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Bhalchandra Dattatraya Bubane Vs. Chanbasappa Mallappa Warad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 279 of 1936
Judge
Reported inAIR1939Bom237; (1939)41BOMLR391
AppellantBhalchandra Dattatraya Bubane
RespondentChanbasappa Mallappa Warad
Excerpt:
indian limitation act (ix of 1908), sections 19 and 21 - acknowledgment of liability-indian evidence act (i of 1872), sections 123, 124 and 162-privileged communications-affairs of state-official communications-witness-production of documents.;on july 22, 1907, the father of the defendant mortgaged two properties for rs. 3,450 to the father of the plaintiff for a period of one year. the defendant's father having died in 1908 and the defendant being a minor, his estate was taken under its management by the court of wards. the plaintiff's father died in 1911, when the plaintiff was a minor. he attained majority on october 10, 1930, and sued on the mortgage on october 9, 1933'. during the hearing of the suit, the plaintiff summoned the collector to produce the record of the management of the.....sen, j.1. the appellant was the defendant in a suit based on a mortgage bond dated july 22, 1907, for rs. 3,450 taken from his father by the father of the plaintiff-respondent. the suit was filed on october 9, 1933. in order to show that the suit was within time, which was the principal question at issue in the trial court and the only one in this appeal, the plaintiff has relied on the following circumstances. his father died on january 19, 1911, and he was born on october 10, 1909, the defendant's father having died about 1908. the amount of the bond was repayable within one year. therefore limitation began to run in the plaintiff's father's life-time. if, therefore, the plaintiff could show that limitation got a fresh start during his minority and after his father's death, the period.....
Judgment:

Sen, J.

1. The appellant was the defendant in a suit based on a mortgage bond dated July 22, 1907, for Rs. 3,450 taken from his father by the father of the plaintiff-respondent. The suit was filed on October 9, 1933. In order to show that the suit was within time, which was the principal question at issue in the trial Court and the only one in this appeal, the plaintiff has relied on the following circumstances. His father died on January 19, 1911, and he was born on October 10, 1909, the defendant's father having died about 1908. The amount of the bond was repayable within one year. Therefore limitation began to run in the plaintiff's father's life-time. If, therefore, the plaintiff could show that limitation got a fresh start during his minority and after his father's death, the period of limitation would be extended up to the expiry of three years from the date of his attaining majority, that is, up to October 10, 1933, and the suit would be in time. In order to show this the plaintiff alleged in his plaint that on Narsingirji ., having filed a darkhast against the defendant in 1916, the latter's property was to be brought to sale, Narsingirji ., being the prior mortgagees of the property in suit, and the plaintiff received summons from the executing Court as the mortgagee of the same property. The plaintiff alleged that thereupon an agreement took place between the defendants mother and guardian Laxmibai and the trustees of the plaintiff's estate to the effect that the defendant's guardian was to pay to the plaintiff Rs. 1,000 in part payment of the mortgage and the plaintiff was to relinquish his right over the shop of the defendant, which was one of the two properties mortgaged, and recover the balance of the mortgage amount from the other property mortgaged, which was a bungalow. He also alleged that such payment was made on November 14, 1916, and that the defendant's guardian intimated the agreement as well as the payment to the executing Court and the plaintiff's trustees also gave an intimation to the same effect to the said Court. The plaintiff further alleged that on December 9, 1920, the defendant again paid a sum of Rs. 500 to him, and he contended that the agreement as well as the two payments extended the period of limitation under Sections 19 and 20 of the Indian Limitation Act.

2. The defendant's written statement was filed on July 18, 1934. Therein he denied that any agreement as alleged took place between his mother and the plaintiff's trustees. He denied the right of his mother to enter into such an agreement and also denied the plaintiff's allegation as to payments made on his behalf and intimation given to the executing Court; and he alleged satisfaction of the mortgage debt.

3. Issues were raised] on August 3, 1934. On March 27, 1935, a clerk from the Collector's office produced a record of the Court of Wards pertaining to the defendant's property, the said property having been under the superintendence of the Court of Wards from October 1909, till 1913. On July 24, 1935, the plaintiff, having looked into this record, applied to be allowed to add a fresh ground showing that his claim was in time. This ground was to the effect that while the defendant's estate was under the control of the Court of Wards, on May 12, 1911, or thereabouts the said Court acknowledged that a debt of Rs. 3,450 plus interest of Rs. 779-9-4 was due to the plaintiff, this statement being signed by Irappa Narsappa Mamadpalli, manager of the estate or agent of the Court of Wards, on behalf of the defendant. The defendant objected to the fresh amendment and contended that the statement in question not being dated and no person having been mentioned therein as the person to whom it had been addressed and it not being known in what capacity Mamadpalli signed or prepared this statement, the statement which, besides, was a confidential document could not be admitted in evidence; but his contentions were overruled and the amendment was allowed by the trial Court.

