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Full text of "The Law of Limitation in India"

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HARVARD LAW I.IIIkAin 



.-. ,,,-.., i APR IT 1308 




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-.- THE 



Cf 



LAW OF LIMITATION 

IN INDIA, 



BT 



CUDDALORE RAMACHENDRI ER, 

Acting Head Assistant Collector, Trichinopoly ; 

Author op the Manual of Malabar Law 

And thb Indian Registration Act, 

With Notes. 



i » i 



3K<t6ras: 
PRINTED BY VEST AND COMPANY, 

5, 6, 7 & 8, MOUNT ROAD. 



l88 7 . ) ' " • 



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APR 17 1909 



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TO 

THE HONORABLE 

P. P. HUTCHINS, B.L., 

MEMBER OF THE LEGISLATIVE COUNCIL OF MADRAS. 

THIS VOLUME 

is 
(H8b hinb Remission) 

VERY RESPECTFULLY DEDICATED. 



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PREFACE. 



-XxX- 




Y OBJECT in publishing this book is to place within 
the reach of the Judges and the Practitioners of 
India the decisions of all the High Courts in the 
country on the Law of Limitation, arranged under 
their appropriate Sections and Articles. Wherever there was 
a conflict in the decisions of the Courts upon any point, I have 
enumerated them, as I have done in my Registration Act, with 
notes, bearing in mind the direction of each High Court to its 
subordinate tribunals to follow its own decisions, notwithstanding 
the decisions of the other High Courts to the contrary. With a 
view to facilitate reference to the rulings without putting readers 
to the necessity of referring to the Law Reports for information, 
I have stated briefly the facts of cases, many as abstracts and a 
few as extracts, and added any important observations made by 
Judges on questions of construction and application. To render 
the volume a book of reference complete in itself, I have 
inserted as foot-notes sections of the Civil Procedure Code and 
provisions of other Acts to which reference has been made in 
some of the sections and Articles of the Limitation Act. 

The amendments proposed by Bill No. 23 of 1886, even if 
it becomes law, will in no way detract from the value of this 
publication, for they consist mainly in the repeal of Articles . 
171, 171-a and 172-6 of the second schedule, and the proposed 
alterations will be found noted in their appropriate places. 

This book would have been published at an earlier date 
had it not been for the untimely and lamented death, on the 5th 
of January, 1887, in my residence, at Madras, of my younger 
brother, C. Subbaroya Iyer, b.a., b.l., for several years one of 
the Judges of the Sudder Court of Cochin Circar. Referring 
to his death, the Dewan of the State says: — "My grief is 
shared by all his friends in these parts, and almost all who 
knew him deplore his death. In him, the Circar has lost a 
valued officer, and I have lost a sincere friend." 

My thanks are due to my brother, Mr. C. Mahadava Iyer, 
b.a., B.L., a Vakil of the Madras High Court, for his having, in 
addition to his professional work, undertaken to correct the 
proof sheets, and for a few valuable suggestions as to the 
general arrangement of the contents of the book. 

Madras, March, 1887. C. R. 



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CONTENTS. 

XxX 

Pbsambls. 

^>jls,i? i. 

PEBLIMINAEY. 

SECTIONS. 

1.— Short title. 

Extent of Act. 

Commencement. 
2.— Repeal of Act IX of 1871. 

References to Act IX of 1871. 

Saying of titles already aoquired. 

Saving of Act IX of 1872, Section 25. 

Suite for which period prescribed by this Act is shorter than that pre- 
scribed by Act IX of 1871. 
8. — Interpretation-clause. 



PABT II. 
LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 

4. — Dismissal of suits, Ao., instituted, Ac., after period of limitation. 
6. — Proviso where Court is closed when period expires. 

Proviso as to appeals and applications for review. 
6. — Special and local laws of limitation. 
7. — Legal disability. 

Double and successive disabilities. 
Disability of representative. 
8. — Disability of one joint-creditor. 
9. — Continuous running of time. 

10. — Suits against express trustees and their representatives. 
11. — Suits on foreign contracts. 
Foreign limitation law. 



PABT HI- 
COMPUTATION OF PERIOD OF LIMITATION. 

12. — Exclusion of day on which right to sue accrues. 

Exclusion in case of appeals and certain applications. 
13. — Exolusion of time of defendant's absence from British India. 



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VI CONTENTS. 

Sections. 

14. — Exclusion of time of prooeeding bond fide in Court without jurisdiction. 
Like exclusion in case of order under Civil Procedure Code, Section 20. 
Like exclusion in case of application. 
15. — Exclusion of time during which commencement of suit is stayed by in- 
junction or order. 
16. — Exclusion of time during which judgment-debtor is attempting to set 

aside execution-sale. 
17. — Effect of death before right to sue accrues. 
18.— Effect of fraud. 

19. — Effect of acknowledgment in writing. 
20. — Effect of payment of interest as such. 
Effect of part-payment of principal. 
Effect of receipt of produce of mortgage land. 
21. — One of several joint contractors, Ac., not chargeable by reason of 

acknowledgment or payment made by another of them. 
22. — Effect of substituting or adding new plaintiff or defendant. 
Proviso where original plaintiff dies. 
Proviso where original defendant dies. 
23. — Continuing breaches and wrongB. 

24. — Suit for compensation for act not actionable without special damage. 
25. — Computation of time mentioned in instruments. 



&JLJ&T IV. 
ACQUISITION OP OWNERSHIP BY POSSESSION. 

26. — Acquisition of right to easements. 

27. — Exclusion in favor 'of reversioner of servient tenement. 

28. — Extinguishment of right to property. 



FIRST SCHEDULE. 
Enactments Repealed. 



SECOND SCHEDULE. 

I. — First Division, Suits. 
II. — Second Division, Appeals. 
III.— Third Division, Applications. 



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INTRODUCTION. 

>oo< 

Regulation III of 1793, section 14, introduced the limi- old Regufo- 
tation of twelve years in Bengal ; clanse 2, section 3, Regula- n-J^i 
tion II of 1805, allowed 60 years for all claims of Govern- Regulation 

' J proscribed 

ment, and clause 4 excluded from the Regulation relating twelve years for 
' 6 ° suite. 60 yean 

to limitation, suits for redemption of property, moveable or f ?F i < ^ ove lJ d me,1 . t 

immoveable. The provisions of clause 4, section 3 of Regu- S ude iL]? demp " 

lation II of 1805, were " provided further that no length of 

time shall be considered to establish a prescriptive right of 

property or to bar the cognizance of a suit for the recovery 

of property in case of mortgage or deposit, wherein the 

occupants of the land or other property may have acquired 

or held possession thereof as mortgagee or depositary only, 

without any proprietary right : nor in any other case 

whatever, wherein the possession of the actual occupant 

or of those from whom his occupancy may have been 

derived shall not have been under a title bond fide believed 

to have conveyed a right of property to the possessor." 

2. Clause 4, section 18, Regulation II of 1802, of Madras, Madras 
prescribed one uniform period of twelve years for suits, prescribed 1 
whether to recover possession of lands or debtn, but did ^riod of 'twelve 
not affect suits for redemption or claims on mortgages whether^ 
which were left to be determined by the laws of the b^did'nofaJl 
country. Clause 4 of the said Regulation ran as fol- s^te^o^lsimui 
lows :— " The Courts of Adawlut are prohibited from hear- °* mort **»- 
ing, trying or determining the merits of any suit what- 
ever, against any person or persons, if the cause of action 
shall have risen twelve years before any suit shall have 
been commenced on account of it, unless the complain- 
ant can show by clear and positive proof that he had 
demanded the money or matter in question, and that 
the defendant had admitted the truth of the demand, or 
promised to pay the money ; or that he directly preferred 
his claim within that period, for the matter in dispute to a 
court of -competent jurisdiction or person having authority 



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V1U INTRODUCTION. 

(whether local or otherwise for the time being) to hear 

such complaint, to try the demand, and shall assign 

satisfactory reasons to the court why he did not proceed 

in the suit, or shall prove that either from minority, or 

other good and sufficient cause, he was precluded from 

obtaining redress. But from this rule are excepted, all 

claims founded on bonds which shall have been in a 

course of payment by instalments, or of which any 

proportion shall have been paid within twelve years 

previous to the institution of the suit; and also all 

claims and mortgages, the period for rendering which 

absolute and unactionable is to be determined by the laws 

of the country." 

when the above 3. When the above Regulation was in force, the twelve 

to^roe^eWe years' rule was applied to mortgagees not in possession, 

appHedto e mort an< * *° * mortgagor allowing time to lapse after the debt 

possession! and na ^ been discharged by the usufruct and mortgagee's 

to^SS^I % refusal to surrender. Suit by mortgagor was held to 

ch^fe^'debt date not ^ TOm mortgage, but from time limited for re- 

mortSSSs*"* demption. The right of redemption of a usufructuary 

refusal to sur. mortgage was held not affected by the Statute, and the 

mortgagee in possession, where no time for payment was 

specified, was held not limited to time in suing for his 

debt. These were the decisions of the late Sudder Court. 

Vide Sloan's Code, page 12. 

4. In Mukkani v. Manan/ 1 ) the Madras -High Court 
held that, prior to 1859, there was no limitation for 
redemption suits. • 
Bombay 5. In Bombay, Regulation V of 1827, section 1, was law 

i827 t wasLawof both of Limitation and prescription. It laid down 30 
prescription. years as the period within which a suit for immoveable 
property might be brought. It also provided that 30 
years' adverse possession gave the possessor of such pro- 
perty proprietary right except in case of fraud. 
Allahabad. 6. In Dia Chand v. Sarafaraz,< 2 ) the Allahabad High 
Court have observed that there was no limitation to suits 
for redemption of mortgage of landed property prior to 
Act XIV of 1859. 

(1) I. L. R., 5 Mad., 182. | (2) I. L. B., 1 All., 425. 



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INTRODUCTION. IX 

7. In the Towns of Calcutta, Madras and Bombay, the BngUsh statute 
Law of Limitation in force in 1852 was the English Sta- Town* of Oai- 

outta. Madras 

tute, 21, Jas. I., o. 16, and it continued to be in force till andBombay 

until XTV of 

it was repealed. The Statute 21, Jas. I., e. 16, was 185» began to 
intitled; "An Act of Limitation of actions, and for 
avoiding suits in law," and the words used in section 3, 
were " that all actions for account," " all actions of debt 
grounded upon any lending or contract without specialty," 
Ac., should be brought within six years next after the 
cause of such actions. The Statute of James I. remained 
in force in the said three Towns till the passing of Act 
XIV of 1859. Abba Hajilshmailv. Abba Thara.0) In Her 
Highness Buckmaboyee v. Lulloobhoy,W the Privy Coun- 
cil recognised that the English Statute of limitations 
extended to India and applied to Hindus and Mahomedans 
as well as Europeans, in civil actions, in the Supreme Court. 

8. Act XIV of 1859 was passed on the 5th of May, AetxiVofiaw 

providing " for 

1869, and it was to have operated, by section 18, from May, the limitation of 

1861, but the operation was postponed to 1st January, operate from 

1862, by Act XI of 1861, which was passed on the 1st May, ism. 
1861. The preamble of the Act recited that " it is ex- 
pedient to amend and consolidate the laws relating to the 
limitation of suits," and the Act prescribed the several 
periods of 1, 3, 6, 12, 30 and 60 years for suits of it prescribed 

. , . . ' . . .the several pe- 

several descriptions. One year for suits for pre-emption, rtodaof i,8,M*» 

t' ix- £ j x i* _x_. • 1.1 »and«0 years 

for penalties, for damages not affecting immoveable for suite of 

- ° several descrip- 

property, for wages, and for setting aside sales effected tions. 
in execution of decrees of court and for arrears of 
Revenue and for setting aside summary orders; three 
years for suits for money lent, for breaches of contract 
unregistered, for rents, for hire and for recovery of 
property comprised in possessory awards ; six years to 
all suite not specially provided for, twelve years for suits 
relating to immoveable property and for specialties 
governed by English Law and to suits for legacies. All 
suits for redemption instituted from 1st of January, 1862, 
were governed by the limitations contained in clause 15, 
section 1 of this Act, which provided for redemption of 
(1) I. L. B., 1 Bom., 253. | (2) 6 Moore Ind. App., 284. 
1-B 



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X INTRODUCTION. 

moveable and immoveable property within 30 and 60 

years respectively, from the time of the mortgage or 

from the date of the acknowledgment of the mortga- 

ed^meto^to fi> orB **^ e - ^ec. ^ gave unlimited time to snits against 

against trustees trnstees and their representatives for breach of trust. 

for breach of r 

trust, it pres- The Act also provided for extension of time in favor 

oribed for an r 

J^wjonof of the plaintiff in the following oases. (1), written 

of a plaintiff in acknowledgment of liability to pay a debt or legacy 

signed by the defendant, section 4 ; (2), concealed fraud 

of the defendant, section 9 ; (3), legal disability of the 

plaintiff including married woman in oases to be decided 

by English Law, minors, idiots and lunatics, section XI ; 

(4), defendant's absence from British India, section XIII ; 

and (5), ineffectual proceedings of a suit prosecuted bond 

fide but in a wrong court or in a court which had no 

lt Act F i? 1 * jurisdiction, section 14. This Aot was purely an Act of 

tation only. Limitation only. 

to'iEnSS*!? 1 Section 24 of the above Act provided for the Act taking 
and began to effect throughout the Presidencies of Bengal, Madras and 

operate in Pre- ° , « 

•idenoy Towns. Bombay, including the Presidency Towns and Straits 
Settlement. This Act superseded the Bengal and Madras 
Regulations and as it prescribed a shorter period of limi- 
tation, namely, twelve years for suits relating to immove- 
able property, while the Bombay Regulation Y of 1827, 
laid down 30 years as the period, the Act was held to 
repeal by implication the Regulation so far as it related to 
limitation. The Privy Council in Fattehsangji v. Desai 
Kallianraiji/ 1 ) observed that the Regulation, so far as it 
related only to the acquisition of a title by positive 
prescription, seemed to be unaffected by Act XIV of 1859, 
it did not ex- and to stand unrepealed in the Presidency of Bombay. 
rignt. Act XIV of 1859 did not extinguish the right. 

Act nc of 1871, 9 Act IX of 1871 repealed Act XIV of 1859, and came 
tion of "suite into force on the 1st of July, 1871. The preamble recited 
piirposeB"came that " it is expedient to consolidate and amend the law 
the°is°JaV n relating to the limitation of suits, appeals and certain 
1 l * applications to courts , v Bayley, J., in Abba Haji Ishmail,(*> 

observes : " These words are more comprehensive than 
(1) L. R., 1 Ind. App-, 34, SI. | (2) I. L. R., 1 Born., 258. 



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AotUVoflM©. 



INTRODUCTION. XI 

those need in Act XIV of 1859, which, no doubt, is to be 
accounted for by the fact that, when Act IX of 1871 was B»yiej, j., ob- 
passed, the Civil Procedure Code was in force, and the opTo. wu^ 
High Courts had been established. We should therefore ix of lsn ni 
naturally expect to find greater reference to the phraseo- S^ to &&&& 
logy of the Civil Procedure Code in Act IX of 1871 than SSJTtJTiS^ 1 " 
in Act XIV of 1859, and so we find reference to * suits, ftoSStSntn 
appeals and applications 1 in the preamble, and again in 
section 4. Thus, again, the second schedule of the Act 
embraces three distinct divisions, viz,, suits, appeals and 
applications. The first division contains 150 descrip- 
tions of suits." 

10. Act IX of 1871 introduced amendments suggested Act n of lan 
by the decisions of Courts upon the Act of 1859, and the amendment* 

. . suggested by 

Legislature, for the purpose of facilitating the application court's ded- 
of the law, appended to the Act three schedules, containing pended three 
respectively, the different sorts of suits, appeals and suits, appeals 

and applioa- 

applioations, together with their respective periods of tions respec- 

limitation and the points of time from which such periods litate the appiL 

i cation of the 

were to run. Amendments relating to acknowledgments law. 

and payments were introduced by sections 20 and 21, by 
providing that, in order to give a new starting point, 
acknowledgment must be made before the expiry of the 
period of limitation, while section 4 of Act XI V of 1859 did 
not require such acknowledgment to be made within the 
statutory period. Part V of schedule 2 introduced a limi- 
tation of two years for suits for compensation for losing 
or injuring goods, Ac., and for saits for the recovery of a 
wife and for the restitution of conjugal rights. 

11. This Statute (IX of 1871), enacted for the first time let ix of im 9 
two sets of provisions, whioh are in their nature distinct, distinct sete'of 
One related to the limitation of suits, and prescribed the ofSKaSonT 16 
limitation of time for bringing suits after the right to sue prescription. 
had arisen, while the other set related to the manner of 
acquiring title and rights by possession and enjoyment. 

The latter provisions were contained in Part IV of the 

Act, and were introduced under the heading " acquisition 

of ownership by possession." The object of the Statute The object of 

was to make more easy the establishment of rights by to make mora* 



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Xii INTRODUCTION. 

easy the estab- allowing an enjoyment of 20 years if exercised under the 

liahment of ,.T^ ., , , ,, \ L A . . Al _ x 

rights by so conditions prescribed by the Act, to give, without more, a 
mentunder the title to easements. The Lords of the Privy Council in 
cribed by\Ee Maharanee Rajroop Eoer v. Syed Abdool Hossein,< l > 
observe : " The Statute is remedial, and is neither prohibi- 
Aet does not tory nor exhaustive. A man may acquire a title under 
titles or modes it who has no other right at all, but it does not exclude 

of acquiring . . 

easements. or interfere with other titles and modes of acquiring 
This Act forthe easements." This Act for the first time provided that 
ded for extino- the right to land or hereditary office shall be extinguish- 

tion of right at _ ° _ m _ J . _ # " . 

the expiry of ed at the expiry of the statutory period for a suit for 

the statutory , . „ 

period. possession thereof. 

state of the 12. Up to the introduction of Act IX of 1871, which for 

upTto the intn> the first time, by section 29, provided for the extinction of 
ixonsn? Act right to land after the statutory period, and which ex- 
pressly repealed the Bombay Regulation V of 1827, the 
Btate of the law in Bombay was this, — a person, who, 
without title had been in adverse possession of any real 
property for twelve years could, under Act XIV of 1859, 
resist any suit brought to recover it from him ; but no 
such possession short of 30 years could create a title in 
Twelve years' his favor under Regulation V of 1827, section 1. The 

adverse posses- .,».., i * , * 5 . •« ,, ... 

sion did not ex- proprietor s title therefore did not become extinguished 

tinguish right. , , ° 

by twelve years adverse possession of another, though his 
right of suit against that other became barred by Act 
XIY of 1859. If such person happened to lose his posses- 
sion and the proprietor to regain it, the former, unless he 
sued within six months for possession simply on the ground 
of improper dispossession, must fail in any suit to eject, the 
in Bengal do- latter having no title to stand upon. But in Bengal, the 
such possession Privy Council held that twelve years' adverse possession 
thetftie also, not only barred the remedy, but extinguished the title be- 
cause there was no such Regulation prevailing there as in 
Bombay. See Rambhat Agnihotri v. The Collector of 
Poona/ 2 ) which was instituted in 1872 to recover lands 
which originally belonged to H. H. Scindia, and which was 
proved to have been in plaintiff's family actually and 
constructively from 1841 to 1863, when, by mistake, it 
(1) Suth. P. C. Vol. Ill, p. 816. | (2) L L. R., 1 Bom., 692. 



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INTRODUCTION. xili 

passed into the possession of Scindia and remained with 
His Highness till 1872, when it passed into the possession 
of the British Government hy exchange. 

13. Section 1 provided against the application of the Postponement 
provisions contained in sections 2 and 3, or in Parts II and visions of sees. 
III to suits instituted before the 1st of April, 1873. This n and rfi, of 
postponement, which was intended to give timely notice to 1st April, 
of its provisions, led to conflicting decisions as to the oonnioting 
application of the new Act after 1st of April, 1873. In 
Chinnasami Iyengar v. Gopalacharya,* 1 ) plaintiff sued 
on the 26th January, 1874, on a Pro-note of 16th Janu- 
ary, 1871, payable on demand. The claim had not 
been barred under Act XIV of 1859, on the 1st of Decisions of 
April, 1873, when Act IX of 1871 came into force. courtunpSed 
The Madras High Court held that the period of limitation was not apnii- 
ought to be computed as it would have been under Act brought after 
XIV of 1859, from the date of the note and not from the if founded on 
time of demand under Article 72 of Act IX of 1871. This accrued before 
implied the principle that Act IX of 1871, was not applica- 
ble to suits although instituted since the 1st of April, 1873, 
if founded upon causes of action which accrued before 
that date. Dissenting from that decision the Bombay 
High Court in Abdul Karim v. Manji Hans raj, W held that 
Act IX of 1871 was from the 1st of April, 1873, applicable 
to suits subsequently brought upon causes of action which 
had accrued previous to that date, and which had not been 
barred under the previous enactment, as well as to suits 
upon causes of action which accrued afterwards. 

14. In Teagaroya Mudaly v. Mariappa Pillay/ 8 ) plaintiff Subsequent 
sued in September, 1874, for money secured on a registered sions in suits 
bond of August, 1867, repayable on the 10th of April, Act^v bad 
1868. The plaintiff pleaded payment of interest by de- swept away, 
fendant in November, 1868, and April, 1870. The Lower 
Court rejected the suit as barred by Act XIV of 1859, 
holding that payment made before Act IX of 1871 could 
not be treated as payment under section 21 of the Act, 
which had no retrospective effect. The High Court, 

(1) 7 M. H. C. R., 802. | (2) I. L. R., 1 Bom., 804. 

(8) I. L. R., 1 Mad., 264. 



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XIV INTRODUCTION. 

referring to Chinnasami Iyengar/ 1 ) held in March, 1877, 
that the payments were sufficient, as the Act did not 
expressly require that such should have been made after 
it began to operate, and that it was a mode of extending 
the period under that Act. In Madhavan v. Achuda, (2 > 
plaintiff sued in November, 1875, on a Pro-note of 
November, 1871, payable on demand. The District Judge 
rejected the suit as barred. The suit was instituted after 
1st April, 1873, when Act IX of 1871 had come into full 
operation, and the old law had been altogether swept 
away, and the only guide as to the survival of the remedy 
by action was section 4 of Act IX of 1871, and its ap- 
pendix, schedule 2, which allowed to a Pro-note on demand 
three years' time counted from the date of demand. 
Act xv of 1877 15. Act IX of 1871 was superseded by Act XV of 1877, 
nPof 1871 was which came into force from the first day of October, 1877. 
the* 1st day of A few alterations were made by Act XII of 1879, and VIII 
' " of 1880, which received the assent of the Governor-Gene- 
ral on the 29th July, 1879, and 12th March, 1880, respec- 
tively. The former substituted a new Article for 161, 
xn of 1879 and added a few words to Articles 166 and 171, inserted newly 
made a few ai- Articles 171 -a, 171-6 and 171-c, and substituted a few words 
terati0M - in Article 179. The latter Act, VIII of 1880, simply cor- 

rected a clerical error in column 3 of Article 171-a. 
Three statutes 16. So there have been three Statutes of Limitations in 
in 26 years. 26 years, each containing provisions differing considerably 
from those of its predecessor. The general terms used in 
Act xiv of i860 Act XIV of 1859 led to much uncertainty and litigation, 
certainty and and in order to avoid such uncertainty, Act IX of 1871 
avow which Act was enacted, providing for defined periods from which 
passed. time should run, and the Act of 1877 is only a reproduc- 

tion of its predecessor, but with certain alterations and 
improvements suggested by the decisions of courts. Act 
IX of 1871 contained no provision similar to that of the 
2nd clause of section 2 of Act XV of 1877 which dis- 
tinctly provides against any title acquired or any right 
to sue barred under Aot IX of 1871, or its predecessor 
being affected or revived. 

(1) 7 M. H. C. R., 392. I (2) I. L. B., 1 Mad., 302. 



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INTRODUCTION. . X* 

17. Even before Act XV of 1877 began to operate, the Claim once bar- 

rod cannot do 
courts, looking to the great confusion that would arise revived. 

from holding that rights which were supposed to be 

barred were again revived by the new provisions of the 

new Statute, held that a claim once barred could not be 

revived by a change in the Law of Limitations. 

18. Up to the introduction of Act IX of 1871, Statute Act lXof isn 

, for the first time 

of Limitations was supposed to bar the remedy, but not to provided that 
extinguish the right. By section 29 of Act IX of 1871, it riod extin- 

♦ goiabod right to 

was provided for the first time that at the expiration of any property, 
the statutory period for a suit for possession of land or 
hereditary office, the right thereto shall be extinguished. 
Section 28 of Act XV of 1877 extinguished such right to 
any property. Gunga Gobind Mundnl v. The Collector 
of the 24-Pergunnah8,< 1 > first established the principle 
that where a suit for possession of land is barred by a 
Statute of Limitation, the right is extinct. 

19. After several conflicting decisions on the question Limitation Ac* 
whether the Limitation Acts extinguished the debt, the bat do not ox. 
Calcutta High Court in Mohesh Lai v. Busunt Kumaree,<*) debt, 
finally held, concurring in the decisions of the Madras High 

Court in Yalia Tamburatti v. Vira Ray an, W and Madha- 
van t>. Achuda,<*) that the Limitation Act did not extin- 
guish the debt. In Nursing Doyal v. Hurryhur Shaha,< 6 ) 
Pontifex, J., observes : " We are of opinion that neither 
the Limitation Act of 1871, nor that of 1877, extinguishes 
a debt. These Acts only bar or discharge the remedy. 
This we think is clear from the language of the Acts, and 
particularly from sections 12 and 29 of the Act of 1871, 
and sections 11 and 28 of the Act of 1877." 

20. " The difference between these Acts and the Bng- Difference be- 
liah Limitation Law is, that in India, Limitation need not dian and Bng- 
be set up as a defence (section 4 of the Act of 1871 and Acta. °° 
section 4 of the Act of 1877) while in England the defen- 
dant must expressly claim the operation of the Statute. 

Section 60 of the Contract Act, which was passed after 

(1) 11 Moore, I. A., 846. I (8) I. L. R., 1 Mad., 228. 

(2) I. L. R., 6 Calc, 840. | (4) I. £. R., 1 Mad., 801. 

(6) I. L. R., 6 Calc, 897. 



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XVI 



INTRODUCTION. 



The Statute if 
an Act of Li- 
mitation and 
prescription. 



Act V of 1881 
repealed defini- 
tion of Base- 
ment and sec- 
tions 26 and 27 
of the Limita- 
tion Act in the 
Territories of 
Madras, the 
Central Pro- 
vinces and ' 
Ooorg. 



Seasons why 
the Legislature 
passed the Sta- 
tute of Limita- 
tions. 



the Limitation Act of 1871, also shows that the debt is not 
extinguished, but may be insisted on for certain purposes ; 
so likewise, if the creditor had a lien on the goods of his 
debtor on a general account, he would be entitled to hold 
the goods for a debt, the recovery of which was barred 
by the Limitation Act. And probably it would be held 
that an executor would be allowed to retain out of a 
legacy a debt owing by the legatee to the testator, though 
its recovery was barred by the Act." 

*21. The Statutes of Limitations in this country have 
been not only Statutes regulating the practice of the 
forum and Statutes affecting the right, but have also 
become Statutes of prescription. Such was the Law of 
Limitation up to 1st of July, 1882, when Act V of 1882, 
the Indian Easements' Act which received the assent of 
the Governor-General on the 17th of February, 1882, 
began to operate.. 

22. Its operation being restricted to the Territories 
respectively administered by the Governor of Madras in 
Council, and the Chief Commissioners of the Central 
Provinces and Coorg, and by section 3, it repealing sec- 
tions 26 and 27, and the definition of easement contained 
in the Limitation Act, and enjoining that all references 
in any Act or Regulation to the said sections, or to sections 
27 and 28 of Act IX of 1871, shall, in the Territories to 
which the Act extends, be read as made to sections 15 and 
16 of the Indian Easements' Act, the Statute of Limita- 
tions in the said Territories has become purely an Act of 
Limitation. The rules of prescription applicable to 
easements which formed a part of the Law of Limitation 
have now to be found for such Territories in the Indian 
Easements' Act. 

23. The Statutes of Limitations are Laws of Peace and 
Justice : when property has been so long in the possession 
of a family that it has passed to the children and grand- 
children of those who first acquired it, and they, uncon- 
scious of any defect of title, have formed their habits and 
plans of life according to the income that the property 
produces, it would be cruel to deprive them of it. The 



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IflTBODTTCTION. XVU 

members of tlie family from which it came (never having 
enjoyed it) suffer bat little from its loss. After a great 
lapse of time, it is impossible to get at truth, so as to do 
•justice upon any case. Ton have some documents, bnt 
you may not have all that relate to the title, and those m 
which are lost might have explained or perhaps done 
away entirely the effect of those*which remain. Although 
some documents may be preserved, the witnesses neces- 
sary to make the account of the transaction complete and 
for a decision, cannot. White v. Paruther (1. Knap. p. 
227) cited in Norton's Topics of Jurisprudence, page 36. 

24. The Statute of Limitations protects persons who, observations of 
having paid their debts, would be liable to be called on to case decided i» 
pay them a second time, in consequence of the loss of # 
vouchers. In Adnam r. Earl of Sandwich (2. Q. B. Div. 

489) Field, J., observes : " The legitimate object of all 
Statutes of Limitation is no doubt to quiet long continued 
possession, but they all rest upon the broad and intelligi- 
ble principle that persons who have at some anterior time 
been rightfully entitled to land or other property or money, 
have, by default and neglect on their part to assert their 
rights, slept upon them for so long a time as to render it 
inequitable that they should be entitled to disturb a 
lengthened enjoyment or immunity to which they have 
in some sense been tacit parties.' 9 

25. Mr. Justice Story has remarked on the Statute of Mr. Justice 
Limitations that " it was intended to be a Statute of repose, mwb. 

It is a wise and beneficial law, not designed merely to 
raise a presumption of payment of a just debt from lapse 
of time, but to afford security against stale demand after 
the true state of the transaction may have been forgotten, 
or be incapable of explanation by reason of the death or 
removal of the witnesses. 1 ' Statutes of Limitations are in observation of 
their nature strict and inflexible enactments. The object cii. nVJ 
of the Legislature in passing them is to quiet long posses- 
sion and to extinguish stale demands. Such legislation 
has been advisedly adopted in India as it has been in 
this country. 
1-c 

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xvm 



INTRODUCTION. 



Parties to a con- 
tract cannot, by 
agreement, 
avoid the effect 
of the Law of 
Limitation. 



Interpretation 
of Statutes. 
When "must" 
and "shall" 



26. The Indian Law of Limitation imposes upon the 
courts an obligation to dismiss all suite, appeals and 
applications made after the period of limitation as pre- 
scribed in the schedules, although limitation has not been - 
set up as a defence. Peacock, 0. J., in Krishna Kamal 
Singh v. Hiru Sirdar/ 1 ) observes : " A man may bind him- 
self not to execute a decree of court, or he may bind 
himself not to execute a decree of court within a certain 
period, but he cannot, by binding himself not to execute 
the decree for a certain period, add to the time which the 
law allows him to execute it. If a man haying a cause of 
action against another to recover immoveable property, or 
to recover money, or to recover damages for a trespass 
upon his land, or for an assault, should say to that person 
4 1 will not sue you for 20 years,' he would not acquire a 
right to sue after the period of limitation fixed by law. 
If he binds himself not to sue within a stated period, and 
does not intend to give up his right to sue at all, he must 
take care not to bind himself beyond the time .within 
which the Law of Limitation allows him to sue. So, in 
the case of a decree, if a man binds himself not to execute 
a decree within a certain period, he must take care, if he 
wish to execute the decree at all, not to bind himself not 
to execute the decree for a longer period than that within 
which the law would allow him to execute it." In East 
India Company v. Oditchurn Paul/ 2 ) the Lords of the Privy 
Counoil have observed, " there might be an agreement 
that in consideration of an inquiry into the merits of a 
disputed claim, advantage should not be taken of the 
Statute in respect of the time taken in the inquiry, and an 
action might be brought for breach of such agreement ; 
but if to an* action for the original cause of action the 
Statute of Limitation is pleaded, proof being given that the 
action did clearly accrue more than six years before the 
commencement of the suit, the defendant, notwithstanding 
any agreement to inquire, is entitled to judgment." 

27 In Delhi and London Bank Limited v. Orchard/ 3 ) 

„ (1) 4 Ben., L. B., 105, P. B. | (2) 5 Moore, I. A., 44. 
(3) I. L. R., 8 Calc, 47. 



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INTRODUCTION. X« 

the Privy Council observe that in interpreting Statutes, may be sobsti- 

* r tuted for the 

the words "must'* and "shall" may, in some cases, be word "may." 
snbstituted for the word " may," but only for the pur- 
pose of giving - effect to the intention of the Legislature. 
In the absence of proof of such intention, the word " may" . 
should be taken as used in its natural, i.e., in a permissive, 
*and not in an obligatory sense. The Privy Council in Ordinary rule* 
Luchmee Buksh Boy v. Bunjeet Bam Panday/ 1 ) observe : tion mutt pre- 
" Statutes of Limitation, like all others, ought to receive 
such a construction as the language in its plain meaning 
"imports," and "in construing these Statutes the or- 
dinary rules of interpretation must prevail." 

28. The Limitation Act is a disabling Act, and no court Language of 

. . , .« , . . . i , . i tbe Act should 

is justified in straining its language beyond its natural not be strained. 
meaning in order to take away from any one the rights 
which, but for it, he would possess. There is little in the 
general framing of the Act to throw light upon particular # 
provisions." Bobarts v. Barrison.W 

29. Innes, J., in Kunohi v. Seshagiri,( 8 ) observes : "The should be so 

construed as to 

right to execute a decree has been much curtailed by the prevent defeat 
* of bondjuu en- 

provisions of section 230 of the Civil Procedure Code, and deavoursof ore- 

* ditorsto exe- 

the provisions of the Limitation Act should be construed cute decrees. 

as far as possible so as to prevent the defeat of bond fide 
endeavours to secure the fruits of a decree once obtained. 
In cases of doubt an Act of Limitation ought to be con- should be con- 
strued in the manner most favorable to the person whose favorably in 
right is the subject of the limitation. Lallubhai v. ° ° 
Naran.<*> In Adnam v. Earl of Sandwhich,<*> Field, J., 
observes, as the effect of the Statute 3 and 4, Wm. IV, 
C. 27, which is now relied upon by the plaintiff, is to 
divest the estate of the. rightful owner and convey it to 
the wrong-doer without compensation to the former, to 
hold that such a transfer takes place in cases where the 
rightful owner has been guilty of no neglect or default, 
would work such an injustice to him as to induce us to 
resort to any reasonable construction of the Statute which 



8 



1) 13, Ben. L. R., 182. I (3) I. L. R., 5 Mad., 141. 
1) LLB.,7 Calc., 338. | (4) I. L. R., 6 Bom., 784. 
(5) 2 Q. B. Div., 480. 



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XX INTRODUCTION. 

should avoid so unjust a result. And we think that the 
language of the Statute is fairly open to such a construc- 
tion." 
observ^ionBof 30. In Abley v. Dale (11 C. B. 378, see p. 391) 
Jervis, C. J., in delivering judgment in a case turning on 
the construction of a Statute, said : " If the precise words 
are plain and unambiguous in our judgment, we are bound 
to construe them in their ordinary sense, even though it 
does lead, in our view of the case, to an absurdity or 
manifest injustice. Words may be modified or varied 
where their import is doubtful or obscure. But we 
assume the functions of legislators when we depart from 
the ordinary meaning of the precise words used, merely 
because we see, or fancy we see, an absurdity or manifest 
injustice from an adherence to their literal meaning." 
Abba Haji Ishmail v. Abba Thara.< l > 
What statutes "31. Statutes limiting rights and interests are not to be 
the Sovereign, construed to embrace the Sovereign or the Government, 
unless the same be expressly named or intended by neces- 
sary implication. (Kent, Lecture 20, p. 507.) In England, 
the Crown is not bound by Statutes of Limitation, unless 
named. ( Willberforce, p. 38.) In Ganpat Putaya v. the 
Collector of Kanara/ 2 ) the question was whether. Crown 
judgment-debt was entitled to precedence. West, J., 
observes : " It is a universal rule that prerogative and the 
advantages it affords cannot be taken away except by the 
consent of the Crown embodied in a Statute. This rule of 
interpretation is well established, and applies not only to 
the Statutes passed by the British, but also to the Acts of 
the Indian Legislature framed with constant reference to 
the rules recognized in England. And the rule, as applied 
to the present case, is not an unreasonable one." In the 
case of The Secretary of State in Council of India v. The 
Bombay Landing and Shipping Company/ 5 ) a Crown debt 
was held to be entitled to the same precedence in execu- 
tion as a like judgment in England in the absence of a 
statutory enactment to the contrary. 

U) I. L. B., 1 Bom., 268. 1 (2) I. L. B., 1 Bom., 7. 

(8) 5, Bom. H. C. Bep., 28 Q. C. J. 



