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Surajprasad Dwarkadas Vs. Karmali Abdulmiya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 811 of 1918
Judge
Reported in(1920)22BOMLR777; 57Ind.Cas.532
AppellantSurajprasad Dwarkadas
RespondentKarmali Abdulmiya
DispositionAppeal dismissed
Excerpt:
.....owned by the parties. as a matter of fact this well was jointly owned, was falling into a state of dilapidation, and the municipality gave notice to the parties to fill it in. then the plaintiff's brother requested that the municipality might repair the well. clearly, therefore, this is a claim in contribution, and i may refer to rustomji's limitation act at page 367 where he deals with this question. 2. in this case the municipality having repaired the well, and the plaintiff having deposited the expenses for such repairs, he had a claim for contribution from the defendant......did so, and the plaintiff deposited a certain sum for the expenses. clearly, therefore, this is a claim in contribution, and i may refer to rustomji's limitation act at page 367 where he deals with this question. he says:in other words article 116 applies only where the right of action rests upon the registered contract, or derives its vital force therefrom. thus where one co-obligor under a registered contract has been compelled to pay the whole amount secured thereby, he may sue the other for contribution, and to such suit (for contribution) a limitation of only three years will apply, because although the original indebtedness arose out of the registered contract, yet the claim upon which the action is predicated rests not upon the registered contract, but upon the promise which the.....
Judgment:

Norman Mucleod, Kt., C.J.

1. The plaintiff brought this action against the defendant for Rs. 216-12-8 being the contribution claimable from the defendant in respect of repairs to a well jointly owned by the parties. It is admitted that if this suit can come within Article 61 of the India a Limitation Act the claim is time-barred. On the face of it, it is not a claim for compensation for breach of a contract in writing registered. As a matter of fact this well was jointly owned, was falling into a state of dilapidation, and the Municipality gave notice to the parties to fill it in. They were not able to do that. Then the plaintiff's brother requested that the Municipality might repair the well. Accordingly they did so, and the plaintiff deposited a certain sum for the expenses. Clearly, therefore, this is a claim in contribution, and I may refer to Rustomji's Limitation Act at page 367 where he deals with this question. He says:

In other words Article 116 applies only where the right of action rests upon the registered contract, or derives its vital force therefrom. Thus where one co-obligor under a registered contract has been compelled to pay the whole amount secured thereby, he may sue the other for contribution, and to such suit (for contribution) a limitation of only three years will apply, because although the original indebtedness arose out of the registered contract, yet the claim upon which the action is predicated rests not upon the registered contract, but upon the promise which the law implies, on the part of co-obligors, to share equally the pecuniary consequences of their venture.

2. In this case the Municipality having repaired the well, and the plaintiff having deposited the expenses for such repairs, he had a claim for contribution from the defendant. I agree with what is said in that passage, and I think the period of limitation which was applicable to this case was three years, and not six. The appeal, therefore, will be dismissed with costs.


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