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Jainabbibi Vs. Shankar Sakharam - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 218 of 1947
Judge
Reported inAIR1951Bom255; (1950)52BOMLR858; ILR1951Bom57
ActsLimitation Act, 1908 - Sections 19
AppellantJainabbibi
RespondentShankar Sakharam
Appellant AdvocateH.C. Coyajee and ;K.B. Sukhtankar, Advs.
Respondent AdvocateK.V. Joshi, Adv.
Excerpt:
.....of denial in answer to demand --whether an admission of liability to constitute acknowledgment.;an acknowledgment under section 19 of the indian limitation act, 1908, need not necessarily be express, but it must be something positive. a mere absence of denial, in answer to a demand, cannot operate as an admission of liability so as to constitute an acknowledgment within the meaning of section 19 of the act.;sambasiva ayyar v. subramania pillai (1935) i.l.r. 59 mad. 312, followed. - - 400 are said to have been paid under the mortgages, and this payment was on 26.2-1926. the suit was filed on 25-10-1945, and prima facie appeared well beyond the period of limitation under article 132, limitation act. and clearly it could not, for the acknowledgment under section 19 must..........a number of statements of the defendant, which she claimed to be acknowledgment. one of these, a written statement, dated 29-11-1930, was accepted by the learned judge as constituting an acknowledgment under section 19, limitation act. but this acknowledgment in itself was of no avail to the plaintiff as it was made more than twelve years before the date of the filing of the present suit.2. before us mr. coyajee for the plaintiff-appellant has based his case on a written statement filed by the defendant in suit no. 15 of 1935, or rather on this statement together with the defendant's reply to a notice given by the plaintiff shortly before that suit was filed. the date of the reply to the notice is 24-10-1934, while the date of the written statement is 6-4-1935. suit no. 15 of 1935.....
Judgment:

Weston, J.

1. This is a plaintiff's appeal from the dismissal of his suit by the Joint Civil Judge, Senior Division, Thana. The suit was to recover an amount of Rs. 18,000 claimed due on two mortgages. The two mortgages were mortgages of the same property, one was for an amount of Rs. 4,000, and the other was for an amount of Rs. 5,000, and these mortgages were executed on 6-2-1923, and 11-3-1926, respectively. Interest was provided to be at twelve per cent. per annum in the first mortgage and at nine per cent. in the second. The period for payment under the first mortgage was three years, while under the second mortgage payment was to be by instalments, the date of the last instalment being 16-12-1929. There was a default clause that in default of any two instalments the whole amount was to become due. The plaintiff claimed that the amount due under the mortgages considerably exceeded the amount of Rs. 18,000, and he limited his claim according to the rule of damdupat. Only Rs. 400 are said to have been paid under the mortgages, and this payment was on 26.2-1926. The suit was filed on 25-10-1945, and prima facie appeared well beyond the period of limitation under Article 132, Limitation Act. The plaintiff, however, relied on certain acknowledgments; and the main question in the suit and the only question in this appeal was and is whether the acknowledgment within twelve years of the suit, sufficient under Section 19, Limitation Act to renew the period of limitation, has been proved. In the suit the plaintiff relied upon a number of statements of the defendant, which she claimed to be acknowledgment. One of these, a written statement, dated 29-11-1930, was accepted by the learned Judge as constituting an acknowledgment under Section 19, Limitation Act. But this acknowledgment in itself was of no avail to the plaintiff as it was made more than twelve years before the date of the filing of the present suit.

2. Before us Mr. Coyajee for the plaintiff-appellant has based his case on a written statement filed by the defendant in Suit no. 15 of 1935, or rather on this statement together with the defendant's reply to a notice given by the plaintiff shortly before that suit was filed. The date of the reply to the notice is 24-10-1934, while the date of the written statement is 6-4-1935. Suit no. 15 of 1935 arose in this way. In or about the year 1932 Government in default of pay. ment of assessment was taking or was consi-dering taking steps under the Land Revenue Code, and assessment amounting to Rs. 170-14-3 was paid by the plaintiff. In his notice before suit dated 19-10-1931, the plaintiff stated that the Government dues for the year 1931-32 payable by the defendant had to be paid by the plaintiff, the total amount being Es. 170 odd. The notice stated that the defendant had not re-paid this amount and called upon him to do so. By his reply to the notice the defendant stated as follows :

