DASHRATH MOTIRAM SHET WANI Vs. GAJANAN KESHAV PHADNIS

JUDGEMENT

(1.) THIS second appeal raises questions of limitation under Sections 19 and 20 of the Indian Limitation Act.

(2.) THE appellant brought a suit to recover Rs. 2,900 on a simple mortgage executed on May 22, 1924, by defendant No.1 for herself and as the guardian of defendant No.2, who was a minor. Defendant No.2 is the son of the brother of defendant No.1's deceased husband. It was provided by the mortgage bond that the sum advanced was to be repaid on or before February 23, 1925. THE suit was filed on July 29, 1937, and was prima facie out of time. But it was stated in the plaint that limitation was saved for the following reasons :-(1) on, July 29, 1925, a sum of Rs. 900 was paid on behalf of the mortgagors by one Pandharinath who had purchased some other property from the defendants. At this time defendant No.1 gave instructions that the money was to be appropriated as to Rs. 365 and odd in payment of interest and as to the balance in payment of principal. So that reliance was placed on Section 20 of the Indian Limitation Act. (2) THE sale-deed in favour of Pandharinath, which was dated July 28, 1925, contained an acknowledgment by defendant No.1 of her liability under the mortgage and Section 19 of the Indian Limitation Act was therefore relied upon. (3) A further acknowledgment of liability was made before the Sub-Registrar when the sale-deed was registered on July 29, 1925.

(3.) MR. Gajendragadkar, who appears for the appellant plaintiff, has conceded, as he was bound to do, that defendant No.1, the paternal aunt of defendant No.2, was not his guardian under Hindu law. The points he has argued are as follows : (1) He contends that a de facto guardian may be a lawful guardian for the purposes of Sections 19 and 20 and that therefore defendant No.1 could make a valid acknowledgment and could also save limitation by paying interest as such. (2) It is also contended that any payment by a co-mortgagor such as to attract the operation of Section 20 is effective not only against the person making the payment but also against the co-mortgagor, (3) Lastly it was argued that this should be treated as a case of a mortgage made by the members of an undivided Hindu family so as to invoke the operation of Section 21 (3)(b) of the Indian Limitation Act.