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L. Shanker Lal and anr. Vs. Rana Lal Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1938All217
AppellantL. Shanker Lal and anr.
RespondentRana Lal Singh and anr.
Excerpt:
.....the appellants referred for the proposition that an acknowledgment after the prescribed period but during an excluded period would be a good acknowledgment under section 19, lim. tabaji balaji (1913)15bomlr348 is a similar case where there was an acknowledgment after the prescribed period had expired but while the courts were closed and it held the acknowledgment good. was a similar case of an acknowledgment during a period excluded by section 4 after the prescribed period had expired, and was held good. the cases were very fully reviewed and the bench held that the acknowledgment was not good under section 19. 10. in debendra nath roy v. kalipada roy air1931cal785 it was again held by a single judge that an acknowledgment on a day on which the court was closed, after expiry of the..........act, sets out its requirements in sub-section (1) as follows:where before, the expiration of the period prescribed foe a suit or application in respect of any property or right, an acknowledgment in respect of such property or right has been made in writing, etc.4. the period prescribed for the suit expired on 39th july 1930, and the acknowledgment wag not made until 13th october 1930. the defendants respondents therefore contend that the acknowledgment was made after expiry of the period prescribed, and was therefore invalid under section 19, and this contention has been accepted by the courts below. the appellants rely on section 52, court of wards act, which says:when the court of wards, after assuming the superintendence of the property of a ward releases the same without.....
Judgment:

Bennet, Ag. C.J.

1. This second appeal-raises two questions of limitation, and the second appeal has been referred to a Full Bench for decision. The plaintiffs sued on 3rd January 1933, on a promissory note-executed in their favour by the defendants' on 29th July 1927. The note was payable, on demand and under Article 73 of Schedule 1, Lim. Act, Act 9 of 1908, the suit should be brought within three years from the date of the promissory note. Nothing was paid by the executants towards principal or interest. The estate of the executants was taken under the Court of Wards by the Collector and a notice was published on 3rd August 1929, under Section 17, United Provinces Act 4 of 1912, the court of Wards Act, calling on persons having, claims against the estate to notify the claims to the Collector. The plaintiffs notified their claim and the Collector allowed the claim under Section 19 on 13th October 1930, and the Board of Revenue confirmed this order on 30th October 1930. But the claim was not paid and the estate was released on 21st December 1931.

2. The plaintiffs, appellants claim that the admission of their claim by the Collector on 13th October 1930, and by the Board of fievenue on 30th October 1930, are admissions under Section 19, Lim. Act, from which a fresh period of three years limitation began to run. Both the Courts below have held against this claim and have dismissal the suit on the ground of limitation. The second ground of appeal conteste a finding of the lower Appellate Court that:

The powers of a Collector in regard to claima are limited by Section 19, Court of Wards Act, where a Collector can only allow or reject a particular claim, but cannot acknowledge it as an agent or representative of his wards.

3. The contrary has been held in Kamla Kuar v. Har Sahai (1888) A.W.N. 187 and in Beti Maharani v. Collector of Etawah (1895) 17 All. 198. This is abundant authority for the proposition that the Collector in charge of the Court of Wards was the duly authorized agent of the defendants for the purpose of making such an acknowledgment. Section 19, Lim. Act, sets out its requirements in sub-section (1) as follows:

Where before, the expiration of the period prescribed foe a suit or application in respect of any property or right, an acknowledgment in respect of such property or right has been made in writing, etc.

4. The period prescribed for the suit expired on 39th July 1930, and the acknowledgment wag not made until 13th October 1930. The defendants respondents therefore contend that the acknowledgment was made after expiry of the period prescribed, and was therefore invalid under Section 19, and this contention has been accepted by the Courts below. The appellants rely on Section 52, Court of Wards Act, which says:

When the Court of Wards, after assuming the superintendence of the property of a ward releases the same without discharging the liabilities thereof in the manner provided in Ch. 4, the time from the publication of notice under Section 17 to the date of such release shall be excluded in computing the period of limitation applicable to suits or implications for the recovery of all claims outstanding against the ward at the date of such notice.

5. The question before us is therefore whether an acknowledgment made after the expiry of the prescribed period, but during an excluded period, excluded by a special and local Act, can form an acknowledgment to extend limitation under Section 19, Lim. Act. Of the cases laid before us, a number refer to acknowledgments made in a period prescribed for bringing a suit, different from the period prescribed by Schedule 1, but not in an excluded period. In Sheo Partap Singh v. Tajammal Husain : AIR1927All114 and in Harish Chandra v. Mt. Kastola Kunwar : AIR1925All68 there were acknowledgments in the period of two years provided by Section 31 of the new Limitation Act, Act 9 of 1908, for certain suits on the passing of the Act, during which those suits might be brought. Buta Singh v. Bhan Singh (1930) 17 A.I.R. Lah. 978 referred to an acknowledgment in the period of two years from the passing of the repealing Punjab Loans Limitation Act of 1923 allowed by that Act for certain suits. These rulings are based on the dictum that period prescribed' means period prescribed by any law and not merely by Schedule 1. This view was taken by the Full Bench in Dropadi v. Hira Lal (1912) 34 All. 496 where the question arose whether the period requisite for obtaining a copy allowed by Section 12(2), Lim. Act could be excluded from the period of limitation prescribed for an appeal by a special Act, the Provincial Insolvency Act, Act 3 of 1907 which provided a period of thirty days for an appeal against an order annuling a transfer (Section 46). On p. 11 it was held:

The general provisions of the Limitation Act are founded mainly upon equitable considerations which apply as much to periods of limitation prescribed by special Acts as to periods of limitation prescribed by the Limitation Act itself.