'My client has given to your client wood of the value of Rs. 69-6-0. My client did not take the price of the said goods in cash but told your client to take the same into account of the amount of the dhara and the latter agreed to do so. Moreover your client wanted some more goods and as your client agreed not to pay the price in cash but to set off the price against the dhara paid by him, my client did not pay the balance of the money to your client. If your client does not require the goods my client is willing to pay the balance of the amount after deducting the sum of Rs. 69-6-0.'

This reply was not signed by the defendant but was signed by his pleader, and may be accepted to be signed by an agent authorized in that behalf. In para. 1 of the plaint in Suit No. 15 of 1935 it was stated that the defendant's property was in simple mortgage with the plaintiff and the land revenue for the year 1931 due from the defendant to Government had to be paid by the plaintiff; and the suit was to recover this amount on the basis that the plaintiff having an interest in the property had paid money which the defendant was liable to pay according to law. The plaint then cited the plaintiff's notice and the reply thereto by the defendant and made the same claim for Rs. 170, odd, which the plaintiff had made in his notice. The written statement was filed on 6-1-1935, and was in the following terms :

'1. The plaintiff has stated the occupation of the defendant as trader. The defendant's occupation Is agriculturist. He maintains himself by agriculture.

2. The defendant has sold wood to the plaintiff of the value of Bs. 69-6-0. It was agreed that this amount be deducted from the amount of dhara paid by the plaintiff. In spite of this the said amount of Bs. 69 6-0 has not been deducted by the plaintiff in his suit. It is necessary that the said amount be deducted.

3. The plaintiff was going to purchase more wood from the defendant and therefore he paid the dhara. For the balance remaining due on taking accounts after deducting the amount stated in para. 2, light instalments be allowed. The written statement is aa aforesaid.'

3. I think it may be accepted that an acknowledgment under Section 19 need not necessarily be express, but the requirement of the section that the acknowledgment must be in writing and signed by the party or an agant duly authorized in this behalf shows that the acknowledgment must be something positive. Mere silence on the part of a party would not be enough. In my opinion, the law was correctlystated by the Madras High Court in Sambasiva Ayyar v. Subraminia Pillai : AIR1936Mad70 where, after setting out a number of authorities, Stone J. said (p. 317) :

'On an examination of the above it will be found that it has been consistently held that where the circumstances are such that the person making a representation has his mind directed to the question of the existence of the debt or not, and he represents that the debt exists or he represents facts consistent with the inference that he admits the existence of the debt, such representation will be deemed a sufficient acknowledgment.'

The question then is whether by this written statement the defendant in the present suit represented facts only consistent with the existence of the mortgages. There is in the written statement no word relating to the mortgages; but Mr. Coyajee for the plaintiff contends that this written statement must be read along with the plaint, and that the admissions contained in the written statement necessarily embrace admissions as to the existence of the mortgages. Mr. Coyajee does not claim that the principle of pleading set out in Order 8, Rule 5, can have any application; and clearly it could not, for the acknowledgment under Section 19 must be in writing and must be signed. So that a mere omission to deny a particular assertion could not of itself amount to an acknowledgment sufficient for the purpose of Section 19. Had the defendant by his written statement made a general admission accepting the whole of the plaint, then perhaps that could be said to be sufficient. The plaint no doubt is a clear assertion of a claim under Section 69, Contract Act, and the written statement is an admission that the money sought to be recovered had been paid by the plaintiff for the defendant. Bat apart from Section 69, Contract Act, money paid by one person on behalf of another may be recovered by the person who has paid, if the payment has been made by virtue of agreement between the two that it should be recovered. If, therefore, in a written statement there is a statement that the payment of assessment was made in pursuance of some agreement between the two, I find it difficult to accept that the written statement can be said to contain by implication an unequivocal admission of the existence of the mortgages sufficient for the pur. pose of Section 19, Limitation Act, Clause 2 of the written statement is not very clear. It might well be said to mean that the assessment first had been paid by the plaintiff and later on it was agreed that the price Rs. 69-6-0 of the wood subsequently sold to the plaintiff should be deducted from the amount due to the plaintiff. Clause 3, however, suggests that the assessment was paid as part and parcel of an arrangement whereby the plaintiff was to purchasewood from the defendant. The circumstance that the written statement is not very clear is not a circumstance in support of its value as an acknowledgment, and it seems to me on construction of the written statement that it does not do more than admit liability that money was paid by the plaintiff on behalf of the defendant; and the only reference made to the nature of the transaction is not very clear reference to some agreement which might well have existed, apart from the plaintiff being in the position of mortgagee. In my view, therefore, the written statement is not an acknowledgment sufficient for the purpose of Section 19, Limitation Act.

