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Sm. Gumti Devi, Widow of Kamta Prosad Sukul and ors. Vs. Babu Jugal Kishore Baisya - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1939Cal399
AppellantSm. Gumti Devi, Widow of Kamta Prosad Sukul and ors.
RespondentBabu Jugal Kishore Baisya
Cases ReferredWajibun Pillai v. Veerappa Chettiar
Excerpt:
- .....odd). this is the decree which is now under execution. before obtaining this personal decree the decree-holder applied for and obtained on 12th september 1925 an order for attachment before judgment of some properties including the tipperah properties which are the subject-matter of this appeal. before however the attachment could be effected kampta persad executed two deeds. the first was a deed executed on 15th september 1925 by which he dedicated to an idol some of the tipperah properties. the second was a lease for 50 years which he executed on 26th october 1925 in favour of his brother-in-law uday bhan by which he reserved to himself, it is said, a small rent. later on, kampta persad died on 16th january 1926, and shortly after his death his third son biseswar was born.2. in 1928.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the judgment-debtor and the principal point raised is one of limitation. The facts bearing upon the said point are as follows : One Kampta Persad, a person governed by the Mitakshara School of Hindu law mortgaged 12 annas share of some properties situated at Unao in the United Provinces of Agra and Oudh to the respondent on 12th August 1920, for Rupees 60,000. He had at that time two sons of the names of Sheo Gobind and Tribhut Nath. Sheo Gobind had separated from him. Two more sons were born later, Biswambar and Biseswar, the latter being a posthumous one. In 1923, the mortgagee instituted his suit in the Court of Subordinate Judge at Unao to enforce the mortgage. Tribhut Nath was then dead, and Biseswar was not then born. The defendants were Kampta Persad and Biswambar, a minor, represented by his mother Gumti Debi as guardian ad litem. The preliminary decree was passed on 12th April 1924 and the final decree on 17th January 1925. The mortgaged properties were eventually sold for Rs. 59,354 leaving Rs. 31,234 odd as unsatisfied. For this amount together with subsequent interest a decree under Order 34, Rule 6, Civil P.C., was passed on 21st November 1925 (for Rs. 31,727 odd). This is the decree which is now under execution. Before obtaining this personal decree the decree-holder applied for and obtained on 12th September 1925 an order for attachment before judgment of some properties including the Tipperah properties which are the subject-matter of this appeal. Before however the attachment could be effected Kampta Persad executed two deeds. The first was a deed executed on 15th September 1925 by which he dedicated to an idol some of the Tipperah properties. The second was a lease for 50 years which he executed on 26th October 1925 in favour of his brother-in-law Uday Bhan by which he reserved to himself, it is said, a small rent. Later on, Kampta Persad died on 16th January 1926, and shortly after his death his third son Biseswar was born.

2. In 1928 the decree-holder instituted a suit in the Court of the Subordinate Judge at Unao, Suit No. 9 of 1928, for a declaration that the aforesaid two deeds, namely the deed of the endowment and the indenture of lease represented fictitious transactions, intended to defeat him and other creditors of Kampta Persad. The two surviving minor sons of Kampta Persad, namely Biswambar and Biseswar, represented by their motherGumti Debi as guardian and the adult and separated son of Kampta Persad, named Sheo Gobind, were made defendants. In that suit Gumti Debi filed on 22nd February 1928 a written statement (Ex. C-2) on behalf of her minor sons. This is a very important document in the case. This suit terminated in a decree on 21st September 1928 passed against the minor sons of Kampta Persad. The said two deeds were declared invalid and the properties covered by them were declared to be liable to attachment of the respondent's decree passed under Order 34, Rule 6. Sheo Gobind was discharged, as he disclaimed all interest in the litigation. Later, on 24th November 1929 the personal decree passed under Order 34, Rule 6 was adjusted but nothing turns upon this adjustment. The mortgagee-decree-holder reduced his claim subject to certain conditions. The first application was made by the decree-holder in the Unao Court on 1st August 1929. It was for transfer of the decree to the Court at Comilla. It is admitted by the appellant's advocate that that application is to be taken as a step-in-aid of execution. An order was passed by the Unao Court for transfer of the decree to the Comilla Court, but nothing further was done by the decree-holder. He again applied for transfer of the decree on 27th October 1933 within three years of the order passed on his first application for transfer and obtained the necessary order on 4th November 1933. Nothing further was also done this time. He again applied for transfer in 1935 and after obtaining the order prayed for and the certificate of non-satisfaction from the Unao Court, he applied in the Comilla Court for execution on 9th May 1935. As Biswamhar had died in the meantime the application for execution was filed against Biseswar represented by his mother Gumti Debi as guardian, who filed an objection under Section 47, Civil P.C. Many objections were raised to the execution but all were negatived by the Subordinate Judge by his order dated 5th May 1937. The appellant's advocate has given up all the points, save two. Those two points are : (i) that the decree was incapable of execution as it was already barred when the first application by the decree-holder to take a step-in-aid of execution was made (1st August 1929), that application being more than three years of the decree under execution; (ii) that the Subordinate Judge ought to have kept the question as to the validity of the deed of endowment open in these proceedings. The first point was overruled by the Subordinate Judge on two grounds, namely (a) that the plaint and decree passed in Suit No. 9 of 1928 saved the decree-holder's application dated 1st August 1929, (b) that the written statement (Ex. C-2) filed by Gumti Debi on behalf of the minor judgment-debtor in Suit No. 9 of 1928 which was within three years of the decree under execution amounted to an acknowledgment of liability within the meaning of Section 19, Limitation Act, and the first application of the decree-holder (dated 1st August 1929) being within three years of that date was in time.

