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Shivajirao Narayanrao Thorat Vs. Hari Narayan Tagare - Court Judgment

LegalCrystal Citation
SubjectProperty ;Limitation
CourtMumbai
Decided On
Case Number First Appeal No. 251 of 1917
Judge
Reported in(1920)22BOMLR943; 58Ind.Cas.319
AppellantShivajirao Narayanrao Thorat
RespondentHari Narayan Tagare
Excerpt:
.....claims by collector -decision of collector not to be used as admission against him in a subsequent suit-decision may operate as acknowledgment-indian limitation act (ix of 1908), section 19-acknowledgment.;the proviso to section 15(3) of the bombay court of wards act 1905, must be restricted to mean that if the claimant filed a suit on his claim, the collector's offer cannot be proved as an admission, the claimant must prove his case de now, and the collector is not bound by any offer which he may have made under section 16. but the proviso does not bar the claimant from using the offer as an acknowledgment that the debt exists. - - as it has not been distinctly provided that such a decision or proposal or offer by the court of wards shall not be used as an acknowledgment, we think it..........the previous sections. it must be restricted to meaning that if the claimant files a suit on his claim, the collector's offer cannot be proved as an admission, the claimant must prove his case de novo, and the collector is not bound by any offer which he may have made under section 16. but we do not think that the proviso bars the claimant from using the offer as an acknowledgment that the debt exists. as it has not been distinctly provided that such a decision or proposal or offer by the court of wards shall not be used as an acknowledgment, we think it is open to the claimant to make use of such a decision merely for the purposes of an acknowledgment. otherwise it would work very great injustice, and certainly in this case would operate as a very great hardship on the petitioners......
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to recover in this suit the amounts due on three mortgage bonds passed by the defendant's Tip. defendant was a minor and a ward of the Collector Court of; wards Act (Bom. Act I of 1905). Three been passed (1) in 1886 for Rs. 9,50O on a simple mortgage for ten years; (2) a hond in 1887 for Rs. 500; and (3)a bond in 1891 for Rs. 3,200, which purported to be a mortgage with possession for two years. It is admitted that the mortgagee has not got possession. It is also clear that the bond of 1887-for Rs. 600 is barred. -The plaintiff had obtained, decrees on the other two bonds in-O 886 and 1891. The learned Subordinate Judge-considered that Article 147 applies, but in doing so he Beams-to have overlooked or misunderstood the decision of the Privy Council in the case of Vdsvdeva Mudaliar v. Srinivasa Pillai I.L.R (1907) Mad. 423 P.C. It cannot be disputed that it is not Article 147 but Article 132 which applies. However the Subordinate Judge has considered the question whether Exhibit 53, which was a letter written to the plaintiff by the Collector of Satara on the 24th May 1913, saved the bar of limitation as regards the bond of 1886, and came to the conclusion that it did. It has been argued before us that under the proviso to Section 16 of the Bombay Court of Wards Act that letter could not be proved. Sections 13,1,4, 15 and 16 deal with the duties of the Collector when the Court of Wards assumes superintendence of the property of any landholder under the Act. Under Section 14 a notice was issued inviting claims, and it appears that the plaintiffs made an application through the Mamlatdar on the 13th May 1913, and they also sent in a petition to the Collector on the 23rd May in which are recited the three bonds I have referred to. On the 24th May the Collector wrote to the plaintiff: 'An application dated 13th May 1913 was made through the Mamlatdar of Walwa stating that proceedings were going on regarding the amount due from the minor Shivajirao Narayanrao and that its result was not known. On this, he is informed that according to the compromise arrived at regarding the whole of the amount due we have decided that Rs. 17,000 are to be' paid and they are to be paid in the following manner:-Rs. 4,000 are to be paid for the first instalment, and thereafter Rs. 2,000 each year, and Rs. 1,000 for the last instalment. So-you and Balwant Narayan are to be present either personally or through Mukhtyar in our office and then the amount of the 1st instalment would be paid by me.' The word 'compromise' seems to be wrongly used. What the Collector did was to under Section 16. The letter amounted to an offer of a settlement of the claim sent in by the petitioners. Sub-section (2) of Section 16 lays down what should be done by the claimant. Sub-section (3) provides that nothing in the section shall be construed to bar the institution of a suit in a civil Court for the recovery of a claim against a Government, ward or his property which has been duly submitted to the Court of 'Wards. Then comes a proviso: 'provided that no decision of the Court of Wards under this section shall be proved in any such suit as against the defendant.'

