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In Re: Sir Harilal Nemchand Gosalia - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberTestamentary Petn. No. 12 of 1949
Judge
Reported inAIR1950Bom74
ActsCourt-fees Act, 1870 - Sections 19B and 19I
AppellantIn Re: Sir Harilal Nemchand Gosalia
Advocates:R.J. Kolah, Adv.;M.P. Amin, Adv. General
Excerpt:
.....remedy has been extinguished by reason of the statute of limitation. 2. the question, therefore, is whether the law permit the executor to pay these debts, or is there anything in law which prevents the executor from paying time-barred debts, and the answer to that question is clearly that there is nothing in law which prohibits an executor from paying time-barred debts......which were owed by the deceased to the sisters of his widow. now, admittedly, both these debts are time-barred, and the contention of the other side is that as these are time-barred debts the petitioner is not entitled to include them in the amount of debts due and owing from the deceased. these are debts which are not only owing but which are due, because they are presently payable but for the statute of limitation. no difficulty arises with regard to the interpretation of the expression 'due and owing,' but the difficulty arises when one has got to give a true meaning to the expression used by the legislature, viz., 'payable by law.' an executor is entitled to pay time-barred debts, and therefore if in this case the executor were to pay these two debts to the two sisters of the widow.....
Judgment:

Chagla, C.J.

1. This is a reference under S. 5, Court-fees Act, 1870, and the very narrow question that calls for our determination is the meaning to be given to the expression appearing in Schedule III, in, Court-fees Act in Annexure B of that schedule, 'amount of debts due and owing from the deceased, payable by law out of the estate.' Now, under Section 19-I, Court fees Act,

'no order entitling the petitioner to the grant of probate or letters of administration shall be made upon an application for such grant until the petitioner has filed in the Court a valuation of the property in the form set forth in the third schedule.'

and the third schedule sets out the form and in that form in Annexure A has to be set out the value of the moveable and immoveable properties of the deceased and in Annexure B a schedule of debts has got to be set out and the first item in the schedule of debts is amount of debts due and owing from the deceased, payable by law out of the estate. The petitioner in this case contended before the Prothonotary that he was entitled to include in these debts two sums of Rs. 72,695 and Rs. 41,880 which were owed by the deceased to the sisters of his widow. Now, admittedly, both these debts are time-barred, and the contention of the other side is that as these are time-barred debts the petitioner is not entitled to include them in the amount of debts due and owing from the deceased. These are debts which are not only owing but which are due, because they are presently payable but for the statute of limitation. No difficulty arises with regard to the interpretation of the expression 'due and owing,' but the difficulty arises when one has got to give a true meaning to the expression used by the Legislature, viz., 'payable by law.' An executor is entitled to pay time-barred debts, and therefore if in this case the executor were to pay these two debts to the two sisters of the widow of the deceased, he would be doing something which he is entitled to do by law and his conduct could not be questioned and he could not be proceeded against for devastavit. It is true that if a creditor were to sue the executor in respect of these debts and if the executor chose to plead the statute of limitation, the creditor would fail in his action, because although the debt subsists, the remedy has been extinguished by reason of the statute of limitation. But, in our opinion, we have got to look at this question not from the point of view of the creditor but from the point of view of the executor who is paying these debts.

2. The question, therefore, is whether the law permit the executor to pay these debts, or is there anything in law which prevents the executor from paying time-barred debts, and the answer to that question is clearly that there is nothing in law which prohibits an executor from paying time-barred debts. It is significant to note also that the Legislature has advisedly not used the expression 'recoverable' but 'payable.' The difference between the two expressions 'payable' and 'recoverable' is fundamental, because in the case of the expression 'recoverable' what is emphasised is the remedy; in the case of the expression 'payable' what is emphasised is the right of the person paying to pay under the law. The legislature in this case is not referring merely to enforceable debts; it is referring to all those debts which an executor in law is entitled to pay out of the estate of the deceased. The position as regards the right of the executor is made clear by Section 323, Succession Act, 1925, .which provides that 'the executor or administrator shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the deceased will extend.' It will be noticed that no exception is made in the case of statute-barred debts.

3. If we were to accept the argument of the Advocate General and to construe the expression 'payable' as if it was the same as 'recoverable ' a very curious result would ensue. It is not disputed, and it cannot be disputed, that an executor has the right of promising to pay in writing a time-barred debt. If he does so, that debt would become an enforceable debt. Therefore, according to the Advocate General, although an executor may easily get round this provision of the law by making a promise to pay and making the debt enforceable, he could not include this debt in Schedule III although the law permits him to pay it without necessarily promising to pay it in writing. In our opinion, the Legislature did not intend such an anomalous result. Therefore, in our opinion, the executor is a entitled to include these two debts in Annexure B to Schedule III.

4. No order as to costs.


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