3. Both these reasons given by the learned Subordinate Judge are challenged as unsound by Mr. Gupta, the learned Advocate for the appellant. It is admitted by him that if the application of the decree-holder dated 1st August 1928 was in time, the pre-sent application for execution cannot be thrown out as not maintainable, for within three years of the order made on that application the decree holder again took steps in aid of execution. Mr. Gupta does not challenge before us the correctness of the decision of Mukherjee and Mitter JJ., in Sreenath Chakravarti v. Priya Nath Bandopadhya : AIR1931Cal312 so far as it held that an application for transfer of a decree to a muffasil Court which had passed the same is a step-in-aid of execution within the meaning of Article 182(5), Limitation Act. Mr. Gupta however submits that Article 182(5) speaks of an application to take some step in aid of execution made to the proper Court that is the Court whose duty it is to execute the decree (Expln. II to Article 182). He submits that the plaint filed in the Unao Court, cannot be regarded as an application within the meaning of that Article. The contention of Mr. Gupta is supported by the observation made by a Division Bench of this Court in Raghunandan Persad v. Bhugoo Lal (1890) 17 Cal. 268 at p. 271. That was a case decided under the Limitation Act of 1877, but so far as this question is concerned there is no difference between Article 179(4) of the former Act and Article 182 (5) of the Act of 1908 as finally amen, ded. In other High Courts however a wider meaning has been assigned to the word 'application' used in Article 182(5). The word has been construed to mean 'request to a Court' and that Court need not be the Court of execution. It would, in that sense, include a plaint in a suit for declaration that certain properties are liable to be attached in execution of the plaintiff's decree against his judgment-debtor, the defendant, an act or deed of the latter which had the effect of impending execution being challenged and sought to be nullified in the suit. We do not propose to examine the cases in detail bearing upon this point, as we are basing our judgment on another ground. We may however say that we prefer to follow the view expressed in Raghunandan Persad v. Bhugoo Lal (1890) 17 Cal. 268 as it gives the natural meaning to the word 'application' and the other Courts have not given proper consideration to the phrase 'proper Court' used in Article 182(5) and defined in Expln. II to Article 182.

4. Mr. Gupta's next argument is that Ex. C(2), the written statement filed by Gumti Debi on behalf of her minor son in Suit No. 9 of 1928, is not an acknowledgment of liability within the meaning of Section 19, Limitation Act. He subdivides his argument into three parts. He says: (i) there was in it in fact no acknowledgment of an existing liability to the respondent, (ii) even if there was an admission in it by Gumti Devi that the amount due to the respondent under the decree passed in his favour under Order 34, Rule 6, such an admission cannot in law amount to an acknowledgment of liability by the judgment-debtor Biseswar as (a) Gumti Debi being only guardian ad litem cannot bind him by any statement which goes beyond the scope of the suit in which she was his guardian ad litem; (b) even if Gumti Debi be regarded as the natural guardian of Biseswar, she cannot bind her ward by her acknowledgment of liability, unless it can be shown by the decree-holder that the said acknowledgment was made for the benefit of her ward. We cannot give effect to any of these contentions of Mr. Gupta. The respondent in his plaint of Suit No. 9 of 1928 made the statement that he had obtained against Kamta Persad a decree for Rs. 31,727-12-0 on 21st November 1925. He further stated that Kampta Persad had notice of the order for attachment before judgment of the properties at the time when he executed the deed of endowment and the indenture of lease and that he did execute them with the fraudulent object of depriving him and his other creditors, and that the remaining properties which Kampta Persad had were not sufficient to meet his claim under 'the said decree. He accordingly prayed for the declaration that those two deeds were null and void. Gumti Debi as guardian of her minor sons Biswambar and Biseswar filed the written statement on 22nd February 1928. In paras. 17 and 19 she made the clear statement that the decree of the respondent was still unsatisfied. The plea she took can be summarized thus. True the respondent's decree was still unsatisfied but Kamta left considerable properties outside the deed of endowment and the lease which were more than sufficient to satisfy the respondent's decree and that (he the respondent) was not intentionally proceeding against those properties. There was in the written statement not only an acknowledgment of liability by Gumti Debi but that her statements regarding respondent's claim on his decree were relevant to the suit, being her defence to the charge of fraudulent alienation by Kampta Persad made in the plaint. If she could have substantiated the fact that Kampta Persad left properties outside the lease to his brother-in-law and the deed of endowment, which were sufficient to satisfy the respondent's claim on his decree, these two transfers would probably have been saved from the respondent's attack. Grounds Nos. (i) and (ii)(a) as urged by Mr. Gupta stated above are accordingly without substance and must be overruled.