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INTRODUCTION. Xxi 

• • 

32. In Shaikh Omed Ali v. Nidhee Bam/ 1 ) Conch, C. whether nin*. 
J., in July, 1874, observed, with reference to the illustra- empiify the 
tion of section 102 of Act I of 1872, " the Illustrations law or eon- 
are only intended to assist in construing the language meaning of the 
of the Act." In Peerun v. Field/ 2 ) with reference to • eotoon 

the illustration (a) under section 27 of the Criminal Pro- 
cedure Code of 1872, which relates to jurisdiction, Phear, 
J., observes : " Now, under the words of this section alone, it 
would be impossible to hold that an offence which was 
committed locally in the neighbourhood of Allahabad, 
and unquestionably far outside of the District of Howrah, 
could be entertained by the Magistrate of the District of 
Howrah. Bat there is a certain enlargement of the words 
of this section applicable to the case which is now before 
us, effected by the Illustration (a), which is appended to 
the section. This illustration is the first of several illus- it has been ob- 
trations appended to the section, and may be reasonably illustration (a) 
taken as a rider to the first paragraph of the section itself, the o. p. c. is 
This illustration is plainly larger than the first paragraph Sian anyenact. 
or any other enacting portion of the section itself, aud we t&SeecUonitseif 
ought not therefore to carry it further than its own words &%£ 'carried * 
go. It is directed to meet a particular difficulty, which own^ordsgo!* 
is very analogous to, but not, strictly speaking,' compre- 
hended within those covered by the general description of 
the section." In Kylas v. Puddo/ 3 ) Garth, C. J., observes, observations of 
that although the illustrations may serve to exemplify ' 

the meaning of the law, they 'ought never to be allowed 
to control the plain meaning of the section itself, and cer- 
tainly they ought not to do so when the effect would-be 
to curtail a right which the section in its ordinary sense 
would confer. 

33. In Dubey Sahai v. Oaneshi, Lai/ 4 ) Stuart, C. J., observations of 
observes : " But I confess I have not derived much assis- * 
tance from Act IX of 1871 . The sections of that Act which 

bear on £he subject are sections 4 and 5, and appended to 
section 4 are two illustrations, the latter of which (b) is 
in the following terms : — * An appeal presented after the 

(1) 22 W. R., 867. I (3) 8 C. L. R., 277, 288. 

(2) 21 W. R., Gr. R., 67. | (4) 1. L. R., 1 All., 34 & 36. 



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XXli INTRODUCTION. 

• 

prescribed period is admitted and registered. The appeal 
shall, nevertheless, he dismissed.' This appears to meet 
the present case, showing clearly, as it does, that, in the 
opinion of the person who prepared it, such a preliminary 
illustration* do objection as the present might be entertained. Bat it is 

not in legal ., 

strictness form a mere illustration, and not binding as law, and I can find 

apart of the ' © > 

Acts and are no direct authority for it in either of the sections referred 

not absolutely " 

binding on the to. In Nanak Ram v* Mehin Lai/ 1 ) Stuyt, C. J., observes : 
* "These illustrations, although attached to, do not in 

legal strictness form part of the Acts, and are not abso- 
lutely binding on the courts. They merely go to show the 
intention of the framers of the acts, and in that and in 
other respects they may be useful, provided they are 
correct. In this country, where the administration of the 
law is for the most part conducted by persons who are not 
only not professional Lawyers, but who have had no legal 
education or training in any proper or rational sense of 
the term, the Legislature acts with wisdom and salutary 
consideration for the interests of justice by putting into 
the hands of judicial officers appliances, such as the illus- 
trations in question, for their guidance and direction in 
Pleaders and the performance of their duties. But, for myself, I can 
courts regard truly say I have never experienced their utility, and I 
more than the fear they sometimes mislead, and I observe they are more 
Act iteeif. regarded in the Subordinate Courts in these provinces, and 

even by the Pleaders of this High Court, than is the 
paramount language of the Act itself, of which, however, 
as I have remarked, they strictly speaking, form no part." 
For the High 34 ".To be of real service to those for whose assistance 
country iiins- these illustrations are intended, they ought to be pellu- 
oniv not requir- cidly clear in their phraseology, and, if possible, I had 
frequently the almost said infallibly, sound in their law. But for the 
barrassmen?." purposes of the High Courts of this country these illus- 
trations are not only not required in any sense, but they 
are frequently the cause of embarrassment, andj[ would 
infinitely prefer to have the bare and simple language of 
the Act itself, without any appendages of the kind. I am 
afraid, too, that they are open to the objection of being 
(1) I. L. B., 1 All., 487 A 496. 



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INTRODUCTION. XX1U 

opposed to the canons of construction which prevail in 

the English Courts for the interpretation of Statutes. 

Thus it has been ruled in England, that ' the intention 

of the Legislature must be ascertained from the words 

a Statute, and not from any general inferences to be drawn 

from the nature of the objects dealt with by the Statute.' 

Fordyce t>. Bridges, (1, H. L. Cas. 1 ; S. C. 11 Jur. 157) ; 

and * the court knows nothing of the intention of an Act, 

except from the words in which it is expressed applied to 

the facts existing at the time.' Logan v. Courtown (Earl) 

(13 Beav, 22 ; S. C. 20, L. J. Chano,347) ; the language of Language of a 

a Statute taken in its plain ordinary sense, and not its in its plain 

policy or supposed intention, is the safer guide in con- andnoTits"* 

struing the enactments' — Philpott v. St. Georges' Hospital Sos^iSention 

(6 H. L. Cas. 338 ; S. C. 3, Jur. N. S. 1269.) In Reg. t>. jJLu& " afer 

RahimatW West, J., observes: "The illustrations to observations of 

the Penal Code rank as cases decided upon its pro- illustration to 

visions by the highest authority. But as every authority 

may sometimes err, we are justified in asking whether 

this may have happened in the present instances." The Indian Legisia- 

Indian Legislature appear to consider illustrations as parts pear to consider 

of the enactments themselves, and this is to be presumed part of the en- 

from the fact of the schedule of Act 11 of 1882 repealing 

the first illustration of section 12 of Act 1 of 1877. 

35. Beg v. Dorabii,( 2 > the court held that an Act of Should not be 

* construed re- 

Limitation being a Law of Procedure governs all proceed- trospectiveiy. 

ings to which its terms are applicable from the moment 

of its enactment, except so far as its operation is expressly 

excluded or postponed. In Khusalbhai v. Kabhai,< 8 > Observations of 

Melville, J. 

Melville, J., observes : " The above general rule must admit 
of the qualification that, when the retrospective applica- 
tion of a Statute of Limitation would destroy vested 
rights or inflict such hardship or injustice as oould not 
have been within the contemplation of the Legislature, 
then the Statute is not, any more than any other law, 
to be construed retrospectively." 

36. In a suit brought on the 12th March, 1880, on a a. h. held wai- 

ver before IX of 

(1) I. L. B. 1 Bom., 147. | (2) 11 Bom., O. Hep., 117. rSo^Uv^ 

(S) I. L. B., 6 Bom., 2ft. 



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XXIV INTRODUCTION. 

registered bond dated 24th May, 1866, which provided 
that in default of payment of any instalment, the whole 
amount should be due, the first default was made on 
the 28th June, 1866. No payment was made after Act 
IX of 1871 came into force. It was held that limitation 
began to run from first default, and that no waiver before 
Act IX of 1871 came into force could affect the suit on 
such a bond : Ahmed AH t>. Hafiza Bibi.W 
Limitation Acts 37, The Limitation Acts do not explain or define the 

ao not define * 

"to 1 ? ™" 01 * words " immoveable property," " moveable property," and 
' "jovfftbie pro- « interest in immoveable property" ; sections 5 and 6 of the 
•interest in General Clauses Act I of 1868, state what immoveable 

immoveable 

property." property shall include and moveable property shall mean. 
The term " any interest in immoveable property" occurs 
in Article 144, and what it is has to be determined with 
reference to the subject in dispute in each case. This is 
very important, because if the subject-matter of a suit is 
immoveable property or any interest in immoveable pro- 
perty it will have twelve years under Artiole 144 But if 
it be moveable property it will have only six years under 
Article 120, in the absence, in either case, of any special 
provision in the Act. With reference to the decision of 
the Privy Council holding that Todagaras Hak was im- 
moveable property, and the decisions of the Bombay High 
Court holding that right to the hereditary office of Joshi, 
and claim to an annual cash allowance granted to a 
Hindu Tern pie, were immoveable property, the Legislature, 
by its subsequent more fully developed legislation (Act 
IX of 1871) assigned the twelve years' limit to suits for 
hereditary office (Article 124) for periodically recurring 
right (Article 131), and Haks, and Malikanas. (Article 
132). The decisions which induced the Legislature to 
class such cases with suits for real property will not be 
out of place here, and will help the disposal of the question 
whether or not the subject-matter of any suit is real 
property. 
Todagaras Hak 38. The Privy Council in the Todagaras case,<*> would 
hereditary appear to have approved of the decisions of the Bombay 

a? taS^SuS (1) I. L. R., 3 All., 614. | (2) L. E., I. A., 34, 



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INTRODUCTION. *xf 

High Court in Krishnabhat v. Kapabaht,(i> and Bal- K'SJSiiSrfSj 
vantrao v. Purshotam,**) in which right to the here- of Act xrv cS 

• • 1869 

ditary office of Joshi was held iramoveable property. 
Their Lordships observed that the rule laid down by 
Westropp, C. J., for the interpretation of Act XIV of 
1859, section 1, clanse 12, is shortly this, viz., that inas- 
much as the term " immoveable property," is not denned 
by the Act, it must, when the question concerns the rights 
of Hindus, be taken to include whatever the Hindu Law 
classes as immoveable, although not such in the ordinary 
acceptation of the word. To the application of this rule 
within proper limits, their Lordships see no objection. 
The question must in every case be whether the subject 
of the suit is in the nature of immoveable property, or of 
an interest in immoveable property, and if its nature and 
quality can only be determined by Hindu Law and usage, Hindu Law 
the Hindu Law may properly be invoked for that pur- bfLv^lTto 
pose. Thus, in the two cases on which the appellant relies, Sj i % > ilSj2E 
Hindu texts were legitimately used to show that in the ter of a suit is 
contemplation of Hindu Law, hereditary offices in a "* prope y ' 
Hindu community, incapable of being held by any person, 
not a Hindu, wq§e of the nature of immoveables." 

39. The Privy Council, while holding independently p. c. held im- 
of Hindu law, that the right to a Todagaras Hak was an ™ ^omp£ 
interest in " immoveable property" within the meaning " e ™ b^reaf* 
of Act XIV of 1859, ruled that the determination of the property ac- 
question depended upon general construction to be given SSah^aw and 
to the term "immoveable property" and "interest in P*^"*** 
immoveable property" as used by the Indian Legislature, 

and that the term " immoveable property" comprehends 
certainly all that would be real property according to 
English Law and possibly more. They further observe 
that in some foreign systems of law in which the techi- 
nical division of property is into moveables and immove- 
ables, as e.*<7-, the Civil Code of France, many things 
which the Law of England would class as incorporeal 
hereditaments fall within the latter category." 

40. In the Collector of Thana t\ Hari Sitaram,< 3 > the Cash allowance 

question was .whether a claim to annual cash allowance £taduTempie 

granted by a Hindu Sovereign to a Hindu Temple was ™* ^j^." 1 " 

of the nature of immoveable property or of an interest moveable pro- 

perty. 



(1) 6 Bom. H. 0. R., A. C. J., 137. | (2) 9 Bom. H. C. R., ! 
(3) I. L. R., 6 Bom., 546. 
1-D 



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XtVl INTRODUCTION. 

therein. The facts were, that the Peshwa, by a Saonad 
of 1790, granted to a Hindu Tempi* an annual sum of 
Rs. 350 in cash, out of certain extra assessments, levied to 
meet local charges, and candies of rice out of aoae extoa 
assessment in kind collected on lands. The 'Collector of 
Than a stopped the allowances in 1859, when the plain- 
tiffs, in 1871, claimed to have the right established to the 
Observations of benefit of the above grant. Westropp, C. J., observes : 
westropp, c. J. <t Looking to tlie facfc tbat tlie i n( iian Legislature, which 

passed Act XIV of 1859, has not given any explanation 

or definition in that Act as to the scope of the phrase 

' immoveable property,' bnt left suitors to their former 

ideas on tbat subject, it would be very hard upon them 

to draw the line very tightly for tliey had no guifa 

furnished to them which could have led them to suppose 

that " immoveable property" according to the Act meant 

anything less than what they had previously known as 

such." 

i*nd includes 41. In Jee Jagrani Bibi v. Ganeshi,^ which was asuit 

trees. f or B { x mangoe trees, the Lower Appellate Court refected 

the suit on the gvound that the plaintiff oouid not, hj 

twelve years' adverse possession, acquky * title to trees 

which, not being land}, section 29 of Act IX of 1671 was 

not applicable. It was held that land oompi'ehevds wfcftt 

it covers and would include immoveable property as 

recognized and defined in section 2 of Act I of 1868. 

Debt charge 42. In Jineswar Dass v. Maha Beer Singh,< 2 ) plaintiff 

SropSS^^an Bued *° realize money due upon a mortgage deed by the 

interest in im- sa i e f the mortgaged lands. It was held that the clam 

perty." was in substance a suit for the recovery of immoveable 

property or an interest in immoveable property within 

the meaning of clause 12, section 1, Act XIV of 1859. 

Review of the 43. Up *° tne l 8 ^ <* a y of January, 1862, no length of 

the limitation ** m6 Dan *ed su i ts * or redemption of property, moveable or 

Acts bearing immoveable (clause 4, section 3, Regulation II of 1805 of 

on suits for re- _> . , v . ' _ _ ' f . ■ , rt ~~ 

demption. Bengal ; clause 4, section 18, Regulation II of 1802 of 

ActxiVQfitw. Madras.) Redemption suits instituted after that date 
were governed by clause 15, sectional of Act XIV of 1859, 
which provided for redemption of moveable property 
within 30 years, and immoveable property within 60 years 
from the time of the mortgage. If, in the meantime, the 
mortgagee or some person claiming under him had ac- 

(1) I. L. R., 3 All., 435. | (2) I. L. B., 1 Calc, 163. 

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INTRODUCTION. 



xxvH 



bftwleclfea in writing signed by liim, the mortgagor's 
title op his right to redeem, the mortgagor had 60 years from 
the date of such acknowledgment. With reference to this 
provision of the Act it was contended in Luchmee Buksh 
Boy v. Bnnjeet Ram Panday,0) which was a Privy Council 
case, that a limitation which ran from the time of the 
mortgage could not apply to a usufructuary mortgage in 
which the possession was consistent with the original 
intention of the parties until the mortgage debt was paid 
off. Their Lordships observe : " Legislature has enacted 
this limitation in the most general terms, and in language 
sufficiently large to embrace every kind of mortgage. 
There can be no doubt it was deliberately done, and that 
the provision found in the 4th clause of the 3rd section of 
Regulation II of 1805, which excluded cases of mortgages 
or deposit from the Regulations relating to limitation, was 
designedly set aside, a different policy prevailing with 
tfcoftft by whom the recent Act was passed. Their Lord- 
ships therefore think that this mortgage is clearly within 
Act XIV of 1859." 

44. In Vanneri Purushothaman Nambudri v. Paka- 
nattil Kjiigh Menavan,^ 2 ) the plaintiff sued to recover land 
alleged to have been mortgaged in 1760, stipulating that 
the produce should extinguish interest. The Lower Appel- 
late Court rejected the suit on the ground that cause 6f 
action had arisen more than twelve years before the passing 
of the Regulation II of 1802, and that the exception as to 
mortgages did not apply to this case. The High Court 
observe : " The possession of the mortgagee for 10,000 
years upon such a transaction as the present would be per- 
fectly consistent with the continuance of the relation of 
mortgagor and mortgagee, because the contract simply 
amounts to this : " I lend the money, and you the land. If 
either of us wants that which he has lent, he shall restore 
that which was lent to him." It is quite obvious that no 
opportunity and necessity for interposing, that is no cause 
of action accrued, until something was done to render 
the friendly possession hostile.*' This case was not decid- 
ed under Act XIV of 1859, as the suit was filed in 1861. 

45. In cases where the contract of mortgage was en- 
joyment of the property by the mortgagee for a term fixed, 
it was held that the mortgagor should not redeem the 



Legislature has 
enacted this 
limitation to 
embraoe every 
kind of mort- 
gage. 



Madras High 
Court held suit 
to redeem a 
mortgage 
twelve yean 
before Beg. II 
of 1808 not bar- 
red. 



Case? where 
mortgagor held 
not entitled to 
redeem before 
the term. 



(1) 13 B. L. E., 177. 



(2) 2 M. H. 0. R., 382. 



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Xxviii INTRODUCTION, 

land nor discharge the debt until the expiry of the term. 
Sri Rajah Setrucherla Ramabadura Raju Bahadur/ 1 ) In 
Malabar Otti and Kanom mortgages which entitle the 
holder thereof to possession for twelve years from the date 
of the mortgage, cannot be redeemed until it has expired, 
and to such stipulation it was held that effect should be 
given. Keshava v. Keshava^) 
SSon 1 ©? let" ^' ^ c ^ ^ of ,1871, like its predecessor, made the date 
xnr of 1668 was of mortgage the starting point, but by Article 148, modi- 

modified by Act n j ? ,v • • x ru !• -x"L« !.• il 

ix of 1871. ned only the provision as to the time within which 
acknowledgment of mortgagor's title should have been 
made to entitle him to a new period. The modification 
was that the acknowledgment in writing of the mortga- 
gor's title or right of redemption, which gave a new 
period of limitation, should be made within the period of 
limitation originally prescribed, and reckoned from the 
date of the mortgage, and this alteration was made rather 
.to remove ambiguity in the construction of the words 
"in the meantime" used in clause 15, section 1 of the 
former enactment, than to give full effect to section 29 of 
Act IX of 1871 , which, for the first time, provided for the 
extinguishment of right to land at the expiration of the 
prescribed period ; under both enactments an acknowledg- 
ment by the mortgagee or some person claiming under 
him of the title of the mortgagor made in writing to a 
third party was held a sufficient acknowledgment to give 
a fresh period of limitation. 
Change made 47. Act IX of 1871 was repealed by Act XV of 1877, 
llwf 1 * XY ot which came into force on the 1st day of October, 1877, 
Article 145 required redemption of moveables within 30 
years from the date of pledge. Article 145 provides for 
redemption of immoveable property within 60 years from 
the time that the right to redeem accrues. Under Article 
147, a mortgagee's suit for foreclosure or sale should be 
instituted within 60 years from the time that the mort- 
gage debt becomes due. Article 135 allows twelve years to 
a mortgagee's suit in the Mof ussil for possession of immo- 
veable property mortgaged from the time that the right 
of mortgagee's possession determined, while Article 146 
gives to the like suits instituted in courts established by 
a Royal Charter, 30 years from the date of the last pay- 
ment of any part of the principal or interest. An acknow- 

(1) X. L. E., 2 Mad., 314. | (2) I. L. R., 2 Mad., 44. 

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1NTR0DTJCTI0H. 



XXIX 



ledgment satisfying the conditions of section 19 of 
the Act gives to the above suite a new period of limita- 
tion from the date of the acknowledgment which is to 
be in writing " signed by the party against whom snch 
property or right is claimed or by some person through 
whom he derives title or liability." The terms of this en- 
actment regarding mortgages are considered more equit- 
able. The following Table will exhibit in one view the 
different provisions in the three enactments regarding 
the nature of acknowledgment of a mortgagor's title or 
right to redeem. 



11 



Act XIV of 
18o9 T Section 
1, Clause 15 



Act IX of 1871 
came into 

force on the 
1st July, 187L 

Article 148. 



Act XV of 1877 came Into force on the 

1st October, 1877, Article 14S 

and Section 19. 



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xxx nrTRODFcnoif. 

No projuton 4g. Neither Act XIV of 1859, nor IX of 18*1, provide* 

for aait for tore- ' . 

f lo \ho Acts** * ar 8n ^ ^7 a mortgagee for foreclosure or sale, for which 
i8N«idi87L Article 147 of the last enactment XV of 1877 contains 
t distinct provision. 

49. Section 4 of the Act XIV of 1859, which corres- 
ponds to section 19, does not require admissidns to be 
made within the prescribed period, and therefore the 
question in redemption suits was whether the acknow- 
ledgment of the mortgagor's title must have been made 
before the expiration of the period of limitation. 

The words "in 50. In Vasudevan Nambudri v. Mussa Kuttr.W 

tbe meantime" 

inciAusei5,Beo- Madras High Court held that the words " in the mean- 

xrv of i860, time" used in clause 15, section 1 of Act XIV of 1859, 

M. h. to mean implied that an acknowledgment of a mortgagor's title or 

nutation and right to redeem must be given before and not after the 

not the time ° ° a 

between mort- expiry of the period of limitation, and that the words 
could not import the time between the creation of a 
mortgage, and the bringing of the action ; but the Allaha- 
bad High Court which had adopted the same view in May, 
1871, in Mahomed Abdool Buzzah v. Syud Asif AH Sha,<*> 
subsequently held in Daia Chand v. Sarfraz Ali,< 3 ) that an 
acknowledgment made in 1841, in a certain settlement 
record, was sufficient to satisfy the requirement of the 
clause in Article 148, schedule 2, Act IX of 1871, modi- 
fying the provisions of clause 15, section 1, Act XIV of 
1859, and that inasmuch as before the latter enactment 
there was no limitation to suits for redemption of mort- 
gage of landed property, it was not necessary to enquire 
and ascertain when the mortgage acknowledged in 1841 
was actually made. Even after this decision, the Madras 
High Court followed their own in Mukkani v. Manan,* 4 ) 
which was a suit to redeem a mortgage of 1761, on the 
strength of an acknowledgment made in 1839. The 
High Court observe, that as section 18 of Act XIV of 
1859 allowed two years' time for parties who relied on the 
old rule of limitation to institute their suits, any suit 
brought between 1862 and 1871, after 60 years from the 

(1) 6 M. H. 0. R., 138. | (3) 1 I. L. R., All., 425. 

(2) 3 N.-W. P. H. 0. R., 119. | (4) I. L. R., 5 Mad., 182. 



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IXTBODCCTIOK. 

date <rf the mortgage or on fcfce strength .of An Acknow- 
ledgment not made within 60 years from the date of 
the mortgage would have been unquestionably barred, and 
that aeitirer Aot IX of 1871, nor Act XY of 1877, was 
designed to revive amy right which had become previ- 
ously jbarred. It has been further observed that the term 
" the period prescribed" used in those Acts refers to the 
period prescribed by the Act which governs the suit, and 
not the period prescribed by the law which existed at the 
date of the acknowledgment. 

51. As to whether Article 132 applies to enforcement Jtppttcatkm <rf 
©f personal remedies on mortgage bonds, simple or usufruc- ii7. 
tuaiy, against the persons of mortgagors, the decisions of 
the High Courts are conflicting. Equally so are the 
decisions on the question whether Article 132 applies to 
suits to enforce lien on real property secured by an instru- 
ment of hypothecation or whether it is intended that such 
suits should have the extended period of -60 years provided 
for "by Article 147 of Act XV of 1877. (See Notes under 
Articles 132 and 147.) 

"52. 1 shall now proceed to refer shortly to the sections nw&mm +t* 
and Articles which bare appeared to the High Courts to dered by tfc» 
work hardship and to require, consequently , modification, require modi* 

53. The 2nd clause of section 5 allows to the courts a sections, claw* 
discretionary power to admit any appeal, or any application admitJnjr^p" 
for review, after time. The Calcutta High Court, holding Kttona for P S" 
that the terms of the section do not admit of the same ew *^*" 
indulgence .feeing shown to an applicant for leave to 

appeal as a pauper, observe that it is strange that the 
indulgence should not be shown to him jvhile ha may 
apply for a review of judgment with the same indulgence 
as to delay in making the application as a person who is 
not a pauper. {See Note T, under section 5, p. 35.) 

54, Section 13 does not provide for the case of joint- Section is. Ex. 

. . . . , elusion of time 

contractors of whom one may be absent from British of defendant's 
India After the accrual of the cause of action. In such a British indi». 
case, a creditor has to choose between remedy against an 
insolvent debtor, and having his debt barred. A judgment 
obtained against one of several joint- contractors bars 2nd 



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XXXll INTRODUCTION. 

suit against any of the others. Garth, C. J., observes, 
that the rule leads to hardship when one of several joint- 
contractors is absent beyond seas, and that it has been 
remedied in England by Statute. He says : " This is an 
" injustice which the Legislature, if they so pleased, could 
" easily remedy." (See Note L, under section 13, p. 
93, 94.) 

SSion If* tfme ***** Section 15 does not apply to decrees, the enforce. 
SSSInSient ment of which may have been stayed by injunction. The 
J£ 8 injunct5m d word " 8a ft" does Bofc include an application, and when 
or order. execution of a decree is stayed by an injunction pending 

the disposal of a suit, difficulty is felt if the suit happen 
to be disposed of after the expiry of the time for enforce- 
ment of the decree. The Calcutta High Court observe : 
" It might thus happen that if the injunction remained 
in force for three years, execution could be absolutely 
barred. This appears to be the present state of the 
law." (See Note A and E> under section 15, pp. 114-116.) 
Section 21. Ef- 56. Under section 21, acknowledgment by one of seve- 
ledgment by " ral mortgagees does not give a new period of limitation 
joint-contrac- as regards a share of the mortgaged property; such 
acknowledgment under the Indian Act is wholly ineffec- 
tual while the English Statute provides for breaking up 
a mortgage into portions to give effect to the acknowledg- 
ment of one of several mortgagees. (See Note J, under 
section 21, pp. 190, 191.) 

Section 23. Ef- 57. Section 22 relates to the effect of substituting or 
tuting or add- adding new plaintiff or defendant. It does not give to 
tin* or^en?" the courts the discretion which the Common Law Pro- 
daBU cedure Act of 1852 gives to the Courts in England. 

Under the said Procedure Act, if the court had reason to 
believe that all the plaintiffs had not been joined for 
some improper motives, the amendment would be refused, 
but if it considered that the non- joinder was a bond fide 
mistake it would allow the amendment for the express 
purpose of protecting the plaintiffs' interests and prevent- 
ing the Limitation Act from working injustice. But the 
policy of the Legislature in this country has been to make 



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nrraoDucTiON. xxxm 

the Law of Limitation much more strict than in England, 
and to take away as far as possible any discretion from 
the courts to modify its strictness. (See Note 0, under 
section 22, pp. 197-198.) 

58. Article 11 refers to sections 280, 281, 282 and 335, Article n. Suit 

by unauooesS" 

bnt not to 332, which refers to claims of persons disposses- tui claimants 

. r r under sections 

sea of property in execution of a decree disputing the »*>. mi, 2«, or 
right of the decree- holder to be put in possession. Un- 
successful claimants under the sections expressly named 
are subject to the special limitation of one year, while 
those under section 332 avail themselves of the ordinary 
period of limitation. The Madras High Court observe : 
"It is possible and' was probable that mention of section 
" 332 of the Code of Civil Procedure was omitted by over- 
" sight from this clause." (See Note 0, under Article 13, 
p. 327.) 

59. Article 161 relates to the issue of notice under sec- Article lei. Ap- 
tion 258 of C. P. C, to show cause why the payment or §obtor°U) nave 
adjustment nfkde out of court should not be recorded as w^cerSflei' 
certified. This Article allows only 20 days from the date 

of payment. The Calcutta High Court observe that the 
shortness of time renders the provisions of section 258 
nugatory as the debtors who are ignorant of law receive 
the first intimation of fraud of their creditors only when 
they proceed to execute their decrees. (See Note A, under 
Article 161, p. 611.) 

60. Article 179 provides for enforcement of decree or Article 179. 
order which directs payments to be made at a certain relating to exe- 
date. Decrees for money are frequently passed on the con- ^rees? ° ! **" 
sent of both parties allowing payment of the decree 

amount by monthly or yearly instalments, and entitling the 
creditor, in default of any one instalment, to realize the 
whole debt due under the decree. It is doubtful whether 
such decrees were contemplated by Article 179, and the 
decisions of the High Courts on this point are conflicting. 
The Bombay High Court observe that in the clause of Arti- 
cle 179 relating to enforcement of decrees payable by instal- 
ments, there is no provision similar to that in Article 75, 
which relates to promissory notes or bonds payable by 
instalments providing that if default be made in payment 
of one instalment, the whole shall be due. (See Note M, 
under Article 75, p. 412.) 

1-B 

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LIST OF CASES. 



A, PAGE. 

Abba Haii Ishmail v. Abba Than 4, 270 

418 
Abdnl Earim v. Manji Hansarj 7, 8, 194 
Abhoy Charan Dntt v. Haco Chan* 

dra Das Banik ... 888 

Abhoy Churn Pal v. Rally Pershad 

Chatterjee ... 504 

Abboya Churn Chnckerbntty v. Gonr 

Mohan Dntt ... 105 

Abnl Hassan v. Cheranji ... 889 

Abnl Mnnsoor v. Abdool Hamid ...813 
Aobnl Mahta v. Bajnn Mahta ... 222 
Adimnlam v. Pit Barnthan ... 584 

Administrator-General v. Hawking... 267 
Aga Mahomed Hamadani v. Cohen... 809 
Ahamndeen v, Grish Chnnder Sha- 

mnnt ... 641 

Ahmad Ali v. Hafiza Bibi ... 409 

Ahmad Hossein Khan v. Nihalnddin 

Khan .ft 514 

Ahmed Mahomed Pattel v. Adjoin 

Dooply 74, 458 

Ahaan Khan v. Oanga Bam 90, 98 

A joodhya Pershad ^BisheshnrSahai 101 
Akilandammal v. Periasami PDlai ... 868 
Akflandammal v. 8. Venkatachella 

MndaH ... 241 

Alemas Banee v. Mahomed Bnja ... 211 
Alexander Watson v. Aga Mehedee 

Sherazee ... 420 

AH Muhammad v. Lalta Baksh ... 697 
Ali Muhammad Khan v. Gnr Prasad 674 
Aliba v. Nann 514, 592 

Alliance Bank of Simla v. Carey ... 82 
Ambioa Perabad Singh v. Snrdhari 

Lai ... 672 

Amirto Lai v. Bajoneekant Mitter... 542 
Amirnnessa Khatoon v. The Secre- 
tary of State ... 818 
Ammn v. Bamakrishna Sastri ... 698 
Amrit Lai v. Balbir ... 848 
Anaji Dattuahet v. Mnrnshet Bapn« 

shet ... 216 

Anand Coomari v. Ali Jamin ... 526 

Anando Kishore Dase v, Anando Ki. 

shore Bose 640, 648 

Anandrav Chimnji Avati v. Thakar* 

ohand ... 689 



A, rial, 

Anantharama Ayyan v. Karappanan 44 
Andarji Kalyanji v. Dnlabh Jeevan 158 
Andi Konan v. Yenkata Snbbaiyan 277 
Ankamma v. Bama ... 178 

Annaji Apaji v. Bamji Jivaji ... 689 

Annamalai v, Bongasami ... 694 

Annnd Moye Dabi v. Grish Chnnder 

Myti .., 62 

Annndo Moyee v. Dhonendro 557, 595 
Appasami v. Aghilanda ... 18 

Appaya v. The Collector of Yisaga- 

patam 28, 608, 686, 655 

Appnndy Ibram Sahib *, Mrs. Maria 

Setn Sam ..» 928 

Ami Jagirdar «. Secretary of State 

for India ... 285 

Arnnachalla «. Bamaaami 69, 886 

Arnnaohella v. Zamindar Sivagiri .., 566 
Aryan v. Bakhal Chnnder Boy Chow- 

dhry 220,268 

Ashik Ali *. Mathnra Kandn ... 282 
Ashootoah Dntt v. Doorga Churn 

Chatterjee ... 701 

Askar v. Bam Manflc Boy ... 241 

Asmntnllah Dalai «, Kally Chnrn 

Mitter 178, 185, 697 

Atmaram v. fialkishen ... 194 

Ankhil Chnnder Chowdhry v, Mirza 

Debwar Hossein ,., 868 

Ayyasami v. Samiya ... 298 

Axam Bhnyan v. Faisaddin Ahamed 589, 

547 
Azroal Sing v. Lalla Gopenath ... 140 



Babaji v. Nana ... 541 

Baban Mayacha v. Nagn Shravncha 249 
Baboo Hnr Gopal Doss v. Bam Gopal 

Sahee ... 817 

Baboo Kishen Bnllub Mahatab v. 

Boghoonnndnn Thakoor ... 814 

Baboo Lnchmee Pershad Narain 

Singh v. Tilnckdharee Singh ... 228 
Baboo Lall Doss v. Jamal Ally ... 447 
Baboo Pertab Chnnder v. Baboo Bro- 

jo Lall ... 804 

Bagram v. The Collector of Bullooa 251 
Bahar Shah v. Pero Shah ••• 505 



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XII VI 



LIST OF CASES. 



B PAGE. 

Bai Ka8hi v. Baijamna ... 322 

Bsi Jamna v. Bai Iohha ... 296 

Bai Manekbai v. Manekji Kavaaji 2, 633 
Baiva Khan Dand Khan v. Bhiku 

Sazba ... 19 

Baldeo v. Biamillah Begum 892, 624 
Baldeo Panday v. Gokal Rai ... 518 

Balkrishna Gopal v* Bai Joshi Sada- 

shivoJoshi ... 624 

Balkrishna Pandurang v. GoYind 

Shiraji ... 419 

BaU v. Sfcowell 411, 401 

Balvantrav v. Purahotram Sideahrar 697 
Balvant Santaram v. Babaji ... 618 

Balwant Rao Biahwant Chnndra 

Choi 1 v. Purun Mai Ghanbi 51, 68 
Balwant Singh v. Gumani Bam ... 32 
Balwant Rao v. Puran Mai ..* 490 

Bandey Karim v. Romeah Ohunder 

Bundopadhya ... 646 

Bandi Bubbayya v. Madalapalli Su- 

banna ... 19 

Bani Madhub Mitter v. Matungini 

DasBi M 86 

Banner v. Berridge ... 77 

Bannoo v. Kashee Ram M . 494 

Bansi Dhar v. Har Sahai ... 19 

Barkat v. Daulat ..* 56 

Baroda Sundari Dabia v. Ferguaaon. 641 
Baaant Lai v. Batul Bibi 119, 688, 684, 686 
Basant Lall v* Najrannnissa Bibi ... 670 
Baaapa v. Marya ... 634 

Baaapa v. Lakahmapa ...368 

Baakaraaaml v* Sivaaami ... 315 

Beake *. Daris 47, 92 

Beoharam Chowdhry v. Punubnath* 

jha ... 238 

Beoharam Dutta v. Abdul Wahfcd ... 12 
Beer Ohunder Joobraj v. Ram Gutty 

Dutfc ... 864 

Behari Lai v. Salik Ram ... 655 

Behary Lall v t Goberdhun Lall ... 11 
Bejoy Chunder Banner jee v. Kally 

Proaunno Mookerjee 555, 576 

Beni Madhab Daa v. Ramjay Rokh . . . 227 
Benode Mohini Ghowdhrain v. Sharat 

Ohunder Dey Chowdhry ... 626 

Beaaessur Bhugutv. Murli Sahu 289, 476 
Bhaguji v. Aniaba and others ... 368 
Bhagwan Sahai v. Bhagwan Din ... 601 
Bhal Singh v* Muaammat Gauri ... 102 
BhalaNahana v. Parbhu Hari 267, 545, 548 
Bhaobuneaaury v* Judobendra Nara- 

in teullick • ... 614 

Bhaoni v. Maharaj Singh ... 360 

BhavaniBhankar Shevak Ram 1>. Pur* 
- - - -aadri KaUdaa 463, 484 



Bhavath Radan v. Rama ... 277 

Bhawani Kuar v. Rikhi Ram ' ... 387 
Bhawani Daa v. Daulat Ram ... 691 

Bhawani Prasad Singh v. Biaheahar 

Prasad Miar 430, 456 

Bhawan Sahai v. Bhagwan Din ... 519 
Bheema Char In v. Danti Murti ... 333 
Bhekhan Dobey v. Rajroop Kooer ... 398 
Bhikambhat v. Joseph Fernandez ... 13 
Bhikha v. Sakarlal ...297 

Bhojraj v. Gulahan Ali ... 200 

Bholi v. Imam Ali ... 281 

Bhoobun Chunden Sen v. Soonder 

Surma Mozoomdar ... 318 

Bhoot Nath Chutterjee v. Kedamath 

Banerjee ... 650 

Bhoyrub Daas Johurry v. Doman 

Thakoor 2, 639 

Bhubaneswari Debi v. Dinanath ... 183 
Bhujang Mahadev v. The Collector 

of Belgaum ... 880 

Bhyrub Chunder v. Mohendro Chuo- 

kerbutty ... 837 

Bibee Solomon v. Abdool ... 141 

Bibi Sahodra v. Rai Jang Bahadur 644, 564 
Birj Mohan Singh w. The Collector 

of Allahabad ... 471 

Bijai Ram v. Kallu ,., 279 

Bisbfcn Chand v. Ahmad Khan ,.. 32 
Biahumber Dey Poddar v. Hung- 

aheahur Mookerjee ... 399 

Biaaambur Shaha v. Shib Chunder 

Shaha ... 289 

Biaaea8uree Doasee v. Kalee Eoomar 

Boy ... 866 

Bissessuri Dabeea v. Baroda Santa 

Roy Chowdry ... 630 

Biswa Sonan Chunder GoBayamy v. 

