Skip to content


Mahomedbhai Husseinbhai Vs. Ismail Haji Halimbhai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 351 of 1910
Judge
Reported in(1911)13BOMLR1014; 12Ind.Cas.586
AppellantMahomedbhai Husseinbhai
Respondentismail Haji Halimbhai
Excerpt:
limitation act (xv if 1877), article 120 --suit for account--period of limitation --death of accounting party. ;in a suit for accounts, the six years' limitation prescribed by article 120 of the limitation act, 1877, must be calculated from each item of the account; and not from the date of the death of the accounting party. - .....was no escape whatever from their obvious effect. we think there can be no doubt that the six years' limitation prescribed by article 120 of the limitation act must, as held in those cases, be calculated from each item of the account, so that only those items which are within six years of the date of suit can be brought into the account under this rule of limitation.3. the appellants have, however, further contended that even if that be so, they are saved from the full bar of limitation by certain acknowledgments of sulemanji alleged to have been made in may 1902. those acknowledgments are said to be contained in two letters, the one addressed by sulemanji to the first plaintiff, and the other addressed by sulemanji to his own father. we have carefully considered those letters, but.....
Judgment:

Beaman, J.

1. The appellants have obtained a decree against the respondents for accounts from 7th December 1901 to July 1902 in respect of a house owned jointly by Huseinbhai and Sulemanji their respective predecessors in interest.

2. The appellants have raised only one question, that is of limitation. They have contended in the first place that under Article 120 of the Limitation Act, the six years should be counted from July 1902, the date of the death of the accounting party Sulemanji; and that as the suit was brought within six years of that date, they are entitled to open up the whole account without any further bar of limitation. The appellants appear to have been encouraged to raise this contention owing to the somewhat elaborate, though in our opinion irrelevant, criticisms in the decided cases made by the learned Judge of the first appeal Court. The ultimate result of his discussion is what should have been clear to him from the beginning that there was no escape whatever from their obvious effect. We think there can be no doubt that the six years' limitation prescribed by Article 120 of the Limitation Act must, as held in those cases, be calculated from each item of the account, so that only those items which are within six years of the date of suit can be brought into the account under this rule of limitation.

3. The appellants have, however, further contended that even if that be so, they are saved from the full bar of limitation by certain acknowledgments of Sulemanji alleged to have been made in May 1902. Those acknowledgments are said to be contained in two letters, the one addressed by Sulemanji to the first plaintiff, and the other addressed by Sulemanji to his own father. We have carefully considered those letters, but are unable to find in them any definite acknowledgment such as would justify us regarding, them as acknowledgments of liability to (sic) ing of Section 19 of (sic)

4. The appellants have finally contended that in any case the account ought to have been ordered from October 1901 instead of from December 1901, as the parties added were brought on the record in October 1907 though the summonses were not served on them till December 1907. We think they are entitled to this in view of the qualifying words in Section 32 of the old Civil Procedure Code referring to Section 22 of the Limitation Act.

5. The respondents have raised a cross-objection to the effect that the Article of the Limitation Act that ought to have been applied was not Article 120 but Article 62, that is to say, they ask us to hold that the suit is not really one for an account, but is merely a suit for money had and received. We do not, however, think in all the circumstances of the case that the contention is sustainable. The appellants demanded an account of the profits of the joint house under the management of Sulemanji. The sum due to them could only be ascertained after taking account not only of the rents received, but of the expenses incurred in the managment by Sulemanji. It cannot be said that there was any particular sum had and received on their behalf by Sulemanji. We think, therefore, that Article 62 cannot be applied.

6. We must accordingly modify the decree of the lower appellate Court by ordering that the account be taken from October 1901 instead of from the 7th December 1901. Otherwise we confirm the decree of the lower appellate Court and dismiss both the appeal and the cross-objection with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //