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Fakirchand Jankiram Agarwal Vs. Narmadabai Tulsiram Agarwal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 260 of 1941
Judge
Reported inAIR1943Bom461; (1943)45BOMLR831
AppellantFakirchand Jankiram Agarwal
RespondentNarmadabai Tulsiram Agarwal
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), section 19-acknowledgment-person sought to be charged with liability can make acknowledgment.;an acknowledgment, under section 19 of the indian limitation act, 1908, need not necessarily be made by a person under an existing liability. it can also be made by any other person provided, such person is sought to be charged with the liability.;jugal kishore v. fakhr-ud-din (1906) i.l.r. 29 all. 90 and krisknayya v. venkatappayya [1925] a.i.r. mad. 134, followed.;amir mirza beg v. lachmi narain (1931) i.l.r. 7 luck. 270, dissented from.;chinnery v. evans (1864) 11 h.l.c. 115, explained. - - 115 in which he disapproved of the view that it could be regarded as possible for a stranger to pay the interest of the mortgagee and therefore keep the mortgage alive......to bid for the property and therein he stated that he was prepared to purchase it subject to the mortgage liability of narmadabai. his agent dagdu purchased it for him on the same day on the distinct understanding that the property was subject to narmadabai's mortgage liability. narmadabai then presented this darkhast on august 31, 1938, nearly five years after her previous darkhast of 1932 had been disposed of. it was claimed on her behalf that the darkhast was not time-barred by reason of the acknowledgment made by the appellant fakirchand on august 30, 1935, in his application for permission to bid.2. both the courts mow have held that the bar of limitation was saved by that acknowledgment, and it is now urged on behalf of the appellant that, as fakirchand was not liable under the.....
Judgment:

Lokur, J.

1. This second appeal raises an important question of limitation, and the facts of the case are not in dispute. One Manibai obtained a mortgage decree against one Imam Shaikh in suit No. 362 of 1926. After her death, her mother-in-law and heir Narmadabai gave several darkhasts to execute the decree and recover the decretal amount by sale of the mortgaged property. The last darkhast was filed in 1932 and disposed of on July 17, 1933. In the meantime the appellant Fakirchand, who had obtained a money decree against the said judgment-debtor Imam Shaikh, executed it in darkhast No. 3782 of 1932 and sought to recover his decretal amount by sale of the property which had been mortgaged to Manibai, subject to Manibai's mortgage. On August 13, 1935, he applied for permission to bid for the property and therein he stated that he was prepared to purchase it subject to the mortgage liability of Narmadabai. His agent Dagdu purchased it for him on the same day on the distinct understanding that the property was subject to Narmadabai's mortgage liability. Narmadabai then presented this darkhast on August 31, 1938, nearly five years after her previous darkhast of 1932 had been disposed of. It was claimed on her behalf that the darkhast was not time-barred by reason of the acknowledgment made by the appellant Fakirchand on August 30, 1935, in his application for permission to bid.

2. Both the Courts Mow have held that the bar of limitation was saved by that acknowledgment, and it is now urged on behalf of the appellant that, as Fakirchand was not liable under the mortgage at the time he made the acknowledgment, it cannot be regarded as an acknowledgment to save the bar of limitation within the meaning of Section 19 of the Indian Limitation Act. Mr. Amin mainly relies upon the meaning of the word 'acknowledgment', which, according to him, connotes the liability of the person acknowledging, and if Fakirchand was not under any liability, he could not make an acknowledgment of another's liability. He argues that it would be merely a statement that the judgment-debtor was liable to Narmadabai and that he was prepared to accept that liability if he succeeded in purchasing the property at the auction sale. There is some force in this argument. But in Wharton's Law Lexicon, 'acknowledgment of debt or liability' is defined as an admission that a debt is due or that some claim or liability is still in existence. It does not necessarily mean that the debt or liability must be of the person making the acknowledgment. The intention of the Legislature can be easily seen from the difference in the phraseology used in Sections 19 and 20 of the Indian Limitation Act. Whereas in Section 20 the payment of interest or principal to save the bar of limitation is required to be made by 'the debtor or his agent duly authorised in that behalf', in Section 19 the acknowledgment of liability is required to be made in writing 'signed by the party against whom such right is claimed'. In Section 8(1) of the English Real Property Limitation Act, 1874, (37 & 38 Vic. Order 57) it is specified that to save the bar of limitation even the acknowledgment must be 'given in writing signed by the person by whom the amount shall be payable or his agent.

3. Mr. Amin next relies upon the remarks made in Amir Mirza Beg v. Lachhmi Narain I.L.R. (1931) Luck. 270 where it is observed (p. 281) :

An acknowledgment of liability or right pre-supposes an acknowledgment by a person possessed of some interest which can be bound by the acknowledgment, If the person making the acknowledgment has no interest, whatsoever, then such acknowledgment would not have the 'legal quality' of an acknowledgment and can therefore be of no consequence.

4. This was based on certain observations of Lord Westbury in Chinnery v. Evans (1864) 11 H.L.C. 115 in which he disapproved of the view that it could be regarded as possible for a stranger to pay the interest of the mortgagee and therefore keep the mortgage alive. That was the case of a payment, which is now covered by Section 20 of the Indian Limitation Act. But we are here dealing with an acknowledgment which, under Section 19, may be made by the party against whom the right is claimed. The right is now claimed against the appellant, and admittedly he has made the acknowledgment and, therefore, so far as the claim against him is concerned, the bar of limitation is saved.

5. This question arose directly in Jugal Kishore v. Fakhr-ud-din I.L.R. (1906) 29 All. 90 and it was held that Section 19 did not require that the person making an acknowledgment should have an interest in the property in respect of which the acknowledgment was made at the time when the acknowledgment was given, That section prescribes that, if, before the period of limitation expires, an acknowledgment of liability or right has been made in writing signed by the parties against whom the property or right is claimed, a new period of limitation will be computed from the time of the acknowledgment. This was followed in Krishnayya v. Venkatappayya : AIR1925Mad134 and, with respect, I entirely agree with that view.

6. The darkhast is, therefore, in time, and I dismiss the appeal with costs.


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