Binanda Chander Dibingar Ad- 

hikar Go8ayamy ... 664 

Bodri Prasad v. Muhammad Yuauf 290, 

293 
Boiddonath Shah v. Laluniaaa Bibee. 378 
Bonomi v. Backhouse ... 207 

Bowen v.Hall ...342 

Boydonath Bag v. Gri8h Ohunder Roy 197 
Brammamayi Daai i>. Abhai Charan 

Chowdhry ... 881 

Brammoyi Daaee v, Kristo Mohun 

Mookerjee ... 639 

Brindabun Chunder Roy v. Tara- 

chand Bundopadhya ... 261 

British Linen Company v. Drummond 82 
Brojo Lai Singh v. Gour Charan Sen 614, 

591 
Brojonath Koondoo Chowdhry v. 

Khelut Chunder Ghose ••'. 687 



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LIST OF CA8E0. 



xxrni 



S PAGE. 

Brojendro Coomar Boy ... 85 

Bromhomoyi Dasi v. Jugobundhu 

Ghose ... 621 

Brown v. Butherford ... 880 

Budha Singh v. Hira ... 436 

Bukshi Bam Pergash Lai v. Sheo 

Pergash Tewari ... 291 

Burdick v. Garriok 74, 75 

Burma Moye Dassee Q. Dinobundhoo 

Ghose ... 573 

Buti Begam v. Nihal Chand 119, 637 
Bygnath Suhaye v. Brohmo Deo 

Narain ... 142 

Byjnath Sahoo v. Lalla Seetul Per- 

shad ... 816 

Byjnath Pershad Badhoo Singh ... 451 
B. I. S. N. Company v. Hajee Maho- 
med Esaok and Company 345, 458 



Chagan Lai and others v. Bapn Bhai 

409,515 
Chander Kant Mitter v. Bam Narain 190 
Chandi Dasi v. Janakiram ... 109 

Chandi Prasad Nandi v. Baghnnath 

Dhar ... 116 

Chandmal v. Baohra] ... 681 

Chandra Bhnsan Gangapadhya v. 

Bam Kanth Banerji ... 297 

Cham Sornokar v. Dokonri Chunder 

Thakoor ... 223 

Chathuv.Aku ... 265 

Chatur Jagsi v. Tnlsi 153, 170 

Chatur Knshal Chand v. Mahadn 

fehagaji ... 686 

Cheigu Nangiah v. Pidatala Venka- 

tuppah ... 105 

Chengaya v. Appasami ... 690 

Cheni Bash Shaha v. Kadum Mnndol 407 
Chetham v. Hoare ... 147 

Chhiddn v. Narpat ... 609 

Chinnasami Iyengar v. Gopalaoharya 8, 9 
Chinnaya v. Gurunatham ... 164 

Chittro Narain v. The Asst. Comr. of 

the Sonthal Pergnnnahs ... 829 

Chowdhry Wahed Ali v. Miresamut 

Jnmaee ... 133 

Chnndee Churn Boy v. Shib Chunder 

Mundul 23, 246 

Chunder Coomar Boy v. Bhogobutty 

Prosonno Boy 655, 685 

Chunder Jaleah v. Bam Churn Moo- 

kerjee ... 251 

Chunder Madhub Chuckerbutty v. 

Bissessuree Debea 99, 110 

Chunder Mohun Boy f . Bhubon Mo- ' 

hmiDabea ... 25 



C page. 

Chunder Doss v. Boshoon Lall Sooknl 83 
Chunder Nath Chowdhry v. Thir- 

thanund Thakoor ... 435 

Chunder Sikhur Bundopad-hya v. 

Obhoy Churn Bagchi ... 472 

Chunee Mul Johary v. Brojo Nath 

Boy Chowdhry ... 492 

Collector of Broach v. Desai Baghu- 

nath ... 147 

Collector of Broach v. Baja Bam 

Laldas ... 147 

Collector of Furreedpore v. Gooroo- 

dassBoy ... 272 

Collector of Kheda v. Hari Shankar 

Tikam ... 256 

Collector of South Arcot v. Thatha 

Charry ... 28 

Collector of Shahjahanpur «. Surjan 

Singh ... 659 

Collector of Surat 9. Daji Jogi ... 254 
Constantino v. Drew ... 416 

Corporation of the Town of Calcutta 

v. Anderson ... 86 

Court of Wards v. Gaya Prasad ... 193 



Dadabhai Narsidas v. The Sub-Col- 
lector of Broach ... 274 
Dadoba v. Krishna 532, 558 
Dagdusa Tilakchand *. Shamad ... 396 
Daia Chand v. Sarfraz 155, 167 
Danmull v. British India Steam 

Navigation Company ... 346 

Dattu*. Kasai ... 24 

Davani Ammal v. Batna Chetti ...892 
Davani v. Batna 610, 518 

Dawkins v. Penrhyn ... 551 

Debi Prasad v. Jafar AH 826, 471, 563 
Degamber Mozumdar v. Kallynath 

Boy ... 85 

Denonath Chuckerbutty v. Lallit 

Coomar Gangopadhya ... 679 

Deo Prasad Sing v. Pertab Kairoo ... 107 
Deo Karun v. Nawab Syud Maho- 
med Ali Shah ... 604 
Deo Nundun v. Deshbutty ... 443 
Desai Kalyanraya t>. The Govern- 
ment of Bombay ... 255 
Desai Maneklal Amratlal v, Desai 

Shivlal Bhogilal ... 386 

Dharanamma v. Subba ... 672 

Dharma Vithal v. Govind Sadvalkar 165 
Dharm Singh v. Hurpershad Singh.. 665 
Dhondiba Krishnaji Patel t>. Bam- 

chandra Bhagvat ... 871 

Dhonessur Koorer t>. Boy Gooder 
Sahoy 84,276 



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Google 



xxrau 



LIST 09 CASES. 



D PAGE. 

Dhum Singh 9. Ganga Bam ... 39# 

Dhunput Sing v. Buhoman ... 141 

Dianat-ullah Beg v. Wajid Ali Shah 671 
Dildar Hossein v. Mujeedunnissa 641, 

... 647 
Dinomoney Dabea v. Doorga Persad 

Monzoomdar 532, 568 

Doe d. Seebristko v. The East India 

Company ... 251 

Domun v. Sndnnkolah ... 89 

Don v, Lippmann ... 79 

Doorga Churn Dhor v. Kally Coomar 

Sen ... 230 

Dubey Sahai v. Ganeshi Lai ... 608 

Dukhi Sahu v. Mahomed Bikhn ... 393 
Dulabh Vahuji v. Bansi Dharrai ... 386 
Dular Chand v. Balram Das ... 199 

Dulari v. Mohan Singh ... 620 

Dulsook Battanchand v. Chngon 

Narrun 412, 699 

Dorga v. Haidar Ali ... 476 

Dnrga v. Mangal * ... 869 

Durga Prasad v. Asa Earn ... 56 

Dnrga Fershad v. Ghosita Goria ... 477 
Dnrga Prasad v. Shambhn Nath ... 560 
Dnrgaram Maniram v. Shripati 112, 682 
Dnrgaram Boy v. Baja Narsing Deb 299 
Dntto Singh v. Dosad Bahadur Singh 631 



Eathamu Kala Snbbammah v. Bagiah 377 
Edward James Daniell v. James Sin- 
clair ... 438 
Ellappa v. Annamalai ... 178 
Elliott v. Bhoobnn Mohun ... 216 
Ellis V. M'Henry ... 80 
Empress v. Jyadulla ... 608 
Erajulu v. Mayan ... 38 
Erskine v. Gholam Eheznr ... 103 
Eshan Chnnder Bose v. Prannath 

Nag ... 651 

Eshan Chnnder Boy v. Monmohini 
Dassi 478, 506 



Fakharuddin Mahomed Ahsan v. The 

Official Trustee of Bengal ... 433 
Faki v. Khotu ... 161 

Fakir Chand Bhose v. Madan Mohan 

Ghose 184, 652 

Fakir Muhammad v. Ghulam Hu- 

sain 644, 679 

Fakirapa v. Pandurangapa ... 483 

Fateh Muhammad v. Gopal Das ... 174 
Fazil Imam v. Metta Singh ... 678 

Fazal Muhammad v* Phulkuar ... 88 
jFishexv. Pearse ... 195 



r pao«. 

Foley v. Hill ... 881 

Forbes v. 8ree Lai Jha .... 552 

Fuckoruddeen Mahomed Ahsan v. 

Mohima Chnnder Chowdhry 442, 479 
Futtehsangji Jaswantsangji v. Desai 

Kalliansangi Hukoomut Baiji. 597 
Fuzloor Rahman v. Altai Hossein... 655 



Ganapathi v. Balasundara ... 702 

Ganesh Krishn v. Madhavrav Bavji 399, 
401, 457, 460 
Ganesh Sadashiv ... 49 

Gangadhar r. Zahnrriya ... 347 

Gangathara v. Rathabai ... 690 

Ganga Pershad Sahu v. Gopal Singh 308 
Ganpat Pandnrang v. Adarji Dad- 

abhai 196, 391, 517, 588 

Gauri Shankar v. Surju ... 460 

Gaya Prasad v. Sikri Prasad 630, 640 
Gend Lall Tewari v, Denonath Bam 

Tewari 290, 293 

Ghaseeram v. Monohor Doss ... 420 

Ghansham v. Mukha 673, 674 

Ghinarain Dobey v. Bam Monaruth 

BamDobey ... 521 

Ghose v. Sreemutty ... 540 

Gibbs v. Grield ... 143 

Gillon v. Boddington ... 210 

Gobind Chnnder Sein v. The Collector 

of Dacca ... 586 

Gobind Lall Seal v. Debendro Nath 

Mulliok 549, 550, 672 

Gobindo Coomar o. Manson ... 102 

Gocool Chundes Gossamee v. Admi- 

nistrator.General of Bengal ...625 
Gogaram v. Kartick Chnnder Singh. 323 
Golabolee v. Kootoobootlah Sircar... 552 
Golam Nabi e. Biswanath Kar ... 275 
Golap Chand Nowluckha v. Krishto 

Chnnder Dass Biswas 30, 88 

Golnck Chnnder Chowdhry v. Taxi- 
nee Churn Chuckerbutty ... 227 
Golnck Chandra My tee v, Hara Priah 

Debi ... 692 

Goluck Monee Dossee v. Huro Chnn- 
der Ghose ... 482 
Good Title Parker v. Baldwin ... 254 
Grooroo Churn Gooni. Gunga Gobind 

Chatterjee ... 225 

Gooroo Doss Boy v. Bishtoo Churn... 553 
Gopal Kashi v, Bamabai Saheb Pat- • 

▼ardhan ... 197 

Gopala v. Paramma ... 407 

Gopal Chandra Lahiri v. Solomon ... 30 
Gopal Chnnder Mitter v, Mohesh 

Chnnder Boral 289. 290 



Digitized by 



Google 



LIST OF CASBS. 



XXXIX 



G PAGE. 

Gopal Narain Mosoomdar v. Muddo- 

mutty Guptee ... 163 

Gopal Pandey v. Pnrshotam Das ... 594 
Gopal Sahu Deo v. Jbyram Tewary... 664 
Gopal Sitaram Gone v. Desai ... 598 
Gopal Chandra Dey v. Pemu Bibi ... 436 
Gopaul Chnnder Gliose v. Raj Chun- 

der Dutt ... 121 

Gopaul Chnnder Chuckerbutty v. Nil- 
money Hitter ... 652 
Gopee Chand Setia v. Bhoobnn Mo- 

hnn sen ... 223 

Gopee Kishen Goshamee v. Brinda- 

bnn Chnnder Sircar ... 170 

Gopee Kishen Gossamy v. Thakoor 

Dass Gossamy .... 506 

Gopi Nath Chobey v. Bhugwat Per- 

shad 364, 505, 573 

Gora Chand Dutt v. Lokenath Dntt 176 
Gosain v. Gosain ... 69 

Gossain Dass Chnnder e. Issnr 

Chnnder Nath ... 263 

Gout Mohan Chowdry v. M. Mohnn 

Chowdry ... 206 

Government of Bombay v. Gossame 

Shri Girdharlaji ... 255 

Govind Chnnder Goswami v. Bnngnn 

Money 2, 639 

Govind Lakshnman o. Narayan ... 117 
Govind Bhaichand v. Kalnak 613, 592 
Govind Bagnnath v, Govinda Jagoji. 526 
Govind Shanbhog v. Appaya ... 657 

Govindan Pillai v. Chidambara Pillai 498 
Grown Prosad Knndn v. Bam Batan 

Sircar 324, 387 

Green Chnnder Ghose v. Mackintosh 63 
Greender Chnnder Ghose v. Mackin- 
tosh 130, 478 
Gregory v. Hnrrell ... 89 
Griah Chnnder Chowdhry v. Abdul 

Selam ... 492 

Gnjar, V. K. v. V. D. Barve 85, 270 

Gnlab Das v. Lakshman Narhar 620, 627 
Gnlab Rai v. Mangli Lai - 27, 671 

Gnlab Singh v. Amar Singh ... 280 

Gnlam Hosen Mahamed e. Sayad 

Mnsa Miya Hamad Ali ... 29 

Gnmna Dambershet v. Bhikn Hariba 

and another 408, 700 

Gnnesh Dass v. Gondonr Koormi ... 476 
Gnneshee Lall r. Mnssnmat Teknm 

Kooer ... 362 

Gunga Govind Mnndul v. The Col- 
lector of the 24-Pergunnahs 261, 265 
Gunga Dass Dey r. Ramjoy Dey 27, 86 
Gunga Pershad Bhoomick v. Debi 
Sundari Dabea 675, 678 



G PAGE. 

Guracharya r. The President of the 
the Belgaum Town Municipality 

38,111 

Gurudas Pyne v. Bam Narain Sahu. 370, 

390, 474 

Gurupadapa Basapa v. Virbhadrapa 
Ifsangapa ... 681 

Gurushid Gavda Bim Rndra Gavda 
v. Budra Gavda Tikam Dyam- 
angavda ... 490 

Gya Persad v. Heet Narain ... 544 



Habibnllah v. Achaibar Pandey ... 197 
Hafizunissa v. Bhyrab Chnnder ... 97 
Hajarimal v. Krishnarav ... 380 

Hajee Syud Mahomed v, Mussamut 

Ashrufoon-nissa ... 422 

Haji v. Atharaman 312, 629 

Hanmantmal Motichand v. Bambabai 179 
Hanmantram Sadhuram Pity v. 

Arthur Bowles 43, 47, 92, 409 

Hanmantrav Pandurang Joglekar v. 

Subaji Girmaji ... 635 

Hansji Chhiba v. Valabh Chhiba ... 493 
Harbhag v. Gumani ... 70 

Harender Kishore Singh v. The Ad- 

ministrator-Genl. of Bengal 460, 461 
Hargopal Premsuckdas v. Abdulkhan 

Haji Muhammad ... 170 

Hari r. Maruti ... 496 

Haridas Nandi v. Jadunath Dutt ... 227 
Hariette A. King v. J. 8. King ... 82 
Harinarayan Maiti v. Ajodhya Ram 

Shi ... 338 

Hari Ramchandra 9. Vishnu Krish- 

naji ... 106 

Harmukhgauri v. Harisukh Prasad 386 

515 
Harprasad v. Jafor Ali ... 613 

Harrington v. Goneeh Roy ... 90 

Harrison v. The Delhi and London 

Bank 448,472 

Harry Charn Bose v. Subaydar 

Sheikh • ... 661 

Hassaji v. The East India Bailway 

Company 345, 468 

Hazari Lai v. Jadaun Singh 427, 562 
Hearn and others v. Bapu Saju 

Naikin ... 418 

Heera Lall Mookhopadhya v. Dhun- 

put Singh 152, 267 

Hem Chnnder Chowdhry v. Brojo- 

soondury Debee 641, 678 

Hemangini Dasi v. Nobin Chand 

Ghose 56, 485, 487 

Hemchand Kuber f . Yohora Raji Haji 157 



Digitized by 



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LIST OF CASES. 



S PAGE. 

Hemendro Coomar Mullick v. Rajen- 

dro Lall ... 94 

Hempammal v. Hanuman ... 377 

Himmat Lai v. Shivaji Rav ... 463 

Hingan Lall v. Debee Perahad ... 380 
Hirada Karibasappah v. Gadigi Mud- 

dappa ... 390 

Hiralal v. Badri Das ... 99 

Hodgson v. Williamson ... 75 

Holloway, P. H. v. Mahomad AH ... 239 
Hori v. The Administrator-General 426 
Hossain v. Syed Tassaddack ... 143 

Huber v. Steine ... 80 

Huber v. Steiner ... 79 

Hare© Madhub Lahiree v. Hem 

Chunder Gossamee ... 239 

Hnasini fiegam v. The Collector of 

Mozaffarnagar ... 609 

Hulasi v. Maiku ... 670 

Huriram v. Dinapal ... 452 

Hur Lai Roy v. Sooruj Narain Eoy 359 
Huro Chunder Roy v. Surnamoyi ... 607 
Hurmuzi Begum v. Hirday Narain 517 
Hurro Chunder Roy r. Shoorodhonee 

Debia ... 100 

Hurro Coomaree Dossee v. Taini 

Churn Bysack ... 61 

Hurro Pershad Roy Chowdry v. 

Bhupendro Narain Dutfc ... 649 

Hurronauth Roy v. Maheroollah 

Moollah ... 408 

Hurronath Bhunjo v. Chunni Lall 

Ghose ... 682 

Husain Ali Khan v. Hafiz Ali Khan 460 
Husain Bakhsh v. A. D. Madge ... 672 
H. H. Azim-u-nissa Begum *. Cle- 
ment Dale 50, 70 
H. H. Ruckmaboyee v. Lulloobhoy 78 



Ibrahim Ali v. Hadi Ali ... 361 

Ichha Shankar r. Killa 17, 19 

Ikram Singh v. Intizam Ali 430, 530 
Imdad Ali v. Nijabad Ali ... 202 

Imam Bnksh Mondul v. Mora in 

Mondul ... 553 

Imam Bundee Begum v. Sheo Dyal 

Ram ... 242 

Imam Ali v. Dasaundhi Ram ... 667 

Imbiohi Roya v. Kakunnat Upakki... 299 
Ishan Chander Roy 2, 634 

Ishwardas Jagjivandas v. Dosibai ... 633 
Isri Dut Koer v. Hansbutti Koerain. 491 
Issurree Dasseo v. Abdool Khalak ... 672 
Isswr Chunder Doss v. Juggut Chun- 
der Shaha 371, 486 
Igsuridutt Singh v. Ibrahim ... 495 



Z PAGE. 

Iswar Perahad Gurgo v. Jai Narain 

Gin ... 527 

Iyyasami v. Samiya ... 327 



Jackson v. Ogg ... 378 

Jadoonath Chowdhry v. Radhomonee 

Dassee ... 300 

Jagadamba Chaodhrani v. Dakhina 

Mohun Roy Chaodhri ... 466 

Jagan Nath 9. Lalman ... 35 

Jagan Nath v. Baldeo ... 526 

Jagan Nath Panday v. Prag Sing ... 502 
Jageshar Singh v. Jawahir Singh ... 279 
Jaggabandhu Bose v. Srimati Sachyi 

Bibi ... 298 

Jagjivan Amirchand v. Hasan Abra- 
ham ... 44 
Jagjivan Jay herd as V. Gulam Jilani 

Chaudri 300, 344, 470 

Jagrani Bibi v. Gamshi ... 263 

Jai Kuar v. Heera Lai ... 48 

Jaikaran Rai v. Ganga Dhari Rai ... 280 
Jamal Saheb v Murgaya Swami ... 568 
James Hills v. The Magistrate of 

Nuddea ... 331 

Jamna Das and others v. Lolitaram 

and others ... 656 

Jan Ali v. Jan Ali Chowdhry ... 305 

Janaki v. Kesavalu 2, 634 

Janardan Yithal v. Anant Mahadev. 625 
Janki Prasad Ghulam Ali 173, 186 

Jawahir Lai v. Narain Das ... 88 

Jay Prokash Singh v. Ameer Ally ... 216 
Jeaunissa Ladli Begum Saheb v. 

Manikji Kharsotji ... 404 

Jekisan Bapuji v. Bhowsar Bhoga- 

jetha ... 158 

Jeoni v. Bhagwan Sahai ... 293 

Jetti v. Sayad Husein ... 289 

Jhabhu Sing ... 88 

Jhotee Sahoo v, Omesh Chunder 

Sircar 34, 606 

Jhoti Sahu v. Bhubun Gir ... 653 

Jibhai Mahipati v. Parbhu Bapu ... 10 
Jivan Singh v. Sarnam Singh ... 90 
Jivi v. Raraji ... 500 

Jogul Kishore v. Mulchand ... 201 

Johuri Mahton v. Thakoor Nath 

Lukee ... 385 

Joitaram Bechar v. Bai Ganga ... 104 
Jokhu Ram v. Ram Din ... 692 

Jonardun v. Haradhun ... 274 

Joogul Lai v. Mussumat Jasoda Bebee 220 
Joy Doorga Dossia v. Juggernath Roy 225 
Joykiahen Mookerjee v. Ataoor Roho- 

man 606, 630 



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iteT or oisbs; 



xH 



J PAGE. 

Jodhister Patro v. Nobin Chandra 

Khela ... 698 

Juggessur Singh v. Nnnd Lall Singh 222 
Juggobundhu Mokerjee v. Ram Chun- 

der Bysack 629, 649, 675 

Juggobundhoo Shaha v. Promotho- 

nathEoy ... 246 

Jugmohun Mahto t. Luchmeshur 

Singh 17, 44 

Jnneewar Dass ♦. Mahabeer Singh... 608 



Kabari Pari v. Eatan Chand ... 882 

Kadar Bacha Sahib v. Rangasami ... 116 
Kadarsa Ran tan v. Raviah Bibi ... 508 
Kalee Kishen Paul Chowdhry v. Mus- 

samut Juggut Tara ... 425 

Kallee Prosunno Mookerjee v. Sree- 

nutty Toylash Moonee Debia ... 821 
Kali Kishore Roy v. Dhunnjoy Roy. 492 
Kali Kriahna Pal Chowdhry v. Srimati 

Jagattara ... 126 

Kali Mohun Chnokerbutty v, Ananda- 

moni Dabee ... 310 

Kalichorn Hitter v. Mahomed Soleem 278 
Kallida Pershad Dutt v. Bam Hari 

Chnokerbutty ... 558 

KaKfljuy Kevaldas v. Nathu Bhagvan. 198 
Kalidas Mullick v. Kanhaya Lai 

Pundit ... 664 

Kalley Churn Shaw v.Dukhee Bibi... 576 
Kallu v. Muhammad Abdul ... 681 

KallyChurnShawv.DukheeBibee... 425 
Kally Prosunno Biswas v. Mungala 

Dassee ... 85 

Kally Prosonno Hazra v. Heera Lai 

Mundle 170, 171, 185 

Kally Cham Sahoo v. The Secretary 

of State for India in Council ... 569 
Kalova Kon Bhujangray v. Padapa 

Valad Bhujangray ... 470 

Kalu Ram Maigraj v. The Madras 

Railway Company ... 346 

Kalyanbhai Dipohand v. Ghanasham 

Lai Jadunathji 116, 118, 638 

Kamal Singh v. Batul Fatima 72, 520 
Kanchan Singh v. Sheo Prasad ... 696 
Kandasami Pillai v. Moiden Saib ... 463 
Kangali Churn Sha v. Zomur Rudo- 

nissaKhatoon ... 369 

161 
562 
568 

58 
814 

99 



Kanhaya Lai v. Stowell 
Kanaan v. Nilakandan 
Karan Singh v. Bakar Ali Khan 
Karimshah v. Nattan 
Karuppa v. Vasudeva 
Karuppan Chetti v, Yeriyal 

1-F 



X PAG*. 

Kashikant Bhuttaoharji v. Rohini- 

kant Bhuttaoharji ... 451 

Kasu Munnissa Bibee v. Nil Ratna 

Bose ... 678 

KavaajiSorabjiv.BarjorjiSorabjil08, 196 
Kebul Ram v. The Government 828, 330 
Kedarnath Nag v. Khettur Paul 

Sritirutno 347, 477 

Kedarnath Dutt v. Harra Chand Dutt. 625 
Kesava Pillai v. Peddu Reddy ... 227 
KeshavHarkhav.GanpatHiraChand 220 
Keval Kuber v. The Talukdari Settle- 
ment Officer 263, 601 
Kewal Ram v. Khadim Husain ... 674 
Khairunnissa v. Gaurishan Kar 680, 686 
Kbaja Pathanji ... 632 
Khasro Mandar v. Premlal ... 212 
Khem Karan v. Har Dayal ... 27 
Khemji Bhagvandas Gujar v. Ra- 
ma 512, 598 
Kherodemoney Dossee v, Doorga-* 

money Dossee * 52, 63 

Khetter Mohun Chuckerbntty v. 

Dinabashi Shaha 88, 111 

Khodabux v. Budree Narain Singh 43, 44 
Khoodee Ram Dutt v. Kishen Chand 

Golecha * ... 187 

Khoshelal Mahton v. Guneah Dutt ... 81 
Khunni v. Nasir-ud-din Ahmad ... 460 
Khushalo v. Behari Lai ... 161 

Khwaja Muhammad Janula v. Yen* 

katarayar and another ... 158 

Kifayat Ali v. Ram Singh 110, 650 

Kinmond v. Jackson ... 354 

Kirath Chand v. Ganesh Prasad 390, 478 
Kishen Chunder Dass v. Mahomed 

Aizul ... 366 

Kishen Lai v. Kinlock 899, 461 

Kishen Sahai v. The Collector of Al- 
lahabad ... 664 
Koji Ram v. Ishar Das ... 441 
Komathi v. Gurunada Pillai ... 219 
Koonjo Mohun Dass v. Nobo Coomar 

Shaha ... 628 

Kowar Poresh Narain Roy v. Watson 

and Co. ... 144 

KoyalashbaBhini Dossee v. Gocool- 

moni Dossee 482, 602 

Koylash Chunder Dutt v. Gubur Ali. 482 
Koylash Chunder Ghose v. Sonatum 

Chung Barooie 223, 230 

Koylash Chunder Paul Chowdhry r. 

Preonath Roy Chowdhry 288, 290 
Koylash Dhunder Dass v. Boykoonto 

377, 406 
Krishna v. Rayappa Shanbhaga ... 228 
Krishna Chetty v. Rami Chetty ... 117 



Digitized by 



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xiii 



LIST OF OASIS. 



Krishna Chandra Chuekerbutty v. 

Krishna Chandra fcanik ... 227 

Krishna Gobind Dhur v. Hari Churn 

Dhnr 559, 566 

Krishna Lall Dntt v. Kadha Krishna 

Snrkhel ... 529 

Krishnabhatbin Husgange v. Kapa- 

bhatbin Mahalbhat ... 697 

Krishna Mohun Bose v. Okhilmoni 

Dossee ... 265 

Krishna Rau v. Lakshmana Shan- 

bhogue ... 290 

Krishnaj Vithal v. Bhaskar Rang- 

nath 289, 291, 

Krishnaj i Raghnnath Kothavle v. 

Anandrav Ballal Kolhalkar ... 684 
Krishnamma v. Achayya ... 331 

Krishnan v. Nilakandan ... 648 

Krishnanand v. Kunwar Partab 

Narain Singh ... 450 

Krishnasami Mappanar v. Sankara 

Row Peshnr ... 40 

Krishnayyar v. Venkay Iyer t . . . 660 

Kristna Ayyan v. Yencatachella Ma- 

dali ... 237 

Kristna Row ... 509 

Kristo Chnnder Sandel Chowdhry v. 
Shama Soonderee Debia Chow- 
dhrain ... 363 

Kristo Chunder Sundyal v. Kashee 

Kishore Roy Chowdhry ... 362 

Kristo Coomar Nag v. Mahabat Khan. 665 
Kristo Inder Roy Chowdhry v. 

Roopinee Bebee ... 103 

Kristo Comul Mitter v. Suresh Chnn- 
der Deb ... 557 
Kristodass Knndoo v. Ramkant Raj 

Chowdry ... 324 

Knmarasami v. Subbaraya ... 66 

Kumarasami Nadan v. Pala Nagappa 

Chetti ... 162 

Kundun Lai v. Bansi Dhar 385, 471 

Kan hi Komapen Knrnpu v. Chem- 

bata Ambn ... 273 

Knnhi v. Seshagiri 643, 675 

Knrupam Zamindar v. Merangi Ze- 
mindar ... 236 
Kushalo r. Behari Lai • ... 421 
Knthath Haji v. P. P. Bavtti Haji... 659 
Kuvarji Premchand v. Baijaver ... 220 
Kylasa Gonndan v. Ramaswami Ay- 
yan 4, 633 
Kylasanada Moodelly v. Armugum 

Moodelly ... 462 

Lachman Singh v. Kesri ... 400 

Lachman Bibi v. Patni Ram ... 658 

Lachman v. Thondi Ram ... 674 



Jb paoi. 

Lachmi Narain Lai v. Sheoamber Lai 279 
Ladji Naik v. Mnsabi 848, 388 

Laknarain Singh 9, Ranee Myna 

Kooer ... 320 

Lakshman Dada Naik v. Ramohandra 

DodaNaik ... 104 

Lakshmi v. Ananta Shanbaga ... 35 
Lakshmi v. Kuttunni ... 616 

Lakshmi v. Sri Devi 621, 623 

Lalchand Ambaidas v. Sakharam 

Valad Chandrabhai ... 300 

Laljee Sahoo v. Raghoo Nnndnn Lall 

Saboe 159, 393, 421 

Lallnbhai v. Mankuvarbai 50, 68 

Lallubhai v. Naran ... 609 

Lamb v. Walker ... 208 

Latehman Pnndeh v. Maddan Mohun 

Shye , ... 672 

Lawless v. Calcutta Landing and 

Shipping Co., Limited 126, 425 

Lee Morris, G. *. Sapamtheetha Pillay 100 
Lee Morris, 6. v. Sivaramayyan and 

others • 104 

Lilln Bin Baghnshet f. Annaji 

fcarashram ... 866 

Lokenath Mulliok v. Odoy Churn 

Mulliok ... 488 

Lopes v. Maddan Mohun Thakoor ... 669 
Loseby v. Carr ... 889 

Luchinarain Mittar p. Khettor Pal 

singh Roy ... 101 ■ 

Luchmee Buksh Roy v. Runjeet Ram 

Panday * ... HJ5 

Lachmi Narain Singh v. Assrup Koer 288 
Luchman Persad Singh v. Kishun 

Pershad Singh ... 702 

Luchmon Sahai Chowdhry f. Kanchan 

Ojhain ... 329 

Lutchmeeput Singh v, Sadaulla 

Nnshyo ... 248 

Lutful Huq v. Sumbhadin Pattack 116, 

119, 666 
Luyar Chunilal Iohharam v. Luvar 

Tribhovan Laldas ... 155 



Macgregor v. Tarni Churn Sircar ... 651 
Mackenzie v. Tiruvangadathan 178, 411 
Madon Mohun Poddar v. Porno 

Chundr Pnrbot ... 629 

Madanmahan Sen v. Chandrakumar- 

Mookerjee ... 229 

Madda v. Sheo Bakhsh ... 459 

Madhava v. Narayana ... 667 

Madhavan v. Achuda 9, 266 

Madhub Chunder Giree v. Sham 

Chand Giree ... 274 



Digitized by 



Google 



Liar or oasis. 



zliii 



M PA61. 

Madrara v. Shagranta ... 600 

Magalori Garndiah v. Narayana Bun- 

gtah ... 461 

Mahalakshmi v. Lakshmi ... 118 

Mahalakwhinibai v. The Firm of 

Nageshwar Pnrshotam ... 167 

MaHarajah Jay Mongol Singh v. Lall 

Rong Pal Singh ... 212 

Maharajah Jogotendor v. Dindyal ... 97 
Maharana Fatten Sangi Jaswant 

Hangji v. Desai Kollian Baiji 

Hakoomntroiji ... 614 

Maharanee Brojosoondery Debia v. 

Banee Luchmee Koonwaree ... 68 
Maharanee Shibessouree Debia v. 

Mothooranath Acbarjo ... 69 

Maharani of Bordwan v. Parikhit 

Rawtra ... 108 

Maharani Bajrnp Koer v. Syed Abdul 

Hossain 222, 286 

Mahomed Abdool Bozzah v. Syud 

Asff AK .:. 168 

Mahomed Abdor Bahim v. Birjosahu. 219 
Mahomed Ali t\ Jogal Ramohandra 242 
Mahomed Ali Khan v. Khaja Abdol 

Gunny ... 662 

Mahomed Bahadur Khan v. The Col- 

lector of Barielly 41, 106 4 604 

Mahomed Elahee Buksb v. Brojoki- 

ahoreSen ... 212 

Mahomed Ghore v. Muster Ally ... 483 
Mahomed Mnseeh-ood-deen v. Mo- 

aeeh-ood-deen ... 89 

Mahomed Sayad Phaki v. Navroji 

Balabhai ... 812 

Mahomed Hoeaein v. Inodeen ... 609 
Mahomed Hossein v. Kokil Singh ... 616 
Mahomed Hoasein v. Purondor Mahto 647 
Maidin Saiba v. Nagapa 681, 668 

MaJnathKuariv.DebiBakhshBai... 680 
Makondi Knar v. Balakiahen Das ... 391 
Malohand v. Girdhar ... 170 

ManaUy Ghenna Kesavaraya v. 

Mongadu Yaidelinga 264, 490 

Mangal Praahad Dischit v. Thanea 

Ban to Lai Hiry Chowdhry ... 645 
Manga Lai v. Kandhai Lai ... 113 

Maaickarelu Mudali v. Arbuthnot 

and Co. ... 66 

Hfgjpk Lai Atmaram v. Manchershi 

51, 52, 519 
Manishanfrar Har Govan v. Trikam 

Nam ... 220 

Manly v. Patterson ...595 

Manni Kaaaondhan v. Crooke 195, 472 
Mohan Ghose v. Mothura 

Mohan Boy ... 669 



X pagi. 

Manohar v. Gebiapa 112, 682 

Mansok Das v. Bangayya Chetti ... 400 
Mathnra Das Nandvalabh v. Bai 

Amthi ... 217 

Mathura Doss v. Baho Lai ... 168 

Mathuranath Kundu v. Debendra 

Nath Kondu ... 440 

Mayabhai Prembhai v, Tribhuvandas 

Jagjivandas ... 702 

Mayandi v. McQuhae, Vice-President 

of the. Madura Municipality ... 272 
Meda Bibi v. Imaman Bibi ... 431 

Meer Mahomed Karem v. Forbes ... 348 
Merwanji Hormusji v. Bustomji 

Burjorji 65, 138, 448 

Merwanji Nowroji v. Ashabai ... 488 
Miller v. Bunga Nath Mouliok ... 611 
Mina Konwari v. Jnggat Setani 647, 676 
Minakumari Bibee v. Jagat Sattani 

Bibee ... 307 

Mir Ajmuddin v. Mathura Das ... 117 
Mir Mahar Ali v. Amani ... 446 

Mina Bedar Bukht Mohammed Ali 

Bahadoor v. Mirza Khurrum 

Bukht Yahya Ali Khan Bahadoor 446 
Modho Kooery v. Tekeit Bum Chunder 

Singh ... 533 

Modun Mohum Chowdhry v. Ashad * 

Ally Beparee ... 622 

Mohabat Ali v. Ali Mahomed' ... 48 
Mohan Lai Jeohand v. Amratlal 

Bechardas ... 240 

Mohan Sing Cbawan v. Henry Conder 345 
Mohesh Lai v. Busunt Kumaree 6, 155, 

265 
Mohima Chunder Chuckerbotty v. 

Baj Coomar Chnckerbutty 858, 361 
Mohima Chunder Boy Chowdhry v. 

Bam Kishore AcharjeeChowohry 540 
Mohin Chundee v. Chunder Churn... 216 
Mohnn Chunder Koomdo v. Azam 

Gazee ... 107 

Mohun Lall v. Sheik Noor Ahmud... 242 
Mohun C bonder Kurmokar v. Mo- 
hesh Chunder Kurmokar ... '660 
Mokund Lall v. Chotay Lall ... 458 

Monickya Moyee v. Boroda Prosad 

Mookerjee ... 192 

Mon Mohun Bucksee v. Gunga Soon- 

dery Dabee ... 44 

Moonshi Golam Arab v. Cnrreembox 

Shaikjee .. 483 

Morgan v. Kirby ... 243 

Moshaullah v. Ahmedullah ... 33 

Moti Bibi v. Bikanu ... 36 

Moula Bukflh Khan v. Koshoram 

Pandey -.* 864 



Digitized by 



Google 



xliv 



LIST OF CA81S. 



Mozuffur Ali v. Grish Chunder Dobs 862 
Mrinmoyee Dabea v. Bhoobunmoyee 

Dabea ... 468 

Mt. Bunnoo v. Moulvie Ameeroodeen 601 
Mudvirapa Kulkarni v. Fakirapa 

Eenardi 836, 352, 371 

Mohammad Bakh&h v. Mohammad Ali 438 
Muhammad Habihullah Khan v. Saf- 

dar Hnaain Khan 390, 475 

Mnhammad Husain v. Bam Samp ... 674 
Muhammad Umar v. Kamila Bibi . . . 660 
Mnhammed Gaki v. Ghatkn 611, 614 
Muhiuddin Ahmad Khan v. Majlis 

Rai 455, 561 

Mukkanni f. Manan ... 168 

Mula Baj v. Debi Dihal ... 638 

Mullick Abdool Guffoor v. Muleka ... 280 
Mullick Ahmed Zumma v, Mahomed 

Syed, 668, 670 

Mnllins Beddy 163, 267 

Mumford v. Peal ... 408 

Mnngamuru Ananta Lakshminarusu . 