4. On August 23, 1935, the Collector wrote to the Court pointing out that the whole file which had been sent by him was of the nature of a confidential record and claimed privilege and asked the Court to decide the question Under Section 162 of the Indian Evidence Act. The trial Court does not, however, appear to have paid any heed to this letter and the statement in question was exhibited as exhibit 123 on July 28, 1936. On June 29, 1935, the Collector asked for the return of the record. This also was unheeded by the Court and the Court allowed the parties to take copies of the necessary documents out of the file. Besides exhibit 123, a letter from the Collector to the plaintiff's father, dated December 22, 1910, referring, to his mortgage deed and asking whether he was willing to accept eight annas in the rupee in full satisfaction of his claim, a report from Irappa Narsappa Mamadpalli to the Collector dated October 18, 1910, regarding the defendant's debts and a report made by the Collector to the Commissioner on June 9, 1911, on the same subject were exhibited as exhibits 90, 121: and 124 respectively.

5. Before the amendment of the plaint nine issues had been raised of which two are relevant to the present appeal, viz., 5 (a), 'Does the plaintiff prove the agreement between his guardian and the defendant's guardian mother as alleged in paragraph IV of the plaint?' and 7, 'Does the plaintiff prove that the defendant's actual and legal guardian paid the two sums of Rs. 1,000 and Rs. 500 and that by the effect of the payment the plaintiff's claim is saved from the bar of limitation?' The findings on both the issues were in the affirmative. After the amendment of the plaint additional issues were raised, viz., 10, 'Does the plaintiff prove the statement purporting to be the acknowledgment?', 11, 'Is it binding on the defendant?', 12, 'Does the defendant prove that the statement is inadmissible under Section 124 of the Indian Evidence Act?', 13, ' What is the date of the statement?' and 14, 'Whether it amounts to acknowledgment saving the bar of limitation?' The findings were all in favour of the plaintiff, the date of the statement being found to be December 22, 1910. But it is to be noticed that in dealing with all these additional is sues the Court evidently regarded exhibit 90, i.e. the letter of the Collector to the plaintiff's father, dated December 22, 1910, as the alleged acknowledgment to be considered. In the result the trial Court found that the suit was in time and decreed the plaintiff's claim.

6. The main arguments urged before us on behalf of the appellant are as follows.

7. It is contended in the first place that there was no intimation by the defendant's mother to the executing Court of any agreement or any payment thereunder, that even if there was an agreement it was not in writing, and that, therefore, such agreement cannot save limitation under Section 19 of the Indian Limitation Act. Secondly, it is contended that the payment of Rs. 1,000 and Rs. 500 have not been shown to have been made as payments of interest, and it is not the plaintiff's case that these were acknowledgments in the handwriting of, or in a writing signed by, the person who made the said payments, and that thus these payments, even if proved, cannot save limitation under Section 20 of the Indian Limitation Act. It is next contended that the amendment allowed by the Court to the plaint should not have been allowed as it materially altered the plaintiff's case. Learned Counsel for the appellant has further pointed out that whereas the plaintiff, in the amended part of his plaint, evidently based hiss claim as to acknowledgment on exhibit 123, the Court wrongly raised issues and arrived at findings based on exhibit 90, which is not referred to in the plaint. The appellant's next contention is that even supposing that this was permissible and that the letter exhibit 90 can be taken as an acknowledgment, it would extend the time from a date within the life-time of the plaintiff's father and therefore cannot avail the plaintiff. As to exhibit 123, it is contended that it bears no date and it may have been prepared within the lifetime of the plaintiff's father, that it is not addressed to anyone and that it appears merely to be a note or a memorandum prepared to assist in the management. of the defendant's estate, and that therefore it cannot be regarded as an acknowledgment. The contention as regards privilege, which was raised in the trial Court but was not discussed by the learned Subordinate Judge, is again raised before us and it is contended that exhibit 123 being a confidential document should not have been admitted in evidence, and that it should be excluded from the Court's consideration. Lastly, it has been contended that the statement made in exhibit 123 cannot amount to an admission of subsisting liability as its basis is the defendant's father's dealings with the plaintiff's father in connection with certain satta transactions as shown by the plaintiff's own account books.

8. As regards the alleged agreement it was admittedly not in writing though it appears to have been placed on record in exhibit 85, the application made on the plaintiff's behalf to the executing Court in 1916. The plaintiff's account books show a payment of Rs. 1,000 by the defendant on November 14, 1916 (exhibit 87), and both Chanbasappa, who was appointed executor by the plaintiff's father's will, and Mallappa Siddappa Gornali, who was the principal munim of the plaintiff's estate, state that the trustees of the estate gave up the claim to the defendant's shop which was being brought to sale under the darkhast. The Court house of Sholapur having been burnt in 1930 the plaintiff put in an uncertified copy, exhibit 85, of the alleged application made by Chanbasappa to the Court in 1916. This was stated to have been written by the plaintiff's witness Shankar Bhikaji (exhibit 97) and to have been found in the plaintiff's record. A comparison, however, of the writing made by this witness in Court (exhibit 98) with the writing in exhibit 85 plainly shows that he could not have been the writer of the latter. It must, therefore, be held that exhibit 85 is not proved. It is admitted by Mr. Thakor on behalf of the respondent that there is no evidence that the defendant's mother intimated to the executing Court that there had been any agreement between her and the trustees of the plaintiff's estate or that any amount had been paid by her under such agreement. As, however, Section 19 of the Indian Limitation Act requires that an acknowledgment of liability shall be made in writing in order to extend the period of limitation, and there being admittedly no writing on behalf of the defendant showing acknowledgment, the evidence as to the actual agreement cannot be of any avail to the plaintiff. That being so, it is unnecessary to consider whether the alleged agreement involving the relinquishment of the plaintiff's right in respect of the shop in suit ought to have been in writing which should have been registered or can be proved. See Kampta Singh v. Chatwrbhuj Singh .

