GOMATHI AMMAL Vs. AVU AMMAL

JUDGEMENT

(1.) The suit out of which this Civil Revision Petition arises was upon a promissory note executed by the defendant's deceased husband and dated the 17 August, 1923. The suit was filed in 1928. On the 16 August, 1924, the defendant's husband made a payment of Rs. 5 in respect of the promissory note. This had the effect of extending the period of limitation to the 16 August, 1927. The suit having been filed in 1928, the plaintiff's claim would be barred by limitation but it was claimed that the debt had been kept alive by an acknowledgment of it made by the defendant. This acknowledgment is, it is alleged on behalf of the plaintiff, to be found in an admission made by her in a petition which she put in to get herself appointed guardian of her husband who had then become insane. The petition is O.P. No. 38 of 1926. The petition was made under the Indian Lunacy Act to have her husband declared to be insane and for the appointment of herself as guardian of his person and manager of his property. It is conceded that the defendant's husband must have been found to be insane as a result of an enquiry under the Act because an order was made on the defendant's petition appointing her guardian and manager on furnishing security. She failed, however, to furnish the security ordered and in the meantime her husband died and she was in fact never appointed his guardian and the manager of his property. For the purpose of her petition, she had to set out her husband's assets and liabilities and she included in the latter the suit promissory note debt. It was contended in the Lower Court that this was an acknowledgment by the defendant within Section 19(1) of the Indian Limitation Act and that the defendant was her husband's "agent duly authorised in this behalf". This contention the learned District Munsif upheld in the following words: The defendant's husband being insane and he being divided from his brothers, the natural and de facto guardian was his wife who was major even then, and she also put in the Original Petition. P.W. 1 further states that it was she who was managing her husband's property. Thus she, as the actual manager of the estate and the de facto and the legal guardian under Hindu Law, has acknowledged the suit debt in the said Original Petition. Wife's acknowledgment where she is accustomed to conduct her husband's business is sufficient she being regarded as a duly authorised agent. Rustomji on Limitation, 4 Edition, p. 244. Thus the defendant's acknowledgment in the said Original Petition is sufficient to give a fresh starting point of limitation for the suit promissory note.

(2.) For the petitioner it is argued that she was not the lawful guardian of her insane husband and that therefore she was not her husband's "agent duly authorised in this behalf" in Section 19 as defined in Section 21(1) of the Limitation Act which reads as follows: The expression agent duly authorised in this behalf in Secs.19 and 20 shall, in the case of a person under disability, include his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment.

(3.) That section therefore deals with persons who are under disability such as the defendant's husband here. If at the time when the acknowledgment was made the defendant had been appointed the committee or manager of her insane husband's property, then she clearly would have come within the provisions of Section 21(1) of the Limitation Act as Section 75 of the Indian Lunacy Act permits every manager of the estate of a lunatic appointed under the Act to pay all just claims, debts and liabilities due to or by the estate of the lunatic; but she never was so appointed. It is argued that she was not his lawful guardian either and that the section as regards guardianship can have no application to majors and that, even as regards minors, a de facto guardian has no power to acknowledge a debt so as to bind a minor and Ramaswami Pillai V/s. Kasinatha Aiyar (1927) 108 I.C. 529 is relied upon. In that case at p. 536 Kumaraswami Sastri, J., says: Section 21 of the Limitation Act says, "the expression agent duly authorised referred to in Secs.19 and 20 shall, in the case of a person under disability, include his lawful guardian, committee or manager to sign the acknowledgment or to make the payment". It can hardly be said that a person who takes upon himself the management of property without being the legal guardian under Hindu Law or a guardian duly appointed by authority can be said to be a lawful guardian under Section 21.