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Bombay High Court
Gopalrao Manohar Tambekar vs Harilal Subrai Sevak on 10 April, 1907
Equivalent citations: (1907) 9 BOMLR 715
Author: Chandavarkar
Bench: Chandavarkar, Pratt


Chandavarkar, J.

1. This was a suit brought by the respondents Nos. 1 to 13 as plaintiffs against the appellant as defendant No. 1 and respondent No. 13 (Bai Dhanlaxmi) as defendant No. 2 in the Court of the Second Class Subordinate Judge at Umreth, to recover the arrears of an annuity and a sidha allowance for 8 years from Samvat 1945 to 1949 and from Samvat 1957 to 1959. The plaintiffs claimed the arrears as shewaks of Ranchod Raiji’s temple at Dakore, of which defendant No. 1 is manager and trustee. Respondent No. 14 was joined as defendant No. 2 in the suit because she claimed half the arrears as widow of one Ramchandra, a member of the family of the respondents 1 to 13 and these respondents contested her right upon the ground that no female member of the family was entitled to the annuity, wholly or partially. The Subordinate Judge held that the right of the first 13 respondents was barred by limitation; so far as the arrears claimed for Samvats 1945, 1946 and 1947 were concerned he found that the said respondents were entitled to half the arrears in respect of the other years in suit and respondent No. 14 to the other half; and after ordering that respondent to be made a co-plaintiff in the suit, he passed a decree in accordance with his findings.

2. Cross appeals from that decree were preferred in the District Court at Ahmedabad by respondents 1 to 13 and the present appellant. The first Class Subordinate Judge, who heard the appeals, upheld the decree except on certain points and among them the point of limitation as to the arrears for Samvat 1945, 1946 and 1947.

3. It has been objected before us that the Subordinate Judge in the Court of first instance wrongly made respondent No. 14 a plaintiff in the suit, whereas she was only a defendant. The Subordinate Judge had power to do that under Section 32 of the Code of Civil Procedure and the appellant has not pointed out any prejudice caused to him thereby. Respondents No. 1 to 13, who were the plaintiffs who had originally sued, do not complain of the Subordinate Judge’s order.

4. On the merits, we are asked to interfere with the decree of the lower appellate Court on two grounds, (1) that the claim of the respondent to the arrears for Samvats 1945, 1946 and 1947, is barred by limitation; and (2) that respondent No. 14 as a female is not entitled to any share in the annuity and that the share she claims as widow of her husband lapsed to the temple on his death.

5. We may dispose of the second point at the outset by holding that the lower Court has found in favour of the widow on the evidence and we see no error of law in that Court’s conclusion of fact. This Court’s decree in Suit, S.A. 448 of 1870, was merely a piece of evidence not conclusive, because the widow in question or her husband, through whom she claims, was not a party to that litigation. It was for the lower appellate Court to attach weight to it or discard it as it thought proper in appreciating the evidence.

6. On the question of limitation, it is admitted that the claim is prima facie barred, but the respondents rely on Ex. 45 as an acknowledgment within the meaning of Section 19 of the Limitation Act, which, they contend, saves their right. The lower appellate Court has allowed that contention.

7. Exhibit 45 is produced from the correspondence file of the Talukdari Settlement Officer, who was at the date of it (November 1894) in charge of the temple as guardian of the present appellant, then a minor. It appears from Ex. 44 that this Court passed a decree in Special Appeal 448 of 1870, by which a scheme was framed for the management of the temple. In that scheme was inserted a clause directing certain annual payments to be made to the shevaks of the temple. The scheme further provided that such payment shall be made only to the Shevaks then living and “their legal, lineal male successors by birth, adoption or discipleship, but no others.” On the strength of the clause in question, some of the present respondents and the ancestors of the rest made an application to the Talukdari Settlement Officer for payments to them of the arrears of the annuity due to them for the years including those now in dispute. The Talukdari Settlement Officer having sent the application to the Mamlatdar for enquiry, the Upri karkun of the latter reported that though the Mamladar had issued “a direction to make and send a statement again for payment being made” to the applicants “for the past years” there was no cash balance for the payment in respect of all those years. The karkun, therefore, proposed that the arrears in respect of the past years should be paid in the manner detailed by him in his letter, which appears in Ex. 45. The Talukdari Settlement Officer did not accept that proposal but made an order on the 25th of October 1895 on the Upri karkun, which is relied upon by the respondents as an acknowledgment and which in. Ex. 45 is as follows:-

When there is no cash balance, payment for one year should be made on the recovery of the instalment and a separate report should be made. This correspondence is to be kept open. On the amount for the current year being paid, payment should be made at the end of July.

8. The meaning of this is that there being no cash balance, the applicants should be paid for one year, which was the year then current. And Mr. Rao, the learned pleader for the respondents, has in consequence felt constrained to rely on the second sentence, which he contends, is an acknowledgment of the liability in respect of the arrears now in dispute. But, on the other hand, it is maintained by the learned Advocate General for the respondents that a direction that the correspondence shall be kept open cannot be regarded as “an acknowledgment of liability” in respect of the past years; that it may be a possible but it is not a necessary inference from the direction. Now, an acknowledgment within the meaning of Section 19 must distinctly and definitely relate to Reliability in dispute: Dharma v. Govind (1883) I.L.R. 8 Bom. 99 at 102. It need not be express; it may be left to implication. It must be a necessary implication from the words used that the person acknowledging was referring to and admitting the liability, not any liability. Here the language does, in our opinion, necessarily imply that the Talukdari Settlement Officer meant to acknowledge the liability of the temple to pay the arrears due for the past years. The Upri karkun’s report in Ex. 45 referred to the arrears due to the present respondents in respect of past years, including the years now in dispute. It also referred to the annuity due in respect of one year then current and he proposed that as there were not funds sufficient to pay that year’s annuity plus the arrears for the previous years the applicants should be paid the annuity for the year then current (Satnvat 1952) and for Samvat 1950. As an alternative he also proposed that payment should be made only in respect of the year then current (1952). The Talukdari Settlement Officer thereupon directed that when there was no cash balance, the applicants should be paid only in respect of the annuity due for the year then current. That was coupled with a direction that the correspondence should be kept open-that is, as the correspondence related to arrears in respect of past years and as, there being no cash balance, they could not be paid then but must be paid whenever there was a cash balance, the Upri kurkun was directed to treat the correspondence as not disposed of but as pending for payment in future. The direction to keep the correspondence open would be meaningless unless the Talukdari Settlement Officer meant to admit the liability to pay the arrears and desired to pay in the event of the cash balance permitting.

9. It is urged, however, that the officer in question was not an agent “duly authorised in this behalf” within the meaning of Explanation 2 to Section 19 of the Limitation Act, to bind the appellant by his acknowledgement. He was a guardian appointed by the Court under the Guardians and Wards Act during the appellant’s minority; and in that capacity he had the power to make such an acknowledgment, provided that in making it he complied with the conditions of Section 27 of the Act (see the Pull Bench decision of this Court in Annapagauda v. Sangadiyyapa (1901) I.L.R. 26 Bom. 221 : 3 Bom. L.R. 817). As there has been no investigation on this point in either of the Courts below we must send the case back to the lower appellate Court for a finding on the following issue :

(1) Whether the Talukdari Settlement Officer as guardian of the appellant in acknowledging the liability to pay the debts in dispute by his order in Exhibit 45 complied with the conditions prescribed in Section 27 of the Guardians and Wards Act so as to make the acknowledgment binding on the appellant who was then a minor.

10. Finding to be returned within three months.

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