9. As regards the payment of the sums of Rs. 1,000 and Rs. 500 there are no doubt entries in the plaintiff's accounts (exhibit 87) regarding these sums under the dates November 14, 1916, and December 9, 1920, respectively. But the first amount is described in those accounts as 'anamat in the account of the principal sum of Rs. 3,450 of the mortgage deed', and as regards the second amount it is not stated in what respect the payment was made. Witness Vithal, who was in defendant's service during the years 1918 to 1920 and who says that he might have paid this sum on the defendant's account, does not remember on what account he made the payment. Besides, the plaintiff's munim, Mallappa Siddappa Gornali, admits that Rs. 500 has not been credited in the plaintiff's vyaj (interest) khata though such a khata was maintained. There is, besides, no evidence that the payment of either sum was made as payment of interest, and in view of the entry regarding Rs. 1,000 it is unlikely that this sum was paid towards interest. These payments, therefore, though made prior to January 1, 1928, not being made as payments towards interest, cannot save limitation under Section 20 [see Hormasji v. Hajrat Yarkhm (1925) 28 Bom. L.R. 569 and Havabu v. Isup Musa : AIR1938Bom467 . Admittedly there is no acknowledgment of these payments in the handwriting of, or in a writing signed by, the person who made the payments. That being so, limitation would be saved only if there were an express intimation by the debtor, or proof of the existence of circumstances showing, that the payment was on account of interest.

10. As regards the amendment of the plaint, it does not appear to us that the amendment made any substantial alteration in the plaintiff's case. It merely added a fresh ground for showing that the suit was in time; and the plaintiff had no means of discovering this ground, before the production of the record of the Court of Wards. The question of allowing the amendment must be regarded as separate from the question of the admissibility of the evidence on which this ground is sought to be proved. The trial Court, in our opinion, was right in allowing the amendment.

11. As regards exhibit 90, it has been admitted by Mr. Thakor on behalf of the respondent that it cannot extend the period of limitation as it was addressed to the plaintiff's father during the latter's lifetime. It is true that the trial Court raised issues with respect to exhibit 90 and not with respect to exhibit 123 on which the amendment of the plaint was, based. But exhibit 90 was admitted at a date earlier than the date on which issues were framed, and it does not appear that the defendant can be said to have been taken by surprise or been prejudiced by the form in which the issues regarding this document were raised. In any case, as it is admitted that exhibit 90 cannot amount to an acknowledgment, this point is one merely of academic interest.

12. There then remains only exhibit 123 to be considered. If the plaintiff fails to show that it saves limitation, his suit fails. One point urged about this document is that it does not constitute an admission of subsisting liability as the debt arose out of satta transactions. In Irappa Mamadpalli's report (exhibit 121) he stated that Messrs. Warad and Bhavaniram had had dealings with the defendant's father in connection with sattas of silver and other articles, that the amounts they claimed were on account of these transactions, and that such claims could not have been enforced in Courts of justice, but that the deceased had passed documents in favour of these gentlemen simply with a view to saving himself from the ignominy of having to contest the claims in civil Courts. He added further :

Under these circumstances, it is requested that steps may kindly be taken for a private settlement of these debts with a view to stop the payment of future interest. In case this is not found to be possible, an attempt may kindly be made to at least reduce the present rate.

13. Learned Counsel for the appellant has relied in: this connection on Chhaganlal v. Bonderbai (1933) 36 Bom. L.R. 334. That was a suit for the recovery of the amount due on promissory notes and the debtor had admitted only the execution of those notes but expressly stated that the consideration thereof had not been received, and it was held that the promissory notes did not constitute acknowledgments within the meaning of Section 19 of the Indian Limitation Act. In the present case, however, there was a definite recommendation as to settlement by the manager of the estate and the Collector therefore appears to have asked the plaintiff by letter (exhibit 90) whether the plaintiff would be willing to accept eight annas in the rupee in full satisfaction of his claim. Witness Mallappa Gornali has denied that the consideration of the mortgage was any amount arising out of the satta dealings. If exhibits 90 and 121 are excluded from consideration as acknowledgments of the defendant's debt, it does not seem possible to say, merely because of the remarks regarding satta in exhibit 121, that exhibit 123 cannot be regarded as an admission of subsisting liability. Exhibit 123 purports to be a statement giving the names of the defendant's creditors, the amounts of the debts owed to them and the amounts of interest due up to May 12, 1911. It is noteworthy that the heading of the second column in the statement is given as 'Amount of debt'; and the whole statement is signed by Irappa Narsappa Mamadpalli. The second item in this statement concerns the debt due to the plaintiff's father, the principal amount stated being Rs. 3,450, and the amount of interest accrued up to May 12, 1911, being shown as Rs. 779-9-4.