Pantalu v. Srimant Raja Yarla- 

gedda Ankavid Bahadur ... 145 

Mungina Khatook v. The Collector of 
Jessore ... 317 

Mongol Prashad Dichit v. Shama 

^^Kanto Lahory Chowdhry 170, 185 

Mungul Pershad Dichit v. Grija Kant 

Lahiri 10, 11, 659, 677 

Municipal Commissioners of the Sub- 
urbs of Calcutta v. Mahomed Ali. 226 

Manjunath Badra Bhat v. Venka- 
teah Govind Shanbhog ... 646 

Musammat Sharafat-un-nissa v. 

Lachmi Narain ... 803 

Musharraf Begam «. Ghalib Ali ... 6 

Mussamut Aleo-Unissa v. Buldeo 

Narain Singh ... 327 

Mussamut Amjudee Begum t\ Syud 

Ahmed Hossein ... 239 

Mussamut Mulleeka v. Mussamut 
Jumeela ... 445 

Mussamut Moomeedunnissa v. Ma- 
homed Ali ... 825 

Mussamut Mnnna v. Laljee Boy ... 98 

Muasamat Nona v. Dhoomun Dass... 106 



Naohiyappa v. Ayyaaami ... 82 

Nahanibai v. Nathu Bhau 156, 897 

Nallatambi Mudaliar v. Ponnusami 

Pillai 463 

Nanda Bai v. Baghunandan Singh... 659 
Nandvallabh v. Allibhai Isyagani ... 48 
Narain Babu v. GouriPersad Biais 401,-406 



M m P1GB. 

Naraina Khootiar. Lokenath Khootia 18, 

498 
Naraina Singh and others v. Shim- 

bho Singh and others ... 628 

Narain Das v. Lajja Bam ... 622 

Narasimma v. Ragupathi 200, 860, 354 
Naranappa v. Nanna Ammal ...*117 
Narayana v. Champion ... 419 

Narayan Das v. Maharajaof Burdwan 74 
Narayan Rao v. Ramabai ... 499 

Narayan Visaji v. Lakshuman Bapuji 248 
Narotam Bapu v. Ganpatrav Pandu- 

rang ... 216 

Narrandas Hemraj v. Vissandaa 

Hemraj ... 421 

Narronji Bhimji v. Mugnirum Chan- 

daji 47, 91 

Narsingh Das v. Narain Das ... 668 

Narsingh Sewak Singh v. Madho Das 664 
Nasir Bin Abdul v. Dayabhai Itcha 

Chand ... 381 

Nath Prasad v. Ram Paltan Ram 281, 480 
Natha Hira v. Janardhan Ramohan- 

dra ... 405 

Natha Sing v. Jodah Singh 809, 487 
Nathu v. Badri Das 804, 668 

Nawab Oomrao Begum ... 509 

Navuib Sidhee Nazir Alikhan v. 

Djoodhiyaram Khan ... 817 

New Beebhoom Coal Co., v. Buloram 

Mahata . . 468 

Nijabutoola v. Wazir Ali ... 31 

Nilakandan v. Thandamma ... 808 

Nilkanth v. Dattatraya ... 212 

Nilmadhub Chuckerbutty v. Ramso- 

doy Ghose ... 698 

Nilmadhub Surnokar v, Kristo Doss 

Surnokar ... 98 

Nilo Ramohandra v. Govind Ballal 

and others ... 497 

Nistariny Dossee v. Anundmoye 

Dossee ... 483 

Nito Kallee Debee v. Kripanath Roy. 804 
Nitta Kolita v. Bishunram Kolita ... 299 
Nit to Gropal Ghose v. Mackintosh ... 277 
Nobin Chunder v. Kenny ... 277 

Nobin Chunder Chuckerbutty v. 

Guru Persad Does 638, 642 

Nobin Chunder Chuckerbutty v. 

Issur Chunder Chuckerbutty 686, 647 
Nobin Chunder Kurr v. Rojomoye 

Dossee ... 110 

Nobo Coomar Mookhopadhya v, Siru 

Mullick ... 460 

Noooor Chunder Bose v. Kally Coo- 
mar Ghose 16, 265 
Normal v. Pookeraul ... 424 



Digitized by 



Google 



LIST OF CAfllS. 



Xlt 



M FAOI. 

Norotamdas Bhagtan Das v. Daya- 

bhai Iohhachand .., 424 

Noyes *. Crawley ... 551 

Nujuf Ali v. Patterson ... 834 

Hand Lall Bob© v. Meer Aboo Maho- 
med 890, 478 
Nund Ram v. Sita Ram ... 668 
Nund Ram v. Ram Prasad ... 898 
Nuncio Kiahore Lall v. Musst. Ram* 

sookheeKooer ... 160 

Nora Bibi v Jagat Narain ... 601 

Nnr-ul-Hasan v. Mohammad Hasan. 668 
Nursing Doyal v. Hnrryhor Saba 17, 266 
Nothoo Lall Chowdry v. Shoukee Lall 94 



Obedul Hoesein v. Golook Chnnder... 338 
Obboy Churn Ghose v. Gobind Chnn- 
der Dey ... 493 
Obhoy Chnrn Nnndi v, Krithartha 

MoyiDossee 109, 194 

Oodoyessnree s. Hnro Kiahore Dutt 353 
Opender Narain Mookerjee v. Gudad- 

hor Dey ... 435 

Oriental Bank Corporation s. Chrariol 8, 

p 639 

PaHiagatha Ummer Kntti v. Abdul 

Kadar ... 180 

Pancham Singh v. AH Ahmad ... 602 
Faadah Gam v. Jennnddi 850, 869 

Papaya v. Ramana ... 489 

Faram Singh v. Lalji Mai ... 58 

Paran Singh v. Jawahir Singh ... 677 
Paranjpe v. Eanade ... 617 

Paras Ram v. Gardner ... 688 

Parbati Charan Mookerjea v. Ram* 

narayan Matilal ... 881 

Parbntty Chnrn v. Ram Narain ... 586 
Parbntty Nath Roy Chowdhry v. 

Mndho Paroe 206, 246 

Parekh Ranohor v. Bai Vakhat ... 539 
Parell Spinning and Weaving Com- 
pany, Limited v. Manek Haji 452, 481 
Parmeshari Proshad Narain Singh 

v. Mahomed Synd ... 232 

Parry and Co., v. Appasami Pillai ... 113 
Parshadi Lai v. Muhammad Zain-ul- 

Abdin ... 805 

Parnshmath Misser v. Shaikh Bun* 

dah Ali ... 508 

Pasnpati Latchmia v. Pasnpati Mu- 

thambhatln 6, 13 

Patankar v. Devji 185, 611 

Pearee v. Sootoher ... 252 

Pearee Mohan Bose v. Gobind Chnn- 
der ... 508 



F FAOI. 

Pennballi Snbbaramareddi v. Bhima* 

raja Ramaya * ... 142 

Pepin v. Chander See Knr Mookerjee 416 
Periandi v. Angappa ... 599 

Pershad v. Chednlall ... 491 

Pershadi Lai v. Chnnni Lall 680, 635 
Pestonji Bezonji v, Abdool Rahiman 

Bin Shaik Bndoo 509, 510 

Petambar Baboo v. Nilmony Singh 

Deo ... 602 

Phillips v. Byre ... 80 

Phoolbas Koonwur v. Lalla Ja* 

gheshnr Sahoy 41, 43 

Piarey Lai v. Saliga 71, 520 

Pichandi v. Eandasami ... 180 

Pirjade v. Pirjade 109, 650 

Pogose v, Bebee Dishkoon Waris 

Calchnck ... 127 

Ponnwsawmi Tevarv. The Collector 

of Madnra 201, 215, 227, 258, 858 
Poorno Chnnder Chatteriee v. Shu- 
rut Chnnder Bhuttacharjee ... 242 
Poorno Chnnder Coondoo v. Proson- 

na Coomar Sikdar ... 613 

Poresh Narain Roy v. Kassi Chnnder 

Talnkdar 505, 588 

Potter v. Brown ... 80 

Prabhacararow v. Potannah 18, 645, 656 
Prag Chanbey v. Bhajan Chandhri... 288 
Pragi Lai v. MaxweU 874, 415 

Pranjivan Dass v. Mayaram 216, 218 
Premabhai Hemabhai v. T. H. Brown 187 
Premchand Kybutta v. Hnrree Doss 

Kybutta ... 275 

Premji Ludha v. Dossa Doonger* 

sey 187, 188 

Prem Snkh Das tf. Phnpia ... 538 

President of the Municipal Commis- 
sion, Guntnr v. Srikakulapu 
Padmarazn 276, 476 

President of the Municipal Com- 
mittee of Moradabad v. Chatri 
Singh ... 472 

Prosonna Nath Roy Chowdry v. 

Afzolonnessa Begum ... 357 

Prosonno Chnnder v. Gyan Chunder 486 
Prosunno Chunder Bhuttaoharjee t\ 

Kristo Chytunno Pal ... 128 

Prosunno Coomar Sircar v. Ram 

Coomar Parooey ... 248 

Protab Chunder Chowdhry v. Bro- 

jalal Shaha ... 300 

Protap Chunder Chowdhry v. Shnk- 

hee Soonduree Dassee ... 601 

Provabutty Dabee v. Mohendro Lall 

Bose ... 217 

Pan ja Knyarji f . Bai Kuvar 200, 286, 240 



Digitized by 



Google 



XIYJ 



UST OP CAII8. 



W PAGE. 

Pureeag Singh v. Shib Bain Chander 

Mundul 368, 861 

Purmanand Das Jiwandas v. Jama- 

nabai ... 620 

Puma Narain Adhikar r. Hemokant 

Adhikar ... 469 

Parran Chunder Ghose ». Hatty Lall 

Ghose Jahira ... 39 

Pursut Koer v. Pal at Boy ... 643 

Pa tali Mehetiv. Tnlja ... 108 

Pylwan Jarkan Sahib Vasthath v. 

Jenaka Baja Tevar ... 276 



Queen Empress v. Lingaya 



88 



Badanath Doss v. Gisborne and Co. 620' 

657 
Badhabai and Bam Chandra Konher 
v. Anantrav Bhagrant Desh- 
pande ... 541 

Badha Kissore Bose v. Aftab Chan- 
dra Mahatab ... 683 
Badha Kristo Balo v. Bap Chander 

Nandi ... 443 

Badhanath Bose v. Bama Churn 

Mookerjee 389, 685 

Badhanath Dutt v. Govind Chunder 141 
Badhanath Sugraoharji v. Baidonath 

SealKabirag ... 226 

Badha Perahad Singh v. Bam Jee- 

wun Singh ... 359 

Badha Prasad Singh v. Bhagwan Bai 698 
Badha Prosad Singh v. Sundur Lall 

12, 671 
Badha Proshad Singh r.-The Collec- 
tor of Shahabad ... 572 
Bagava Pishardi v. Ayuman Jiri 

Mankal Thupan ... 118 

Bagho Govind Paranjpe v. Dipchand 409 
Baghoji v. Abdul Karim 153, 169 

Baghoo Pandey v. Kassy Parcy ... 596 
Baghubar Dayal v. Laohmin Shankar 510 
Baghubans Gir v. Shoesaran Gir ... 637 
Baghubar Dyal Sahu v. Bhikya Lai 

Misser ... 564 

Baghumoni Adhikari v, Nilmoni 

Singh Deo ... 884 

Baghunath Gopal v. Nilu Nathaji ... 33 
Baghunath Pershad v. Abdul Hye... 667 
Bahmani Bibi v. Hulasa Kuar ... 165 
Baiji Manor v. Desai Kallianrai ... 608 
Raj Bahadur v. Birmha Singh ... 340 
Baj Bahadur Singh v. Aohambit 

Lai 430, 469, 630 

Baj Kumar Banerji v. Baj LakhiDabi 644 



X PA<HL 

Baj Chander Ohatterjee v. Modhoo- 

soodun Mookerjee ... 284 

Baj Chandra Chuokerbutty 9. Kinoo 

Khan ... 315 

Baj Krishto Boy v. Beer Chander • 

Joobrag ... 100 

Baja Bahadur Singh v. Aohambit Lall 466 
Baja Bnayet Hossainv.GirdhariLall 656 
Baja Iovara Das v. Biohardson ... 176 
Baja Kaundan ... 509 

Baja Bam Tewary v. Laohmun Per- 
shad 480, 402 
Bajah Bijoy Keshub Boy v. Abhoy 

Churn Ghose ... 216 

Bajah Borodakant v. Sookmoy ... 98 
Bajah Saheb Perhlad v. Bajendro 

Kishore Singh ... 858 

Bajah Sahib Perhlad Sein v. Maha- 
rajah Bajender Kishore Singh... 651 
Bajaram v. Band ... 46 

Bajendra Nafch Haldar v. Jagendra 

Nath Haldar ... 468 

Bajendro Kishore Singh v. Bulaky 

Mahton ... 109 

Bajrup Koer t>. Abul Hossein 202, 

234, 852 
Bajubalu v. Krishnarai ... 203 

Rama v. Venkatesa ... 174'. 

BamAnuj Sewak Singh v. Hingu Lai 652 
Bamakratna^D.LakshmiDevamma 100 
Raman r. Krishna ... 168 

Raman v. Vairavan ... 156 

Bamanadan Chetti v. Periatambi 110, 668 
Bamausar Pandey v. Baghubar Jati 

857,428 
Bamanada Sastri v. Minatohi Ammal 620 
Bamasami v. Sesha ... 658 

Bama Sekara r. Dharma Baya ... 618 
Bambhau Bapushet v. Bhai Bapushet 216 
Bambhat Agnihotri 9. The Collector 

of Punu ... 263 

Bamohendra Ganesh v. Devba ... 181 
Bam Chunder Ghosaul v. Juggut 

Mon Mohiney Dabee 266, 878, 687 
Bam Coomar Kur v. Jakur Ali 171, 676 
Bam Das v. Birjnundu Das ... 167 

Bam Dass v. Watson ... 101 

Bamdhun Satra v. Nobin Chunder... 552 
Bamdinv. Kalka Prasad ... 611 

Bamdoyal Khan v* Ajoodhia Bam 

Khan ... 140 

Bam Dutt Singh 9 . Horakh Narain 

Singh 443, 516 

Rameahar Chanbey v. Matabhikh ... 370 
Rameshar Singh v. Bisheshar Singh 624 
Rameshwar Mandal v. Bamohand 

Boy 376, 457 



Digitized by CjOOQIC 



Mst of ckBtn. 



ilvii 



B paos. 

Bamosnui Dasaee ... 616 

Bamessur Persaft Narain Sing t*. 

Koonj Behari Pattuk ... 232 

Barney v. Broughton 87, 605 

Bamhit Bai v. Satgur Bai 172, 675 

Bamit Singh v. Banwari Lai Sahu... 529 
Bamji v. Dharma 162, 393 

Bamjiwan Mai v. Chand Mai ... 449 
Bam Kishan r. Bhawani Das 324, 

326, 887 
Bam Kisto Boy v. Muddun Gopal Boy 382 
Bam Kristna Gastrulu v. Darba Lak- 

8hmi devamma ... 108 

Bam Lakhi v. Durga Charan Sen 496, 525 
Bam Lai v. Harrison ... 26 

Bam Lai v. Jagan-nath ... 670 

Bam Lai v. Tula Bam ... 341 

Bamnad Zamindar 9. Dorasami ... 505 
Bamphul Sahoo v. Misree Lall ... 201 
Bamphul Singh v. Deg Narain Singh 4^2 
Bam Prosad Janna «. Lakhi Narain 

Pradhan 524, 565 

Bam Sahai v. Gaya ... 284 

HuTinMLlnti Sing v. Mani Bam ... 26 

Bamsebnk v. Bam Lall Koondoo 176, 197 
Bam 8ingh Mohapattnr v. Bhottro 

Manjee Sonthal ... 344 

Bam-soonder Sandyal v. Gopessur 

Mostofee ... 685 

Bam Snbhag Das v. Gobind Prasad 107 
Bam Snkh Bhnnji v. Brohmoji Dasi 381 
Banchhod Varajbhai v. The Munici- 
pality of Dakor ... 272 
Banchodji r. Lallu ... 34 
Banee Khajooroonnissa v. Mirza Sai- 

foollaKhan ... 446 

Banjit Singh v. Sheo Prasad Bam ... 193 
Baaik Lai v. Gajraj Singh 282, 480 

Batanji Hormasji Bottlewalla v. Ed- 

alji Hormasji Bottlewalla ... 219 
Batan Erishen Poddar v. Baghoo- 

nath Shaha ... 629 

Batansi Kalian ji and 6 others . 6, 12 
Beg t\ Kastya Bama ...251 

Bobarts v. Harrison 3, 631 

Robert and Charriol v. Lombard 146, 339 
Bobinsonv.AyyaKrishnamachariyar 238 
Budra Bant Surma Sircar v. Nobo 

Kishore Surma Biswas ... 45 

Rung Lall Misser v. Tokhun Misser. 614 
Bongo Bujaji v. Babaji ... 211 

Kongo Lall Mundul v. Abdool Guf - 

foor ... 532 

Bupa Jagshet v. Krishnaji Govind 620, 

... 562 
Bup Kishore v. Mohni ... 19 

Bup Singh v. Mukhraj Singh ... 671 



8 page. 

Sabhanatha v. Lakshmf *.. 668 

Sabapathi Chetti v. Subraya Chetti. 274 
Sabapati Chetti v.C hedumbara C hetti 19 
Sadagopa v. Jamuna Bhai 804, 305 

Sadha v. Mnssumat Bhagwani ... 564 
Sah Mukhun Lall Panday v. Sah 

Koondun Lall ... 297 

Sakharam Dikshit v. Ganesh Sathe... 484 
Sakharam Govind Kale v. Damodar 

Akharam Gngar , ... 617 

Sakharam Vithal Adhikari v. The 

Collector of Batnagiri ... 319 

Sama Bayar o. Annamalai Chetti ... 463 
Sangram Singh v. Bnjharat 8ingh... 667 
Saniivi v. Errapa 378, 404, 474 

Sankara Aiyan v. Lingam Aiyan ... 163 
Saroda Pershad v. Pahali Mohan ti... 212 
Saroda Pershad Chatto Padhya v. 

Brojonauth Bhnttachargee 69, 479 
Saroda Soondury Dossee v. Doyamo- 

yee Dossee 496, 546 

Sarubaikom Jistmal v. Bapu Narhar 

Sohoni ... 216 

Satoowree Singh v. Kristo Bangal ... 374 
Seagram v. Tuck ... 77 

Seetul Chunder Bhuttaoharjee v. 

Judoonath Bose ... 273 

Seetul Singh Sooruj Buksh Singh... 606 
Seru Mohun «. Bhagoban Din Pan- 

dey ... 627 

Seshav. Seshaya ... 178 

Sethu v. Nayana ... 407 

Settiappan v. Sarat Singh 294, 301 

Sevu v. Muttusami ... 526 

Shadee Lai v. Musumat Bhawanee... 330 
Shaikh Ewas v. Mokuna Bibi ... 284 
Shaikh Mahomed Ansur v. Shaikh 

Sefatoollah ... 24$ 

Shaik Moosa v. Shaik Essa 130, 132, 166 
Shambhu Nath Nath v. Bam Chan- 
dra Shaha ... 166 
Sham Churn Auddy v. Tariney 

Churn Banerjee ... 224 

Shami Mohammed v. Mohammed Ali 

Khan ... 28 

Sham Kant Banerjee v. Baboo Go- 

pallal Tagore ... 108 

Sham Karan v. Piari ... 637 

Sham Lai v. Kanahia Lai ... 652 

Shapurji Jahangirji v. Superinten- 
dent of Poona City Jail 417, 437 
Shapurji Nowroji Pochoji v. Bhikaiji 60 
Sharat Sundari Dabia v. Bhoba Per- 
shad Khan Chowdhuri ... 569 ' 
Sheikh Akbar v. Sheikh Khan ... 394 
Sheikh Golam Ali v. Kazi Mahomed 
Zahur Alam ... 220 



Digitized by 



Google 



xMii 



LIST 09 CAStS. 



8 PAGi. 

Sheikh Khoor Shed Hosseinv. Nub- 
bee Fatima ... 649 
Sheo Gholam Sahoo v. Rahut Hob- 

sein ... 650 

Sheo Partab Narain Singh v. Sheo 

Gholam Singh 84, 85 

Sheo Prasad v. Anrndh Singh 119, 665 
Sheo Prasad v. Udai Singh 455, 524, 

561,566 
Sheo Sohye Boy v. Luohmeshur 

8ingh 530, 549 

Sheth Kahandas Narandas v. Dahi- 

abhai 98, 109, 110 

Shib Dat v. Kalka Prasad 172, 412, 696 
Shib Lai v. Ganga Prasad 514, 589, 691 
Shib Lai v. Eadha Kishen ... 681 

Shiboo Narain Sing v. Madden Ally 295 
Shiro Kamari Debi v. Govind Shaw 

Tanti ... 561 

Shivagunga 537, 539 

Shiyalingaya v. Nagalingaya ... 126 

Shivaram v. Narayan and others ... 868 
Shootenath Mookerjee v. Obhoy 

Nund Boy 528, 615, 618 

Shrinivas Udpirao v. Reid ... 219 

Shumbhoo Nath Shaha v. Guru 

Churn Lahiri ... 16 

Shunmugam v. Moidin ... 116 

Shurnomoyee v. Pattarri Sirkar 350, 400 
Shurnomoyee Dasi v. Srinath Das... 523 
Siddhessur Dutt v. Sham Chand ... 468 
Sidhojirav v. Naikojirav ...498 

Sied Mohidin Sahib ... 40 

Sikher Chund v. Dnlputty Singh 321, 428 
Sirdar Khan v. Buldeo Singh ... 517 
Sirdar Sainey v. Piran Singh ... 72 

Sitaram Yasudey v. Khanderav Bal 

Krishna 7, 262 

Sitla Din v. Sheo Prasad ... 673 

Sivarama v. Rama ... 628 

Sivarama v. Subramanya ... 295 

Sivarama Pillai «>. Turnbull ... 277 

Skinner v. Orde ... 26 

Sobhag Chand Gulab Chand v. Bhai 

Chand ... 656 

Sobha Pandey v. Sahodra Bibi ... 428 
Sohan Lai v. Karim Bakhsh ... 691 

Soshi Bhusan Chand v. Grish Chun- 

der ... 623 

Sondaminee Dossee v. Maharaja Dhe- 

raj Mahatab Chand Bhadoor ... 86 
Sreedhur Dey v. Adoyto Kurmokar. 226 
Breekishen v. Ram Kristo ... 196 

Sreemant Lall Ghose v. Shama Soon- 

duree Dossee ... 317 

greemutty Chundermonee Dassee v. 

Santo Moonee Dassee ... 334 



B PAGB. 

Sreenath Chatterjee v. Kylash Chun- 

der Chatterjee ... 681 

Sreenath Gooho v. Yusoof Khan 698, 693 
Srihary Mundul v. Murari Chow- 

dhry ... 646 

Srinath Gangopadhya v. Mahes 

Chandra Roy ... 467 

Srinath Kur v. Prosunno Kumar 

Ghose 538, 54S 

Sri Raja Satraoherla v. Sri Raja Se- 

tarama ... 40S 

Sri Yiswambhara v. Sri Saradhi 

Charana 201, 353 

Stephen v. Stephen ... 498 

Stowell v. Billings ... 696 

Subramaniam Chetti, K. v. T. Subra- 

maniam Chetti ... 544 

Subramaniya Ayyer v, Ramaohan- 

dra Rau 201, 206 

Sukh Nandan v. Renniok ... 129 

Sukho Bibi v. Ram Sukh Das ... 455 
Sunkur Pershad v. Goury Pershad... 882 
Sunraj Kauri v. Ambika Prasad ... 618 
Suput Singh v. Imrit Tewari ... 194 

Surju Prasad Singh v. Khwahish Ali 46 
Suryanna v. Durgi 303, 304, 311 

Syad Mahomed v. Syad Abedoollah. 652, 

661 
Syud Shah Alleh Ahmed v. Mussa- 
mut Pibee ... 69 



Tammirazu Ramalogi v. Pantina 

Narsiah ... 489 

Tanner v. Heard ... 76 

Tapling v. Jones ...219 

Taraohand Megradj v. Kashinath 

Trimbak ... 651 

Taranath Dutt v. The Collector of 

Sylhet ... 271 

Tarini Das Bandyopadbya v. Bishtoo 

Lai Mukhopadaya ... 678 

Tarini Prasad Ghose v. Ram Krish- 
na Banerjee ... 381 
Tata v. Ramaohandra ... 653 
Tawangar Ali v. Kura Mai ... 431 
Teagaraya Mudali v. Mariappa Pil- 

lai 8, 177 

Thackersey Dewraj r. Hurbhum Nur- 

sey ... 68 

Thakoor Kapilnauth Sahai Deo v. 

The Government ... 89 

Thakur Das v. Shadilal ... 661 

Thakur Prasad v. Partab 385, 495 

Thakurya v. Sheo Singh ... 894 

Thir Sing v. Venkataramier 81, 40 



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LIST OF CASES. 



xli 



Tillak Chand-Hindumal v. Jitamal 

Sudaram 153 267, 

Timal Kuari v. Ablakh Rai ... 105 

Tiruchurna Perumal Nadan v. San- 

guvien ... 583 

Titn Bibi v. Mohesh Chunder Bag- 

chi ... 482 

Tonoo Ram Gossain r. Mohessur 

Gossain ... 304 

Toolsee Ram Doss v. Mahomed Afzul 305 
Tor Abali Khan v. Nilruttun Lai ... 383 
Toree Mahomed v. Mahomed Mabood 

Bnx 171, 676, 679 

Treepoorasoondery Dosse v . Deben- 

dronath Tagore ... 485 

Trilochnn v. Nobokishore Gnttuck... 433 
Tribhovan Gangaram v . Amina ... 397 
Trimalrav Raghavendra v. The Muni- 
cipal Commissioners of Hubli... 452 
Trimbak Bawa v. Narayan Bawa ... 311 
T. Sivithri Andarjanom v. M. Vasu- 

devan Nambudripad ... 429 

Tnkaram v. Satvaji Khanduji ... 632 
Tukaram v. Sujangir Guru ... 64 

Udit Narain Singh v. Harogouri Pro- 
sad ... 624 



Udit Singh v. Padarath Singh 283, 480 
Ugrah Nathtf. Laganmani 413, 688 

Uma Shankar v. Kalka Prasad 430, 435, 

529 
Umbicka Churn Goopta v. Madhub 

Ghosal ... 576 

Umesh Chunder Roy v. Raj Bullubh 

sen ... 292 

Ummer Kutti v. Abdul Kadar .. 180 

Umr-un-nissa v, Muhammad Yar 

Khan ... 556 

Unkar Das v. Narain ... 281 

Unnoda Churn Dass Biswas v. Mo- 

thura Nath Dass Biswas ... 482 

Unnoda Persad Roy t\ Sheikh Koor- 

pan Ally 10, 644 

Unnoda Persaud Mookerjee v. Kristo 

Coomar Moitro ... 106 

Upendra Lai Mukhopadhya v. The 

Collector of Rajshahye ...474 



Vadlamudi Pichina v. Tanuru Ap- 

padu ... 178 

Yalia Tamburatti v. Vira Rayan 177, 206 
Vane v. Vane ... 148 

Vasndeva v. Chinnasami ... 85 

Velayuthan v. Laksmana ... 291 

Vellayaf. Jaganatha ... 673 



Vencataramana v. Srinivasa ... 169 

Vencatasawmy Naidu v. Vencataraju 

Naidu ... 101 

Venkapa v. Chenbasapa ... 289 

Vencatachala v. Appathorai 287, 290, 298 
Venkata Narasiah v. Subbamma 304, 312 
Venkatapathi v. Subramanya ... 816 
Venkatarayalu r. Narasimha 666, 678 
Venkatarayudu r. Nngadu ... 605 

Venkata Reddy r. Lister ... 2-fct 

Venkatasubbaramayya v. Surayya... 489 
Venkatasubha Pattar r. Giri Ammal 89 
Venkateswara lyen v. Shekhari Var- 

ma ... 139 

Venkatrav Bapu v. Bijesing Vithal 

Sing ... 171 

Venubai The v. Collector of Nasick.. 603 
Vijayasami v. Periasami ... 546 

Virapillay v. Muruga ... 48 

Viraragava v. Krishnasami 437, 440 

Virarama v. Annasami . . . 694 

Virasami v. Athi 672, 686 

Virasami v. Lubba ... 58 

Virasami Mudali v. Ramasami Ma- 

dali 379, 456 

Viravsami Naik v. Sayambabay Sahi- 

ba ... 277 

Visalatchi Ammall v. Sivasankara 

Taker ... 694 

Vithal Janardanr. Vithojirav Putla- 

jirar 4, 633 

Viziarama Razu r. The Secretary of 

State for India in Council ... 67 
V. K. Gujar r. V. D. Barve 85, 270 

Vythilinga Pillai r. Thetchanamurti 

Pillai 399, 457, 460, 461 



Wajibun r. Kadir Bnksh ... 268 

Watson r. Woodman ... 189 

Wazir Mahton v. Lulit Sinprh ... 603 

Webor Ali v. Gaddai Behari ... 389 

Whitehouse r. Fellowes ...204 
Womesh Chunder Goopto v. Raj 

Narain Ray ... 483 
Wooma Moyee Burmonya v. Ram 

Bufesh Chettangee ... 323 



Yeknath Ramchandra v. Waman 

Brahmadev ... 46 

Yonng v. Mangala Pilly Ramaiya ... 159. 
Yusuf v. Sirdar ...688 

Zahur Khan v. Bakhtawar ... 653 

Zaibulnissa Bibi v. Kulsum Bibi ... 33 
Zulfikar Husain v. Munna Lai. 20,393 



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ACT No. XV OF 1877. 

As amended by Acts Ho. Ill of 1879 and Ho. Till of 



Passed by the Governor General of India in Council. 

(Act No. XV of 1877 received the assent of the Governor 
General on tlie 19th of July, 1877 : Act No. XII of 
1879 received the assent of the Governor-General on 
the 29th of My, 1879, and Act No. VIII of 1880 
received the assent of the Governor-General on the 
12th of March, 1880.) 



An Act for the Limitation of Suits, and for other 

purposes. 

Whereas it is expedient to amend the law preamble, 
relating to the limitation of suits, appeals and 
certain applications* to courts ; and whereas it 
is also expedient to provide rules for acquiring 
by possession the ownership of easements and 
other property ; It is hereby enacted as fol- 
lows : — 

(a) The above preamble distinctly shows that the The Act is not 
Act is not intended to apply to all, but to certain appli- ply to all *pp& 
cations to courts. The third division of Schedule II 

* By bill No. 23 of 1886, introduced into the Imperial Council on 
the 1st September 1886, it has been proposed to repeal Articles 171, 
171*, 171* of the second schedule and to modify Article 171* by 
substituting " or section 582 of the Code of Civil Procedure" for "of 
the same code." The bill also proposes to extend the provisions of 
section 5 applicable to an appeal, to the objection and notice by 
respondent under section 561 of the C. P. C. and also to extend the 
provisions of the Limitation Act applicable to an application and 
order under section 103 of the C. P. C, to an application for am 
order, and to an order, for setting aside a dismissal under section 
381 of the C. P. 0. The repeal of the words " within 30 days from 
the date of the order" in sections 599 and 601, has also been proposed. 



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2 PREAMBLE. 

which deals with applications, shows that every Article 
therein contained, No. 178 only excepted, specifically 
relates to some case pending or already decided. Article 
178 must be construed, with reference to the wording of 
the other articles, and can relate only to applications 
Does not apply ejusdem generis, and therefore not to an application for 
wonf or probate! probate. In the previous Limitation Acts XIV of 1859, 
and IX of 1871, there was no such Article as 178. It is 
observed, that, had the Legislature intended to apply for 
the first time a period of limitation to such applications, 
there would have been some provision in regard to them 
similar to that contained in section 2, in respect of suits 
for which the new Act prescribes a shorter- period of 
limitation than was previously allowed. In the matter of 
the petition of Ishan Chunder Roy.W 
Does not apply (b) In Janaki v. Kesavalu,* 2 ) Turner, C. J., observes, 
Religious En- that the Limitation Act could not have been intended to 
and appoint- apply to an application for probate, an application under 
trustee*. the Religious Endowments Act, an application for appoint- 

ment of new trustees, Ac, and that, if it was held that 
Article 178 would apply to all applications for which no 
period of limitation is provided, it would lead to most 
inconvenient results. This was in accordance with the 
decision of the Bombay High Court in Bai Manekbai v. 
Manekji Kavasji/ 3 ) in which Westropp, C. J., observes, 
that an examination of the schedule relating to " Appli- 
cations" shows, that the applications therein contem- 
plated are such as are made under the* Civil Procedure 
Code. 
Application to (o) In Bhoyrub Dass Johurry v. Doman Thakoor,( 4 > 
and roitoreit to it was held, in May, 1879, that the application of the 
the board. legal representative of a deceased plaintiff for the revival 

of the suit was governed by Article 178, and had three 
years. In March, 1880, the same question had to be dealt 
with in Govind Chunder Goswami v. Rungun Money < 5 > 
in which, decree dated 6th December, 1869, established 

(1) I. L. E., 6 Calo., 707. I (3) I. L. R., 7 Bom., 213. 

(2) I. L. E., 8 Mad., 207. | (4) I. L. E., 5 Calc, 139. 

(6) I. L. E., 6 Calc, 60. 



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PRBAJtfiLX. d 

tbe will and declared that the trusts ought to be per- 
formed, and directed certain enquiries to be made for the 
purpose of settling a scheme by which to cany out the 
trust. Before the scheme was finally approved and 
settled and while the proceedings were pending the 
case was struck off the board for want of prosecution, on 
the 14th August, 1875. No steps were taken to have it 
restored. In 1879 both the plaintiff and defendant 
died. In the same year, the heirs of the plaintiff insti- 
tuted a suit against the administrator of the defendant 
for the purpose of having the decree in the original 
suit carried out. This suit was dismissed by the court 
of first instance under section 13 of the Code of Civil 
Procedure, but the appellate court, holding that the 
original suit was subsisting and might be reconstituted, 
directed that the plaintiffs should be allowed to amend 
their plaint by putting it into the form of a petition 
under section 372 of the code. On a petition by the 
plaintiffs praying that the original suit might be re- 
vived and restored to the board, it was held that the 
legislature did not intend to deal with such applications 
under the Limitation Act, and that even if Article 178 
was applicable, the application would not be barred, 
limitation running from the time when the suit was 
allowed to be reconstituted. 

(d) In the above case, the court observe that the Does not affect 

. . . applications for 

legislature did not intend to include in the Limitation change of attor- 

. » ney, «c, and 

Act every application to a court with reference to its court's power 

to add parties. 
own list of causes, such as applications to transfer a case 

from one board to another, to transfer a case to the bottom 
of the board, change of attorneys, and so forth. In the 
Oriental Bank Corporation v. Chariol,^) it was held that 
the court's power to add parties is not affected by limita- 
tion. 

(e) In Robart t>. Harrison/ 2 ) Wilson, J. observes, " The The act of an 

. _ _ arbitrator in 

preamble deals only with ' applications to courts, and I handing an 
think the act is limited accordingly. It is also legitimate, Pj^J^ 1110 " *° 

application 
(1) I. L. B., 12 Calc, 642. | (2) I. L. E., 7 Calc, 888. wifhin this Act. 



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4 PREAMBLE. 

I think, to consider the character of the series of appli- 
cations enumerated, in order to ascertain what an appli- 
cation means : see Be Ishan Ch under Boy (8, C. L. R., 
52). Now, in the case of all the other applications 
mentioned in the schedule, the application is one which 
the court has to deal with judicially by making an order 
in accordance with the application or dismissing it. I 
think I should have to do great violence to the ordinary 
meaning of words, and to disregard all the indications 
afforded by the Act itself, if I were to hold that the act 
of an arbitrator, in handing an award to the proper officer 
to be filed, was an application within the meaning of the 
Limitation Act." 
Attorney's ap- (f) In Abba Haii Ishmail v. Abba Thara,* 1 * an attor- 

plicationto r* 

court calling ney made an application under Rule 149 of the Common 

show cause why Law Rules of the Supreme Court of Bombay, that his 

pay hi« bill of client should show cause why he should not pay the 

tected by any" balance shown by the Taxing Master's allocatur to be due 

tion. in respect of his bill of costs, and why in default of such 

payment, attachment should not issue against his person 

and property. It was held that such an application, not 

being a suit within the meaning of Act IX of 1871, was 

not barred by any law of limitation in British India. 

This ruling is dated July, 1876. 

