MANILAL POPATLAL Vs. KHODABHAI SARTANSING

JUDGEMENT

(1.) In the year 1904 the plaintiff Chhaganlal Kishordas sued the respondents, who were minors represented by the Talukdari Settlement Officer as their guardian, for a decree upon a mortgage. In 1905 the Subordinate Judge Granted him a personal decree only for Rs. 2,360 and costs, hut the mortgage was held to be invalid under the provisions of the Gujarat Talukdars Act. On the 27th of September 1905 the plaintiff filed an appeal. On the 21st November 1905 the Talukdari Settlement Officer took over the management of the estate under the Gujarat Talukdars Act. On the 24th of the same month notice of the plaintiff s appeal was 24 to Se TaTukL Settlement Officer, and on the 28th of Cmbefthlt fficer issued a notification under Section 29Bof the Guiamt Talukdars Act calling upon claimants to submit their

(2.) The Talukdari Settlement Officer relies upon the provisions Section 29B(3) that "every claim not submitted in compliance with a notice shall, save in certain cases, be deemed for all purposes and on all occasions, whether during the continuance of the management or afterwards, to have been duly discharged " That provision, however, is subject to an exception stated in the same section in these words :-" Unless in any suit or proceeding instituted by the claimant, or by any person claiming under him, in respect of any such claim, it is proved to the satisfaction of the Court that he was unable to comply with the notice published under Sub-section (i)."

(3.) We have now before us a proceeding in execution instituted by the claimant, and the question is whether he has proved to the satisfaction of the Court that he was unable to comply with the notice of the 28th December 1905 ? The learned Subordinate Judge was of opinion that the inability must be some physical inability on the part of the claimant. If that is so, it is difficult to understand why physical inability should be an excuse where a suit has been instituted and not an excuse where a suit has not been instituted. We are, therefore, of opinion that the word unable is not confined to physical inability on the part of the claimant.