25, sub-section (3), of the indian contract act, 1872, an agent generally or specially authorised to renew such debt. - .....the real contesting party, contended that the debt for which he had passed the bond in suit was time-barred, and, therefore, defendants nos. 1 and 2 were not bound to satisfy the band, that he himself was not a surety and that, assuming that he was a surety, he was not liable since the bond itself was not binding on defendants nos. 1 and 2, who were the principal debtors. both the lower courts upheld this contention and dismissed the suit.2. three points are raised in this appeal, namely, (i) whether somabhai as the de facto guardian of defendants nos. 1 and 2 could pass a bond in renewal of a time-barred debt; (ii) whether the debt was time-barred; and (iii) whether defendant no. 3 was liable as a surety.3. the consideration for the bond in suit was made up of two previous promissory.....
Judgment:

Lokur, J.

1. Bhagwansang Himatsang, the father of defendants Nos. 1 and 2, was indebted to the plaintiff, and after his death, when his sons were still minors, one Somabhai, as their de facto guardian, settled the dues and passed a bond in favour of the plaintiff on June 11, 1929. The plaintiff filed this suit to recover Rs. 717-5-9 due under that bond. He alleged that defendant No. 3 had signed the bond as a surety, and was also liable for the debt. By that time defendant No. 1 had attained majority, and he admitted the plaintiff's claim. But the Nazir, who was appointed the guardian ad litem of defendant No. 2, stated that he had no instructions. Defendant No. 3, who was the real contesting party, contended that the debt for which he had passed the bond in suit was time-barred, and, therefore, defendants Nos. 1 and 2 were not bound to satisfy the band, that he himself was not a surety and that, assuming that he was a surety, he was not liable since the bond itself was not binding on defendants Nos. 1 and 2, who were the principal debtors. Both the lower Courts upheld this contention and dismissed the suit.

2. Three points are raised in this appeal, namely, (i) whether Somabhai as the de facto guardian of defendants Nos. 1 and 2 could pass a bond in renewal of a time-barred debt; (ii) whether the debt was time-barred; and (iii) whether defendant No. 3 was liable as a surety.

3. The consideration for the bond in suit was made up of two previous promissory notes (exhibit 64, dated August 17, 1923, and exhibit 63, dated July 28, 1920), and it was urged that they were in time on the date of the bond in suit as there was an acknowledgment on June 8, 1926. Even then that debt was not in time on June 11, 1929, (exhibit 28), unless the article of the First Schedule of the Indian Limitation Act to be applied was Article 120 and not Article 73. It was urged on behalf of the plaintiff that defendants Nos. 1 and 2 were under a pious obligation to pay off their father's debt and, therefore, the plaintiff's claim would be governed by Article 120 and not by Article 73 of the Indian Limitation Act. But this point has now been decided by a bench of this Court in Lakshman v. Mahableshwar1, in which Article 73 was held to apply. It is, therefore, obvious that on the date of the bond in suit the plaintiff's claim to recover the prior debts was time-barred. It is, however, urged that defendants Nos. 1 and 2 were under a moral and pious obligation to pay off their father's time-barred debt, and, therefore, their guardian could pass a fresh bond in renewal of the time-barred debt under Section 25, Sub-section (3), of the Indian Contract Act. It is not necessary for the purposes of this appeal to express any opinion as to the powers of a natural guardian to renew a time-barred debt. So far as the de facto guardian is concerned, I do not feel any doubt that he cannot be regarded as an agent 'generally or specially authorised' to renew a time-barred debt. Section 25, Sub-section (3), says that an agreement made without consideration may be void unless it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In this connection it was pointed out that Section 21 of the Indian Limitation Act defines the expression 'agent duly authorized in this behalf' in Sections 19 and 20 as including 'a lawful guardian, committee or manager, or an agent duly authorized by such guardian, committee or manager to sign the acknowledgment or make the payment.' That definition applies to acknowledgments, but Section 25, Sub-section (3), of the Indian Contract Act, specifically requires that the person renewing a time-barred debt must be either the person himself or his agent generally or specially authorised in that behalf. It cannot be presumed that a de facto guardian is generally or specially authorised to renew a time-barred debt. I, therefore, agree with the findings of the lower Courts that Somabhai as the de facto guardian of defendants Nos. 1 and 2 had no power to renew the time-barred debt of the father of defendants Nos. 1 and 2 and pass the bond in suit to the plaintiff. It follows from this that as the principal debtors themselves were not liable under the bond, defendant No. 3, although he be regarded as a surety, cannot be held liable. The appeal is, therefore, dismissed with costs.


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