4. It is not necessary, therefore, to consider further points raised by Mr. Joshi on behalf of the defendant, that there are in this case two mortgages, and a general admission as to mortgage would not be sufficient to cover two mortgages. In my opinion, the decision of the trial Court is right, and this appeal must be dismissed with costs.

5. Shah J.--I agree. Under Section 19, Limitation Act, if before the expiration of the period of limitation prescribed for a suit or an application in respect of any property or right, there is an acknowledgment of liability in respect of such property or right, and the acknowledgment is made in writing and is signed by the party against whom the right or the property is claimed, such acknowledgment has the effect of extending the period of limitation, and a fresh period of limitation has to be computed from the date when the acknowledgment was signed. Under Expl. (1) to that section, such an acknowledgment may be sufficient though it omits to specify the exact nature of the property or the right. It is clear from the words of Section 19 that the acknowledgment must be an acknowledgment of liability. The acknowledgment however may be either express or may be implied. The acknowledgment of liability may be contained in a document signed by the person against whom the right or the property is claimed or by his authorized agent or it may be inferred from the document together with the evidence of surrounding circumstances which show how the recitals made in the document related to the facts then existing. A mere absence of denial, in answer to a demand, however, cannot ope rite as an admission of liability so as to constitute an acknowledgment within the meaning of Section 19.

6. In the present case the plaintiff in his plaint in Suit no. 15 of 1935 stated that the estate of the defendant was in mortgage with him. He further asserted that the defendant was under an obligation to pay the assessment due to the Government in respect of the lands which were mortgaged, and that liability forassessment due to Government not being satisfied by the defendant, the plaintiff had to satisfy the liability, and he therefore claimed that he was entitled to a decree against the defendant for the amount of assessment paid by him.

7. In his written statement the defendant admitted that the plaintiff had paid the assessment due to Government. He set up a contention that against the amount paid an amount of RS. 69-6-0 was to be appropriated for wood supplied to the plaintiff, and that the defendant was to supply more wood to the plaintiff towards the liability, which, according to the defendant, was agreed to be satisfied by supplying wood. There was no reference in the written statement to the mortgage. Now this written statement, according to the rules of pleadings, may be deemed to admit the averment made in the plaint that the property in respect of which the liability to pay assessment arose was mortgaged with the plaintiff. But the tule of pleadings, that absence of denial of an assertion made in a plaint must be deemed to amount to an admission that the assertion is true, cannot apply in construing an acknowledgment under Section 19, Limitation Act. A party who seeks to rely upon an acknowledgment of liability for the purpose of extending the period of limitation prescribed for filing a suit in respect of property or right must establish that there has been an acknowledg. ment by the other party of the same liability in respect of the property or the right in respect of which the suit is filed and it has been signed by him or by his authorized agent. In the written statement of the defendant there has been an acknowledgment of liability for the payment of assessment, but there is no acknowledgment of a mortgage or the liability under a mortgage. It is true that evidence is admissible for the purpose of ascertaining the right or the property to which the liability relates, if tbe liability is expressly or even impliedly admitted. But in the present case the liability admitted does not appear to be, either expressly or impliedly, the liability under the mortgage. I agree, therefore, with the order proposed by my learned brother that the appeal should be dismissed with costs.


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