Limitation Act The Bombay High Court, following the decision of the 

does not apply «r -o » o 

to application Madras High Court, held that the provisions of the 

for sale certifl- ° ... 

cate and to ap- Limitation Act do not apply to applications to a court to 

plications to do . _ . 5 ,. 

what the court do what it has no discretion to refuse, nor to applications 

has no discre- . , ... 

tion to refuse, for the exercise of functions of a ministerial character, and 
that Article 178 is not applicable to applications for 
certificates of sale. Vithal Janardan v Vithojirav Putlaji- 
rav>( 2 ) Kylasa Gounden v Bamasami Aiyan.( 8 > 

(1) I. L. R., 1 Bom., 258. | (2) I. L. R., 6 Bom., 586. 
(3) I. L. R., 4 Mad., 172. 



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SBC. 1] PART I. — PRELIMINARY. 5 

PART I. 

PRELIMINARY. 

1. This Act may be called "The Indian shontitie. 
Limitation Act, 1877 :" 

It extends to the whole of British India ; but Extent of Act. 
nothing contained in sections two and three or 
in Parts II and III applies — 

(a) to suits under the Indian Divorce Act,* 

or 
(6) to suits under Madras Regulation VI 
of 1831 ; t 
and it shall come into force on the first day commence- 

* ment. 

of October, 1877. 

(a) This Act came into force on the 1 st day of October, Generally all 

suits and pro- 

1877, from which date Act IX of 1871 ceased to operate, ceedingscom- 

~. ,. „ _ _. , . . menced after 

(xenerally all suits and proceedings commeoced after that i&t October 1877 

-ii .. -i-i, i * v ii must be govern- 

date must be governed by the new Act. *• In all matters ed by the Act 

of substantive law, the law of limitation in force at the 

period of the arising of the right, governs. In all cases 

of adjective law, the law of limitation in force at the 

period of enforcement, governs. In some cases, questions 

of substantive law appear in the disguise of questions of 

adjective law. Execution however is a proceeding to 

enforce a decree of a court, and comes under the head of 

purely adjective law. Such being the case, clearly the 

* The Indian Divorce Act (IV of 1869) relates to Christians and 
applies to marriages contracted under Act III- of 1872. Unreason- 
able delay in presenting a petition for dissolution of marriage is a 
ground for disallowing the petition under the Divorce Act. 

f Madras Regulation VI of 1881 is intended to prevent misappro- 
priation of emoluments annexed by the State to hereditary village 
and other offices in the Revenue and Police Departments ; and to 
maintain the due efficiency of those offices. Claims to such offices 
or to emoluments annexed thereto are cognisable by the revenue 
authorities (Sloan's Code, page 46%.) 



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PART I. PRELIMINARY. [8EC. 1 

law prevailing at the time of the application must govern." 
Pasupati Latchmia v. Pasupati Muthambhatlu.W The law 
of limitation governing a suit for debt is that law which 
is in force at the date of its institution. Mohesh Lai t?. 
Busunt Kumaree.t 2 ) 

(b) Tiie Civil Procedure Code X of 1877, which 
came into force on the 1st October, 1877, contained a 
clause to the effect "nothing herein contained shall 
affect the procedure prior to decree in any suit instituted 
or appeal presented" before October, 1877. In order to 
arrive at the true construction of the new Civil Pro- 
cedure Code, it was considered necessary to keep in view 
the provisions of section 6 of the General Clauses Act I of 
1868, which provides that " the repeal of any Statute, 
Act, or Regulation, shall not affect anything done, or any 
offence committed, or any fine or penalty incurred, or any 
proceedings commenced before the repealing Act shall have 
come into operation." 
Observations of (c) In the matter of the petition of Ratansi Kalian ji 
on the erfect oi and 6 others/ 8 ) Westropp, C. J., observes, " so far as the 

the saving . 

clause in the re- enactment preserves 'anything done previously to the 
repealing Act taking effect, it merely embodies the law 
as previously declared by eminent judges : for example, 
Lord Tenterden in Surtees v. Ellison (9 B. and C, 750 ; 
see p. 752) said : — * It has long been established that, 
when an Act of Parliament is repealed, it must be 
considered (except as to transactions past, and closed) as if it 
had never existed. That is the general rule ; and we must 
not destroy that by indulging in conjectures as to the 
intention of the legislature.' That statement of the 
rule is adopted in totidem verbis by Lord Justice Turner 
in Grisewood and Smith's case. (4 De G. and J. 544 ; 
see p. 557). The same clause in the General Clauses Act 
in preserving • proceedings commenced' before repealing 
Acts come into operation, seems to have been penned in 
the spirit of the doctrine laid down in 1837 by Lord 

(1) I. L. R., 1 Mad., 62. | (2) I. L. R., 6 Calc, 340. 
(3) I. L. R., 2 Bom., 162. 



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SEC. 1] PART I. — PRELIMINARY. 7 

Denman and his colleagues of the King's Bench in 
Hitchcock v. Way (6 A and E 943, 951), when they said 
that they were • of opinion in general that the law as it 
existed when the action was commenced must decide the 
rights of the parties in a suit, unless the legislature 
expresses a clear intention to vary the relation of litigant 
parties to each other.' " 

(d) To apply the new Limitation Act as if its Repeal^* a sta- 
predecessors had not existed, would lead to injustice and away vested 
deprive persons of their vested rights, and the Act 
therefore should not be given any retrospective effect. 

The repeal of a statute cannot, without express words, or 
clear implication to that effect in the repealing Act, 
take away a right acquired under the repealed statute or 
other enactment while it was in force. Act IX of 1871 
contained no provision similar to those to be found in the 
second clause of section 2 of Act XV of 1877, saving 
titles already acquired by the repealed Acts. Still the 
Bombay High Court in Sitaram Vasudev v. Khanderav. 
Bal Krishna^) held that although Act IX of 1871, section 
2, expressly repealed Regulation V of 1827, it did not 
affect- any prescriptive right or title which had been 
acquired under that regulation before Act IX of 1871 
was passed. 

(e) Act IX of 1871 came into force on the 1st of July, Postponement 
1871, and section 1 provided against the application of the and 3 and Paru 
provisions contained in sections 2 and 3 or in Parts II Actixof i87i 
and III to suits instituted before the 1st of April, 1873. led to conflict- 
Postponement of the operation of the new Act was in- 
tended to give timely notice of its provisions, and it futher 
indicated that from that day, namely, 1st of April 1873, 

the Legislature intended that the new Act should govern 
all suits and causes of action which had accrued before 
that day. Section 2 of Act IX of 1871 unconditionally 
repealed its predecessor, X1Y of 1859, except section 15, 
from the 1st day of April, 1873. The Bombay High 
Court in Abdul Karim v. Mauji Hansraj(*) observe that 

(1) I. L. B., 1 Bom., 886. | (2) I. L. B., 1 Bom., 807. 

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8 PART I. — PRELIMINARY. [8KC. 1 

the law of Limitation applicable to suits subsequently 
brought upon causes of action which had acorued 
previously to the day to which the operation of Act IX 
of 1871 stood deferred, and which had not been barred 
under previous enactments as well as to suits upon causes 
of action which accrue afterwards, is Act IX of 1871. 
Bombaj High (f) In Chinnasami Iyengar v. Gopalacharya/ 1 ) suit was 
from the Mad- filed on the 26th January, 1874, on a pro-note of 16th 

ras High Court. 

January, 1871, payable on demand. The High Court held 
that the suit was barred because the period of limitation 
ought to be computed as it would have been under Act 
XIV of 1859, from the date of the note and not from tht 
time of demand, as prescribed by Article 72 of Act IX of 
1871. The claim in this case had not been barred under Act 
XIV of 1859 on the 1st of April, 1873, when Act IX of 
1871 came into force, as it had been the case in the cases 
reported at pages 283, 288 and 298 of the same volume, in 
all of which the plaintiff's claims had become barred before 
the 1st of April, 1873, and each defendant had already 
acquired a right under Act XIV of 1859 to treat the 
claim against him as barred. Westropp, 0. J., in Abdul 
Karim,* 3 ) observes with reference to the ruling in Chin- 
nasawmi Iyengar's case " it is, indeed, in a certain sense, 
true, that when once time has commenced to run under a 
law of limitation, it cannot be stopped. But that rule is 
dependent on the continuance in force of the enactment 
under which time has been running. If the statutory 
pressure be removed by the total repeal of the Act, there 
is nothing to cause time to run against the creditor, un- 
less the legislature re-enact the old, or substitute some 
new rule of limitation. The latter course, we think, it 
did adopt for such suits as that of Chinnasami Iyengar v. 
Gopalacharya by the 72nd Article of Schedule II of Act 
IX of 1871." 
Subsequent de- (ft) In Teagaraya Mudali v. Mariappa Pillai/ 8 ) plain- 

cisionsofthe .2 j • o x , van a * x 

Madras High tiff sued in September, 1874, for money secured on a 



Court. 



(1) 7 Mad., H. C. Rep., 392. | (2) I. L. E., 1 Bom., 803. 
(3) I. L. R., 1 Mad., 264. 



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SIC. 1] PART I.— PRELIMINARY. 9 

registered bond of August, 1867, repayable on the 10th 
April, 1868. The plaintiff admitted payment of interest 
by defendant in November, 1868, and April, 1870. The 
Lower Appellate Court rejected the suit as barred by Act 
XIV of 1869, holding that payments made before Act IX 
of 1871 came into force would not give a new period 
under section 21, which had no retrospective effect. The 
High Court, referring to Chinnasami Iyengar v. Gopala- 
charya/ 1 ) held in March, 1877, that as Act IX of 1871 did 
not expressly require that the payment should have been 
made after the date on which it came into force, payment 
of interest made before that date, which was a mode of 
extending the period under that Act, was sufficient to take 
the case out of the statute. In Madhavan v. Achuda,**) 
plaintiff sued in November, 1875, on a pro-note of Novem- 
ber, 1871, payable on demand. The District Judge rejected 
the suit as barred. The suit was instituted after 1st of 
April, 1873, when Act IX of 1871 had come into full ope- 
ration, and the old law had been altogether swept away, 
and the only guide as to the survival of the remedy by 
action was section 4 of Act IX of 1871, and its Appendix, 
schedule II, which allowed to a pro-note on demand three 
years time counted from the date of demand. Innes, 
Offg. C. J., observes, "In the face of this positive 
rule of law, being the only existing rule at the date of 
the institution of the suit to guide the court in deter- 
mining whether the action was barred or not, it appears 
to me that there is no room for the discussion of theories 
as to whether, when time has once begun to run, the 
course of it can be interrupted by a new enactment, and 
the term prescribed by the old law made to give place to 
a new term springing from a fresh starting point." 

(h) With regard to applications for execution of What Limita- 
decrees presented after 1st of April, 1873, and up to the govern* exeou- 
introduction of the new Act of 1877 in suits instituted trans, presented 
before that date, it was doubted whether they were govern- 1878, and after 
ed by Act XIV of 1859 or IX of 1871. It was also doubted was repealed in 



(1) 7 Had., H. C. B., 892. | (2) I. L. B., 1 Had., 302. 



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before that date. 



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10 PART I. PRELIMINARY. [8*C* 1 

whether applications for execution presented in such 
suits after the introduction of the Act of 1877 were 
governed by that Act or by Act XIV of 1859, while the 
special provisions contained in section 1 of Act IX of 
1871 had been repealed. On this point the decisions of 
the High Courts have been conflicting, and it was owing to 
the construction put upon the ruling of the Privy Council, 
dated June, 1881, in Mungul Pei-shad Dichit,^) that a 
thing which applies to an application in a suit, applies 
to the suit, and that an application for the execution of a 
decree is an application in the snit in which the decree 
was obtained, and that as regards suits instituted before 
the 1st of April, 1873, all applications therein are excluded 
from the operation of Act IX of 1871. This ruling was 
based entirely on the special provisions of Act IX of 1871. 
Even after this Act was repealed by Act XV of 1877, which 
contained no such provision, the Calcutta High Court held 
in some cases that execution applications made after XV 
of 1877, in decrees passed before it came into operation, 
were governed by Act IX of 1 871 which applied to the 
suit, while the Madras High Court held otherwise, 
c. h. held in (i) In Unnoda Persad Roy i?. Sheikh Koorpan Ally/*) 

thS^Act ix of application for execution was made in June, 1869, and 
exec§Son appii- again in August, 1872, after IX of 1871 was in force. 
daring its oper- ftotice under Section 216 of Act VIII of 1859 was issued 
upon the judgment debtor. When a third application was 
made in June, 1875, it was held on the plea of the judg- 
ment debtor that the decree had been barred when the 
second application was made in August, 1872. Follow- 
Bombav do- ing the decision in Jibhai Mahipati v. Parbhu BapuW it 
comber 1876. was further held that the limitation prescribed by Article 
167 of Act IX of 1871 governed all applications for 
execution made during the* time that Act was in force. 
In the Bombay case, West, J., observes, " It may be rather 
hard upon the judgment creditor, in this case that, although 
he was doing all that the old law required until the new 

(1) I. L. B., 8 Calc, 51. | (2) I. L. R., 3 Calo., 518. 
(3) I. L. R., 1 Bom., 59. 



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BMC. 1] FABT I. PRELIMINARY. U 

htw came into force, and, indeed, for some time afterwards, 
he should suddenly find himself barred by a provision 
of a much more stringent character than that of the old 
law, bnt the change was no doubt made advisedly ; and 
in an analogous case, Abel v. Lee. (L. R. VI., C. P. 365), 
Willes, J., said : — ' I utterly repudiate the notion that it is 
competent to a Judge to modify the language of an Act 
of Parliament in order to bring it into accordance 
with his views as to what is right or reasonable.' " 

(j ) In Mungul Pershad Dichit v. Grija Kant LahiriW JJJJ. *g» ^ 
the decree was dated July. 1851, and it was under ezecu- execution appii- 

J ' cation in salt 

tion from May, 1861, and the last application for execution Sf Xme A°riL 
was dated 22nd September, 1877. The High Court held £^*£ g* 
that the application of the 5th September, 1874, brought Limitation Act 

which governed 

the case under the provisions of Act IX of 1871. The S* • u i t » •*•- 

* XTv of 1669. 

Privy Council reversing the decision in May and June, 
1881, held that a thing applying to an application in a 
suit applied to the suit, and that an execution application 
was an application in the suit in which the decree was 
obtained, and that as regards suits instituted before the 
1st of April, 1873, all applications therein are excluded 
from the operation of Act IX of 1871. With regard to 
several cases in which applications for execution in suits 
instituted before 1st of April, 1873, have been treated 
as governed by Act IX of 1871, their Lordships remarked 
that the point was assumed rather than decided. 

The above ruling was based entirely on the special 
provisions of section 1 of Act IX of 1871, that nothing 
contained m section 2 or in Part II should apply to suits 
instituted before the 1st of April, 1873. 

(k) Iu Behaiy Lall v. Goberdhun LallW the decree Nerertheiei* 
holder first sought to execute his decree, dated January, the ruiingof p. 
1877, by an application dated May, 1878. He made his to *an appuS 
second application in June, 1881. Mitter, J., held that when Act n'ot 

IftTl Yutfl tinmi 

although the Act of 1877 contained no provision corres- repealed, to exe- 
ponding to that of section 1 of the Act of 1871, the Privy janl^'IaV* 
Council having ruled that all applications for exe- 

(1) I. L. B., 8 Cak>., 61. | (£) I. L. E., 9 Calc, 446. 



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12 PART I. — PRELIMINARY. [iBEC. 1 

cation are applications in the suit which resulted in the 
decree, the application of 2nd June, 1881, must be con- 
sidered to have been made in a proceeding which com- 
menced before Act XY of 1877 came into operation, and 
that under section 6 of Act I of 1868 (the General Glauses 
Act), the repeal of the Act of 1871 by the Act of 1877 cannot 
affect any proceeding commenced before the repealing 
Act came into operation. He further observed that the 
rule that Acts relating to procedure, from the nature of 
their subject, apply to all pending proceedings from the 
date of their operation, is confined only to procedure in 
courts of justice, no way prejudicing any of the parties to 
the suit. In holding so, he followed the decision of 
Westropp, 0. J., in Batansi Kalianji< 1 > in which a majority 
of the Full Bench held, in October 1877, that a judgment 
debtor imprisoned in satisfaction of decree against him 
under Act VIII of 1859, which entitled the decree holder 
to incarcerate him for two years, is not entitled to be 
released on Act X of 1877 coming into operation, which 
provided against incarceration for more than six months. 
Mitter, J. doubt- (\) When in March, 1883, the same question arose 

ed the correct- x ' . 

nees of his own before another Division Bench (Mitter and Field, J. J.), in 

decision in the 

above case, in Radha Prosad Singh v. Sundur Lall (*) it refused to 

March 1888. 

determine the question whether after the passing of Act 
XV of 1877, Act XIV of 1859 could be deemed to still 
govern the execution of any decree whatsoever, though 
Mitter, J., doubted whether the ruling of the Privy 
Council would apply to a case in which application for 
execution was filed after the Act of 1871 had been repeal- 
ed. In this case the application was made on the 28th 
March, 1881, to execute a decree, dated 4th August, 1870, 
passed in a suit filed before 1st July, 1871. 
Another Divi- (m) When another Division Bench (Prinsep and 

•ion Bench held 

in September, Macpherson, J. J.), had to deal with the same question in 
Act of 1877 September, 1884, in Becharam Dutta v. Abdul Wahed< 3 ) 

governed all 

execution appii- it dissented from Behary Lall v. Ooverdhun Lall, and held 

cations made ' 

after its opera- 

ti<m ' (1) I. L. R., 2 Bom., 148. ] (2) I. L. R., 9 Calo., 644. 

(3) I. L. R., 11 Calo., 6». 



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SIC. 1] PART I. — PRELIMINARY. 13 

that Act XV of 1877 governed all applications made from 
the date of its operation. In this case, last application 
-was made in March, 1883, to execute a decree dated 
January, 1872. 

(n) In Pasnpati Latchmia v. Pasnpati Mntham m. h. execution 
Bhatln,^) decree holder sought in 1875 to execute a coming under 
decree in a suit instituted before the 1st April, 1872, the jectire law are 
last application for execution having been made in Feb- Sw prevailing 
ruary, 1872. Although more than three years had elapsed the application, 
from the date of the last application, the District Judge 
being of opinion that the old Limitation Act was appli- 
cable, held that the application was in time, more than 
three years not having elapsed from the close of the last 
proceedings. Holloway, J., held in appeal, that Act IX of 
1871 governed the application. He observes "The 
ordinary rule is very plain. In all matters of substan- 
tive law, the law of limitation in force at the period of 
the arising of the right, governs. In all cases of adjec- 
tive law, the law of limitation in force at the period of 
enforcement, governs. In some cases, questions of sub- 
stantive law appear in the disguise of questions of adjec- 
tive law. Execution, however, is a proceeding to enforce 
a decree of a court and comes under the head of purely 
adjective law. Such being the case, clearly the law pre- 
vailing at the time of the application, must govern. 
Here that law is the new Limitation Act, and the pro- 
ceeding is therefore barred.' ' In Prabhacararow v. Potan- 
nahW it was held in July, 1878, that Act IX of 1871 
governed applications for execution of decrees passed 
before April 1873. 

(O) In Bhikambhat v. Joseph Fernandez W the ap- b. h. held in 
pellant obtained, on the 13th July, 1872, a decree under sec- thatanapptfca- 
tion 53 of Act XX of 1866, on a bond specially registered tion inSepteml 
under section 52 of that Act. He applied for the execution force a decreed 
of it, — first on the 2nd September, 1872, and again on the gorornedbTAot 
18th August, 1875. The court made an order on the 15th 



(1) I. L. B., 1 Mad., 52. | (2) I. L. E., 2 Mad., 1. 
(8) 1. 1* B., 5 Bom., 678. 



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14 TAET I. — PRELIMINARY. [SEC. 2 

NoTember, 1875, dismissing the proceedings on his second 
application for execution. The decree not being folly 
satisfied, he again applied for its execution on the 11th 
September, 1878. The court following the ruling of the 
Privy Council in Mungul Pershad Dichit v. Grija Kant 
Lahiri Chowdhry, held that Act XIV of 1859, and not 
Act IX of 1871, applied to applications in suits instituted 
before the 1st of April, 1873. 

Repefti of aou. 2. On and from that day, the Acts mentioned 
in the first schedule hereto annexed shall be re- 
pealed to the extent therein specified. 

^•JS^lS. But all references to the Indian Limitation 

Act IX of 1871. 

Act, 1871, shall be read as if made to this Act ; 

and nothing herein or in that Act contained 

e»Tinff of titi« shall be deemed to affect any title acquired, or 

already aoqnir- # # J ^ ' 

Act ncoiPisTi, *° revive any right to sue barred, under that 
»ec. ss. ^ c ^ or jmfl^ an y enactment thereby repealed ; 

and nothing herein contained shall be deemed 
to affect the Indian Contract Act, section 25.* 



Agreement without ©on- 25 * An agreement made without con- 
sideration void— consideration is void unless 

(1.) it is expressed in writing and registered under the law 

unless it is in writing for the thne teing m f OTOe for the 
and registered, registration of assurances and is made 

on aooount of natural lore and affection between parties standing 
in a near relation to each other 5 or unless 

(2.) it is a promise to compensate wholly or in part a person 
or is a promise to oompen- who haB d™*! voluntarily done some- 
sate for something done, thing for the promisor or something 
which the promisor was legally compellable to do ; or unless 

(3.) It is a promise, made in writing and signed by the person 
to be charged therewith, or by his agent 
debt barred° 1 by e UmitaZon generally or specially authorised in thai 
** w « behalf, to pay wholly or in part a debt of 

which the creditor might have enforced payment but for the law for 
the limitation of suits. 

In any of these oases, such an agreement is a contract. 



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sxa 2] 



PABT I.—- PEELIM1HAET. 



15 



Notwithstanding anything herein contained, 8 ^ ,or ***{* 
any suit mentioned in No. 146 of the second £ !&*£?££ 
Schedule hereto annexed may be brought with- b^Ltixof*!! 
in five years next after the said first day of 
October, 1877, unless where the period pre- 
scribed for such suit by the said Indian Limita- 
tion Act, 1871, shall have expired before the 
completion of the said five years ; and any other 
suit for which the period of limitation prescribed 
by this Act is shorter than the period of limita- 
tion prescribed by the said Indian Limitation 
Act, 1871, may be brought within two years 
next after the said first day of October, 1877, 
unless where the period prescribed for such suit 

Explanation 1. — Nothing in this section shall affect the validity, 
as between the donor and donee, of any gift actually made. 

Explanation 2. — An agreement to which the consent of the 
promisor is freely given is not void merely because the consideration 
is inadequate ; bnt the inadequacy ef the consideration may be 
taken into account by the Court in determining the question 
whether the consent of the promisor was freely given. 

Illustrations. 
(*.) A promises for no consideration to give H Rs. l.eoo. This is a void 



(ft.) A, for natural love and affection, promises to give his son, B, 
Bs. 1,000 ; A, pots his promise to B into writing and registers it. This is a 
contract. 

(«.) A finds B's purse and gives it to him. B promises to give A Bs. 60. 
This is a contract. 

(&) A supports B's infant son. B promises to pay A's expenses in so 
doing. This is a contract. 

(#.) A owes BBs. 1,000, but the debt is barred by the Limitation Act. A 
signs a written promise to pay B Bs. §00 on account of the debt. This is a 
contract. 

(/.) A agrees to sell a horse worth Bs. 1,000 for Bs. 10. A's consent to the 
agreement was freely given. The agreement is a contract notwit h sta nding the 
inadequacy of the consideration. 

iff.) A agrees to sell a horse worth Bs. 1,000 for Bs. 10. A denies that his 
consent to the agreement was freely given. The inadequacy of the considera- 
tion is a fact which the Court should take into account in considering whether 
or not A's ooneemt was freely given. 



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16 



PART I. — PRELIMINARY. 



[8EC. 2 



Provisions of 
clause 2 are 
new. 



A pro-note of . 
1880 barred 
under XIV of 
1850, iield not 
revived by IX 
of 1871. 



"Any right to 
sue" held to be 
used in widest 
signification 
to extend to 
all applications 
invoking aid of 
Court. 



by the same Act shall have expired before the 
completion of the said two years* 

(a) The provisions contained in the second clause of 
this section are new, and they have been enacted with re- 
ference to the decisions of the courts, on the question, 
whether a statute of limitations repealing its predeces- 
sor would revive a right to sue barred tinder it. 

(b) In Nocoor Chunder Bose v. Kally Coomar GnoseM* 
plaintiff sued in 1875 on a pro-note of 5th August, 
1869, payable on demand, on the ground that he de- 
manded payment in November, 1875. Admittedly no 
payment had been made, either for principal or interest. 
Under Act XIV of 1859, which was silent as to the date 
of the accrual of cause of action on a pro-note on demand, 
the cause of action had been held to be the date of the 
note. But Act IX of 1871, repealing Act XIV of 1859, 
provided for the computation of period from the date of 
demand. The court held that as a suit on it would have 
been barred before IX of 1871 began to operate, the subse- 
quent repeal of the former Act would not revive the 
right to sue. 

(C) The words in this section, " nothing herein shall 
be deemed to revive any right to sue," should be used in 
their widest signification, and will include any application 
invoking the aid of the court for the purpose of satis- 
fying a demand. In Shumbhoo Nath Shaha v Guru- 
churn LahiriW the judgment creditor first sought to 
execute his decree in March, 1873, again in July, 1876. and 
again in February, 1878. The contention was, that the 
application of July, 1876, having been barred by Article 
167 of Act IX of 1871, the third application was not 
entertainable. The lower court rejected the application. 
In appeal it was contended that, as section 2 of the 
Limitation Act (XV of 1877) declares that nothing in 
that Act shall be deemed to affect any title acquired, or 
to revive any right to sue barred under Act IX of 1871, 



(1) I. L. R., 1 Calc, 328. | (2) I. L. E., 5,Calo., 894. 



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BBC. 2] PART I. — PRELIMINARY. 17 

applications to execute decrees which do not come within 
those terms, and which, under Act IX of 1871, are in- 
capable of execution, became revived, the more so as, by 
section 3 of Act XV of 1877, in thejdefinition of the term 
" suit," an application is expressly distinguished from a 
suit. It was held that it was not the J intention of the 
legislature by this Act to revive decrees which were 
dead under the previous laws of limitation, and that the 
Act cannot be applied to any thing which, at the time of 
its becoming law, was barred by the law of limitation 
which it replaced, unless it can be shown that such was 
the express intention of the legislature, and that such an 
inference would be opposed to the principles of the law of 
limitation. This was followed in Nursing Doyal v. Hurry- 
hur Saha,* 1 ) in which the creditor advanced the very same 
argument that was put forth in the former case. Pontif ex, 
J., observes, " No doubt there is some foundation for this 
argument from the imperfect language used in the Act ; 
but we think that section 2 at least indicates the policy 
of the Act, and in our opinion the word * revive any right 
to sue' used in that section should have their widest 
signification, which we think would include any appli- 
cation invoking the aid of the court for the purpose of 
satisfying a demand. It is by no means an uncommon 
form of speech to say 'sue out in execution.' " As to 
this point, Hitter, J., in Jugmohun Mahto v. Luchmeshur 
Singh**) while expressing his concurrence in the above 
view, observes he concurs in that view not because " right 
to sue" means " right to sue out execution" but because 
from this, and other sections in the Act, it is clear that 
the legislature intended to extend the provisions of this 
section to proceedings in execution also. 

(d) Clause 3, section 2. The object of this clause is, Clauses extends 
as stated by Melvill, J., in Ichha Shankar v. Killa,( 8 ) to the benefit of 
extend for two years the benefit of the old law in cases in 

a) I. L. B., 5 Culc, 807. 

(2) I. L. R., 10 C»lc, 748. 

(3) I. L. B., 4 Bom., 87. 



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18 PART I. — PRELIMINARY. [SEC. 2 

which a plaintiff would he prejudiced by the application 
to his case of the provisions of the new law. 
"The period of (9) In Appasami v. Aghilanda/ 1 ) plaintiff sued in 

limitation pros* 

oribed" in- November, 1878, on a note payable on demand, dated July, 
where time is, in 1870. He alleged that he demanded payment in Sep- 
ed by altering- tember, 1876. It was held that " shorter period" includes 

the starting , . _ ,. 

point. also the point at which the period, according to the 

schedule of the old Act, would terminate, and within 
which suit might have been brought under it had it been 
in force, and that this suit was not barred. The court 
observe that the language of Acts IX of 1871, and XV 
of 1877, leads to the conclusion, that by each of these 
enactments the starting point and period given in its 
schedule were to take the place of those given by the 
Aot which preceded it, in the case of all suits instituted 
after the date of the Act coming into force, and that 
the expiration of the period, calculated with reference to 
the Act in force at the date at which the note was exe- 
cuted, does not necessarily affect the remedy. 

Time for suit to /f) Narain Khootia v. Lokenath Khootia< 2 > was a 

share in joint x ' 

family property BU it to recover one- third share of the joint family pro- 
is shortened bjr * * r 

this Act, by al- perty. It was held that this Act shortened the period 

tering the start- r * r 

ing point. by making it to run from the time when the exclusion 

first became known to the plaintiff, while the correspond- 
ing Article of Act IX of 1871 allowed it to run from the 
time the plaintiff claimed, and was refused his share. 

Act xv of 1877 (<r) Under the Limitation Act IX of 1871, the period 

shortens the xo/ . . > r 

pertod to suit of limitation for suits to recover possession of property 
^£5% , Si from P urcna8e ^ from a mortgagee depended upon the good faith 
a mortgagee. of the purchaser. A suit against a purchaser in good 
faith was barred after twelve years from the date of the 
purchase, under Article 134 of sohedule II. In other 
. cases, a suit might be brought against the purchaser 
within sixty years from the date of the mortgage under 
Article 148 of Sohedule II. Article 134 of the later Limi- 
tation Act XV of 1877, by the omission of the words " in 
good faith," makes twelve years from the date of the 

(1) I. L. R., 2 Mad., 113. | (2) I. L. R., 7 Calc, 461. 

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SEC. 2] PART I. — PRELIMINARY. 19 

purchase the period of limitation for all such suits, 
without reference to the question of good faith on the 
part of the purchaser. The result is that, in cases of a 
purchase not in good faith from a mortgagee, the period of 
limitation allowed by Act XV of 1877, for a suit to 
recover property, is shorter than the period allowed by 
Act IX of 1871. This was followed in Baiva Khan 
Daud Khan v. Bhiku Sazba.W 

(h) In Eup Kishore v. Mohni,t*> plaintiff sued in Suit on notes 
August. 1879, on a bond of December, 1869, payable on mand executed 

° . r J before the Act 

demand. It was held that, under the provisions of this of 1877. 
section, the suit having been instituted within two years 
from the date that the Act came into force, was within 
time, as this Act shortened the period prescribed by its 
predecessor. The Bombay High Court took the same 
view in Ichha Shankar v. Killa<*) in which the plaintiff 
sued on the 21st June, 1878, upon a bond dated 20th April, 
1875, promising payment on demand. The Madras High 
Court held so in Bandi Subbayya v. Madalapalli Suban- 
na< 4 ) which was a suit brought in April, 1879, upon two 
pro-notes, dated December, 1874, payable on demand. 
Demand was said to have been made in September, 1877. 
The same view was adopted in Sabapati Chetti v. Che- 
dumbara Chetti. W 

(i) In Bansi Dhar v. Harsa Hai, W plaintiff sued on a Act xv of lsn 
registered bond of 2nd March, 1870, payable on demand, suit on a regie- 
alleging that demand was made on the 5th January, 1879. ind March, 1870, 
Under Act XIV of 1859, plaintiff had only six years from mend, 
the date of the bond, while under Act IX of 1871, which 
came into force before that period expired, he had three 
years from the date of demand. It was held, that, as the 
cause of action and the institution of the suit occurred 
after the repeal of the Act IX of 1871, the claim was 
barred, as either under Act XIV of 1859, or XV of 1877, 
limitation began to run from the date of suoh bond. 



(\) I. L. R., 9 Bom., 476. I (4) I. L. R., 8 Had., 96. 
(2) I. L. R., 3 AIL, 415. (5) I. L. B., 2 Mad., 397. 



(4) I. L. R.,; 

(5) I. L. B., \ 

(6) I. L. R., i 



(3) I, L. R., 4 Bom., 87. I (6) I. L. R., 8 All., 840. 

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20 PART I. — PRELIMINARY. [SEC. 3 

"Titieaoquind" (j) In Zulfikar Husain v. Munna Lai/ 1 ) account stated 

in this section x • ,, 

doea not include when Act IX of 1871 operated, was neither signed by the 

a right to sue. r * 

defendant nor his agent. The snit having been brought 

after the passing of Act XY of 1877, the account stated 

did not come within Article 64 of schedule II, but the 

plaintiff affirmed that his right to sue acquired under the 

former Act was not affected by Act XV of 1877. It was 

held that the words " nothing herein contained shall be 

deemed to affect any title acquired" did not save the 

plaintiff's right to sue on the account stated, a right to 

sue not being meant by or included in the term, " title 

acquired,' ' that term denoting a title to property, and 

being used in contradistinction to a right to sue. 

interpretation 3. In this Act, unless there be something 

clause. m ' o 

repugnant in the subject or context — 

c plaintiff* includes also any person from or 
through whom a plaintiff derives his right to 
sue ; ' applicant' includes also any person from 
or through whom an applicant derives his right 
to apply ; and * defendant* includes also any 
person from or through whom a defendant de- 
rives his liability to be sued : 

€ easement* includes also a right, not arising 
from contract, by which one person is entitled 
to remove and appropriate for his own profit 
any part of the soil belonging to another, or 
anything growing in, or attached to, or sub- 
sisting upon the land of another : 

c bill of exchange* includes also a hundi and 
a cheque : 

€ bond* includes any instrument whereby a 
person obliges himself to pay money to another, 
on condition that the obligation shall be void if 

(1) I. L. R., 3 AIL, 148. 



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SBC. 3] PART I. — PRELIMINARY. 21 

a specified act is performed, or is not performed, 
as the case may be : 

c promissory note* means any instrument 
whereby the maker engages absolutely to pay a 
specified sum of money to another at a time 
therein limited, or on demand, or at sight : 

c trustee' does not include a bendmiddr, a 
mortgagee remaining in possession after the 
mortgage has been satisfied, or a wrong-doer in 
possession without title : 

' suit' does not include an appeal or an appli- 
cation : 

* registered* means duly registered in British 
India under the law for the registration of 
documents in force at the time and place of 
executing the document, or signing the decree 
or order, referred to in the context : 

c foreign country* means any country other 
than British India; 

and nothing shall be deemed to be done in 
€ good faith* which is not done with due care 
and attention. 

(a) Section 3* of Act Y of 1882 repeals the definition 

• 8. Sections 26 and 27 of the Indian Limitation Act, 1877, and 
Repeal of Act XV of 1877 ***e definition of " easement" contained 
eectUms 96 and 27. ' in that Act, are repealed in the territories 

to which this Act extends. All references in any Act or Regulation 
to the said sections, or to sections 27 and 28 of Act No. IX of 1871, 
shall, in such territories, be read as made to sections fifteen and 
sixteen of this Act. 

CHAPTER I. 

Of Basements Generally. 
4. An easement is a right which the owner or occupier of certain 
land possesses, as snch, for the beneficial 
enjoyment of that land, to do and 



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22 PART I. — PRELIMINARY. [SEC. 3 

of " Easement" in this section, and sections 26 and 27 of 
this Act (XV of 1877) in the territories of Madras, Coorg, 
and the Central Provinces, and defines that term for the 
said territories by section 4. 
The word (b) Act IX of 1871 did not define the word "Ease- 

has a much ment," but the word as interpreted in this section (3, of 
Haeaninf? than Act XV of 1877,) has a very much more extensive 
u»h Law. * meaning than the word bears in the English Law, for it 
includes any right not arising from contract by which 
one person is entitled to remove and appropriate for his 

continue to do something, or to prevent and continue to prevent 
something being done, in or upon, or in respect of, oertain other land 
not his own. 

The land for the beneficial enjoyment of which the right exists fa 
Dominant and servient caUed the dominant heritage, and the 
heritages and owners. owner or occnpier thereof the dominant 

owner; the land on which the liability is imposed is called the 
servient heritage, and the owner or occupier thereof the servient 
owner. 

Explanation. — In the first and second clauses of this section, the 
expression " land" includes also things permanently attached to the 
earth : the expression " beneficial enjoyment" includes also possible 
convenience, remote advantage, and even a mere amenity ; and the 
expression " to do something" includes removal and appropriation 
by the dominant owner, for the beneficial enjoyment of the domi- 
nant heritage, of any part of the soil of the servient heritage or 
anything growing or subsisting thereon. 

Illustrations. 

(a.)— A, as the owner of a certain house, hat a right of way thither ever his 
neighbour B's land for purposes connected with the beneficial enjoyment of 
the house. . This is an easement. 

(ft.)— A, as the owner of a certain house, has the right to go on his neigh- 
bour B's land, and to take water for the purposes of his household out of a 
spring therein. This is an easement. 

(<?.)— A, at the owner of a certain house, hat the right to conduct water 
from B's stream to supply the fountains in the garden attached to the house. 
This is an easement. 

(<*.)— A, at the owner of a oertain house and farm, has the right to grace a 
certain number of his own cattle on B's field, or to take, for the purpose of 
being used in the house, by himself, his family, guests, lodgers and servants, 
water or fish out of O's tank, or timber out of D's wood, or to use, for the pur- 
pose of manuring his land, the leaves which have fallen from the trees on B's 
land. These are easements. 

