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Dashrath Motiram Shet Wani Vs. Gajanan Keshav Phadnis - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 27 of 1941
Judge
Reported inAIR1943Bom381; (1943)45BOMLR740
AppellantDashrath Motiram Shet Wani
RespondentGajanan Keshav Phadnis
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), sections 19, 20, 21-de facto guardian whether included in expression 'agent duly authorised' in sections 19 and 20-acknowledgment or payment by co-mortgagor whether saves limitation against other co-mortgagor-co-mortgagors whether included in words 'joint contractors' in section 27(2)-mortgage effected by de facto guardian of hindu minor without legal necessity-acknowledgment by such guardian whether can be deemed to have been made on behalf of joint family.;the expression 'agent duly authorised' in sections 19 and 20 of the indian limitation act, 1908, does not include a de facto guardian.;tulsidas v. vaghela raisinji (1932) i.l.r. 57 bom. 40, s.c. 34 bom. l.r. 1483, chennappa v. onkarappa [1940] mad. 358, f.b. and nagayya v. narasayya [1939] mad. 65..........defendant no. 2 was barred, because defendant no. 1 was not a duly authorised agent but only a de facto guardian and therefore her acknowledgment of the payment of interest by her did not save limitation against defendant no. 2. it was also contended on behalf of the plaintiff in the appeal that the payment of interest by a co-mortgagor would save limitation apart from the question whether defendant no. 1 was the duly authorised agent of defendant no. 2. but the assistant judge overruled this contention by reason of section 21(2) of the indian limitation act. in this appeal we are concerned with the question whether the suit is in time as against defendant no. 2.5. mr. gajendragadkar, who appears for the appellant plaintiff, has conceded, as he was bound to do, that defendant no. 1, the.....
Judgment:

Broomfield, J.

1. This second appeal raises questions of limitation under Sections 19 and 20 of the Indian Limitation Act.

2. The appellant brought a suit to recover Rs. 2,900 on a simple mortgage executed on May 22, 1924, by defendant No. 1 for herself and as the guardian of defendant No. 2, who was a minor. Defendant No. 2 is the son of the brother of defendant No. 1's deceased husband. It was provided by the mortgage bond that the sum advanced was to be repaid on or before February 23, 1925. The suit was filed on July 29, 1937, and was prima facie out of time. But it was stated in the plaint that limitation was saved for the following reasons :-(1) on, July 29, 1925, a sum of Rs. 900 was paid on behalf of the mortgagors by one Pandharinath who had purchased some other property from the defendants. At this time defendant No. 1 gave instructions that the money was to be appropriated as to Rs. 365 and odd in payment of interest and as to the balance in payment of principal. So that reliance was placed on Section 20 of the Indian Limitation Act. (2) The sale-deed in favour of Pandharinath, which was dated July 28, 1925, contained an acknowledgment by defendant No. 1 of her liability under the mortgage and Section 19 of the Indian Limitation Act was therefore relied upon. (3) A further acknowledgment of liability was made before the Sub-Registrar when the sale-deed was registered on July 29, 1925.

3. The question of limitation was raised as a preliminary issue. The trial Court held that defendant No. 1 was a duly authorised agent of defendant No. 2, but that there had in fact been no acknowledgment and no payment of interest as such. The suit was therefore dismissed both against defendant No. 1 and defendant No. 2.

4. On appeal the Assistant Judge held in favour of the plaintiff that there had been an acknowledgment of the mortgage by defendant No. 1 and also that there had been a payment of interest as such. He accordingly allowed the appeal as against defendant No. 1, but he held that the claim as against defendant No. 2 was barred, because defendant No. 1 was not a duly authorised agent but only a de facto guardian and therefore her acknowledgment of the payment of interest by her did not save limitation against defendant No. 2. It was also contended on behalf of the plaintiff in the appeal that the payment of interest by a co-mortgagor would save limitation apart from the question whether defendant No. 1 was the duly authorised agent of defendant No. 2. But the Assistant Judge overruled this contention by reason of Section 21(2) of the Indian Limitation Act. In this appeal we are concerned with the question whether the suit is in time as against defendant No. 2.

5. Mr. Gajendragadkar, who appears for the appellant plaintiff, has conceded, as he was bound to do, that defendant No. 1, the paternal aunt of defendant No. 2, was not his guardian under Hindu law. The points he has argued are as follows : (1) He contends that a de facto guardian may be a lawful guardian for the purposes of Sections 19 and 20 and that therefore defendant No. 1 could make a valid acknowledgment and could also save limitation by paying interest as such. (2) It is also contended that any payment by a co-mortgagor such as to attract the operation of Section 20 is effective not only against the person making the payment but also against the co-mortgagor, (3) Lastly it was argued that this should be treated as a case of a mortgage made by the members of an undivided Hindu family so as to invoke the operation of Section 21 (3)(b) of the Indian Limitation Act.

