MANIRAM Vs. SETH RUPCHAND

JUDGEMENT

(1.) One Motiram, of whom the appellant (the plaintiff in the action) is the adopted son, and one Rupchand, the respondent and the defendant in the action, were mahajans or money dealers, both residents of Burhanpur in the Central Provinces. They had regular dealings with one another from 21 July 1895 to 12 May 1898, and at the close of these dealings the respondent owed Motiram Rs. 5841- 9-1 on account of principal, and Rs. 2801-2-0 on account of interest. No question has been raised as to the correctness of these amounts if the action be maintainable.

(2.) The present suit was brought on the 5 September 1901 to recover these amounts. There is no question that they were due. The respondent admitted in his pleading that they were so, and the only defence is that the action was barred by the lapse of time.

(3.) Motiram died on the 6 October 1898 leaving a will by which the respondent and four other persons were appointed trustees to administer the estate. Three of them, of whom the respondent was one, applied for probate. The application was opposed by the other two and by Kisandas, the natural father of the appellant. Their petition of objections is not in the record, but the reply, signed by the respondent and others is set out, and from it there can be no doubt that amongst the objections was one on the ground that the respondent owed money to the estate. Paragraph 3 is as follows : "The applicant Rupchand Nanabhai is a big mahajan of Burhanpur paying Rs. 106 as income tax. For the last five years he had open and current accounts with the deceased. The alleged indebtedness does not affect his right to apply for probate." This document is dated 28 September 1899.