(*.)— A dedicates to the public the right to occupy the surface of oertain land 
for the purpose of passing and repassing. This right is not an easement. 

</.)— A is bound to cleanse a water-coarse running through his land and 
keep it free from obstruction for the benefit of B, a low riparian owner. This 
is not an easement. 



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BBC. 3] PART II. — PEELIMINABY. 23 

own profit any part of the soil belonging to another, or 
anything growing, or attached to, or subsisting upon the 
land of another. An easement therefore under the Indian 
Law, embraces what in English Law is called a profit a 
prendre, — that is to say, a right to enjoy a profit out of 
the land of another. 

(c) A prescriptive right of fishery is an easement as Prescript!™ 
defined by this section. White, J., observes, "The legal u an Element. 
meaning of land is not only dry land, but also land cover- 
ed by water ; aud I see no reason for holding that the 
word * land,' as used in section 3, bears other than the 
legal meaning which ordinarily attaches to the word. 
Taking ' land' to have this meaning, fish may properly 
be said to grow or subsist upon it." The language of 
the proviso, contained in section 27 of the Act, makes 
it clear that the profit arising from water, as well as 
from land, was in the contemplation of the legislature. 
Bight of fishery is one of the most common classes of Snoh right is 
property enjoyed in the Bengal Presidency. Chundee gal. 
Churn Boy v. Shib Chunder Mundul.W 

(1) I. L. B., * Calo., 946. 



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24 PART II. — LIMITATION OF SUITS, APPEALS, AND APPLICATIONS. [SEC. 4 



PART II. 

LIMITATION OP SUITS, APPEALS AND 
APPLICATIONS. 

SlS^kuiti. 4. Subject to the provisions contained in 
plnod of Smita. sections five to twenty-five (inclusive), every 
suit instituted, appeal presented, and appli- 
cation made after the period of limitation 
prescribed therefor by the second schedule 
hereto annexed, shall be dismissed, although 
limitation has not been set up as a defence. 

Explanation. — A suit is instituted in ordinary 
cases when the plaint is presented to the proper 
officer ; in the case of a pauper, when his ap- 
plication for leave to sue as a pauper is filed ; 
and in the case of a claim against a company 
which is being wound up by the court, when 
the claimant first sends in his claim to the 
official liquidator, 

nUwtrations. 

fa,) — A suit is instituted after the prescribed period of limitation. 
Limitation is not set up as a defenoe and judgment is given for the 
plaintiff. The defendant appeals. The appellate court must dis- 
miss the suit. 

(b.J — An appeal presented after the prescribed period is admitted 
and registered. The appeal shall, nevertheless, be dismissed. 

The wording of this section and its proviso is exactly 
similar to the corresponding section of Act IX of 1871. 
The obligation (a) In Dattn v. KasaW the Plaintiff's suit, to recover 
Court to reject certain lands, was dismissed by the Conrt of first instance, 
not laid on each and by the Lower Appellate Conrt, bnt on second appeal, 
courts. was remanded for determination of plaintiff's alleged 

right of perpetual cultivation of the land. On remand, 

(1) I. L. R., 8 Bom., 535. 

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8*0. 4] PABT II. — LIMITATION 09 SUITS, APPEALS AND APPLICATIONS. 25 

the District Judge gave a decree in favour of the plaintiff. 
The defendant appealed to the High Court, and then for 
the first time raised the point of limitation. It was held 
that the objection was taken too late. The defendant 
had the opportunity of raising his objection under the 
Limitation Act, and if necessary, of getting any question 
on which it depended tried by the courts below ; and as 
he took no steps to this end, he should be taken to have 
waived his right to raise the objection. The omission of 
the court of first instance to reject the claim, if erroneous, 
gave the defendant a right of appeal, which he might 
renounce, and virtually did renounce. The obligation 
resting on the court of first instance to reject a plaint, 
which on the face of it is barred by limitation, is not ex- 
pressly laid on each successive court whenever the objec- 
tion comes to view, and ought not to be assumed by 
inference. The High Court have held " the duty of re- 
jecting the suit under such circumstances as the present 
is not expressly laid on the High Court and ought not, 
we think, to be assumed by inference." 

(b) In ChunderMohunRoy v Bhubon Mohini Dabea/ 1 ) o. h. 
a petition to sue in fdrmd pauperis, put in within the time cant daring 
specified in the Limitation Act for the suit, was rejected appScadon, 

for the appellant's failure to appear and give evidence, petition with 

stamp duty re* 

At the petitioner s instance, the case was re-opened, and a quired for the 

. «uit f held not 

day fixed for her appearance. Two days prior to this date, entitled to have 

ths date of first 

bnt some time after the expiry of the period fixed by the petition treated 

. . . . . »• *** of insti- 

Limitation Act for the suit, the petitioner put in a peti- tntion of suit. 

. . (April 1877.) 

tion stating that the suit be tried in the ordinary way, 
and paid in the regular amount of stamp duty for an 
ordinary suit. The question was, whether the plaint 
should be considered to have been filed on the day that 
such application was made, or whether the petitioner can 
take advantage of the clause in this section, which says, 
that a suit in the case of a pauper is instituted when 
his application for leave to sue as a pauper is filed. It 
was held that the petitioner, having put in the petition 

(1) I. L. B., 2 Calc, 889. 

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26 PAET II. — LIMITATION OF SUITS, APPHALS AND APPLICATIONS. [8EC. 4 

electing to proceed as an ordinary suitor and not as a 
pauper, stood merely in the same position as if she had 
filed her suit on that date, and that the suit was barred, 
and that in order to give her the benefit of that expla- 
nation, it was necessary that her original application to 
sue as a pauper should have been granted, and the appli- 
cation numbered and registered as a suit. 
t* * p ; a (c) In Skinner v. Orde,^ a Division Bench of the 

Date of presen- x ' ' 

tation ofappii- Allahabad High Court, held on the 29th May, 1876, that, 

cation, and not ° ' •" ' ^ 

date of pay- where a pauper application is numbered and registered, 
2on°to applica " not on P 1 " 00 * °* pauperism, but in consequence of the appli- 
paaper, is date cant abandoning his claim to sue as a pauper, and paying 
auit. (May 1876.) court fee required for the suit, the date of such payment 
and not the date of application must be taken in comput- 
ing the period of limitation to be the date of the insti- 
tution of the suit. When the matter went in appeal be- 
fore the Privy Council, their Lordships reversed the 
decision of the High Court, and held that the suit must 
be deemed to be instituted when the application was filed 
and not when the proper stamp was affixed. W In Ram- 
sahai Sing v. Mani Bam/ 8 ) The High Court on revision 
permitted an applicant who wished to sue as pauper to 
renew his application to the Lower Court which rejected 
it. The Sub-judge verbally rejected the second applica- 
tion, stating he would deliver a written judgment. Before 
it was delivered, the applicant, offering to pay the court 
fee, asked the court to take the petition as a plaint filed 
on the date of the first application, but it was refused. 
The High Court declining to interfere with the order, 
observe, that at the time the Sub-judge passed the order, 
Skinner's case had not come out to this country, and that 
at any rate it does not appear that it was brought to the 
Judge's attention. 
Return for (d) In Bam Lai v. Harrison/ 4 ) plaint for money due on 

amendment and _ _ nn , _ T , 

re-presentation an instrument of hypothecation, dated 23rd November, 
tute fresh in." 1866, was presented on the 21st November, 1878 : the 

stitution. r r 

(1) I. L. E., 1 All. 230. I (3) I. L. E., 5 Calc, 807. 

(2) I. L. E., 2 AH., 241. | (4) I. L. E., 2 All., 832. 



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SBC. 4] PART II. — LIMITATION OF SUITS, APP1ALB AND APPLICATIONS. 27 

plaint also sought to hold the property liable* The plaint 
was returned for correct description of property, and was 
re-presented on the 8th January, 1879. The Lower Appel- 
late Court being of opinion that the claim to enforce a 
charge must be taken to have been instituted on the date of 
re-presentation, rejected it as barred. It was held, that 
the return of a plaint for amendment and subsequent 
presentation and acceptance by the court, will not consti- 
tute a fresh institution, though the substitution or addi- Bait already 
tion of a person as new plaintiff or defendant, some time treated as new, 
after the institution of the suit, shall make the suit as since added, 
regards him to be treated as instituted when he was so 
made a party. 

(6) Khem Karan v. Har Dayalt 1 ) was a suit to Suit against 
enforce pre-emption, instituted against the vendor and ted when plaint 

was presented 

the purchasers who were minors, on the 1st June, 1880. and not when 

appointment of 
Sale Deed was registered on 9th June, 1879. After guardian ad 

the institution of the suit, plaintiff discovered that the 

vendees were minors, and obtained on the 15th June, 1880, 

an order appointing a guardian. It was argued that 

no suit was in reality instituted until the date of the 

guardian's appointment. It was held that the suit was 

instituted on the day the plaint was presented. 

(f ) In Oulab Rai v. Mangli Lai, W it was held, that Order rejecting 

• i , Appeal Memo. 

an order rejecting a memorandum of an appeal as barred as barred is a 

i . i . decree appeal- 

by limitation is a decree withm the meaning of section 2 able. 
of the Civil Procedure Code, and it is therefore appeal- 
able, and not open to revision by the High Court under 
section 622 of the Code. In Gunga Dass Dey v. Bamjoy 
Dey< 8 > it was held, that an order dismissing an appeal 
as presented out of time under this section, is " a decree 
passed in appeal 1 ' within the meaning of section 584 of 
the Civil Procedure Code of 1882, and a second appeal 
will, therefore, lie from such order. 

(g) In Mahomed Hossein v. Purundur Mahto,(4> the* This Section 

Lower Appellate Court was of opinion that as the court away the 

executing the decree had no jurisdiction to entertain the diction in res- 
pect of an ap- 
8) I. L. R., 4 All., 37. I (3) I. L. R., 12 Oalc, 30. plication in any 

) I. L. R., 7 All., 42. | (4) I. L. R., 11 Calc, 287. 



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28 PART n. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [8EC. 4 
way. Erroneous decree-holder's application for the sale of the disputed 

decision that an . . 

application is property in consequence of the decree being barred by 

notbarredisnot f. f . , , * . , -r*. f 

a nullity until limitation, the sale itself was a nullity. The High 
set aside. _, 

Court observe " section 4 of the Limitation Act directs 

that an application made after the period prescribed in 

the Act shall be dismissed. This direction in the section 

in question does not take away the jurisdiction of the 

court in respect of the application in any way. If the 

court erroneously holds that the application is not barred, 

the order of the Court, though erroneous and liable to be 

set aside in the way prescribed in the procedure law, is 

not a nullity, but' remains in full force until set aside. 

Therefore, the sale held in this case was a valid sale 

until it was set aside." 

Government In Shami Mohammed v. Mahommed All Khan/ 1 ) it was 

were held not 

entitled to ex- held in January, 1869, that the right of Government to 

ttxnltation as to recover stamp fees in pauper suits under section 309 of 
applications. 

Act VIII of 1859, was not affected by the limitation 
contained in section 20 of Act XIV of 1859, as section 17 
exempted public claims from that Act. In the Collector 
of South Arcot v. Thatha Charry/*) five years after the 
dismissal of a pauper suit, Government sought recovery 
of the stamp duty by attachment and sale of the pauper's 
property. It was held in April, 1875, that the claim was 
not barred. In Appaya v. The Collector of Vizagapa- 
tam/ 3 > which was an application by Government under 
section 411 of the Code of Civil Procedure, to recover the 
amount of court fees due under a decree from the defen- 
dant, it was held that the Government were not entitled 
to any exemption from the provisions of the Limitation 
Act of 1877, relating to applications. The court observe, 
" We are of opinion that the Government is not entitled 
to any exemption from the provisions of the Limitation 
Act relating to applications. If the maxim on which the 
counsel for the crown relies applies to this country — and 
the Crown is not bound by the provisions of any Act 

(1) 2 B. L. B., App., 22. | (2) 8 Mad., H. C. E., 40. 
(8) I. L. E., 4 Mad., 155. 



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8EC. 5] PABT II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 29 

unless they are expressly declared binding on the Crown 
— it may be inferred 1 rom the circumstance that this Act 
contains provisions prescribing a Limitation to the Go- 
vernment for the institntion of snits and presentation 
of criminal appeals, that the legislature contemplated 
thai the Crown should be subject to the provisions of the 
Act, and should enjoy a privilege to the extent expressed 
and no further." 

5. If the period of limitation prescribed for JJjjJ^ ^Jjjj 
any suit, appeal or application expires on a day j^p** 10 ***- 
when the court is closed, the suit, appeal or 
application may be instituted, presented, or 
made on the day that the court re-opens : 

Any appeal or application for a review of ?££^*% 
judgment may be admitted after the period of ^T* for **" 
limitation prescribed therefor, when the appel- 
lant or applicant satisfies the court that he had 
sufficient cause for not presenting the appeal or 
making the application within such period. * 

(a) The discretionary power allowed to Courts by the The second 
second clause of this section does not extend to applica- inapplicable to 

an applicant to 
tions other than an application for review. It has been eneae pauper. 

held that the language of the section does not permit 
of the indulgence provided for in the second clause 
being shown to an applicant for leave to appeal as a 
pauper, while a pauper may apply for a review of judg- 
ment availing himself of the indulgence, (vide Note T.) 

(l>) In Gulam Husen Mahamed v Say ad Musa Miya Pendency of 

Hamad Ali.P) the original decree of the Subordinate and ignorance 
' of legal effect of 

Judge was modified on the 21st March, 1882, by the judgment no ex- 

^ * case for delay 

(1) I. L. E. ( 8 Bom., 260. in applying for 



review. 



* Bill No. 23 of 1886, introduced into the Imperial Council on the 
1st September, 1886, proposes the extension of the provisions of this 
section of the Limitation Aot applicable to an appeal, to the objec- 
tion and notice under section 661 of the Civil Procedure Code of 
1882. The bill also proposes amendment of the first proviso to the 
first paragraph of section 561. 



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30 PART II. LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [8EC. 5 

District Judge by the reduction of the amount of cess ille- 
gally levied, and the High Court, on the 23rd June, 1882, 
dismissed the second appeal on the ground that the Lower 
Courts had no jurisdiction as the suit was a Small Cause 
suit. In July, 1882, when the plaintiff brought another 
suit to recover the cess illegally levied since the former 
suit, the Judge held that the defendant was estopped 
from disputing the plaintiff's claim. On the 18th 
November, 1882, the defendant applied for a review of 
the District Court's decree, dated 21st March, 1882, and 
the District Judge granted it. It was held by a Division 
Bench that the circumstances did not justify the admission 
of the application for review after the expiration of the 
ninety days allowed by the Limitation Act, and that the 
pendency of an appeal is not " a sufficient cause" for not ap- 
plying earlier within the meaningof this section, and that 
an applicant for review cannot plead his ignorance of the 
effect of the judgment as a justification for his delay. 
Counsel's (c) In Gopal Chandra Lahiri v. Solomon/ 1 ) judgment 

a deed is not was given on the 5th of February, 1885, the decree 
cause" within was signed on the 25th day of February, 1885 ; but the 
this section. application for review was not made until the 9th of 
April, long after the 20 days prescribed by the Limita- 
tion Act had expired. That counsel did not read the 
deed until the 30th of March, when he did so for the 
purpose of a proceeding in another suit, was said to be 
" sufficient cause" within the meaning of this section for 
not making the application within 20 days. Garth, C. J., 
held that there was no " sufficient cause," observing that 
if this was a sufficient excuse it would be an equally good 
excuse for delaying for a year or more whenever the 
learned counsel might happen to read its contents. 
This section »p- (d) Golap Chand Nowluokha v. Krishto Chunder Dass 
limitation pro- Biswas/ 2 ) was a suit brought to recover money or obtain 
other Acts for papers or accounts from an agent, and it was to be insti- 
tuted under section 30 of the Bengal Act VIII of 1869, 
within one year from the determination of the agency. 

(I) I. L. R., 13 Calo., 62. | 2) I. L. E., 5 Oalo., 814. 



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SEC. 5] PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 81 

As on the last day of such year, the courts were dosed, 
it was filed on the first day of the re-opening of the court. 
It was held that the plaintiff was entitled to the benefit 
of this section. This was followed in* 1 ) Khoshelal Mahton 
v. Gunesh Dutt. 

(e) Thir Sing v. Venkataramier( 2 > was brought to set m. h. held this 
aside the decision of a Revenue Settlement officer passed oniTr°£> caaee y 
on the 12th September, 1876, under section 25 of Act 28 of the general Act 
1860 (Madras) and for possession of the hill in dispute. 
The decision of the Settlement Officer was confirmed in 
appeal on the 23rd October, 1876. As the 12th November 
was Sunday, this suit was brought on the 13th November, 
1876. According to the true construction of section 25, 
the decision against which an appeal is allowed in the 
form of a regular suit is the original decision of the 
Settlement Officer and not that of his superior passed on 
revision ; and unless time is extended by the Governor-in- 
Council, the appeal must be brought within two calendar 
months from the date of the original decision. It was 
held that the exceptions contained in section 5 of Act IX 
of 1871, which has been reproduced in the Act of 1877, 
apply only to cases dealt with under the General Act of 
Limitation, and that in the absence of a special provision 
applicable to special laws, the general rule, that when 
limitation once begins to run, it continues to run and its ' 
operation is not liable to be suspended either on Sundays, 
holidays, or during the recess of courts, is applicable. 

(f) In Nijabutoola v. Wazir Ali,( 8 > which was a Thk section ap. 
suit under the Indian Registration Act, it was held, that under Registry 
the interpretation of this section considered along with 
section 6, is that, except as defined in section 6, the 
general provisions of the Limitation Act are applicable to 
cases for which periods of limitation are specially pro- 
vided by local or special laws ; and that therefore section 
5 oi the Limitation Act ought to have been allowed to 
operate in the present case. 

(1) I. L. E., 7 Calc, 690. | (2) I. L. R., 3 Mad., 92. 
(3) I. L. B., 8 Calc, 910. 



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32 PAST IL — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SRC. 5 

if office was (g) Where a District Court »was adjourned for two 

tionof appeals, months, but the notification stated that the court would 
journment, be open twice a week for the reception of plaints, petitions, 
closed. and appeals, it was held that the court was not closed till 

the last day of the adjournment within the meaning of 
this section so as to allow an appellant to present his 
appeal on the day the court re-opened after the adjourn- 
ment, the appeal time having expired during the adjourn- 
ment. Nachiyappa v. Ayyasami/ 1 ) 
Party can de- (h) Where the period of limitation prescribed for a 
the Court was suit expired when the court was closed for a vacation, 
r©-opened on a and the court, instead of re-opening after the vacation 
y ' on the day that it should have re-opened, re-opened on a 

later day, and the suit was instituted when it did re-open ; 
it was held that the suit was instituted within time, since 
the section does not refer to vacation or holidays. Bishan 
Chand v. Ahmad Khan.< 2 > 
Appeal, if time (i) In Hariette A. King v. J. S. King/ 8 ) it was held, 
vacation, may that where the period of limitation for the filing of an 
the reopening appeal has expired during vacation, a party to a suit has 
a right under the provisions of the Limitation Act XV of 
1877, to have his appeal admitted on the day the court 
re-opens, and the Prothonotary of the High Court has 
power to receive aud file a memorandum of appeal on that 
day. 
circumstance f\\ In Balwant Singh v. Gumani Ram,W appeal was 

contemplated in *J' ° ,, 

section i« is suf- presented one day after the time, and the appellant pleaded 

not presenting that he was engaged down to the last day in making an 
appeal in time. ° ;* m .... . . 

application in re visional jurisdiction which was rejected 

for want of jurisdiction to entertain it in revision. It was 
• held that section 14 was limited to courts of original juris- 
diction merely because this section had given larger and 
unfettered power in the same behalf to Appellate Courts 
and that the circumstances contemplated in section 14 
would ordinarily constitute a sufficient cause in the sense 
of this section for not presenting an appeal within time. 

(1) I. L. R., 5 Mad., 189. I (3) I. L. R., 6 Bom., 487. 

(2) I. L. R., 1 All., 263. | (4) I. L. R., 5 All., 591. 



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SBC. 5] PAET H. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 88 

fk) In Moshaullah v. AhmedullahW original decree Towtr is no* 

v ' "sufficient ex- 

was passed on the 27th September, 1883. The plaintiff cose" for ad- 

mitting appeal 

applying for a review on the 12th December, 1883, obtained aftiVtW 
a decree in his favor on the 27th February, 1884. 
Defendant applied to the High Court for leave to appeal 
in forma pauperis and on the 6th of January, 1885, an 
est-parte order was passed that the appeal be registered on 
payment of the court fee. When the appeal came on for 
hearing, it was held, on the objection of the respondent, 
that poverty was not "sufficient cause'* within the meaning 
of this section, and that the appeal was barred. 

(1) An Appellate Court should not admit an appeal Court should re- 
after the period of limitation prescribed therefor, without admitting »p- 

peal after time. 

recording its reasons for being satisfied that there was 
sufficient cause for not presenting it within time. In 
Zaibulnissa Bibi t>. Kulsum Bibi,W the Lower Appel- 
late Court admitted the appeal presented one day beyond 
the period allowed, recording that it should excuse the 
delay which the appellant verbally stated was the result 

of miscalculation. It was held that an error in the calou- Error in calcu- 
lation is not 
lation was not sufficient cause for the delay. sufficient cause. 

(m) In Raghunath Gopal v. Nilu Nathaji,W suit was Should aieo re- 
rejected on the 21st December, 1882. On plaintiff's diamiasing :ap- 
application for review on the 1st February, 1883, the court 
thought that the proper course was to appeal. On the 
3rd June, 1883, the plaintiff appealed, but the District 
Judge rejected it as barred without recording his reasons. 
The High Court discharged his order and directed him to Order discharge 
make a fresh order with due regard to the observations cording reaeona 
they had made in the judgment. 

(il) In Chunder Doss v. Boshoon Lall Sookul,( 4 > it High Court in 

,,,.,,., . . • . _, , „ . 2nd Appeal can 

was held, that it was competent for the High Court in examine the 
second appeal to look into grounds which a judge has ground* for ad- 
given for admitting an appeal after the lapse of the period aftertfcne. 
limited for the purpose. 

(1) I. L. R., 18 Calo., 78. 

(2) LLB.,1 AH., 260. 
(8) I. L. R., 10 Bom., 452. 
(4) I. L. R., 8 Gale, 251. 



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34 PABT II. — LIMITATION OF SUITS, APPEALS AHD APPLICATIONS. [SBC. 5 

Sub-Judge can- (o) In Jhbtee Sahoo v. Omesh Chancier Sircar/ 1 ) it 
District Judge's was held that a Sub- judge could not override the order of 
appeal. a District Judge admitting an appeal, and that he had 

only jurisdiction to hear the appeal on its merits. 
b. h. declined (p) In Ranchodji v. Lallu ,<*> it was held that where 

Interference vtf ' J ' 

with District the law leaves a matter within the discretion of a court, 

Judge's refusal 

after enquiryto and the court, after a proper enquiry and due considera- 
after time. tion, has exercised the discretion in a sound and reasonable 

manner, the High Court would not interfere with the 
conclusion arrived at, even though it would itself have 
arrived at a different conclusion, and that consequently, 
where a District Judge, after due enquiry, refused to admit 
an appeal presented after time, the High Court would not 
interfere with his order. In this case, the District Judge 
found that the appellant appeared to have endeavoured 
to mislead him by falsehood or at least by prevarication. 
Appeal held as (fl) In Sheo Partab Narain Singh t>. Sheo Gholam 

preferred when t . 

memorandum Singh, W appellant presented the appeal on the 23rd 

was first pre* 

sented and not June, 1879, within the time. On the 5th July, the Lower 

when represent- 

jd on return for Appellate Court returned it for insufficiency of stamp 
j£^p wttfcot-t without fixing time for representation. On the 18th July, 
1880, the party represented it, but the Lower Court rejected 
it as barred. It was held, that for the purpose of limita- 
tion, an appeal is preferred when the memorandum of 
appeal is presented to the proper officer and hot when, 
where the memorandum of appeal is insufficiently stamped 
and is returned in order that the deficiency may be 
supplied, it is again presented, and that the court should 
fix a time for representation, 
so an appeal (p) Where an appellant presented an appeal within 
sented on return the period of limitation prescribed therefor, and the 

for amendment * 

without fixing Appellate Court returned the memorandum for amend- 
ment without fixing time for the purpose, the memo- 
randum represented, some days after the period of limita- 
tion, was held as presented within time, the date of its 
presentation being the date it was first presented. The 

(1) I. L. R., 5 Oalc., 1. J (2) I. L. R., 6 Bom., 804. 
(ft) 1. 1* R., 2 A&, 87S. 

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8SC. 5] PART II.— LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 85 

Appellate Court should specify the time for such correction. . 
JaganNatht?. Lalman-W This was followed in Sheo Partab 
Narain Singh v. Sheo Gholam Singh. <*> 

(g) In Degamher Mozumdar t>. Kallynath Roy/ 8 ) it ^SSSi'doL not 
was held in July, 1881, that the 7 days' time within which jg 1 * 1 ?^^^ 
a notice of objection to a decree by a respondent under motion mi of 
section 561 of the Code must be given, is not a period to 1877. ' ' 
which the provisions of paragraph 2 of section 5 of the isse proposes 

r i or extension of mo* 

limitation Act can be extended, and the court has no tion 6 of the Li. 

. mitatkm Act 

discretion to extend the period. This was followed in applicable to 
Kally Prosunno Biswas t>. Mungala Dassee,<*> in which nowSTnnder 

J ° section Ml of 

it was held that the provision of the 2nd clause does not the c. p. c. of 
apply to anything except an appeal or application for 
review of judgment. 

(t) In Lakshmi v. Ananta Shanbaga,< 6 ) the decree The terms of 
was dated 21st December, 1877, and the application for not admit of the 

rxr indulgence 

leave to appeal as a pauper was not made till 25th July, therein prorid- 
1878. There was a delay of 66 days after deducting 30 shown to an ap- 

* J plicant for leave 

days allowed by Article 170, and the date of the judgment to appeal as a 

and the time occupied for obtaining a copy of the decree 

under section 12 of the Limitation Act. In section 4, suits, 

appeals, and applications are separately mentioned, while, 

in section 12, an appeal, an application for leave to appeal 

as a pauper, and an application for a review of judgment 

are separately named, and the language used does not 

leave room for the suggestion that it was intended to 

class an application for leave to appeal as a pauper 

under the head of appeals. The court rejecting the 

application under section 4, on the ground that the 

indulgence shewn to an ordinary applicant in this section 

is not extended to an application for leave to appeal as a 

pauper, observe: — "Although it may appear strange strange that the 

that the same indulgence should not be shown to a pauper should not be 

applying for leave to appeal as to an ordinary appellant, pauper apply- 

and that, while a pauper may apply for a review of appeal. 

judgment with the same indulgence as to delay in making 

(1) I. L. R. x 1 All., 260. ! (3) I. L. R„ 7 Cmlc, 664. 



(2) I. L. R., 2 All., 8f 5. | (4) I. L. R., 9 Calo„ 631. 
(5) I. L. B., 2 Mad., £30. 



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36 PAET II. — LIMITATION OP SUITS, APPRAL8 AND APPLICATIONS. [SIC. 5 

the application as a person who is not a pauper, yet, in 
making his application for leave to appeal, similar indul- 
gence is not extended to him ; the language of the Act 
precludes, we think, any other construction of it upon this 
question than that contended for." 
Negligence of (\i) In The Corporation of the Town of Calcutta v. 

an appellant s 

attorney ie not Anderson/ 1 ) the plaintiff sued to recover damages from 

sufficient cause ,-.,-,...— . . 

under this sec- the Calcutta Municipal Corporation, the contractor under 
them and the Secretary of State. The lower Court 
decreed the plaintiff's claim as against the Corporation 
and the contractor, and dismissed the claim as against 
the Secretary of State, with costs. Against this decision, 
dated 27th June, 1883, the Municipal Corporation appealed 
on the 20th July, 1883, giving notice of the same to the 
plaintiff's attorney on the same date. On the 8th 
January, 1884, plaintiff's attorney filed an affidavit of 
delay, alleging that, till then, he did not notice that the 
Secretary of State was not a party to the appeal, and 
prayed for permission to allow him to appeal against the 
Secretary of State. It was held that mere negligence on 
the part of the appellant's attorney is not a sufficient 
explanation of delay under this section. 

Appeal by one (y) In Moti Bibi v. Bikanu,< 2 ) B sued M and T for 

memorandum v ' 

against first money due on a bond, and on the 27th April, 1877, 
time and second obtained a decree against T ; the suit against M being 
view, admitted dismissed. T applied for a review of judgment, and 

by the lower ** J ° ' 

^ected b M the" ^ a * so ma< * e a 8 * m il ar application. On the 25th May, 
jlguia^ *• 1877, T y 8 application was granted, and on the 16th July, 
&a^ne.) a 1877 ' F * was »j«*tei On the 29th June, 1878, the 
court re- heard the suit against T and dismissed it. B 
appealed, making T and M respondents, and impugning 
in his memorandum of appeal the decree of the 27th 
A pril, 1877, as well as that of the 29th June, 1878. The 
Appellate Court assuming that the appeal was one from 
the decree ci the 27th April, 1877, preferred beyond time, 
admitted it after time, and after hearing the case on its 
merits, gave a decree against M and dismissed the suit 

(1) I. L. R., 10 Calc, 446. | (2) I. L. R., 2 All., 772. 

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8EC. 6] PART n. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. 37 

as regards T. It was held that the Appellate Court 
erred in assuming that the appeal was from the decree of 
the 27th April, 1877, and that it was at liberty to admit it 
beyond time, the appeal being from the decree of the 
29th June, 1878, that decree being the one which had 
brought B before that court as an appellant, and that the 
Appellate Court was not competent on an appeal from the 
decree of the 29th June, 1878, to reconsider the merits of 
the case against M, the appeal from the decree of the 27th 
April, 1877, being barred by limitation, and that decree 
and the decree of the 29th June, 1878, being separate and 
distinct, and not appealable in one memorandum of appeal 
from the latter decree. The High Court observe, that if 
the plaintiff was desirous of appealing from the decree of 
April, 1877, he might have done so within the time 
allowed by law, or if under any misapprehension he had 
allowed that period to run by, he should have presented 
his memorandum of appeal, assigning reasons for not 
presenting his appeal within such period. Had he done 
so, the court under this section might have admitted the 
appeal after time if satisfied that the appellant had 
sufficient cause for not making hie application within 
time. This course the plaintiff did not adopt. 

6. When, by any special or local law now special and 
or hereafter in force in British India, a period of ,imitation - 
limitation is specially prescribed for any suit, 
appeal or application, nothing herein contained 
shall affect or alter the period so prescribed. 

(a) This section allows the period of limitation c. H. 

provided for by any special or local law to remain un- sionlTof t£e°Li- 

affected, while the corresponding section of the old Act 1877 were hefd 

to apply to cases 

for which lixni- 
Bengal Act VIII of '69, was repealed by the Bengal Tenancy Act tation is provid- 

YIII of 1886. The Legislature, with a view to avoid all doubts and Jjefial taw? " 
uncertainties as to the extent of the application of the general provi- 
sions of the Limitation Act to suits under that Act, prescribed, by 
Schedule III, special limitation of six months, one, two, three years 
for suits expressly named therein, and thirty days for appeals and 
three years for execution of decrees, providing at the same time by 



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38 PART II. — LIMITATION OF 8UITS, APPEALS AMD APPMCATION8. [SIC. 6 

IX of 1871, provided, " nothing herein contained shall 
affect such law." In the wording of this section there is 
nothing to forbid the application of the general provisions 
for computing the period of limitation contained in Part 
III of this Act to special and local Acts providing special 
limitation to suits and applications. In Golap Ohand 
Nowluckba v. Erishto Chnnder Dass Biswas/ 1 ) which was 
a suit under section 30 of the Bengal Act VIII of 1869, 
plaintiff was held entitled to the benefit of section 5 of 
this Act. In Nijabutoola t;. Wazirali,W which was a suit 
under the Indian Registration Act, it was held, that the 
general provisions of the Limitation Act are applicable to 
cases for which periods of limitation are specially provided 
j by local and special laws. In Khetter Mohun Chucker- 
butty v. Dinabashi Shaha,( 8 > which was a suit under the 
Registration Act, plaintiff was held entitled to the benefit 
of section 14 of the Act. 
Bombay High (b) In Guracharya v. The President of the Belgaum 

Court alto field ,,..,., iv , . , . , - 

so. Town Municipality/ 4 / which was a suit under the 

Bombay Municipal Act VI of 1873, the Bombay High 

Court, following the above decisions of the Calcutta High 

Court, held that the plaintiff was entitled to the benefit of 

section 14 of the Act. 

m. h. held in (o) In Erajalu v. Mayan, <«> plaintiff sued before a 

ooffnisabie bv Village Munsif on the 17th November, 1884, for money 

are not excluded due on a bond which had become payable on the 14th 

from the Limita- * J 

tionActofi877. November, 1880. The Village Munsif decreed the suit. 
The District Judge, being of opinion that the decision was 
illegal, inasmuch as the Limitation Act contained no such 

(1) I. L. R., 5 Calc, 814. I (3) I. L. R., 10 Gale, 265. 

(2) I. L. R., 8CaIc,. 910. | (4) I. L. R., 8 Bom., 629. 

- (E) 1. L. R., 9 Mad., 118. 

section 184, for dismissal of suits, appeals and apptioations instituted 
after the period of limitation prescribed by the eohednle. Section 186 
makes sections 7, 8 and 9 of the Limitation Act of '77 inapplicable to 
the snits and applications named in section 184 ; but Clans© 2 of that 
section provide* for the application of the provisions of the Limi- 
tation Act of 1877 to all suits, appeals and applications mention- 
ed in section 184, subject to the provisions of sections 184 and 
Clause I of 186. 



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8KC. 6] PAKT II. — LIMITATION OF SUITS, APPEAL8 AHD APPLICATIONS. 39 

exception as in section 6 of the C. P. C, referred the case 
to the High Court for orders. Hutch ins, J., observes, " It 
is tme that Section 6 of the Limitation Act provides that 
nothing contained in the Act shall alter or affect a period 
specially prescribed by any special or local law for any 
suit, appeal or application, but section 5, Regulation 
IV of 1816, can hardly be said to prescribe a period of 
limitation for any particular suit or class of suits. It 
simply prohibits a Village Munsif from taking cognisance 
of any suit, whatever its nature, unless the cause of action 
has arisen within twelve years. It would be unreasonable 
to suppose that when prescribing different periods of 
limitation for different suits according to their nature 
the legislature intended to preserve a rule of limitation 
applicable only to a particular class of tribunals, and 
which would entirely defeat their object in regard to all 
suits which might be brought before such tribunals." 

(d) Thakoor Kapilnauth Sahai Deo v. The Govern- c. h. held Act 
w,v -xx * _ A ,. ix of 1871 la- 
ment* 1 ' was a suit to recover property confiscated under applicable to 

m . niti instituted 

Act XXV of 1857 relating to the seizure of property of under Act xxv 

of 1M7 aimI Bun* 

the rebels. Section 9 of the Act provided for the institu- sal Act vm of 
tion of a suit within one year from the seizure of the 
property. Although that Act had been repealed, it was 
held that as there was no exception in the Act (XXV of 
1857) in favor of infants, the plaintiff was not entitled to 
deduct the time during which he was under the disability 
of minority. In Purran Chunder Ghose v. Mutty Lall 
Ghose Jahira,<*> which was a suit for rent under section 
29 of the Bengal Act VIII of 1869, filed the day following 
the last day of the term which was a close holiday, it was 
held that Act IX of 1871 cannot be applied for relaxing 
the term, although the general law of limitation contain- 
ed in Act IX of 1871 were not the same as they were in 
Act XIV of 1859. 

(e) The Allahabad High Court observed that the a. h. observed 

. . . m f _ rt fc» rt sec tion IS of Act 

plaintiff in a suit brought under Act XVIII of 18 73, sec- ix of lsn inap- 

. ^ _ plioabletoaeuit 

tion 95, for possession was not entitled to the benefit of under local law. 



(1) 18 B. L. B., 445. I (2) I. L. B., 4 Calc, 50. 



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40 PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SIC. 6 

section 15 of Act IX of 1871. In holding so, they followed 

the rulings of the Privy Council to the effect that the 

corresponding section 14 of Act XIV of 1859 did not 

apply to suits under Act X of 1859. (vide Note F. under 

section 14.) 

M. H. held sec- (f) In Thir Sing v. Venkataramier/ 1 ) which was an 

of 1871 inftppii- appeal allowed in the form of a regular suit under the 

under local^ Madras Boundary Act XXVIII of 1860, it was held that 

the exceptions contained in section 5 of Act IX of 1871 

applied only to cases dealt with under the general act of 

limitation, and that in the absence of a special provision 

applicable to special laws, the general rule that when • 

limitation once begins to run, it continues to run and its 

operation is not liable to be suspended either on Sundays, 

holidays or during the recess of courts, was applicable. 

In Be Sied Mohidin Sahib, (2 > the Madras High Court 

doubted whether the provisions of Act IX of 1871, for 

excluding the time requisite for obtaining a copy of the 

decree, could be applied to appeals binder the Madras 

Rent Act VIII of 1865, but in Krishnasami Muppanar v. 