14. There is of course no direct evidence that it was addressed to anybody in particular. It is contended by Mr. Thakor that this statement was addressed to the Collector and that the Collector's report to the Commissioner (exhibit 122) was based on this statement. Learned Counsel for the appellant has referred us to a decision in Mahalakshmibai v. The Firm of Nageshwar Purshotam I.L.R. (1885) 10 Bom. 71, where it was held that an entry in a debtor's own book does not amount to an acknowledgment within the meaning of Section 19 of the Indian Limitation Act unless communicated to his creditor or to someone on his behalf. This does not appear to be in conformity with Expln. I to Section 19, which states, inter alia, that for the purposes of this section an acknowledgment made is sufficient though it is addressed to a person other than the person entitled to the property or right in question. It has been held in several cases that it is immaterial in what connection and for what purpose and in what form the acknowledgment is made. The sole question is whether the writing, whatever its immediate purpose or occasion, contains an acknowledgment of the liability in dispute [see Sheikh Mahomed v. Jamaluddin : (1908)10BOMLR385 and Chobey Shrigopal Chiranjilal v. Dhmalal Ghasiram (1910) R. 35 Bom. 383 : 13 Bom. L.R. 123]. For the purposes of Section 124 of the Indian Evidence Act, however, communication has to be made to the public officer who considers that the public interest suffers by its disclosure. There is no evidence as to when the statement (exhibit 123) was prepared except the internal evidence of the document itself. It was asserted in the amended part of the plaint that the acknowledgment was made on May 12, 1911, or thereabouts, and we find that the interest on the amounts shown in the statement has been calculated up to this date. It does not appear likely, as contended by Mr. Gokhale, that the statement was prepared before this date, for instance, during the lifetime of the plaintiff's father. It appears to have been, in our opinion, prepared within the subsisting period of limitation and after the plaintiff's father's death and it appears to have been addressed by Irappa Mamadpalli to the Collector. The Collector's letter (exhibit 122) speaks of certain schedules of the debts and liabilities of the minor defendant which were attached thereto. There is, of course, no direct evidence to show that this statement formed one such schedule. But the Collector's report (exhibit 122) was written within a month of the date up to which interest has been calculated on the defendant's debts in exhibit 123; and looking to the correspondence on the subject of the defendant's debts that appear on record, it seems to us highly probable that the statement exhibit 123 was one of the documents on which figures appearing in exhibit 122 were based. If, therefore, exhibit 123 was a statement prepared and signed by Irappa Mamadpalli, the question arises whether it can be regarded as an acknowledgment within the meaning of Section 19 of the Indian Limitation Act.

15. Under Expln. II to Section 19, 'signed' means 'signed either personally or by an agent duly authorised in this behalf', and under Section 21 of the Indian Limitation Act the expression 'agent duly authorised in this behalf' in Sections 19 and 20, in the case of a person under a disability, includes his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign, the acknowledgment or to make the payment.

16. The evidence as to the capacity in which Irappa Mamadpalli signed the statement is in the first place the oral testimony of the witness Mallappa Shiddappa Gornali, the principal munim of the plaintiff's estate, that Irappa Narasappa Mamadpalli was managing the estate on behalf of the Court of Wards, a statement in which he has not been shaken by cross-examination. In his report to the Collector (exhibit 121) Irappa calls himself the manager of the estate of the minor Bhalchandra Dattatraya Bubane of Sholapur. His position as such is referred to in the: Collector's letter (exhibit 122) as 'part of the existing arrangement'. It is true that there is no evidence as to the actual appointment of Irappa by the Court of Wards as manager of the estate. Under Section 20 of Court of Wards Act, the Court of Wards may appoint a manager of the property of any Government ward under its superintendence. Under Rule 4 of the rules made under the Court of Wards Act by the Government of Bombay, any person interested in the good management of the property of a Government ward under the superintendence of the Court of Wards may be appointed manager of such property. These provisions leave little doubt, in view of the fact that Irappa was actually managing the defendant's estate during the superintendence of the Court of Wards, that he was a manager appointed under the Court of Wards Act. Some of the powers of a manager appointed under the Act are to be found in Section 20 of the Court of Wards Act as well as in Rules 14 to 18 of the rules made by the Government1 of Bombay under the said Act. These show that a manager appointed under the Act exercises statutory powers and can be said to have plenary powers under the Act.

17. The question arises whether a statement signed by such a manager can be held to constitute am acknowledgment within the meaning of Section 19 read with Section 21 of the Indian Limitation Act. On this point no authority has been cited before us, but prima facie Irappa would be an agent duly authorized by the Court of Wards to act generally for the minor defendant. Whether such authorization can be Said to include, in particular, the signing of an acknowledgment on the defendant's behalf, especially when the document in question was in all probability part of a report addressed by Irappa to the Collector, appears to me to be a difficult question. It seems to me, however, that if it be found that the defendant's liability was acknowledged by the Collector acting under the Court of Wards Act, then such acknowledgment would suffice to save limitation under Section 19 of the Indian Limitation Act.

