MAGANLAL HARJIBHAI Vs. AMICHAND GULABJI

JUDGEMENT

(1.) The plaintiffs in this case sued to recover Rs. 5,697-13-6 as principal and Rs. 1,027-2-6 as interest from defendants Nos. 1 and 4 personally and from the joint family property of the defendants. The suit was brought on December 22, 1923, on a Khata, Exhibit 48, dated December 28, 1920. Defendants Nos. 1 and 4 are the debtors of the plaintiffs family and passed ruzu khatas from time to time from the year 1898. The plaintiffs father died in the year 1904. It is necessary to mention only the recent Khatas. Exhibit 5S was passed on March 21, 1912. The subsequent Khatas were Exhibit 56, dated December 20, 1914, Exhibit 57, dated January 4, 1918, and the last Exhibit 48, dated December 28, 1920. The suit was brought on December 22, 1923. The first plaintiff attained majority on July 26, 1916, and plaintiff No. 2 attained majority in 1921. If each of the ruzu khatas had been passed regularly within three years of the preceding one, the suit would have been within time. But Exhibit 57, dated January 4, 1918, corresponding to Magear Vad 7 1924, was more than three; years from Exhibit 56, dated December 20, 1914, corresponding to Paush Sud 3rd, 1971. Exhibit 57, according to the Gregorian calendar, was passed more than three years after the date of Exhibit 56. Though according to the Hindu calendar, Exhibit 57 would be within three years of the preceding Khata, Exhibit 56, we must, for the purposes of limitation, take the Gregorian calendar, which governs limitation according to Section 25 of the Indian Limitation Act.

(2.) The learned Subordinate Judge held that Section 6 of the Indian Limitation Act provided for cases of persons affected by legal disability and extended in their case the period of limitation only for purposes of instituting a suit or making an application for the execution of a decree, and that acknowledgments taken for the purpose of starting a fresh period of limitation under Section 19 of the Act did not fall within the purview of Section 6. He therefore, hold that the present claim was not within time, and that the suit could not be based on the Khata, Exhibit 48 dated December 28, 1920.

(3.) In this appeal, it is urged on the authority of Yenkataramay-yar V/s. Kothandaramayyar (1889) I.L.R. 13 Mad. 135 that plaintiff No. 1 who attained majority on July 26, 1916, could have brought a suit on or before July 26, 1919, and therefore the ruzu khata, Exhibit 57, taken on January 4, 19.18, i. e., before the expiration of the period for bringing the suit, was valid under Section 19 of the Indian Limitation Act, and the suit Khata, Exhibit 43, which was within throe years of the passing of the Khata, Exhibit 57, gave a further starting point of limitation and the present suit was within time. It is further urged that if the acknowledgments, Exhibit 57 and Exhibit, 46, were of no avail to bring the suit within time, the plaintiff could bring a suit on Khata, Exhibit 48, according to the decision of the Privy Council in Maniram V/s. Seth Rupchand (1906) L.R. 33 I.A. 165, s.c. 8 Bom. L.R. 501. It is urged that an acknowledgment implied an unconditional promise to pay and the plaintiff could, therefore, bring a suit on the Khata, Exhibit 48, and reliance was placed on the cases of Ghunilal V/s. Laxtnan Govind (1921) I.L.R. 46 Bom. 24, s.c. 23 Bom. L.R. 606 and Narayan v. Chapsi Dosa (1921) I.L.R. 46 Bom. 419, s.c. Bom. L.R. 1186.