5. In support of his ground (ii)(b) Mr. Gupta submits that an acknowledgment of liability by a guardian to be effective against the minor must be by his lawful, guardian and for his benefit. Lawful guardian means a person who in law represents the minor. The phrase does not include a de facto guardian. But the person need not be appointed by the Court under the Guardians and Wards Act. If by the personal law of the minor a person is indicated as his guardian then that person is his lawful guardian. Here as the father was dead the-mother, Gumti Debi, was the lawful guardian of her minor sons at the time she filed the written statement in Suit No. 9 of 1928. She cannot be taken to have momentarily ceased to be the legal guardian of her minor sons because she was appointed their guardian ad litem. The acknowledgment of liability made by her in Paras. 17 and 19 of the said written statement must be taken to have been made by her as lawful guardian of her minor sons. The period of limitation for; execution against them accordingly started from the date of the written statement, namely 22nd February 1928, and the application of the decree-holder to the Dnao Court dated 1st August; 1929 was accordingly in time. This is the plain effect of Section 19 read with Para. 1 of Section 21, Limitation Act of 1908.

6. In support of his contention that the acknowledgment of liability by a lawful; guardian to have effect against a minor must be for his benefit, Mr. Gupta cites a number of cases. The relevant statements in the written statement Ex. G.2 being relevant to the suit were certainly made for the benefit of the minor. But 'apart from the said fact we cannot accept Mr. Gupta's contention on this point of law. The cases he cites are Annapa Gauda v. Sangadyapa (1902) 26 Bom. 221, Ram Charan Dass v. Gaya Prosad (1908) 30 All. 422, Wajibun Pillai v. Veerappa Chettiar (1919) 6 A.I.R. Mad. 993 and Chidambaram pillai v. Veerappa Chettiar (1919) 6 A.I.R. Mad. 993. The first three eases were decided under the Limitation Act of. 1877. In that Act there was no provision, corresponding to Section 21(1) of the Act of 1908. An acknowledgment of liability to be effective had to be signed by the debtor or by his authorized agent. The question, raised in those cases was whether a lawful guardian of a minor was his authorized agent. It was held in those cases that he was not but would be so regarded only if he acted for the benefit of the minor in making the acknowledgment of liability. The addition of the Para. 1 to Section 21 in the Limitation Act of 1908 has in our judgment, made away with the said distinction. A lawful guardian is now under the statutory definition an authorised agent of the minor within the meaning of Section 19, Limitation Act. The new provision of Section 21, Limitation Act of 1908 was made to make the law clear and to place a lawful guardian in the same position as an authorized agent of an adult debtor. In the last case cited by Mr. Gupta Chidambaram pillai v. Veerappa Chettiar (1919) 6 A.I.R. Mad. 993 the change in the law by the Legislature was not considered and Section 21(1) was not even noticed in the judgment.

7. With regard to the last contention raised by Mr. Gupta that the finding on the deed of endowment, arrived at by the learned Subordinate Judge ought to be set aside, we are of opinion that his contention, is sound. The idol has not preferred any claim in the execution proceedings and we are of opinion that in the absence of the idol, the question as to whether the deed of endowment creates a valid debutter or not, ought to be left open in these proceedings. With this modification the appeal is dismissed with costs, hearing-fee two gold mohurs.

Khundkar, J.

8. I agree.


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