JANAKI AMMA Vs. ABRAHAM

JUDGEMENT

(1.) The only point that arises in this appeal and which is pressed on behalf of the appellants by their learned counsel is the question of limitation which formed the subject matter of issue No. 2. For saving limitation, reliance was placed upon an acknowledgement contained in paragraph 4 of Ext. A which was a written statement filed on behalf of the persons concerned by one Thrivikrama Kaimal. It bears his signature. The question as to whether he was authorised to sign this written statement on behalf of the relevant parties was raised but it has been found that he had and it is not in dispute here in this court. Paragraph 4, 10 and 13 of this document have to be read in deciding whether the document contains an acknowledgement of liability within the meaning of S.19 of the Travancore Limitation Act. Paragraph 4 contains an admission of the execution of the Otti deed under which the liability arose. In paragraph 10 it is pleaded that the liability created by the document has become barred by limitation and consequently the suit is barred by limitation and is liable to be dismissed. Paragraph 13 contains a recital that if for any reason the court arrives at the conclusion that the properties comprised in the Otti deed should be surrendered, provision should be made for payment to the mortgagees of the items mentioned therein. Reading all these paragraphs together with the rest of the document the substance of the averments may be summarised as follows. On behalf of the parties concerned an admission is made that the document under which the liability arose to enforce which the suit was brought, was executed by the parties concerned. This is followed by a denial of liability on the ground that the claim has become barred by limitation. Subsequently, the party concerned states that should the court arrive at the conclusion that the suit is maintainable, proper provision should be made for compensating the debtor. In other words, paragraph 13 seems to us to imply that the debtor is willing to discharge his obligation subject to the condition that the court finds that that right is enforceable. If this statement was not contained in Ext. A, we would not have any hesitation in holding that the averments in paragraphs 4 and 10 do not amount to an acknowledgement under S.19. But the averment in paragraph 13 saves the situation for the plaintiff and we are of the opinion that taken along with the admission of the source of liability contained in paragraph 4, there is an acknowledgement of liability to save the claim from being barred by limitation under S.19 of the Travancore Limitation Act. In Rustomji's Law of Limitation (5th Edition), Vol. I, at page 310, reference is made to the case in which a debtor promises to repay a debt when it is proved. On the authority of Halsbury's Laws of England, (1st Edn.) Vol. 19 page 64, 1880, 6 Calcutta 340 and 1918 (46) Indian Cases 973 (Madras) the author has expressed the opinion that such an admission is sufficient acknowledgement under S.19 of the Indian Limitation Act. In the present case, it seems to us that the third clause in the written statement referred to above can be construed as amounting to such an acknowledgement.

(2.) We agree with the Trial Court in holding that the acknowledgement was made before the claim became barred. We see no reason to disagree with the quantum of mesne profits awarded by the decree.

(3.) In the result, the appeal is dismissed with costs.