Kesu Shivram vs Vithu Kanaji And Ors. on 28 November, 1884

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Bombay High Court
Kesu Shivram vs Vithu Kanaji And Ors. on 28 November, 1884
Equivalent citations: (1885) ILR 9 Bom 320
Author: C Sargent
Bench: C Sargent, Kemball


Charles Sargent, C.J.

1. The first question raised by this reference is, whether the words “not being merely a surety for the principal debtor” in Section 72 of the Dekkhan Relief Act, as amended by Act XXIII of 1881, are to be construed as applying exclusively to the case in which the principal debtor is a non-agriculturist. Taken in their plain and obvious meaning they would include all cases of sureties according to the maximum “Indefinitum equipollet universali.” The expression first occurs in Section 3, Clause y, and Section 12 of the original Dekkhan Relief Act, XVII of 1879, but was omitted from those sections as amended by Act XXIII of 1881, and by the same Act it was introduced into Sections 56 and 72. In neither of the Sections 3 and 12 of the Act of 1879 is there anything in the context to restrict the generality of the expression. Nor does the circumstance of its subsequent omission from those sections necessarily lead to the inference that; the expression had been used in a restricted sense.. The same remark applies to the introduction of the expression into Section 56.

2. Passing to Section 72, the introduction of the expression by the Amending Act was due, as appears from the report of the committee on the Amending Act of 1881, to a suggestion of the Court in Hajarimal v. Krishnarav I.L.R. 5 Bom. 647. In that case the question for consideration was, whether the creditor’s claim against the agriculturist surety was barred, that against the non-agriculturist principal being already barred by the Act of Limitation of 1877. Sir. M. Westropp, C. J., who delivered the judgment of the Court, after showing that, with due regard to the canons of construction, the case of a surety must be deemed to fall within Section 72 of the Act of 1879, says; “The intention of the Legislature in extending the period of limitation was to remove the frequent pressure on agriculturist debtors to execute fresh and probably more stringent deeds or bonds than those originally given by those debtors, and thus to benefit such agriculturists. The Legislature might perhaps have, advantageously to agriculturists, excepted sureties from the operation of Section 72, but it has not made any such exception. Were we to do so, we should be acting as legislators and not as judges.” But not a single expression is to be found to show. that the learned Judge had in his mind only sureties for a non-agriculturist principal,, or that ho did not consider that it would be for the advantage of agriculturists that agriculturist sureties generally should be omitted from the operation of the new limitation. It may be, as the Special Judge points out, that it would not, as a fact, be for the advantage of the agriculturist borrower that the extended period of limitation should not apply to his surety, and it may be that it was an oversight in the framers of the section not confining the exception in Section 72 to sureties for non-agriculturists, but it is not for this Court to speculate on the subject. As Parke, B,, says in Nixon v. Philips 20 L.J. Ex. 90, “we must still construe the According to its plain and obvious meaning.”

3. Passing to the question as to the period of limitation applicable to the sureties, who were parties to the kabulayat of 30th July 1880, registered under Section 56 of Act XVII of 1879, and who thereby bound themselves to pay the plaintiff the rent if their principal should fail to do so, it is to be observed that by Section 60 of the Act of 1879, such an instrument is to be deemed to have been duly registered under the provisions of the Indian Registration Act, 1877, and, therefore, by Clause 116 of 2nd Schedule of Act XV of 1877 the period of limitation will be six years from the date of default by the principal debtor to pay the rent.

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