18. Learned Counsel for the plaintiff-respondent has sought to show, in the following manner, that the Collector made an acknowledgment which should be held to be an acknowledgment of the defendant's debt to the plaintiff. The Collector's letter to the plaintiff's father (exhibit 90) dated December 22, 1910, stated that the plaintiff's father had taken; a mortgage deed from the defendant's father and advanced him moneys in respect thereof, and asked him whether he was willing to accept eight annas in the rupee in full satisfaction of his claim. This letter was based on a report made by Irappa Mamadpalli to the Collector (exhibit 121): in which he mentioned three creditors of the defendant by name, Hirachand Padamchand, Mallappa Basappa Warad and Bhavaniram Sahebram Marwadi, and described them as the biggest creditors of the defendant. Thereafter the statement exhibit 122 appears to have been prepared by Irappa Mamadpalli, and in June, 1911, the Collector in his report to the Commissioner mentioned the aggregate sums of the defendant's liabilities under different heads. He stated that the aggregate sum of the defendant's liabilities on mortgage bonds amounted to a sum of Rs. 51,585-0-9, and that this amount included interest up to the date on which the claims were preferred. He added 'Further interest on these two items (Rs. 13,149-0-11 due on decrees and Rs. 51,585-0-9 due on mortgage bonds) and on item No. 4 (Rs. 4,219-12-0 in respect of ornaments pawned) will have to be paid up to the date of settlement. Such further interest up to May 16, 1911, amounted to Rs. 7,726-2-11'. Thus, the total amount due on mortgage bonds, inclusive of interest up to May 16, 1911, would come to over Rs. 56,000. In exhibit 121 the total amount of the dues on account of the mortgage bonds comes to Rs. 42,867-13-0 and the total amount of the interest which accrued on those bonds up to May 12, 1911, (in one case up to May 16, 1911), comes to Rs. 13,480-13-10. The total of these two amounts is Rs. 56,348-10-10, which is practically the same as the amount due (with interest) on mortgage bonds on the basis of the figures to be found in the Collector's report (exhibit 122). Mr. Thakor has contended that the inevitable inference from this would be that the Collector's letter included the defendant's debt to the plaintiff amounting to Rs. 3,450 plus interest amounting to Rs. 777-9-4. On consideration of the evidence on this point, we think that this contention must be upheld. There is nothing to suggest that the statement prepared by Irappa Mamadpalli, i.e. exhibit 123, was in any way disapproved or dissented from by the Collector. The principal amount of the debt is not disputed and there appears to be no reason why this debt should have been excluded from the aggregates of debts shown in exhibit 122, particularly as less than a year before the Collector had written to the plaintiff's father regarding his mortgage debt, and asked for a settlement in respect of the same. Irappa's report (exhibit 121) also mentions the plaintiff's father as one of the principal creditors, and there is no evidence that anything had happened between the date of Irappa's letter to the Collector and the date of exhibit 122. which would have the effect of excluding defendant's debt to the plaintiff from the statement of his total debts in the latter. That being so, we think that it must be held that the Collector's letter to the Commissioner mentioning the defendant's debts due on mortgage bonds included an acknowledgment of the debt in the present suit.

19. In this view, I do not think it necessary to decide whether under Sections 19 and 21 of the Indian Limitation Act Irappa's signing exhibit 123 constituted an acknowledgment.

20. There remains the question of privilege. Learned Counsel for the appellant has relied on The Collector of Jaunpur v. Jamna Prasad I.L.R. (1922) All. 360, wherein it was held that a statement made to the Collector by a person applying to have his estate taken: under the Court of Wards setting forth his financial position, that is to say, the details of his property and liabilities, was a communication made to a public officer in official confidence within the meaning of Section 124 of the Indian Evidence Act, and could not therefore be used as an acknowledgment of any liability mentioned therein. In the trial Court in that case the Collector had put forward a plea of privilege under Section 124 but that plea was overruled. The High Court held that the trial Court was wrong in compelling the Collector to hand over the document and was also wrong in using it as evidence, and therefore excluded it from the evidence in deciding the appeal. Section; 124 of the Indian Evidence Act is in these terms :

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

21. In The Collector of Jaunpur v. Jamna Prasad it was held that it was for the Court to decide whether or not the particular document for which privilege was claimed had been a communication made to a public officer in official confidence, and that if the Court decided that it was so made, then it had no authority to compel the public officer to produce it, for according to the section the public officer himself is the sole Judge as to whether its disclosure would or would1 not be in the public interests. In that particular case the document in question was regarded as a communication made to the Collector in official confidence, their Lordships' reasoning being that it was hardly to be supposed that a proprietor who was financially embarrassed and who desired the Court of Wards to take charge of his estate, intended that any statement of his indebtedness was to be communicated to a third party or to be made public property. In our opinion, similar considerations should apply to exhibit 123, It is hardly likely that the statement exhibit 123 was intended to be made public and therefore it can be said that that communication was made in; official confidence to the Collector. That being our view, it remains now only to' consider whether in the present case the Collector considered that the public interests would suffer by the disclosure of the document. In The Collector of Jaunpur v. Jamna Prasad. the Collector in claiming privilege based his claim on the grounds that the document contained statements which were made to him in official confidence and that he objected to producing them on the ground that the disclosure of them would be prejudicial to the public interests. In the present case the Collector addressed a letter to the Court on August 23, 1935, wherein he stated that one file regarding Bubane's estate under Government management had been produced in the suit, that the papers came 'under the category of an official confidence', and that therefore he would claim privilege under Section 124 of the Indian Evidence Act. He further requested the Court to consider the matter under Section 162 of the Indian Evidence Act before allowing or disallowing production. Though this letter does not form part of the record of this case, it was addressed directly to the Court, and we see no reason why the Court should not have given due consideration to it. If necessary it could have been formally admitted in evidence by getting: it produced in Court by a clerk of the same Court. But it is to be noticed that the letter nowhere says, as was said in The Collector of Jaunpur v. Jamna Prasad, that the Collector considered that public interests would suffer by the disclosure of the document mentioned. This was the most important matter 'for his consideration, and if he had said that he considered that public interests would suffer by the disclosure, the matter would have been, concluded, so far as the Court was concerned, as we have already found that exhibit 123 is a communication made to him in official confidence. But though the Collector claimed privilege, his letter nowhere shows that he applied his mind to the question whether public interests were likely to suffer by the disclosure of the contents of either exhibit 122 or exhibit 123. Nor does it appear probable that public interests would have suffered by the disclosure or publication of either of these documents. The Court of Wards had withdrawn their superintendence from the defendant's estate several years before, and the matters dealt with by those documents cannot be said to affect any public interest. Nor can it be said, and it has not been argued, that the provisions of Section 123 of the Indian Evidence Act apply, for it cannot be held that either exhibit 122 or exhibit 123 relates to 'any affairs of State'.