2. The plaintiffs contend that although what amounted to an offer by the Collector under Section 16 cannot be proved in a suit filed by the claimant if he does not accept the offer yet the proviso does not prevent the claimant from using the letter as an acknowledgment so as to start a fresh period of limitation under Section 19 of the Indian Limitation Act. That appears to us to be the proper interpretation of the proviso read in conjunction with the previous sections. It must be restricted to meaning that if the claimant files a suit on his claim, the Collector's offer cannot be proved as an admission, the claimant must prove his case de novo, and the Collector is not bound by any offer which he may have made under Section 16. But we do not think that the proviso bars the claimant from using the offer as an acknowledgment that the debt exists. As it has not been distinctly provided that such a decision or proposal or offer by the Court of Wards shall not be used as an acknowledgment, we think it is open to the claimant to make use of such a decision merely for the purposes of an acknowledgment. Otherwise it would work very great injustice, and certainly in this case would operate as a very great hardship on the petitioners. But the' acknowledgment will only save limitation with regard to the bond for Kb. 9,500. It is admitted that nothing was paid on the bond for Rs. 3,200, and a suit on that bond was clearly barred before the 24th May 1913. The plaintiffs have obtained a decree for the amount of that bond and interest from the Subordinate Judge on his finding that Article 147 applies. We think, therefore, that the decree must be amended and that the direction on the defendants to pay Rs. 6,400 with costs by annual instalments must be struck out. The decree will, therefore, stop at the figure '9,500'. The respondents will be entitled to the costs in proportion to the extent to which they have succeeded.

3. I agree. The matter of importance and of some difficulty which has been argued at the hearing of this appeal, relates to the meaning of the proviso to Section 16 of the Court of Wards Act (Bom. Act I of 19C5). There was a decision, what is called a decision in the section, by the Collector, and that decision undoubtedly amounts to an acknowledgment of certain mortgage debs But it is said that in virtue of the proviso to the section the decision cannot be proved against the defendant. Now I admit quite frankly that if you take the words of the proviso, away from the rest of the section, and consider them by themselves, they do undoubtedly mean that the decision is not to be proved against the defendant. If that is what the words Bay, it is argued we must presume that the words mean that. Of course it is to be presumed that the words mean what they say, and if they mean that, then it is further argued that this decision cannot be proved against the defendant. It does not matter for what purpose you wish to use it. But when you have a proviso of this kind, when you have something which is a portion of a larger whole, then to discover the purpose of its existence you have to look to that larger whole. The purpose of the whole section is very clear. It is to enable the Collector to have an absolutely free hand in making compromises on behalf of a ward, with the ward's creditors. In order that he may have an absolutely free hand, and that he may not be fettered by fears of what may be said afterwards as to what he has done, it is provided that these offers, or decisions as they are called, cannot be proved against the defendant in a suit subsequently brought. Clearly the meaning is that whatever the Collector has asserted or admitted shall not be used as proof of any claim by the plaintiff in a suit against the defendant; and that the plaintiff has to prove his claim fully by evidence altogether outside anything that the Collector in the course of the discussion or negotiation may have written in his decision or offer. But if we go beyond this, if we say not only that the decision shall not be proved for the purpose of establishing the plaintiff's claim, but also that it shall not be proved even for the purpose of showing that the Collector acknowledged the claim; then I think we should be going right outside the intention and purpose of the section as a whole. That is why I think this decision been be proved as an acknowledgment, because I think not only does the section as a whole, having regard to its purpose and intention, not prohibit such a thing, but all that it does prohibit is the use of the decision for the purpose of substantiating and establishing the plaintiff's claim. I agree to the order proposed


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