Sankara Row PeshurW they held that the provisions 

were not applicable to appeals under the Madras Rent 

Act. 

p. c. on Act (g) Certain property, in the actual possession of a 

The saving rebel, was confiscated by the Government in 1858. In a 

pect to minors suit brought on 1st May, 1865, to recover the property, it 

and parties uu- * /' * * * J> 

der disability to appeared that the plaintiffs were the sons and heirs of 
Act xiv of 1869 one Af, who died in 1854, legally entitled to, though not 

held inapplica- . . _J • x- xi. x x il 

bie to a suit in possession of the property in question ; that at the 

ment under Act date of his death, and at the date of the confiscation, the 

possession of plaintiffs were minors, and that they came of age in 1861 

perty. and February 1864, respectively. It was held that the 

suit not having been brought within one year from the 

date of the confiscation, was barred by section 20, Act 

IX of 1859. There is no saving clause in Act IX of 1859 

with respect to minors or parties under disability to sue, 

and such saving cannot be held to be implied upon any 

(1) I. L. B., 8 Mad., 92. | (2) 8 Mad., H. 0. B., 44. 
(3) Mad., L. B., 271. 



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SEC. 7] PART II. — LIMITATION O* SUITS, APPEALS AND APPLICATIONS. 41 

principle of equitable construction; nor can the saving 
clauses contained in the General Limitation Act XIV of 
1859 be imported into a special enactment. Mahomed 
Bahadur Khan v. The Collector of Bareilly.<U 

(h) In Phoolbas Koonwur v. Lalla Jogeshur Sahoy,W s. 8. n and u 
the Privy Council observed, that looking to the third and i860 held to ap- 
eleventh sections of Act XIV of 1859, there was no doubt Uian under s^ 
that the intention of the legislature was that the period of i860. 
of limitation contained in section 246 of Act VIII of 1859, 
should in the case of a minor be modified by section 11 and 
12 of Act XIV of 1859. From this case they distinguish- 
ed Mahomed Bahadur Khan on the ground that it was. 
decided on an act of a very specical nature. 

7. If a person entitled to institute a suit or Legaidiaabuity. 
make an application be, at the time from which 
the period of limitation is to be reckoned, a 
minor, or insane, or an idiot, he may institute the 
suit or make the application within the same . 
period, after the disability has ceased, as would 
otherwise have been allowed from the time pre- 
scribed therefor in the third column of the second 
schedule hereto annexed. 

When he is, at the time from which the period Double and sue- 

* cesaive diaabili- 

of limitation is to be reckoned, affected by two Ue<l - 
such disabilities, or when before his disability 
has ceased, he is affected by another disability, 
he may institute the suit or make the appli- 
cation within the same period after both dis- 
abilities have ceased as would otherwise have 
been allowed from the time so prescribed. 

When his disability continues up to his death, 
his legal representative may institute the suit 
or make the application within the same period 



(1) 18 B. L. R., 292. | (2) I. L. R., 1 Gale, 226. 

6 



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42 PART H. — LIMITATION Of SUITS, APPEALS AND APPLICATIONS. [8EC. 7 

after the death as would otherwise have been 
allowed from the time so prescribed. 
Disability of w>- When such representative is at the date of 
prewntative. ^ ^eath a ff e cted by any such disability, the 
rules contained in the first two paragraphs of 
this section shall apply. 

Nothing in this section applies to suits to 
enforce rights of pre-emption, or shall be 
deemed to extend, for more than three years 
•from the cessation of the disability or the death 
of the person affected thereby, the period with- 
in which any suit must be instituted or appli- 
cation made. 

Illustrations. 

(a.) — The right to sue for the hire of a boat accrues to A during 
his minority. He attains majority four years after such accruer. 
He may institute his suit at any time within three years from the 
date of his attaining majority. 

(b.) — A, to whom a right to sue for a legacy has accrued during 
his minority, attains majority eleven years after such accruer. A 
has, under the ordinary law, only one year remaining within which 
to sue. But nnder this section an extension of two years will be 
allowed him, making in all a period of three years from the date of 
his attaining majority, within which he may bring his suit. 

(e.) — A right to sue accrues to Z during his minority* After the 
accruer, but while Z is still a minor, he becomes insane. Time runs 
against Z from the date when his insanity and minority cease. 

(d.) — A right to sue accrues to X during his minority. X dies 
before attaining majority and is succeeded by Y, his minor son. 
Time runs against Y from the date of his attaining majority. 

(e.) — A right to sue for an hereditary office accrues to A, who at 
the time is insane. Six years after the accruer, A recovers his 
reason. A has six years, under the ordinary law, from the date when 
his insanity ceased within which to institute a suit. No extension 
of time will be given him under this section. 

(/•) — A right to sue as landlord to recover possession from a 
tenant accrues to A, who is an idiot. A dies three years after the 
accruer, his idiocy continuing up to the date of his death. A's re- 
presentative in interest has, under the ordinary law, nine years from 
the date of A's death within which to bring a suit. This section 
does not extend that time, except where the representative is him* 
self under disability when the representation devolves upon him. 



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SIC. 7] PART II. — LIMITATION OP 8UITS, APPIALfl AND APPLICATIONS, 43 

(a) Inability referred to in Section 9 mnst be held also Personal disabi- 
to be a personal inability affecting the plaintiff Bimself tion has refer- 
sncb as the legal disabilities referred to in this section, in section o. 
Hanmantram Sadhuram Pity v. Arthur Bowles.* 1 ) 

(b) This section is in substance similar to sections 11 Benefit of this 

section applies 

and 12 of Act XIV of 1859, under which it was held that also to the 

. . ,. period thatdis- 

the benefit of the above two sections is not limited to the ability con- 
tinues. 
period when the disability of minority has ceased, but 

applies also to the period during which the disability 

continues, and that a minor, who through his guardian a minor after 

^° ° one year from 

preferred a claim petition under section 246 of Act VIII dismissal of 
of 1859, might, after the expiration of one year from the bjr guardian 
date of dismissal, bring a regular suit by his guardian guiar suit by 
whilst the disability of infancy continues. It was held 
that sections 11 and 12 of Act XIV of 1859 do apply to the 
246th section of Act VIII of 1859. Phoolbas Koonwur v. 
Lalla Jogeshur Sahoy.W 

(C) In Khodabux v. Budree Narain Singh,**) a minor Suit by guar- 

j. j ^ i_. * . . . « , . , dian being that 

was dispossessed of his share in certain property which of the minor u 
had been sold in execution of a decree. An application mitation appu- 
made by the then guardian of the minor under section 268 (iwi). 
of Act VIII of 1859 to obtain possession of the share in 
September, 1877, was rejected in November 1877 ; subse- 
quently, after one year from the date of the order, on the 
22nd January, 1879, a suit was brought by another guardian 
of the infant duly appointed to obtain possession. It was 
held that such suit was not barred by limitation ; the right 
to sue being that of the minor and that it might be exer- As regards ap- 
cised by any one duly appointed on his behalf during his rights are not 

minority, or by the infant himself within the time limited ©epted as in the 

case of suits. 
by this section after attaining majority. The Judges 

observe, that the law may be different as regards appeals, 
because a minor's rights are not specially excepted in this 
respect. 

(d) Following the principles of the above decision, the b. h. held pro- 
Bombay High Court in Jagjivan Amirchand v. Hasan section to appij 



decree (1883). 



(1) I. L. R., 8 Bom., 569. | (2) I. L. R., 1 Calo., 226. 
(3) I. L. R., 7 Calc., 138. 



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44 PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SEC. 7 

Abraham,^) in which a widow as guardian and adminis- 
tratrix of her minor sons obtained a money decree in 
August, 1874, and applied for execution in February, 1875, 
which was struck off in July, 1875, as no property of the 
debtor was found. She died on the 16th June, 1881. Fol- 
lowing Khodabux v. Budree Narain Singh' 2 ) it was held 
that the application made by one of the sons in October, 
1882, soon after attaining his majority, was not time-barred 
as the period of limitation began to run against the ap- 
plicant from the date of his attaining majority. 
m. h. also held (9) I n Anantharama Ayyan v. Karuppanan,* 8 ) a 
minor's grand-mother, as guardian, obtained a decree in 
April, 1873. In October, 1875, the minor's natural father, 
who was then his guardian, took certain steps in execution 
and died. The minor having attained his majority in 
1878, applied for execution on the 29th November. The 
District Judge in appeal rejected the application as barred. 
It was held that the application was saved from limitation 
by the provisions of this section, and that although for 
a season the minor was represented by a guardian who 
made the first application on his behalf, this circumstance 
did not remove the disability of the minor, 
c. h. also held (f) In Mon Mohun Buksee v. Gunga Soondery Dabee/ 4 * 
it was held that the application of the guardian is the 
application of the infant. The minor is under disability 
during the whole period of his minority. His disability 
does not cease, because he, through his guardian, makes 
two or more applications for execution, however long the 
interval between them, provided they are all made during 
his minority. 
pUoatioiTof (8) In Jugmohun Mahto v. Luchmeshur Singh, <*> 
to P enfor<S 1 ^- oer * a " 1 proceedings taken in execution of a decree dated 
1862 whe^ p he ' -^P ril > 1862 » terminated in September, 1866, when the exe- 
^J?^' he i d cution case was struck off the file. Between that date and 

not barred as he 

SnWnSe"^- ^e 25th September, 1882, no further proceedings were 

ber, 1879. 

(1) I. T*. R.. 7 Bora., 179. I (3) I. L. R., 4 Mad., 119. 

(2) 1. L. It., 7 Calc, 137. | (4) I. L. R., 9 Calc. 181. 

(5) I. L. R., 10 Calc, 748. 



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8JSC. 7] PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. 45 

taken. On the latter date an application was made for 
execution. The decree-holder was a minor when the decree 
was passed and did not attain his majority till the 25th 
September, 1879. It was held, therefore, that as Act XIV 
of 1859 was applicable to the case previous to the date on 
which Act XV of 1877 came into operation, and as under 
section 11 the decree- holder was entitled to have the time 
during which he was a minor deducted from the period 
during which limitation was running against him, his 
right to execution was not barred when Act XV of 1877 
came into force, and that being so, and the present appli- 
cation being made within 3 years of the date on which he 
attained his majority, execution of the decree was not 
barred. 

(ll) A minor who was entitled to certain lands was Assignment of 
dispossessed during his minority. On attaining his major- minor on attain- 

.. . iiigr age or as* 

ity he assigned his interest to the plaintiff, who brought sign me nt of 

. . • , . -i - , minor's interest 

a suit to recover possession withm three yaars of the by court sale 

. » ii i-irt * docs not « ntitl * 

minor s coming of age, but more than 12 years after the the assignee to 

, \ , . the benefit of 

dispossession. In another case, the minor s interest was this section. 

sold in execution of a money decree against the minor, 

and the assignee,* during the minor's minority, sued for 

possession within three years of the assignment. In both 

the cases it was held that the assignees cannot claim the 

exemptions accorded to the minor by this section, but is 

subject to the ordinary law of limitation. Garth, G. J., 

observes, " that the fact of the minor's representative in 

interest being expressly allowed by that section a certain 

time for bringing his suit, in those cases where the minor 

dies during the disability, seems clearly to indicate the 

intention of the legislature that in other cases the 

assignee of a minor is to have no special privilege." It Provisions re- 

° # . . lieving minors 

was held that the provisions of the Act which relieve «** purely per- 

* sonal and do not 

minors are purely personal exemptions, and must be consi- attach to their 
dered as attaching to the person only, and not to the pro- 
perty or the title of those who are under disability. Budra 
Kant Surma Sircar v. Nobo Kishore Surma Biswas.* 1 

(1) I. L. E., 9 Calc, 668. 

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46 PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [8BC. 8 



Disability of 
one joint credi- 
tor. 



This section ap- (i) In Bajaram v. Bansi/ 1 ) it has been observed that 
emptor's auit 1 ^ the provisions of section 7 of Act IX of 1871 are appli- 
emption. cable in computing the period of limitation in suits to 

enforce a right of pre-emption. 

8. When one of several joint creditors or 
claimants is under any such disability, and when 
a discharge can be given without the con- 
currence of such person, time will run against 
them all : but where no such discharge can be 
given, time will not run as against any of them 
until one of them becomes capable of giving 
such discharge without the concurrence of the 
others. 

Illustrations. 

(a.) — A incurs a debt to a firm of whioh B, C and D are partners. 
B is insane and C is a minor. D can give a discharge of the debt 
without the concurrence of B and C. Time runs against B, C and D. 

(6.) — A incurs a debt to a firm of which E, F and G are 
partners. E and F are insane, and G is a minor. Time will not run 
against any of them until either E or F becomes sane or G attains 
majority. 

(a) In Surju Prasad Singh v. Khwahish Ali,W during 
the plaintiff's minority the manager of the family lent 
money on behalf of the family to the defendant. The 
plaintiff after attaining his age and after three years 
from the date of the loan, sued for the money, relying upon 
the saving provisions of this section. It was held that 
during the period of three years from the date of the loan, 
as there were several adult members of the family who 
could give a discharge, the plaintiff was not entitled to 
the benefit of this section, and that the suit was barred. 

(b) In Teknath Ramohandra t>. Waman Brah- 
madev,( 3 > the plaintiff having attained majority on the 
11th March, 1882, sued the defendant within 3 years from 
that date upon a bond obtained in 1872 by his mother 



A Hindu suing 
for money ad- 
vanced during 
his minority by 
manager held 
not entitled to 
the benefit of 
thifl section, as 
there were 
adults who 
cculdgive a dis- 
charge. 



Minor plain- 
tiff's fbrother is 
not competent to 
give a discharge 
when loan bond 
stood in plain- 
tiff's name. 



(1) I. L. R., 1 All., 207. | 2) I. L. R., 4 All., 512. 

(8) I. L. R., 10 Bom., 241. 



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SEC. 9] PART H. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. 47 

and guardian in the plaintiff's name alone. The defen- 
dant contended that the plaintiff's brother, who was 
capable of giving a valid discharge to his debtors, having 
failed to sue within proper time, the suit was barred. On 
reference to the High Court, it was held that the suit was 
not barred. The plaintiff's brother not being a party to 
the bond, this section would not apply. The bond was 
passed to the plaintiff alone and the right of action 
accrued to him on the 8th July, 1873. Being then a 
minor, time did not begin to run until he attained his 
majority. 

9. When once time has begun to run, no continue™. 

running of time. 

subsequent disability or inability to sue stops 
it: 

Provided that where letters of administration 
to the estate of a creditor have been granted to 
his debtor, the running of the time prescribed 
for a suit to recover the debt shall be suspended 
while the administration continues. 

(a) In Beake v. Davis/ 1 * it was held that section 18 This section 
of the Limitation Act was m no way affected or qualified or qualify sec- 
by this section, and that its scope and intention was to 
save creditors suing their debtors, after the accrual of the 
cause of aqtion, the period during which such debtors 
have been absent from British India. In following this 
decision, Birdwood, J, in Hanmantram Sadhuram Pity v. 
Arthur Bowles/ 2 ) observes that this section must be read 
with the immediate context, and having regard to the 
context, viz., section 7, referring to certain legal disabili- inability refer- 
ties of plaintiff, the inability referred to in this section section mu*t be 
must be held also to be a personal inability affecting the sonai inabfiity 
plaintiff himself and not to the circumstances of the tiffnimseif. 
person against whom he is entitled to institute a suit. 
This decision overruled the decision in Narronji Bhimji v. 
Mngnirum ChandajiW on the original side of the High 



(1) I. L. B., 4 All., 580. | (2) I. L. E., 8 Bom., 669. 

(3) I. L. B., 6 Bom., 103. 



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48 PART II — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SEC. 9 

Court, in which it had been held that the absence of the 
defendant after the accrual of the cause of action could 
not avail the plaintiff. 
Minor suing on (b) In Mohabat Ali t\ Ali Mahomed, (l > it was held that 
tion accrued to under section 11, Act XI V of 1859, the subsequent dis- 
claim no deduc- ability of an heir will not save a suit instituted after a 
lapse of twelve years from the date of cause of action, when 
such cause of action arose during the life-time of the an- 
cestor. In Virapillay v. Muruga,W plaintiff sued in 1864, 
six months after he attained his majority, on a loan bond 
held by his father, who died in July, 1882. The loan was 
re-payable in February, 1860. It was held that under 
Act XIV of 1859, section 11, the period of the plaintiff's 
legal disability by reason of minority cannot be deducted. 
Courts being (c) " When the time has once begun to run it will 

closed owing to 

rebellion does continue to do so, even should subsequent events occur 
tion. which render it an impossibility that an action should be 

(English esse). 

brought. This rule holds good alike of all the statutes 

of limitation. So inviolable is this principle that it was 

decided in Prideaux t\ Webber, (1 Lev., 31) that a plaintiff 

was barred by time, although during the latter part of 

the six years the courts were closed in consequence of 

the rebellion." (Darby and Bosanquet, p. 17.) 

Presenting (d) In Nandvallabh v. Allibhai Isyagani/ 8 ) a plaint 

kun in charge was presented to a karkun left in charge of a court during 

vacation will vacation, and the cause of action on which the suit was 

statute. brought became barred before the vacation ended. It was 

held, that as the judge was the proper person to receive 

plaints, the presentation to the karkun was invalid, and 

did not prevent the period of limitation from running. 

Presenting (o) In Jai Kuar v. Heera Lal,< 4 > it was held that the 

plaint to Mun- , . . „ ,..,,, . , 

sifl in his pri- presentation of a plaint at the private residence of the 

▼ate residence ■»«•• — , «. . . . 

held insufficient Munsiii was not a sumcient institution of the suit, and 
1874). ' that it must be held as instituted on the opening of 
the Court on the following day when the Munsiff passed 
an order directing the plaint to be registered. 

(1) 3 B. L. R., App., 80. I (3) 6 Bom., H. C. A. 0., 254. 

(2) 2 Mad., H. C, 340. | (4) 7 N.-W. P. H. C, 5. 



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OTC. 10] PABT II. — LIMITATION OP SUITS, APPBALS AND APPLICATIONS. 49 

(f) In the Petition of Ganesh Sadaehiv/ 1 ) plaintiff PjJJ^fts- 
presented a plaint to the District Court, the Munsiffs JJ^^J^J^ 
Court in which he ought to have presented it being then 8 ^uw? be6a 
temporarily closed. It was held that the date on which the closed held suf- 



plaint was presented to the District Judge should be 
considered as the date of presentation to the proper court. 

(g) The proviso to this section refers to the case of a The proviso 

*°' * does not extend 

debtor obtaining letters of administration to his creditor's *?**• «we of * 

° debtor becom- 

estate either before or after limitation has commenced to in« Ms crea- 
tor's executor 

run and makes no mention of cases of a debtor becoming and creator be- 

© QQjujng debtor*! 

the executor of his creditor and a creditor becoming the «*ecut<*. 
executor of his debtor's estate. 

The grant of letters of administration, not being an 
act of the parties, operates as a suspension of the remedy. 
But where a creditor appoints his debtor an executor, and 
the latter accepts the executorship, this being an act of 
the parties, the debt is extinguished on the supposition of 
its being paid by the executor to himself, and thus becom- 
ing assets in his hands for which he is accountable. Sec- 
tion 87 of the Indian Trusts Act II of 1882, which does 
not extend to Bengal and Bombay, enacts "where a 
debtor becomes the executor or other legal representative 
of his creditor, he must hold the debt for the benefit of 
the persons interested therein." This is probably the 
reason why the proviso does not extend to the case of the 
debtor becoming executor to his creditor. In the case of a Executor's right 
creditor becoming the executor of his debtor the creditor tends to debts 
may pay himself out of the assets which he has to ad- statute, 
minister though the debt is barred. W He cannot bring 
a suit for the purpose of making himself pay the debt. 

10. Notwithstanding anything hereinbefore suits against 

. " . , express trustees 

contained, no suit against a person in whom ^ t 2f v 1 J^ epre " 
property has become vested in trust* for any 

(1) 5 Bom., H. G. A. C, 117. | (2) Darby and Bosanquet, p 16. 

* Definition of trust in Aot II of 1882, section 3. " A trust" is an 

obligation annexed to the ownership of property, and arising ont of a 

confidence reposed in and accepted by the owner, or declared and 

acoepted by him, for the benefit of another, or of another and the 

7 



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50 PAST II.— LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SEC. 10 

specific purpose, or against his legal represen- 
tatives or assigns (not being assigns for valu- 
able consideration) for the purpose of following 
in his or their hands such property, shall be 
barred by any length of time. 

The word " ex- (a) The word "express" occurring in the marginal note 
used in the Act of this section and also in the corcesponding section 

Of I860. 

of Act IX of 1871, was not to be found in section 2 of 

Act XIV of 1859. In Lallubhai t>. Manknvarbai/ 1 ) the 

question was whether resulting trust was such a trust as 

was contemplated by section 2 of Act XIV of 1859. The 

word " express" occurring in the English statute 3 and 4, 

Wm : IV o. 27, section 25 not being found in the above 

Under Act xiv Indian Enactment, it was held that an executor, who by 

trustee* by will the will is made an express trustee for certain purposes 

was held trustee is, as to the undisposed of residue, a trustee within the 

ed of residue. 08 " scope of section 2 of Act XIV of 1859, for the heir or 

heirs of the testator. 
Bittiestone, J., (V% In H. H. Azim-u-nissa Begum v. Clement DaleW 

on the word "re- 

gresentative M Bittiestone, J., observes, " in my opinion the word " re- 
i section 2of .' , ,,. 

Act xrv of 1869. presentative" means, the person who, as heir or executor, 
(1) I. L. R., 2 Bom., 388. | (2) 6 Mad., H. C. R. 

owner : the person who reposes or declares the confidence ia called 
the " author of the trust" : the person who accepts the confidence is 
called the " trustee ;" the person for whose benefit the confidence ia 
accepted is called the beneficiary. 

" Following trust property." Section 68 provides for the recovery 
of property originally intrusted to the trustee being found in the 
hands of a third person inconsistently with the trust or for the re- 
covery of property or money which the trustee may have re- 
ceived for the trust property he has disposed of, provided it is 
capable of being traced in the hands of the trustee or his legal re- 
presentative. 

The words " good faith" occur in section 96. Section 96 of the 
Indian Trusts Act saves the rights of bond fide purchasers by pro- 
viding that the rights of transferees in good faith for consideration 
shall not be affected or impaired. But the Act does not affect the 
rules of Mahomedan law as to Waqf, or the mutual relations of the 
members of an undivided family as determined by any customary or 
personal law, or applies to public or private, religious or charitable 
endowments. 



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8EC. 10] PAST U. — LIMITATION OF 8UITS, APPEALS AND APPLICATIONS. 51 

or administrator, represents the estate of a deceased 
trustee ; and who has received, as such representative, the 
specific property which is the subject of the trust." 

(o) The Privy Council in Balwant Rao Bishwant p. c. on the ex- 
Chandra Chor, v. Pnrun Mai Chanbi/ 1 ) has interpreted the the purpose of 
expression " for the purpose of following in his or their or theirhand* 

, , . , ,, JL . _ , , . ...... each property." 

hands such property. Their Lordships say that it means 
" for the purpose of recovering the property for the trusts 
in question : that when property is used for some purpose 
other than the proper purpose of the trusts in question, it 
may be recovered without any bar of time from the 
hands of the persons indicated in the section." 

(d) The words " good faith" used in the explanation The words 
to section 10 of Act IX of 1871, and in Articles 133 and used in Act ix 
134 of the second schedule of that Act have been omit- been omitted in 
ted in the Act of 1877. This appears to have been made 
probably with reference to the observations of Green, J., 
in Manik Lai Atmaram v. Manchershi/ 2 ) in which he has 
compared the "Indian Limitation" Act with statute III 
and IV, Wm. IV, c. 27, and remarked that the former, viz.. 
Act IX of 1871 was less liberal in the protection of a pur- 
chaser for value than the latter. For, under Act IX of Act tk of.ien 
1871, a purchaser from a trustee or mortgagee claiming chaser from 
protection of the Limitation Act was required to show not that purchase 

• was 6o»<f jW#. 

only that he gave value, but that the purchase was bond 

fide, while under the English Limitation Act such pur- Lapse of time 

chaser was protected by the lapse of the statutory period Ssh Act protect 

of limitation, whether there was bond fide or not on the purchase 



pure 

part of the purchaser. The Judge referring to Peter v. jw«or.n 
Peter (1. Drew, 371) observed, " I may add that, in my 
opinion, there is nothing in the Indian Limitation Act 
excluding from its benefit those asserting their right to 
claim under a bond fide purchase for value, by reason that 
those claiming against them are the objects of a chari- 
table trust imposed on such property." 

(e) " Every trustee must be a trustee for a specific pur- Obserrations of 
pose in the sense that a purpose can be indicated to which " specific pur. 

r r r pose" in Act IX 

of 1871. 
(1) L. R^ 10 Ind. Ap., 96. | (2) I. L. B., Bom., Vol. 1, 281. 



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52 PART H. — LIMITATION O? SUITS, APPEALS AND APPLICATIONS. [SEC. 10 

the property held by the trustee must be applied by him. 

But I think the words u specific purpose" were intended as 

Means purpose words of restriction, and the conclusion I have come to is, 

specified by the 

creator of the that by " specific purpose" must be meant as a purpose 
which has been specified by the person who created the 
trust. I am not prepared to say that the word " specific" 
in the Indian Act of Limitations corresponds exactly to 

"Express" the word " express" in the English Act. Express trusts 

trust in the r ° 

English Act in- include, besides direct trusts, implied trusts and resulting 

dudes implied ' . , 

and resulting trusts, but not constructive trusts, using those words as 

trust but not ... 

constructive defined by Mr. Lewin at p. 86 of the fifth edition in the 

trust. * * 

notes. That language, and that classification of trusts, 

however, are scarcely applicable in a country where, by 

the word "trusts," we indicate relationships differing 

from that of trustee and cestui que trust under the English 

law, and where such relationships may be created by parol. 

It may, I think, well be, that the Indian legislature did 

not think it desirable, after a certain lapse of time, to 

enforce trusts which had to be gathered from the tenor of 

a conversation and had not been declared by any specific 

Section 10 of words. The trust which it is now sought to enforce had 

was held not to not been specified by the testator, and I therefore think 

not specified by that section 10 does not apply to this case, and that the 
testator. . 

ordinary rules of limitation must apply. Kherodemoney 

Dossee v. Doorgamoney Dossee."^) 

whether a suit (f) Maniklal Atmaram v. Manchershi Dinsha Coach- 

diafflrn^the man/ 2 ) was a suit brought by a trustee to annul -the act 

of™predeoes8or of a former trustee, under which the defendant claimed 

son claiming by to hold certain property as vendee. In this case, a Hindu, 

Act would lie. by a will, dated 1802, bequeathed a house to his wife for 

her life in trust, to allow the impersonations of valabh to 

reside in it, and appointed four executors, but made no gift 

over of the house to those executors or any one else. In 

June, 1820, the widow claiming as executrix obtained an 

Widow as exe- order for probate to her as well as to the executors who 

cutrix of the .,,,., , ., . - 

testator sold in retired, and the widow who was in sole management of 

1862 property 

to defendant the testator's estate sold the house in 1862 for its full 

who knew of the 

trUBt ' (1) I. L. E., 4 C*lc., 4/71. | (2) I. L. B., 1 Bom., *6fc * 

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SIC- 10] PAET II. — LIMITATION 0? SUITS, APPEALS AND APPLICATIONS. 53 

value to the defendant, who had notice of the trust. The 

widow died in 1870, and in 1871 the High Court, on 

the application of the plaintiff's father, granted him 

letters of administration revoking the probate to the 

widow, but without prejudice to any act done by her in 

the course of administration. The plaintiff's father died Plaintiff who 
• irk*** t ^r . nN „ ., -i . ,-— ,t t i had also become 

in 1873. In May, 1875, the plaintiff, as the only son and sole heir of tes- 

i • * -i • # , i ii * , i totor °y release 

heir of his father, sued to recover possession of the pro- riven him by 

perty from the defendant. The plaintiff was also one of suedasadminis- 

the surviving heirs of the testator, and became the sole deceased 

surviving heir by virtue of a release given him by the perty inwS'to 

other heirs. The plaintiff claimed the house to hold it trust. 6 ** 

for the purpose of giving effect to the trust created by the 

will. He obtained letters of administration in 1876, and 

based his claim thereon. It was held that the plaintiff it was held that 

had no ground of action as administrator of the testator ; adnSSStraton* 

that as the trusteeship vested in all the surviving heirs, 

the release, though it would vest the legal estate in 

the plaintiff alone, could not vest the trusteeship in him 

exclusively ; and that even if the other heirs had joined 

as plaintiffs, still the suit would not lie, as it is one by 

trustees to disaffirm the completed act of a predecessor 

against the person claiming by virtue of such act. Green. Green J., ob- 

. ii. • «.» . . • serves,- such snit 

J., observes, " in whatever way the plaintiff s position is is not maintain- 

' . - , \ . . . ableintheform 

looked at, it comes to that of one, claiming to act as in which it has 

trustee under a will, seeking to undo an act of one who 

was also trustee under the same instrument. If Rajkuver 

had, in her life- time, filed a suit against the present 

defendant, saying, "true, I have conveyed this house 

to you (the defendant), and you have paid to me Us. 13,000 

as purchase money, and have since laid out as much 

again upon it ; but the conveyance by me was a breach of 

trust, and you had the means of knowing that it was so, 

and you must, therefore, restore me the property and 

resign yourself to the loss of the purchase money and 

expenditure/' I apprehend such a suit would not be 

listened to. A trustee, as between himself and one to 

whom he has conveyed trust-property, is, I apprehend, 

as much concluded by his own completed act as any 



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54 PAET II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SEC. 10 

Completed act other vendor. So, again, I apprehend, the completed act 
trustee*™ e con- of a former trustee, though in itself a breach of trust, is 
su^^r^seek- as conclusive against a successor in the trusteeship, 
wiSter- where it is the successor who, in a suit against one 
Sidersnch'act. claiming under and by virtue of such act, is seeking to 
There are cases disaffirm and annul it. We find, no doubt, cases of 

of one trustee 

suing oo-tmstee one trustee who has been innocent of any breach of trust 
its value, suing a co-trustee, or the representatives of a deceased 

of etttui qu$ trustee, to restore property disposed of by breach of trust, 

trust suing 

trustee and his or its value. There are also many cases to be found of 

perty. cestui que trust suing a trustee who has, in breach of 

his trust, disposed of property, and joining as defendant 

in such suit the party who has purchased the property 

with notice of the breach of trust. But in these cases the 

act sought to be annulled is not the act of the plaintiff or 

his predecessor in estate, and has no similarity to the 

case of a trustee seeking to disaffirm his own act, or that 

of a predecessor, %a against the person claiming by virtue 

But no prece- of such act. This difficulty in the plaintiff's way occurred 

a trustee sees:- to me early in the course of the hearing of the present 

his predeces- case. The defendant's counsel, in stating the case of the 

person defendant, maintained that no precedent could be found 



•uchAcl y of a suit of the nature of the present one, and the plain- 
tiff's counsel did not profess to have found any, though 
such precedent was called for early in the course of 
a hearing which lasted several days. Without saying 
anything as to the probable fate of this suit, had it been 
instituted by the Advocate- General on behalf of imper- 
sonations of valabh visiting, or who might visit Bombay, 
it cannot, in my opinion, be maintained in its present 
form." 
Alienation of (g) Green, J., observes, " there is no such principle of 

per^by^rustee. law that the alienation of charity property by the trustees 
SseifTl* not a is, standing by itself, a breach of trust. The Court of 
' Chancery in many cases authorizes such alienations, and 
according to Lord Langdale's judgment, in Attorney 
General v. South Sea Company (4 Beav. 453, see p. 458), 
" that which the Court might have done upon its own 
consideration of what would have been beneficial to the 



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SIC. 10] PABT D.— LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 55 
charity, might have been done by the trustees upon their On considers 

Vr^., . Al _ • * xi_ • i i » tion of benefit 

own authority in the exercise of their legal powers, to charity. 
Looking at the circumstances of the present case, and sell trust pro- 
having regard to the principles to be found in a number perty * 
of decisions of English Courts of Equity, (of which I may 
mention, Attorney-General v. Warner, (2, Swanst, 291), 
Attorney-General v. Pembroke Hall, (2 Sim. and St. 441, 
S. C. I. R. & M. 751), Attorney-General v. Hungerford, 
(2 CI. and Fim. 357) and Attorney- General v. The South 
Sea Company, (4 Beav., 453), I should have been inclined, u neoeasarythe 
had it been necessary in the present case distinctly to case would hold 
decide the question to uphold the sale by Rajkuver as as executrix 
being a proper and reasonable exercise of her office as of trust, 
trustee, and to have held it not to have been a breach of 
trust at all. But I say nothing as to the question whether 
her application of the proceeds to building or completing 
a temple and dharmsala at Gogo can be sustained. But, 
in my opinion, the proper person to institute any suit Proper person 
against the estate of Bajkuver, if any suit at all be of the widow in 
maintainable, in respect of her application of the purchase plication of 
money received from the defendant, would be the Advo- oeeds feAdvch 
cate-General on behalf of the Maharajas, and not the cate * 
present plaintiff." " It has been decided by the highest Vendee with 
tribunal in England, in the case of the President and might rely upon 
Scholars of the College of St. Mary Magadalen, Oxford v. 
The Attorney-General, (6 H. L., Ca. 189), that the pur- 
chasers for value of lands devoted to charity, namely, the 
poor of certain parishes, were entitled to rely on the 
English Statute of Limitations as a defence, though they 
purchased with notice of the charity," 

(ll) A, by his last will and testament, gave his pro- o. h. 

perty to trustees, partly in trust for religious and other might compel 
purposes, and partly to pay thereout to certain persons nSSeter trust*" 
and their heirs for -ever certain annuities, being fixed por- [tough their 
tions of the net profits of a certain estate called the Hurro p^/undfcl 
Estate. A died in November, 1863. On the 11th of August, $£££** 
1879, the heir of one of the annuitants instituted a suit 
claiming a share under the will, and asking for a partition 
of that share. The plaintiff alleged besides, that certain 



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56 PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SBC. 10 

of the trusts and provisions in the will were invalid in 
law ; that, consequently, a large portion of the testator's 
property remained undisposed of at his death, and she 
claimed a share of this residue as one of the heirs of the 
testator. It was held that, under the circumstances, the 
gift of the share of the rents and profits amounted to a 
gift of a share in the corpus of the estate ; and that, in- 
respect of that portion of the plaintiff's claim, the suit 
was not barred by limitation. It was further held that 
where an estate is given by will to trustees for religious 
and other purposes, some of which are invalid or fail, the 
heirs of the testator may be barred by limitation from re- 
covering the portion undisposed of, though they might 
still bring a suit against the trustees to compel them to 
properly administer the trusts which had not failed. 
Hemangini Dasi v. Nobin Chand Ghose.W 
A. H. (i) In Barkat v. Daulat/ 2 ) plaintiffs, as heirs of certain 

trustee, it must co-sharers of a village who had abandoned their share for 
press" words *" 60 years, sued the defendants for surrender of the shares 
owner entrust- on receipt of the Revenue paid by them. The defendant, 
discharge a par- when obtaining possession in 1838, on payment of Revenue 
tion. due by plaintiffs' father, had attested a village paper 

agreeing to restore the land if the latter returned and paid 
him the Revenue. The village Administration Report 
of 1862 also stated that co-sharers might recover their 
shares on payment of arrears of Revenue. It was held 
that such documents did not prove any express trust, and 
that in order to make a person an express trustee within 
the meaning of this section, it must appear either from 
express words, or clearly from the facts that the rightful 
owner has entrusted the property to the person alleged to 
be a trustee for the discharge of a particular obligation. 
a. h. (j) In Durga Prasad t?. Asa Ram,< 8 ) the defendant and 

strwstive^trust" bis father were jointly entitled to a moiety of certain pro- 
band iimit£ P er *7» while his uncle and uncle's son were entitled to the 
apply. 6 not to other moiety. In 1840, the defendant and his father were 

(1) I. L. R., 8 Calc, 788. | (2) I. L. R., 4 All., 187. 
(3) I. L. R., 2 All., 362. 



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SIC. 10] PAST II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 57 

transported for life, and their wives who were alive The owe was 
at the time since died. The defendant's uncle's son red the courts " 
mortgaged the entire shop on the 30th May, 1873, to the Sfrenoe tc/the*" 
plaintiff, who, obtaining a decree for sale in November, ** 
1876, purchased it in auction in April, 1879. The defen- 
dant, who had in the end of 1877 returned from trans- 
portation under a free pardon, having disputed the plain- 
tiffs right, the plaintiff brought a suit in 1878 to recover 
possession ; it was alleged by the defendant that he had 
transferred his moiety of the shop to his uncle in trust 
and that he continued payment of the income to his wife 
till her death, which occurred 9 or 10 years before the 
suit. The Lower Appellate Court rejected the suit on the 
ground that the defendant's right was extinguished. 
From the proceedings taken in 1867, the defendant's 
uncle appeared to have claimed the property, claiming to 
succeed the defendant's wife at her death, and the judg- 
ment in that case showed that the claim proceeded on the 
assumption that the defendant was dead. Straight, J., 
being of opinion that the case was such that required the 
court to exercise its powers of equitable interference to 
the fullest extent, held, that the court was justified in Held court wm 

justified in hold- 

holding that a constructive trust existed in the defen- ing that a con- 

° # structive trust 

dant's uncle and his son, from the day the imprisonment existed in this 
of the defendant and his father commenced, and that no 
limitation could affect the rights of the defendant, and he 
was entirely justified in setting them up against the plain- 
tiff's claim to the extent of his own interest. " A person a pcrson'may 

declare trust 

may declare a trust either directly or indirectly : indirect- either directly 

or indirectly. 

ly by evincing an intention which the court will effec- 
tuate through the medium of an implied trust." Lewin, 
6th edition, p. 95. Again " constructive trusts are those Constructive 
which the court elicits by a construction put on certain which court en- 
acts of parties." " No time will cover fraud so long as it parties. 
remains concealed ; for until discovery, or at all events 
until the fraud might with reasonable diligence have been 
discovered, the title to avoid the transaction does not pro- 
perly arise." Lewin, 6th edition, p. 710. 
8 

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58 PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SEC. 10 



M. H. 

Claim to vindi- 
cate one's per- 
sonal rights of a 
trustee to pos- 
session against 
anotVr claim- 
ing 1 right as such 
does not fall un- 
der this section. 