6. Sections 19, 20 and 21, so far as they are material for our purposes, are as follows :-

19. (1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title of liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

Explanation II.-For the purposes of this section, 'signed' means signed either personally or by an agent duly authorised in this behalf.

20. (1) Where interest on a debt or legacy, is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorised in this behalf,...a fresh period of limitation shall be computed from the time when the payment was made.

21. (1) The expression 'agent duly authorised in this behalf,' in sections 19 and 20, shall, in the case of a person under disability, include his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment.

(2) Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by, or the agent of, any other or others of them...

(3) For the purposes of the said sections-

(b) where a liability has been incurred by, or on behalf of, a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

7. As regards the first contention the only point is whether the expression 'agent duly authorised ' in Sections 19 and 20 includes a de facto guardian, and the patent obstacle in the way of this contention is the: first clause of Section 21 which says that the expression ' agent duly authorised' in these sections includes a person's lawful guardian. The expression ' de facto guardian' means and implies a person who is not a legal or lawful guardian but merely in fact performs the functions of a guardian. Prima facie then it would be impossible to say that a de facto guardian comes within the scope of these provisions.

8. Nor is there any authority in favour of the view for which Mr. Gajendragadkar contends. Under Mahomedan law a de facto guardian has no power to deal with the property of a minor. There has been some conflict of authority as to whether the position is not the same under Hindu law. It has however been recently held by this High Court in Tulsidas v. Vaghela Raisingji I.L.R. (1932) 57 Bom. 40 that under Hindu law a de facto guardian of a minor can validly sell the property of the minor to a third person for legal necessity. It was so held by Patkar and Barlee JJ., Beaumont C.J. dissenting. But it was certainly not held in that case that a de facto guardian is a lawful guardian. For the purposes of Sections 19 and 20 of the Indian Limitation Act what is required is a lawful guardian and not merely a person who under certain circumstances may have power to alienate, the property of a minor.

9. Mr. Gajendragadkar was in the somewhat unfortunate position of having to cite a large number of authorities nearly all of which were against him. He drew our attention to a Full Bench Madras case Chennappa v. Onkarappa [1940] Mad. 358. The principal question there was whether the paternal grandmother of a Hindu minor being his nearest living relation is his lawful guardian under Hindu law. The question whether a de facto guardian can be the lawful guardian of the minor within the meaning of Section 21 of the Indian Limitation Act arose incidentally, but that was very summarily disposed of. Leach C.J. merely said (p. 362) : 'section 21(1) states that the expression 'agent duly authorised in this behalf' includes the person's lawful guardian. The fact that Neelamma was the de facto guardian of the minor would not help the appellant.' He went on to refer to a previous decision to the same effect in Nagayya v. Narasayya [1939] Mad. 65. In the course of his judgment in the latter case Madhavan Nair J. said (p. 69) :

We were referred to a series of cases by the learned Counsel for the petitioner to show that alienations made by de facto guardians under the Hindu law were held valid if they were for the benefit of the minor. None of those cases has any bearing, on the question. We are not concerned with the question whether an alienation should be binding or not.

That is sufficient to dispose of the first point.

10. For his second point Mr. Gajendragadkar relies principally on the language of Section 20 and he argues that the words ' person liable to pay ' must include one of two persons jointly liable to pay, and if one of such persons pays, then the suit is in time against all. This is no doubt a possible view. It has been held in Lakskmi Naidu v. Gunnamma I.L.R. (1934) Mad. 418 that Section 20 of the Indian Limitation Act does not contemplate that, when there is a plurality of persons liable in respect of a debt, all of them should join in making a part payment, and a part payment by one of the persons liable Can avail not merely against the person making the same but also against other 'persons' liable in respect of the debt. There are observations to the same effect in Badri Das v. Pasupati Banarji I.L.R. (1932) Pat. 93. But in this connection the difficulty which the appellant has to get over arises from Clause (2) of Section 21 which expressly provides that nothing in Sections 19 and 20 renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by, or by the agent of, any other or others of them. All that Mr. Gajendragadkar is able to say about this provision is that co-mortgagors are not mentioned, and he argues that if joint contractors include co-mortgagors it would also include co-mortgagees and on that view the addition of the word ' mortgagees' would have been superfluous. But there is no getting away from the fact that a mortgage is a contract, and apart from authority we think it sufficiently clear that the words 'joint contractors ' must be taken to include co-mortgagors. It is therefore for the appellant to produce authority for the other view.