22. We must, therefore, hold that neither exhibit 122, nor exhibit 123 is such a document that privilege could be claimed under Section 124 in regard to its publication or disclosure. Accordingly we hold that the acknowledgment of defendant's liabilities in respect of the claim in suit made by the Collector in his letter (exhibit 122) to the Commissioner satisfies the requirements of Section 19 of the Indian Limitation Act and constitutes such acknowledgment as saves limitation.

23. The decision of the learned Subordinate Judge must, therefore, be held to be correct and the appeal dismissed with costs.

Wassoodew, J.

24. The plaintiff's claim on the mortgage of July 22, 1907, was prima facie time-barred on October 9, 1933, when the suit was instituted by him to realist the debt. But limitation was sought to be saved by alleging inter alias that the Court of Wards, entrusted with the defendant's property upon his father's death in 1908, when he was barely four years of age, had acknowledged the debt directly and also through its manager or agent whose signature appears on the alleged acknowledgment of May 1911, or thereabouts. For that purpose the plaintiff relied on the record of the management of the defendant's estate in the possession of the Collector containing a letter to the Commissioner, Central Division, dated June 9, 1911, and statement of account showing the amount of interest due till May 12, 1911, by the defendant's estate on certain mortgage debts. That statement is signed by the manager of the defendant's property appointed by the Court under Section 20 of the Court of Wards Act. The learned trial Judge has relied upon that correspondence and the statement and has held that it is sufficient to save limitation as it constitutes acknowledgment within the meaning of Section 19 of the Indian Limitation Act.

25. Counsel for the appellant-defendant has objected to that correspondence being admitted on the record on the ground that it is privileged communication by and to the Collector as Court of Wards and that the latter, although he produced the file containing the record in deference to the Court's summons, has claimed privilege. The file containing the record was produced by the Collector of Sholapur, as Court of Wards on March 27, 1935, through his clerk. At that time no privilege was claimed, but it seems that he subsequently in asking for the return of the file and on August 23, 1935, when the Court had already permitted the parties to take copies of the relevant documents contained therein, claimed privilege in the following manner :

These papers come under the category of official confidence. I should therefore like to say that privilege under Section 124 of the Indian Evidence Act is claimed in respect of each document that any of the party may press to have produced in evidence. I would therefore request you to consider the matter under Section 162 of the Indian Evidence Act before allowing or disallowing production.

26. The questions involving a claim to privilege for a document in the Government records made by a public officer in charge thereof, and relating to the Court's duty upon such claim and the procedure to be observed thereupon are somewhat difficult to answer. The relevant provisions of the Indian Evidence Act bearing on the point are contained in Sections 123, 124 and 162. The last section deals with the production of documents in answer to summons, and it seems that that section makes it obligatory on the witness to produce the documents called upon by the Court, and he has no right to determine whether the document shall be produced. It seems obvious that at the time he produces it according to the exigency of the summons, it is for the witness to claim the privilege. It is the duty of the Court then to determine whether the document shall be admitted and exhibited. This section as well as Section 123 protects the discovery of documents referring to matters of State. That is based on the general rule that no person can be compelled to give evidence of matters which are State secrets including communications between public officers in the discharge of their public duties (Halsbury, Vol. XIII, para. 597, at p, 427). The section makes no difference between a private witness called upon to produce private documents and a public officer summoned to produce public record. In that respect Section 124 of the Indian Evidence Act is more particular and lays down the rule of public policy, and the limits within which the production can be withheld, that is the character and quality of the privilege. It says :