6. The question before us is a different one, namely the effect of an acknowledgment made in a period which is excluded, after the prescribed period has expired. The rulings to which the appellants referred for the proposition that an acknowledgment after the prescribed period but during an excluded period would be a good acknowledgment under Section 19, Lim. Act, are:

Abdul Ghani v. B. Chiranji Lal : AIR1927All577 (Mukerji J.) where limitation was to expire on 17th October 1923, but holidays intervened and the suit could be instituted on 23rd October when the Courts opened. It was during the holidays and after the precribed period that the acknowledgment was made, and the learned single Judge held that the acknowledgment did form a fresh starting point of limitation under Section 19. Section 4 provides that when the period prescribed expires when the Court is dosed, the suit may be instituted when the Court reopens. Reference is made to Sheo Partap Singh v. Tajammal Husain : AIR1927All114 for authority, but that ruling deals with an acknowledgment in a prescribed period and not in an excluded period.

7. Visram Vasudeo v. Tabaji Balaji : (1913)15BOMLR348 is a similar case where there was an acknowledgment after the prescribed period had expired but while the Courts were closed and it held the acknowledgment good. This was by a single Judge, Beaman J.

8. Kishan Singh v. Sardar Ali (1937) 24 A.I.R. Lah. 162 by Tek Chand J. was a similar case of an acknowledgment during a period excluded by Section 4 after the prescribed period had expired, and was held good. For the respondents the following ratings were quoted:

Bai Hemkore v. Masamalli (1902) Bom. 782 a Bench ruling, a similar acknowledgment given when the Courts were closed and after the prescribed period had expired. It was held not valid for Section 19.

9. Magan Lal Harjibhai v. Amichand Gulabji (1928) 15 A.I.R. Bom. 319 was a case of an acknowledgment made by defendants while the plaintiffs were minors but after the prescribed period had expired. The period of the minority of the plaintiffs was excluded under Section 6 when calculating the period within which the plaintiffs could sue. The cases were very fully reviewed and the Bench held that the acknowledgment was not good under Section 19.

10. In Debendra Nath Roy v. Kartic Prasad Das : AIR1929Cal68 Rankin C.J. held that payment of interest on a simple money bond after the expiration of three years from the date limited for payment, when the Court was closed, cannot save limitation under Section 20, Lim. Act, and if a suit on the bond is not brought on the day the Court reopens the claim will be time-barred. On page 1213 it is stated:

If one was to introduce Into the wording of Sections 19 and 20 the consideration that is brought into force by Section 4, limitation law would become extremely unworkable.

11. In Anisuddin Ahmed v. Kalipada Roy : AIR1931Cal785 it was again held by a single Judge that an acknowledgment on a day on which the Court was closed, after expiry of the period prescribed, could not be a good acknowledgment under Section 19.

12. Shanti Pakash v. Harnam Das (1937) 24 A.I.R. Lah. 642 was a similar case before Skemp J. and after a review of the rulings he held that the acknowledgment was not good. Another recent ruling to the same effect by a single Judge is N.A.S.T. Chidambaram Chettia v. Venkatasubba Naik (1937) 24 A.I.R. Mad. 367.

12. There are therefore only three single Judge rulings for the view put forward by the appellants and six rulings, two by Benches, for the view of the respondents. The balance of authority is certainly on the side of the respondents. The view of the respondents appears to be the reason, able view. Section 19 refers to the period prescribed. What is referred to in various sections of the Limitation Act and in Section 52, Court of Wards Act is the exclusion of certain periods of time in calculating the date on which a suit may be brought, and it cannot be said that the period excluded is the period prescribed. Learned Counsel for the appellants took this view that Section 52, Court of Wards Act, did not prescribe any period of limitation but only excluded a period. And if learned Counsel had admitted that Section 52, Court of Wards Act, did prescribe a period then he would have been faced by the new addition made by Act 10 of 1922 to Section 29, Limitation Act, which now runs as follows:

* * * *

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Schedule 1 the provisions of Section 3 shall apply as if Such period were prescribes therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

(a) The provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only and in so far as and to the extent to which they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.

13. If therefore it were argued that Section 52, Court of Wards Act, prescribed a period of limitation, then Section 29(b) states that certain sections, one of which is Section 19, shall not apply. No acknowledgment made in the period prescribed under Section 52 would provide a fresh start of limitation.

14. The appellants are on the horns of a dilemma, Section 52, Court of Wards Act, either prescribes a period of limitation, or it does not if it prescribes a period, then under Section 29(2)(b), Section 19 will not apply if it does not prescribe a period, then an acknowledgment made in its period cannot be within the 'period prescribed' in Section 19. It is not possible to draw any distinction between the words in Section 19(1) 'period prescribed for a suit' and the words in Section 29(2) 'prescribes for any suit a period'.

15. The same words must be given the same meaning in the two sections of the Limitation Act. The conclusion therefore is that Section 19 cannot apply to an acknowledgment made after expiry of the period of limitation prescribed but during the period excluded by Section 52, U.P. Court of Wards Act, Act 4 of 1912. The appeal therefore should be dismissed as the suit of the plaintiffs was time barred.

Rachhpal Singh J.

16. I agree.

Ganga Math J.

17. I agree.


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