11. Now it was held at one time in a number of cases that payment by a co-mortgagor was sufficient to salve limitation against the other co-mortgagor or co-mortgagors (see for instance Upendra v. Narendra : AIR1926Cal155 Ibrahim v. Jagdish Prasad : AIR1927All209 and Ghasi Khan v. Thakur Kishori Ramanji : AIR1929All380 . But in the first two of these no reference whatever was made to Section 21(2) and in the last of the cases, although this provision was referred to, the reason why it was not given effect to is very far from clear. The Allahabad High Court has overruled one of these cases and taken the opposite view in Muhammad Taqi Khan v. Raja Ram [1937] All. 272 and Ram Kumar Pandey v. Hira Lal [1939] All. 258. These Were both cases of co-mortgagors. Mr. Gajendragadkar has pointed out that in Muhammad Taqi Khan v. Raja Ram a full bench decision of the Madras High Court, Narayana Ayyar v. Venkataramana Ayyar I.L.R. (1902) Mad. 220 was referred to as being an authority for the proposition that joint contractors include co-mortgagors, and he says that that point was not really decided by the Madras Full Bench. However that may be, it is perfectly plain that the Allahabad High Court now takes this view and holds that by reason of Section 21(2) an acknowledgment or payment by a co-mortgagor is not effective for the purposes of Sections 19 and 20.

12. There is a Calcutta case in which the same view has been taken of the effect of Section 21(2), Jogeschandra Shaha v. Maneendranarayan Chakrabarti I.L.R.(1932) Cal. 1128 but the Court was actually concerned there with a simple money bond and not a mortgage. There is also a Madras case Thayammal v. Mutukumaraswami Chettiar I.L.R. (1929) Mad. 119. After a very full discussion of English and Indian cases the conclusion was thus stated (p. 126) : ' Whatever may be the law as to executors. it is impossible to say that of two joint contractors-which term has been held to include two mortgagors in this Court-one contractor is bound by the payments of the other.' So that, as the authorities stand now, they are practically unanimous against the view contended for by the appellant, and since the same view is suggested in our opinion by the language of the provisions themselves, we have no hesitation in saying that the argument is unsound.

13. The only other point is that these transactions should be treated as a mortgage made by the members of an undivided Hindu family, in which case under Section 21(3)(b) an acknowledgment or payment made by the manager of the family for the time being would be deemed to have been made on behalf of the whole family. The short answer to that contention is that this was not a joint family transaction. The mortgage begins by setting out the names of the parties and proceeds : 'I give this simple mortgage in writing as follows :-Money borrowed for the purpose of the marriage of the daughter '. Then details of the consideration are given and the document goes on : ' We will go on paying interest thereon. I agree to pay the same in the month of Magh 1846.... As a security for the said sum lands at Pimpalgaon which are of our ancestral ownership and which are in our possession and enjoyment have been mortgaged to you.' Later on there is a recital : ' This simple mortgage is binding on our estate and on our lives. 1 have given this mortgage deed of my own free will and pleasure.'

14. As was stated at the beginning, defendant No. 2 was a minor and the mortgage was really effected by defendant No. 1. Mr. Gajendragadkar says that the language of the deed suggests that defendant No. 1 herself had an interest in the property. Assuming that to be so, it was not made clear that the property was the property of a joint family or that the liability was being incurred on behalf of the joint family as such. Moreover what we have to look at is the substance of the transaction. Whatever defendant No. 1 may have purported to do, she had in fact no interest in the property. She, was merely disposing or purported to dispose of the interest of the minor defendant No. 2 who was the sole surviving co-parcener.

15. The only authority referred to in connection with this part of the case was Lakshmi Naidu v. Gunnamma I.L.R. (1934) Mad. 418. The facts in that case are set out in the head-note. C was the managing member of a joint Hindu family composed of himself and his brother B.A. mortgage was executed by C and B. Later on, a part payment was made towards the mortgage by C alone and the endorsement relating thereto was signed only by him. A suit was filed by the mortgagee impleading C and B and several others. The question for determination, inter alia, was whether the part payment by C was available to save limitation as against B also. The Court held that it was so available on the principle of implied agency, since it could be inferred from the circumstances of the case that the part payment was made by him as the managing member on behalf of the other members also. The facts therefore were entirely different, and in our case, where we have a mortgage effected by a de facto guardian purporting to act on behalf of her minor nephew but without any legal authority to do so, it is impossible to say that the circumstances justify any inference that she was acting ate his agent so as to save limitation.

16. In our opinion the decision of the learned Assistant Judge was correct, and we dismiss the appeal, with costs to be paid to defendant No. 2 respondent No. 2.


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