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Nama Nagayya Vs. Kalle Narasayya Described as Kalle Narasimhayya in Records of the Lower Court - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1938Mad853; (1938)2MLJ501
AppellantNama Nagayya
RespondentKalle Narasayya Described as Kalle Narasimhayya in Records of the Lower Court
Cases ReferredGanjayya v. Ramaswami
Excerpt:
- - no doubt he may have been managing the estate of the minor and probably he may have been managing the estate to the advantage of the minor as well......upon to consider the question whether an acknowledgment of a debt made by a person described as de facto guardian of a minor would keep the debt alive against the minor which would otherwise become barred. the de facto guardian is the son of the sister of the grandfather of the minor.2. section 19, expl. 2 of the limitation act says that an acknowledgment to be effective against the person making it must be signed 'either personally or by an agent duly authorised in his behalf'. section 20 requires that effective payment must be made by the person liable to pay or by his agent duly authorised in this behalf. section 21 of the limitation act explains the expression 'agent duly authorised in this behalf' and says 'in sections 19 and 20 'it' shall include in the case of a person under.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the petitioner. In this revision petition we are called upon to consider the question whether an acknowledgment of a debt made by a person described as de facto guardian of a minor would keep the debt alive against the minor which would otherwise become barred. The de facto guardian is the son of the sister of the grandfather of the minor.

2. Section 19, Expl. 2 of the Limitation Act says that an acknowledgment to be effective against the person making it must be signed 'either personally or by an agent duly authorised in his behalf'. Section 20 requires that effective payment must be made by the person liable to pay or by his agent duly authorised in this behalf. Section 21 of the Limitation Act explains the expression 'agent duly authorised in this behalf' and says 'in Sections 19 and 20 'it' shall include in the case of a person under disability his lawful guardian, committee or manager, etc.' This sub-section was introduced because there was a conflict of decisions as to whether a guardian of a minor was an agent within the meaning of Sections 19 and 20. The question we have got to consider is whether the de facto guardian in the present case is an agent duly authorised to acknowledge this debt on behalf of the minor.

3. It maybe stated at once that he is not a lawful guardian of the minor under the Hindu Law, nor has he been appointed a guardian by authority or by a will. The learned Counsel for the petitioner in support of the contention that the de facto guardian is lawful guardian relied mainly on two decisions, one a decision of this Court and another a decision of the Patna High Court. The decision of this Court is reported in Tirappayya minor by guardian Ganjayya v. Ramaswami : (1913)24MLJ428 . That is a decision by a single Judge. In that case the learned Judge, Bakewell, J., was of opinion that a person who is acting as lawful guardian, though not legally appointed, can bind the estate for necessary purposes and that such a person is a lawful guardian within the meaning of Section 21. This decision no doubt supports the petitioner. The decision in the Patna High Court is reported in Gita Prosad Singh v. Ragho Singh (1917) 40 I.C. 809. In that case payment of money due under a mortgage bond was made by the de facto guardian of a minor in order to avoid the immediate bringing of a suit on the bond against the minor. The question was whether the payment made would save the bar under Section 20 of the Act. The learned Judge has held that the de facto guardian would come within the description of the term 'lawful guardian' in Section 21. This also supports the petitioner's case. The decision has got to be taken in connection with the facts of the case. Both these cases were considered by a Bench of this Court in a decision reported in Ramaswami v. Kasinatha : AIR1928Mad226 . In that case Kumaraswami Sastri, J., who wrote the leading judgment dissented from the view of Bakewell, J., in Tirappayya minor by guardian Ganjayya v. Ramaswami : (1913)24MLJ428 and explained the circumstances bearing upon the decision in Gita Prosad Singh v. Ragho Singh (1917) 40 I.C. 809. In that Patna case the person who made the payment was no doubt the de facto guardian but the learned Judge pointed out that there was nothing tangible on the records to show that he was not the lawful guardian. Reference is made in the judgment to certain suits and orders where he was described as guardian and it was in such circumstances that the payment made by him would be an effective payment. Barring these three decisions no decision directly bearing on the question has been brought to our notice by the learned Counsel. There is a decision of the Calcutta High Court reported in Bireswar Mukerjee v. Ambika Charan Bhatiacharjea I.L.R.(1917) Cal. 630 which supports the contention of the defendant that a de facto guardian cannot be considered to be lawful guardian within the meaning of Section 21 of the Limitation Act. This case also has been considered by the learned Judges who decided the case in Ramaswami v. Kasinatha : AIR1928Mad226 . 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 have any bearing on the question. We are not concerned with the question whether the alienation should be binding or not.

4. The question we have to consider is whether the person described as de facto guardian would come within the description of lawful guardian within the meaning of Section 21 of the Limitation Act. As already stated he is not the natural guardian nor was he testamentary guardian. His position strictly speaking is only that of an intermeddler of the estate of the minor. No doubt he may have been managing the estate of the minor and probably he may have been managing the estate to the advantage of the minor as well. He remains an intermeddler all the same. By a constant course of management, his position as that of an intermeddler cannot be converted into that of a lawful guardian. We accept with great respect the reasoning of Kumaraswami Sastri, J., in Ramaswami v. Kasinatha : AIR1928Mad226 , which was concurred in by Curgenven, J. For the reasons given by the learned Judge we hold that a de facto guardian cannot be considered to be a lawful guardian within the meaning of Section 21 for the purpose of acknowledging a debt to keep it alive against the minor. In our opinion the decision in Tirappayya minor by guardian Ganjayya v. Ramaswami : (1913)24MLJ428 does not state the law correctly. As the suit debt is therefore barred as it has not been acknowledged validly by the petitioner's guardian, the suit was rightly dismissed by the lower Court. The Civil Revision Petition is dismissed with costs.


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