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

27. It has been well recognized in England that the privilege is a narrow one and most sparingly to be exercised [see Robinson v. State of South Australia (No. 2) (1931) A.C. 704. According to Taylor (Law of Evidence, 12th Edn., Vol. 1) the principle of the rule is public safety and accordingly the rule of exclusion is applied no further than the attainment of that object requires (see Section 939). That is not the test under the Indian law. The question that arises under Section 124 is whether the communication in question was made to the public officer in official confidence. That is the condition precedent to the claim, and the question is primarily to be decided by the Court before whom the privilege is claimed [see The Collector of Jaunpur v. Jamna Prasad I.L.R. (1922) All. 360]. As to when and how the privilege should be claimed, there is no clear cut rule of procedure. But it seems sufficiently clear that it should be claimed at the earliest opportunity by the public officer concerned when in reply to the summons he produces the document in his control or charge. It is futile to claim the privilege at a very late stage when there has already been a disclosure of the document given in charge of the Court. There is no rule of law requiring in terms that the public officer should state the exclusionary facts in an affidavit. Perhaps there is a difference in procedure and the Court may call for an affidavit or a statement on oath in Court in a case where the public officer or the Government whom he represents is a party and! they are called upon to make a general discovery of the documents in their possession. But I suppose the Court's powers are untrammeled by rigid rules in the matter of laying down the procedure which is the most suitable to the exigencies of each case. The authorities in England establish that the Court has wide powers to determine the validity of the claim [see Asiatic Petroleum Company, Limited v. Anglo Persian Oil Company, Limited [1916] 1 K.B. 822 and Smith v. The East India Company (1841) 1 Ph. 50]. In India those powers exist but within the limitation stated in Section 124 of the Indian Evidence Act, Under that section it is essential for the Court to inquire into the nature of the document and ascertain whether the first requirement of the section is satisfied,

28. In the matter of discovery where Government is a party, English Courts have insisted upon proof of some collateral evil to society or to the public to justify the rejection of documents on grounds of public policy. As pointed out in Attorney-General v. Newcastle-upon-Tyne Corporation [1897] 2 Q.B. 384 : '... there has always been the utmost care to give to a defendant that discovery which the Crown would have been compelled to give if in the position of a subject, unless there be some plain overruling principle of public interest concerned which cannot be disregarded'. The rule of exclusion of secrets of State or State papers is well illustrated by Chatterton v. Secretary of State for India in Council6.. The safeguarding of State policy is left entirely by the Indian Legislature to the care of the public officer if he can satisfy the Court that the documents refer to matters of State or that they are corrrainications made in official confidence. The rule that the channel of communication of information reaching Government cannot be disclosed is exemplified by Marks v. Beyfus (1890) 25 Q.B.D. 494. Whilst in England the Court has to decide the expediency of the application of the exclusionary rule, in India the only circumstance which the Government or public officer need prove is the confidential character of the communication. He is the sole Judge to decide on the question of public policy. Therein lies the difference between English law and Indian law as regards the limits within which privilege can be recognized. But it is essential to bear in mind the cardinal fact that privilege does not attach to a document merely because it is a State or official document. The foundation of the claim rests on the consequences of disclosure of a communication made in official confidence whose publication the officer to whom, it is made considers contrary to the public interests. In my opinion a communication in official confidence requiring protection under Section 124, Indian Evidence Act, must be such as to necessarily involve the wilful confiding of secrets with a view to avoid publicity by reason of the official position of the person in whom trust is reposed, under an express or implied promise of secrecy. The test must be whether the disclosure would result in betrayal of the person confiding by the publication of the communication having regard to the nature thereof. The prerogative right therefore has to be distinguished from the evidence showing how it arises in a particular case. Section 162 of the Indian Evidence Act merely lays down broad principles of State policy and protects State and official documents from disclosure in Courts.

29. Applying those principles, the claim to the privilege in this case made both by the defendant and by the Collector is not warranted; first, because the documents referred to are not communications in official confidence or of a political character. They are really routine papers relating to the management of a private estate in charge of the Court of Wards. They would not come within the category of official documents of a confidential nature as was the case in The Collector of Jctunpur v. Jamna Prasad; secondly, because the public officer, the Collector in this case, did not base his claim on the ground that public interests would suffer by the disclosure of the record; and, thirdly, because no privilege was claimed when the documents were produced and inspected by the parties. It was claimed so late that the object could not be served even by admitting the claim. Consequently, the documents relied upon were properly admitted in evidence.

30. I agree that having regard to the chain of correspondence the effect of the letter of June 9, 1911, addressed by the Collector must by necessary implication be regarded as an acknowledgment of the liability to pay the debt of the mortgage in question. The 'Collector had by admitting the claim on the mortgage under Section 16 of the Court of Wards Act impliedly acknowledged the mortgage. But that was when the plaintiff's father was alive. That acknowledgment in consequence could not save limitation. But having regard to that acknowledgment, the subsequent correspondence becomes perfectly intelligible. I have no doubt that the amount of the mortgage bond referred to in the letter of June 9, 1911, involved the claim, in question. That would be an acknowledgment signed by an agent duly authorized in this behalf within the meaning of Expln. II to Section 19 of the Indian Limitation Act. Similarly, if, as contended for the respondent, the statement of liability (exhibit 123) formed a part of the schedule to the letter, although the evidence does not clearly bear out the point, it would also be an acknowledgment by implication by the Collector as Court of Wards. And it is conceded that a Court of Wards is competent to pass an acknowledgment Under Section 19 of the Indian Limitation Act see Rashbehary Lal Monday v. Anand Ram I.L.R. (1915) Cal. 221.

31. With regard to the statement it is said that an acknowledgment to operate as an acknowledgment must be addressed to some person if not the creditor, Now the language of Section 19 is clearly against such a statement. Acknowledgments made in documents though not addressed to any particular persons have been accepted as good acknowledgments see Maniram V. Seth Rupchand (1906) L.R. 33 IndAp 165 : 8 Bom. L.R. 501 and Majmudar Hiralal Jchhalal v. Desai Narsilal Chaturbhujdas . For comparison the language of Article 183 of the Indian Limitation Act is apposite as it provides that an acknowledgment under that article must be to the person entitled thereto or his agent. There are no such qualifications in Section 19. In my opinion the acknowledgment is sufficient to save limitation in this case. The expression 'Agent duly authorised in this behalf' in Expln. II to Section 19 of the Indian Limitation Act has, by the addition of Clause (1) of Section 21 of the Act, been made very comprehensive. That has removed the necessity of proving, as was required according to the view of the full bench in Annapagouda v. Sangadigyapa I.L.R. (1901) 26 Bom. 221 : 3 Bom. L.R. 817, that the guardian had the power to acknowledge the debt and that the acknowledgment was made for the benefit or protection of the minor's property. Section 21(1) dispenses with such qualification; for, 'an agent duly authorised in this behalf' includes a lawful guardian.

32. But it was also claimed on behalf of the respondent alternatively that every manager appointed by the Court of Wards under Section 20 to manage the estate of the ward would be an agent duly authorised to sign acknowledgments, and therefore the statement in question signed by such manager would constitute a valid acknowledgment to save limitation under Section 19, It is difficult to say upon the rules under the Court of Wards Act that such a manager has authority to acknowledge debts. Ordinarily he is a subordinate of the Collector under whose directions he acts. The rules do not give him special powers. The decisions of our Court with regard to the rights of a manager of joint Hindu family estates show that such manager has the power to acknowledge debts, as he has to create one on behalf of the family. But that is so because of the special provisions of Section 21(3)(b) of the Indian Limitation Act and of his peculiar position and he acts as an agent duly authorised by the other members so as to bind them [see Bhaskar Tatya Shet v. Vijailal Nathu I.L.R. (1892) Bom. 512 and Indarpal Singh V. Mewa Lal I.L.R. (1914) All. 264. But no authority has been cited to us to show that if a member of a Hindu family is allowed to manage the estate after severance on behalf of the quondam coparceners he can bind the co-sharers by acknowledgment of their debt under Section 19. It seems to me therefore difficult to hold that the mere appointment of a manager of an estate of a ward ipso facto clothes him with the power to pass an acknowledgment of liability on behalf of his principal or the ward. The provisions of Sub-section (1) of Section 21 do not imply but expressly require proof that an agent for management appointed by the lawful guardian or committee or manager is duly authorised to sign acknowledgments. It would be dangerous to assume that clerks or managers employed by Court of Wards or legal guardians should be presumed to possess plenary powers including the power to bind their principal and the latter's wards by acknowledgments of debts unless they are specially selected for the purpose. Therefore unless the Court is satisfied that an agent or manager of an estate has been duly authorised to sign acknowledgments, it would be slow to accept every act of the manager constituting an acknowledgment as sufficient for the purpose of extending time under Section 19 of the Indian Limitation Act. It is true that the manager appointed by the Court of Wards under Section 20 furnishes security for the due management of the estate. But it is not always possible to assume that the management involves the duty to act independently of his employer in the matter of acknowledgment of debts. I am not satisfied that the provisions of Section 26 of the Act could reasonably be interpreted to imply such a duty. The Court therefore must determine on the evidence whether the manager possessed those powers expressly or by implication. Now here it is clear that the Collector's proposal to compound the debt of the plaintiff was rejected. Beyond preparing official statements of liabilities the manager had no authority apparently from the correspondence proved to make acknowledgments. Therefore even if the statement (exhibit 123) constituted such an acknowledgment, speaking entirely for myself, I would be slow to accept it for the purpose of Section 19 of the Indian Limitation Act. But as I hold that the letter of June 9, 1911, is both an acknowledgment by implication and is within the scope of the pleadings, I agree with the order proposed by my learned brother.

33. Per Curiam. There then remains the question of the terms in which the decree should be passed after taking accounts. It seems that the plaintiff has made his appropriation according to his accounts on receipt of Rs. 1,000 by crediting the sum in reduction of the principal on the date on which the amount was received by him. Therefore, while we dismiss the appeal, we think the decrees passed by the lower Court should be varied both in respect to the principal amount found due and with regard to interest up to the date of redemption.

34. We hold that Rs. 2,450 is the principal sum due. Upon the rule of damdupat the mortgagee shall get an equal sum for interest up to the date of the suit, that is October 9, 1933, with costs on the amount and further interest on the principal from the date of suit up to the date fixed by this Court, namely, six months from this date, for payment of the mortgage debt at the rate provided by the mortgage, namely, six per cent. In default of such payment the mortgagee shall apply for a decree to sell the property and he shall get additional interest at three per cent. on the aggregate amount of principal, interest and costs from the date of default up to the date of realisation or actual payment. The appellant shall bear his own costs and shall pay those of the respondent of this appeal.


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