No length of 
time bars suit 
for property 
against dismis- 
sed trustee. 



P.O. 

Suit to fall 
within this sec- 
tion must be 
brought to re- 
cover trust pro- 
perty for the 
benefit of the 
trust. 
(1883.) 



(k) In Karimshah v. Nat tan/ 1 ) plaintiff, who was 
brother of the 1st defendant's deceased husband, sought to 
recover certain property granted for a charitable and re- 
ligions institution, alleging that the 1st defendant had 
been in wrongful possession and that the other defendants 
held under her. The 2nd defendant claimed to be in 
possession as trustee under a will of the 1st defendant's 
husband for upwards of twelve years. The Lower Appel- 
late Court rejected the suit as barred. A Division Bench, 
(Turner, C. J., and Muthusawmy, Aiyar J.,) held that the 
case was governed by the decision of the Judicial Com- 
mittee in Balwant Rao Bishwant Chandra Chor v. Purun 
Mai Chaube,(*) in which it was held that a claim to vindi- 
cate the personal right of a trustee to the possession of 
immoveable property against another person claiming 
that right in the same character was not governed by sec- 
tion 10 of the Limitation Act. 

(!) Virasami v. Lubba^ was a suit by the trustees 
of a temple to recover the property appertaining to it 
from an ex-trustee dismissed from the office by the temple 
committee. It was held under this section that no length 
of time would bar a suit and that this case was distin- 
guishable from Param Singh v. Lalji Mai/ 4 ) in which the 
appellant was not a trustee in the sense of the Limitation 
Act, for, " trustee" by section 3 of that Act does not in- 
clude a benamidar. 

(m) In Balwant Rao v. Puran Mal,( 5 > plaintiff sued to 
be recognized as chief manager with power to dismiss 
and appoint a sub-manager and to obtain possession 
of the temple property by ejectment of the defendant, 
alleging that his ancestor founded the temple, and, dedi- 
cating the plaint property to it, entrusted the management 
of the service and worship to the defendant's grandfather, 
and that the mother of the defendant, who was a minor, 
refused to render an account of the income when de- 



(1) I. L. R., 7 Mad., 417. I (3) I. L. E., 6 Mad., 54. 

(2) I. L. R., 10 Ind. Ap., 90. | (4) I. L. R., 1 All., 403. 

(5) I. L. R., 6 All., 1. 



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SIC. JO] PAKT II. — UMITATION OF 8UITS, APPEAL* AND APPLICATIONS. 59 

mended in 1865. Their Lordships of the Privy Council 

held that the plaintiff sued to enforce his own personal 

right to manage the endowment, that there being no 

question whether or not the property was being applied 

to the purposes of the endowment, section 10 of Act IX 

of 1871 was not applicable to the suit, that a suit, in 

order to fall within that section, must be brought for the 

purpose of recovering the trust property for the benefit of 

the trust, and that the section means that when trust May be recover- 

property is used for some purpose other than that of the in whom it has 

trust, it may be recovered without any bar of time from trust. v 

the hands of those in whom it has been vested in trust. 

It was further held that the suit might fall within 

Article 123, or 145 of Act IX of 1871, which was in force 

when the suit was brought, and had it fallen within 

neither of the above, it would be barred under Article 118. 

(D.) In a suit brought by a divided son, who had ob- Father, divided 
tained a decree against his father and brother for a third ing family debt 
share of family estate and of a debt due to the family, trustee. 
to recover his share of the debt which the debtor paid 
after the decree to his father, who since died, it was held 
that the money received by the father was not held in 
trust for a specific purpose within the meaning of this 
section, bat that the plaintiff's share received by the 
father was money received to plaintiff's use under Article 
62. Arunachalla v. Ramasami.W 

(O) In Saroda Pershad Chatto Padhya v. Brojo Nauth r - h. 

Bhutta Charges/ 2 ' plaintiff alleged that his father had, ^/ru* against 
before his death, placed in the hands of defendant a account does 

not fall under 

certain sum of money, and had also transferred to him this section. 
(defendant) his landed property upon trust, that he, 
(defendant) should, during ijhe minority of plaintiff, hold 
the money and manage the property for the benefit of 
plaintiff and maintain him, and should, on the plaintiff's 
attaining his majority, make over to him the property 
and so much of the money as should then be unexpended, 
and that defendant had accepted the trust, but upon 

(1) I.LR.,6 Mad., 402. | (2) I. L. R., 5 Calc, 910. 

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60 PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SBC. 10 

plaintiff's coming of age, had refused to render any 
account. Plaintiff accordingly brought a suit for an 
account. Defendant pleaded that plaintiff had attained 
his majority at a much earlier period than he alleged, 
and that the suit was barred by limitation. Plaintiff 
replied that under section 10 of Act XV of 1877, his suit 
Held such suit could not be barred by any length of time. It was held 
if not brought that section 10 of Act XV of 1877 did not apply to such 
from j>iatntiff's a case, and that plaintiff's suit would be barred if not 
majo . brought within six years from the time when he attained 

his majority and became entitled to demand an account. 
In India, suits between a ' cestui que trust* and trustee for 
an account are governed solely by the Limitation Act, 
(Act XV of 1877) and unless they fall within the exemp- 
tion of section 10, they are liable to become barred by some 
one or other of the articles in the second schedule of the 
To claim the Act. To claim the benefit of section 10, a suit against 
section, suit a trustee must be for the purpose of following the trust 
low trust-pro- property in his hands. If the object of the suit is not to 

perty in trus- , 

tee's hands. recover any property m specie, but to have an account of 
the defendant's stewardship, which means an account of 
the moneys received and disbursed by the defendant on 
plaintiff's behalf, and to be paid any balance which may 
be found due to him upon taking the account, it must be 
brought within six years from the time when the plaintiff 
had first a right to demand it. Even in England the Judi- 
cature Act (36 and 37 Vict, C. 66, section 25, clause 2) 
enacts, that " no claim of a cestui que bust against his 
trustee for any property held on an express trust, or in 
respect of any breach of such trust, shall be held to be 
barred by any Statute of Limitation." 
b. h. (p) The Bombay High Court followed the above de- 

This section • • • m •• vr •• r* * •• ^ .. ... ... _ 

does not apply cision in Snapurji Nowroji Pochaji v. Bnikaiii.W In this 

to suit for an 

account against case, testator died in 1865, leaving a will of which his 

executor or his -r» i « * 

representative, nephews P and S were the executors. His will pro- 

(FebruaJry 1886) * 

vided that after payment of all debts, Ac., the residue of 
his property should remain in the hands of the executors, 

(1) I. L. B., 10 Bom., 242. 



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8IC. 10] PAET n. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 61 

who were " to maintain the family in the same manner 
as I used to maintain the family in my house." After 
the death of both the executors, the residue was to be 
apportioned among the children of his nephews in equal 
shares. On the death of the testator, P took possession 
of the estate, and died on the 10th January, 1876. 8 
remained passive until the 27th August, 1884, when he 
took out probate of the testator's will. On the 23rd 
January, 1885, he filed the present suit against the defen- 
dant as widow and administratrix of P, praying for an 
account of the estate of the testator that had como to the 
hands of P, and also for an account of the estate of P. 
The plaintiff contended that the testator's estate came 
into the hands of P as a trustee, that the suit was to 
recover the property for the purposes of the trust, and 
that section 10 of the Limitation Act (XV of 1877) 
applied. The defendant alleged that all the moneys 
belonging to the testator's estate, which had come into 
the hands of P, had been expended in paying the testator's 
debts, and that there was no residue left for the purposes 
of the trusts of the will, and she contended that the 
suit was barred by limitation. It was held that the suit Held that the 
was barred by Article 120 of schedule II of the Limitation by article 120, 
Act XV of 1877, being primarily not a suit to follow one to ascertain 
trust property in the hands of a representative of a trustee, trust remained 
but really to ascertain whether any trust remained to be tered after pay- 
administered after the testator's debts and funeral ex- Ac. 
penses Have been paid. No breach of trust was alleged. 
The suit was merely for an account against the executor 
or his representative. To such a suit this section of the 
act does not apply. ' 

(q) In Hurro Coomaree Dossee v. Taini Churn By- But suit to 
sack/ 1 ) a certain lady left a will of which she appointed one with trust as 
A y since deceased, sole executor, and directed by the will for an account. 
that the income of certain houses should be applied towards under this see- 
the performance of the worship of an idol, and that the (April isss.) 
balance should be divided between certain persons named 

(1) I. L. R., 8 Calc, 766. 



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62 PAET II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SBC. 10 

in the will. The executor left a will, of which he had 
appointed two executors who acted in the trusts of the 
will. After certain litigations, the defendants in this case 
were declared as fit and proper persons to perform the 
trust. The plaintiffs in this case charged the defendants 
with various breaches of trust and for an accouut. It was 
held that a suit against trustees for the purpose of 
charging certain property with the trusts declared by the 
author of the trust in respect of that property and for an 
account, is a suit to follow property, and as such is not 
barred by any lapse of time. 
a ;te*tator (r) In Anund Moye Dabi v. Grish Chunder Myti/ 1 ) 

cuiar property 1st defendant was a minor and his father was 2nd defen- 
cuiar y debf ar * dant. The 1st defendant's maternal uncle borrowed from 
the 2nd defendant Rs. 15,000 ; and in May, 1868, executed 
a will in favour of the infant defendant, bequeathing to 
him his properties and directing him to pay off the 2nd 
defendant's debt out of the properties for which lie (the 
testator) had obtained a decree against a third party. 
The decree was then in the Privy Council in appeal. 
After it was disposed of, the 2nd defendant, as guardian 
of his son, executed the decree and obtained possession of 
all the properties included in it, and realized a certain 
sum of money. Subsequently the plaintiff's husband 
obtained a decree against the 2nd defendant and caused 
his right to receive his debts to be sold in execution and 
purchased it himself in September, 1875. This suit for 
money was not instituted until more than 3 years after 
that date. The defendants pleaded limitation, and the 
Lower Court rejected it on that ground. It was held thai 
Charge of debts a charge of debts generally by a testator upon his pro- 
testator on his perty or any part of it will not affect limitation, because 
not affect Umi- it does not at all vary the legal liabilities of the parties, 
or make any difference with respect to the effect and 
operation of the statute itself. The executors take the 
estate subject to the claim of the creditors, and are in 
point of law trustees for the creditors, and such a charge 

(1) I. L. R., 7 Calc, 772. 

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tation. 



SBC. 10] PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 63 



H. 

This section 
does not apply 
to trust of a ge- 
neral nature, 
such as the law 
imposes on exe- 
cutors and 
others holding 
fiduciary posi- 
tion. 



adds nothing to their legal liabilities. But the case is dif- But when he 
ferent when particnlar property is given upon trust to pay cuiar property 
a particular debt or debts. In such a case the trustee has lardebt It impo- 
a new duty, not the ordinary duty of an executor to pay on trustee. 
debts generally out of property generally, but a duty to 
apply a particnlar property to secure a particular debt ; 
and there is a trust within the meaning of this section. 

(8) Greender Chunder Ghose v. Mackintosh^ 1 ) was 
brought in November, 1876, by creditors of the estate of 
A on behalf of themselves and all the other creditors of 
the estate against the executor of the will of A and also 
against the mortgagee who had obtained the mortgage 
from the executors in 1863. The object of the suit was 
to follow in the hands of the mortgagee the property 
mortgaged. It was contended that if the property in the 
hands of the mortgagee is in fact chargeable with the 
payment of debts, it has then become vested in him for 
the specific purpose of paying those debts. Following 
the decision in Kherode Money Dossee t\ Doorgamoney 
Dossee/*) it was held that the suit was not governed by 
this section, and that the words " in trust for a specific 
purpose" are intended to apply to trusts created for some 
defined or particular purpose or object as distinguished 
from trusts of a general nature, such as the law imposes 
upon executors and others who hold recognized fiduciary 
positions. It was further held that the suit was barred 
by article 118 of Act IX of 1871, corresponding to Article 
120 of Act XV of 1877. This case was distinguished 
from Lallubhai Bapubhai v. Mankuvar Bai, (8 ) which was 
decided under section 2 of Act XIY of 1859, which would 
appear to apply to all trustees, and which contains no 
words restricting the scope of the section to trusts for a 
specific purpose. 

(t) In Thackersey Dewraj v. Hurbhum Nursey,W 
plaintiffs, who were members of a caste and worshippers at 
caste temple, sought to make the defendants, who were 



(1) I. L. R., 4 Calc, 897. 

(2) I. L. R., 4 Calc, 465. 



(3) I. L. R., 2 Bom., 388. 

(4) I. L. R., 8 Bom., 482. 



Suit to make de- 
fendant liable 
for money lost 
to caste and tem- 
ple through de- 
fendant's mis- 
conduct fell 
under this see. 



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64 PART n. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SBC. 10 



Possession of 
plaintiff's land 
by the Peshwa's 
Government, by 
attachments 
from 1806 and 
British Govern- 
ment from 1866 
to 1870, was held 
as possession by 
constructive 
trustees in a 
suit by plain- 
tiff, to elect 
tenant after 
restoration. 



trustees liable in respect of the moneys lost to the caste 
and temple funds, by their misconduct and improper 
dealing with them, and prayed for the appointment of 
new trustees and for the settlement of a scheme. It was 
held that under the provisions of this section the defen- 
dant's liability for losses from 1867 was not barred, inas- 
much as the money could be traced to the hands of the 
trustees, and the losses were caused by their misconduct 
and improper dealing with it. 

(u) In Tukaram v. Sujangir Guru/ 1 ) the Peshwa's Go- 
vernment attached certain vatan lands of the plaintiffs 
family, in 1806-1807, and the British Government which 
succeeded it resumed them or made them khalsa in 1866. 
The defondant in the meantime entered upon the land 
as tenant to the Government, and paid assessment there- 
on. The plaintiff obtaining an order for the restoration 
of the lands in 1871, brought a suit against their co- 
parceners for partition and obtained a decree. The 
defendant having obstructed the execution of the decree, 
the plaintiff sued in 1881 to eject him. The Lower Court 
held that the plaintiffs were entitled merely to such 
assessment as might remain after payment of judi to Go- 
vernment, and that the defendant's possession had become 
adverse, as the suit was not brought within 12 years from 
the resumption by Government in 1866. The Lower Ap- 
pellate Court rejected the suit as barred. It was held 
that after attaching the lands, the Peshwa's Government 
held the same as constructive trustees for the plaintiff, and 
the same relation continued when the British Government 
succeeded it. The British Government, having succeeded 
to the trust continued to hold as trustee for the family of 
the plaintiff; their possession, therefore, could not be made 
adverse by limitation, or notice to the plaintiff. It was 
not found that the defendant held the lands before the 
attachment by the Peshwas. The plaintiff's right, having 
never been extinguished, had the same legal force in 1870, 
when the lands were restored, as it had before attach. 



(1) I. L. R., 8 Bom., 685. 



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SKC. 10] PAST II.— LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 65 

ment in 1806, and as the suit waa brought within the term 
computed from 1871, it was not barred, the inability of 
the plaintiffs to sue before 1871 falling within the 
purview of the maxim "contra non valentem agere non 
cwrrit prcescriptio." 

(V) In Merwanji Hormusji v. Rustomji Burjorji/ 1 * A ar < JJ 5 ? a ^Lir' 
plaintiff, as representative of his deceased father, who was •"** for a share 
a partner with the 1st defendant, sued on the 16th of July, m«* recovered 
1880, for a moiety of the amount realized by the 1st de- fog partner, 
fendant by selling to the 2nd defendant a claim which under this see- 
the 1st defendant's firm had against another company. 
The firm of the 1st defendant and the plaintiff's father 
ceased to do business at the end of 1862, but no formal 
dissolution of the partnership took place. In 1869, the 
1st defendant in his own name and that of the plaintiff's 
father, filed a suit against the company indebted to them, 
and in March, 1870, a commissioner was appointed to take 
account. In December, 1872, plaintiff's father died, and in 
February, 1873, the 1st defendant assigned for 17,000 
rupees, the claim of his firm to the 2nd defendant, who 
paid to the 1st defendant in January, 1878, rupees 1,000 
and in September, 1879, rupees 6,000, and at the hearing 
of this suit paid into court 10,000 rupees, for which he Bat it wm held 
had executed a promissory note. It was held that the recover if°ne 
plaintiff was entitled to recover if the suit was brought time though his 
within the period of limitation prescribed therefor, al- partnership ■!£ 
though right to bring a suit to take partnership accounts hare been bar- 
generally would hare been barred. Latham, J., in his 
judgment, observes, " it is admitted by Mr. Starling that 
his client cannot claim the benefit of section 10 of the 
Limitation Act XV of 1877, and I think that the admis- 
sion is clearly right." 

(w) In Manickavelu Mudali v. Arbuthnot and Co./ 2 ) (Sembie) Re- 

. salting trust 

plaintiffs, as representatives of the original creditor, not expressly 
claimed to participate in the dividends set apart for not fail under 
creditors in 1840, on the ground that they were not 
claimed by those creditors and were in the hands of the 



(1) LL.B.,6 Bom. 62a | (2) I. L. R., 4 Mad., 404. 
9 



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66 PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SEC. 10 

Plaintiff Bued to defendants, though their suit originally was to have 

the unclaimed the net balance due to the estate of the deceased debtor, 

apart for other ascertained and administered under the court's direction. 

might can upon The defendants pleaded that all the available assets were 

time for pay- divided among the creditors up to 1840, and that they had 

in their hands only monies belonging and payable to the 

other creditors of the estate, and that their firm did not 

take upon themselves the burden of the trusts, but were 

employed upon the usual agency commission terms to 

Such creditors close the affairs of the trust. Kei-nan, J., observes, " I am 

not being par- 
ties to this suit, inclined to think that the trustees, who are only con- 
defendants can 
get no relief as structive trustees by virtue of having possession of the 

against them by J * 

an account. trust funds and of having acted in trust, and who are not 
representatives of the original trustees, are not persons 
in whom the property is vested for a specific purpose 
under section 10, Limitation Act 1877, inasmuch as the 
trust now sought to be established and administered is a 
resulting trust not expressly declared. The specific pur- 
Such unpaid pose was to pay dividends to all the creditors then. No 
ed in the defend- specific purpose to re-distribute was declared. But the 
specific purpose defendants received no general funds : they only received 
creditors only, dividends set apart for particular creditors, and those 
specific pur- dividends are vested iu them for the specific purpose of 

pose of the . . 

general estate, paying those creditors only, and not for the specific pur- 
pose of the general estate. However, it is not necessary 
to decide the question of Limitation." 
Words "you (x) In Kumarasami v. Subbaraya,* 1 ) plaintiffs are two 

brothers, their of the brothers of one deceased Krishna Moodelly, who 
children, ac- died in September, 1882. The deceased, by a will, made 
wishes' do not several bequests and gave several directions as to his 
There is noth- property, but there was no bequest to the executors who 
^hat would took no benefit under the will. The executors having 
cient compu- " renounced their office by a deed in March, 1883, adminis- 
direction! the tration with the will annexed was, with the plaintiff's 
consent, granted to defendant No. 1 in British Burmah. 
There was a clause in the will to the following effect : 
" you should give my brothers, Kumarasami Mudaliar, 

(1) ILR.,9 Mad., 325. 



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SEC. 10] PART H. — LIMITATION OF SUITS, APPKAL8 AND APPLICATIONS. 67 

Subbaroya Mudaliar, and Vyapuri Mudaliar, their wires 
and (sons) children, according to your wishes. Yon shonld 
defray the expenses of the marriages of Ramasawmi 
Mudaliar's four daughters ; you should pay for the edu- 
cation, &c.» of the aforesaid persons, (two) sons, what may 
be required." The plaintiff sued to have the trusts of the 
will carried out. Kernan, J, on the original side of the 
High Court declared that the said three brothers, their 
wives and sons were entitled to the residue of the estate, 
and ordered that it be divided into three shares. On 
appeal, a Division Bench, Brandt and Parker, J. J., held 
that no trust was created by the words " you should give 
my brothers, their wives and children, according to your 
wishes." Parker J, observes, " a trust is not created unless a trust is not 
the words are imperative and the subject and objects are the words are 
certain ; Knight v. Knight. (3 Beav., 148.) Even had the the subject and 
estate been bequeathed to the executors and vested in tain. 
them on probate, it seems very doubtful whether these 
words could have been construed as creating a trust for 
the benefit of the three brothers of the testator and their 
families over the whole of the residue of the estate. Mus- 
soorie Bank v. Raynor. (I. L. R., 4 All., 500). If the no trust win 
words communicate a mere discretion no trust will arise w^rdsVomnm- 
(Lewin, 7 ed., ch : VIII, S. 2 (7) and notes), and in this disCTetion? e^, 
case there is nothing whatever to show what would have 
been a sufficient compliance with the direction." 

(y) In Viziarama Razu v. The Secretary of State for Government 
India in Council, W plaintiff sued the Secretary of State session of°an 
for possession of a Zamindari and also for an account of claim offav * 
the rents and profits from September, 1828. The plain- z£i?w{o 
tiff's father died in 1828, leaving Kurmarazu, Viziarama- & i P t < n T^u? t 
razu, and Niladri Narendra, his three sons. In conse- £ f Zv^ iror"* 
quence of the reports of the Collector made in 1828, and $2£ fiopui> 
again in 1829, Kurmarazu was recognized as heir, the 
Court of Wards in the same year having taken charge of 
the estate. Kurmarazu having come of age in 1832, was 
put into possession. Disturbances then occurring in the 

(1) I. L. R.,8 jfvl.,53*. 

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68 PART II. — LIMITATION OF SUITS, APPEAL8 AND APPLICATIONS. [SEC. 10 

villages, amounting to rebellion, Martial law was pro- 
claimed under the provisions 6f Regulation Vll of 1808. 
Kurmarazu having been tried by court-martial, was found 
guilty of complicity in the rebellion, and sentenced to death, 
which sentence was commuted to one of imprisonment. 
The Zamindari of Palkonda was, under the same regu- 
lation, declared to be forfeited to the Government, which 
took possession of it, making proclamation to that effect 
in 1835. Kurmarazu had died a State prisoner in 1834. 
Niladri died manyyears before these proceedings. It was 
contended that the Government, who came into possession 
. under a claim of forfeiture from Kurmarazu, who had 
been let into possession by the Court of Wards, are a 
person in whom the property had become vested in trust 
for a specific purpose, and that this suit was brought for 
the purpose of following that property. It was held that 
the Government was not placed in the position of a person 
in whom property had become vested for a specific pur- 
. pose, and that the above section was not applicable to 
prevent the operation of the law of limitation under Act 
XV of 1877, which barred the suit brought by another of 
the sons, alleging title to the Zamindari. 
Enrohuer of (z) In Maharanee Brojoeoondery Debia v. Ranee 
name of idol, Luchmee Koonwaree/ 1 ) the plaintiff sued as the Sebait 

when not dedi- 
cated to the idol, of a certain idol to recover possession of a Zamindari by 

and the pro- setting aside an alienation thereof effected by his grand- 
mother, on- the ground that it was debutter property 
dedicated to the idol, and consequently inalienable. It 
appeared that the property in dispute was purchased by 
the grandfather of the plaintiff in the name of the idol, 
which was set up merely for his private worship in his 
own house without any priest to perform regularly any 
religious service for the public benefit of Hindus, and 
that the property had been dealt with all along as his 
own private property. It was held that it was a mere 
nominal endowment and consequently the alienation 
thereof was not invalid. It was further held that a pro- 

(1) 15 B. L. B., 176. 



SIC. 10] PART II. — LIMITATION OF SUITS, APPBAL8 AND APPLICATIONS. 69 

perty purchased by a man in the name of his own idol, Property pnr- 
which no one except himself has the power or right to son in the name 

. of his own idol 

worship, is not the property of the idol, but the property which no others 
of the person who purchased it. The suit was dismissed worship is his 

1111... T i . 1T31.1 property and 

as barred by limitation. In this case the Lords of the not the idols. 
Privy Council have referred to the case of Mahatab Chand 
Q. Mir dad Ali, in which it was held that, when an endow- 
ment is merely nominal, and indications of personal 
appropriation and exercise of proprietary right are found, 
a sale of the property is valid under the Hindu law. 
They also allude to the case of Gosain v. Gosain/ 1 ) in 
which it was held that if a Hindu purchase property in 
the name of his son, the property is not vested in the son, 
but in the father who purchased. 

(2-a) In Maharanee Shibessouree Debia v. Mothoora- Sehait of a 
nath Acharjo,W it was held by the Privy Council, in De- held not a 
cember, 1869, that lands which were dedicated for religious property. 
services of an idol and managed by a Sebait of the endow* 
ment, cannot be alienated by the Sebait, but the Sebait can 
create derivative tenures and estates conformable to usage. 
Phear, J., in Syud Shah Alleh Ahmed v. Mussamut 
Pibee/*) observes that this decision u merely affirms a 
doctrine which has always been held in this court, that 
an idol itself under Hindu law is a person capable of idol itself is 
holding and enjoying property, and that the Sebait is ing and enjoy- 
merely the manager for the time being of that property, 
and not the proprietor." 

(2-b) la Syud Shah Alleh Ahmed v. Mussamut Person in whom 

h . . . _ , _ . . property vesta 

Pibee,<*) it was held that where property is vested in a partly for ehari- 
person partly for charitable purposes and partly for the be- for otherfihene- 
nefit of others, and he is bound to use it for such purposes and trustee under 
not for his own advantage, he is a trustee within the mean- 
ing of Act XIV of 1859, section 2. Phear, J., observes " it 
Would seem that the defendant has necessarily some pro- 
perty in the subject of suit which is dedicated first to 
certain charitable purposes, and then the remainder is to 

(1) 6 Moor I. A., 68. I (3) 21 W. R., 415. 

(2) IS Moor., 270. | (4) 21 W. K., 416. 



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70 PART IT. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [SBC. 10 

go to the plaintiff and other persons. There is no other 
person in whom the property can reside unless it be tbe 
defendant ; and he is bound to use such property as he 
has in it, -not for his own advantage, but for the purposes 
of carrying out tbe trusts of the deed under which he 
took it." "The plaintiff is entitled to call upon the 
defendant as a trustee for an account; and as it does not 
appeal* that any accounts have been settled between the 
trustee and the plaintiff, or any predecessor of the plain- 
tiff, the account must be taken from the period mentioned 
in the plaint.' ' 
a suit against (2-C) Bittlestone, J., observes " it is very reasonable 
tive of a trustee that no lapse of time should be allowed to bar a suit 
the loss out of against a trustee who has committed a breach of trust ; 
tate, does not and even after his death if the property which is the 
section. See subject of the trust has passed into the hands of his re- 

Article 98 which . ... 

allows s years presentatives as part of his estate, it is equally reasonable 
from trustee's that the cestui que trust should, after any lapse of time, be 

death or date of 

loss. permitted to recover from the hands of the representatives 

that specific property. That if the property has been 
sold by the trustee in his lifetime, or has in any way dis- 
appeared and can no longer be traced, and the suit is 
brought against the representatives to make good the loss 
out of the general estate, the legislature has thought the 
same reason no longer applicable and has provided that in 
such case the proper period of limitation according to the 
preceding section should be computed from the death of the 
trustee." H. H. Azim-u-nissa Begum v. Clement Dale.* 1 ) 
A h. (2-d) Harbhag t?. Gumanit 2 ) was a suit for possession 

nistratSn-pa- * of certain property said to have belonged to the plain- 
forsurren^to tiff s ancestors, who had left the village some 30 years 
holders on their before the suit. The plaintiff relied upon a clause of the 
Srnwivheidby village administration-paper, dated January, 1869, which 
constitute valid provided for the surrender to absent share-holders on their 
actuaJ^occu^ return to the village, of the lands formerly held by them, 
piers. Yxti <jid no t contain any declaration of trust as existing 

between such absent share-holders and the occupiers of 

(1) 6 Mad., H. C. R., 455. | (2) I. L. R., 2 AIL, 493. 



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SBC. 10] PABT IL — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 71 

their lands at the time when such administration-paper 
was framed. It was held that the administration-paper 
could not be regarded as evidence of a pre-existing trust 
between such persons, nor as an admission of such a trust 
by such occupiers. The declaration is general that any 
absconding parties returning to and settling in the village, 
shall immediately be put in possession, and the occupant 
shall not object to relinquish their holdings. It was held 
that the paper does not necessarily constitute a valid 
trust in favour of the absent share -holders although it 
may be evidence of such a trust. 

(2-6) In Piarey Lai v. Saliga,^) certain persons who in u suit against 

had absconded from the village before wajib-ul-arz was a co-sharer who 

framed, sued to enforce its clause against the purchaser of of the property 

their property from the co-sharer who had taken possession tiff's ancestor's 

of it on their absconding, and who was no party to such was held, that 

wajib-ul~arz (village administration-paper), alleging that sharer could be 

their property had vested in such a co-sharer in trust for held as trustee 

them. It was held, that before sucb co-sharer could be evidence that be 

taken to have held their property as a trustee, there must trust. 
be evidence that he accepted such trust, and this fact 
could not be taken as proved by the wajib-ul-arz. It was 

further held that assuming the trust to be established, as Even if trust 

the purchaser had purchased in good faith for value and purchaser not 

without notice of the trust, and was not the representative tative of such 

of such co-sharer within the meaning of section 10, Act held protected 

IX of 1871, and bad been more than 12 years in possession, limitations. 
the suit was barred by limitation. 

(2-f) In 1840, the purchasers and recorded proprie- statement in 

tors of a four biswas share of a certain village caused a cord-of-rights 

. .„ , - . that purchaser 

statement to be recorded in the village record-of -rights, of four shares 

° • wa8 willing to 

to the effect that B claimed to be the proprietor of a release two 

, . . shares if plain- 

moiety of such share, and that they were willing to admit tiff's father who 

J * * ° claimed them as 

his riirht whenever he paid them a moiety of the sum his paid a 

, . , , ,, .,. ,, j. moiety of the 

which they had paid in respect of the arrears of revenue arrears of reve- 

. nue due thereon 

due on such share. In 1843, M purchased such share held, would not 

. , show that 

and became its recorded proprietor. In 1877, K, the son shares vested 

in the purchaser 



(1) I. L. R., 2 All., 394. 



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72 PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [SIC. 10 

in trust to but- of By sued the representative of M fpr possession of a 

plaintiff's nioiety of snch share, alleging, with reference to the state- 

heirs. ment recorded in the record-of -rights, that such moiety 

had vested in M y s assignors in trust to surrender it to 

B or his heirs on payment of a moiety of the sum they 

had paid on account of revenue, and paying into court a 

moiety of such sum. It was held that that statement could 

not be regarded as evidence of the alleged trust, and that, 

However, suit assuming that the alleged trust existed, the suit was 

chaser was held barred by limitation, M having purchased without notice 

of the trust and for valuable consideration. Kamal Singh 

v. Batul Fatima-d) 

The terms «o- C2-g) In Sirdar Sainey v. Piran Singh/ 2 ) 8 and his 

held to strongly brother owned an eight annas share of a village, and H 

aSon of such a and D owned the other eight annas share : the parties 

trust that the . 

absentees from being related to each other by blood. In 1865, (Sambat 

the village con- , _ y 

tended for, and 1921) at the settlement of the village, the following state- 

the court re- 

manded the suit ment was recorded by the Settlement officer in the wajib- 

to ascertain 

whether the pro- uUarz at the instance of H and D, with whom the settlement 

perty was held 

m trust on a- was made, S and his brother being absent from the village 
turn it when and having been absent for some 10 years : " We, H and 

claimed* . 

D are equal sharers of one-eight annas, and 8 and (his 
brother) of the other eight annas in the village according 
to descent. Ten years ago, 8 and (his brother) went 
away into Orai ; their present residence is not known ; they 
have not left woman, child, or heir of any kind in the 
village : on that account the entire sixteen annas of the 
village are in possession of us, H and D. At the time of 
the preparation of the khawat, we made a gift of four 
annas of our own eight annas to P, and have given him 
possession of four annas of the eight annas belonging to S 
and (his brother), keeping the remaining four annas in 
our own possession : when S and (his brother) returned 
to the village, we three who are in possession shall give up 
the eight annas shareo f the aforesaid persons." In March, 
1880, S sued P for possession of the four annas mentioned 
in the wajib-ul-arz, as having been made over to him by 

(1) I. L. R., 2 All, 460. | (2) I. L. R., 8 All., 468. 

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8*C. 10] PART II. — LIMITATION OF 8UIT8, APPEALS AND APPLICATIONS. 73 

Hand D out of the eight annas share belonging to 8 and 
(his brother). He based his suit upon the waQxb-ul-ar*, 
but did not expressly state that the share in suit had been 
intrusted to H and D on the understanding that it should 
be returned to him when he reclaimed it. The Lower 
Appellate Court dismissed the suit as barred by limitation, 
on the ground that P's possession of the share in suit 
became adverse in 1866 or 1867, more than 12 years be- 
fore the institution of the suit, when 8, having returned 
to the village, had claimed the share and P had refused to 
surrender it. On second appeal, it was contended by &, 
that under the terms of the wajib-ul-arz, P's possession 
was that of a trustee, and his possession could not be held 
to be adverse. Spankie, J., was of opinion that the suit 
was barred by limitation, inasmuch as such a trust that 
the plaintiffs contended for could not be implied from the 
terms of the wajib-uUarz. Pearson, J., was of opinion 
that although no mention was made in the wajib-ul-ar* 
of such a trust as was contended for, yet the terms of that 
document strongly suggested the creation of such a trust. 
Having regard to the terms of the wajib-ul-arz and to 
the fact that 8 and (his brother) were not strangers to H 
and D, nor merely co-sharers, but mere blood relation, 
probably residing together on the same premises and part- 
ners in agricultural labors, further inquiry should be made 
with the view of elucidating the nature of the acquisition 
of Hand D of the share and of their subsequent possession. 

(2-h) In 1860, certain shares in a company then A person hav- 

f " ing allowed al- 

f ormed, were allotted to S. on the understanding, as the lotment to him 

^ ' °* of certain shares 

plaintiffs alleged, that one hundred and twenty of such b> » . company 

shares should, on the amount thereof being paid to 8, be transfer them 

. ° r to plaintiff on 

transferred to and registered in the books of the company payment for 
in the names of the plaintiffs. In 1862, the plaintiffs fog after pay- 

/-,. -,* i ment paid plain- 

Completed the payment to 8 in respect of the shares, and tiffs dividends 

during his lifetime received dividends in respect of the wooid not 

amount to I 

said shares. 8 died in 1870, leaving a will, probate of tmstforany 

.-. specific pnr« 
which was granted to the defendant as his executor. In pose." 

a suit brought by the plaintiffs after demand of the 

shares from the defendant and refusal by him to deliver 

10 



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74 PABT II — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [&LC. 10 

them, to compel the defendant to transfer the shares to 
the plaintiffs and register the same in their names, the? 
plaintiffs' case was, that the shares had been held in trust 
for them, and that, consequently, their suit was not 
barred by lapse of time. Held, that the transaction* 
between S and the plaintiffs did not amount to u a trust 
for any specific purpose" within the meaning of section 
Plaintiff mipht 10 of the Limitation Act, or to a trust at all, but to ail 

claim specific . 

performance of agreement of which the plaintiffs were entitled to specific 
the agreement. ° ■ * # * 

performance, and the limitation applicable * as that pro- 
tided by clause 113 of schedule 2, Act IX of 1871, and 
therefore the suit was not barred. Nor were the plaintiffs 
disentitled to relief by reason of any laches or delay in 
bringing the suit. Ahmed Mahomed Pattel v. Adjeiri 
Dooply.d) 
Salt against (2-i) In Narayan Das v. Maharaja of Burdwan,W 

balance of plaintiff advanced certain sums of money on different occa- 

ed for erecting sions to his servant By for the purpose of erecting buildings, 
for plaintiff "' <&c-> for the plaintiff. When the plaintiff claimed the 
e^b/umita^ balance, the servant pleaded that the suit so far as it 
tion * related to sums advanced to him more than three years 

before the suit, was barred. It was held under Act XI V" 
of 1859, that the matter was of the nature of a trust, and 
Entrusting limitation would not apply. Where an agent was in- 
lands to be em- trusted with funds for the purpose of being employed in 
tiouiar manner a particular manner in purchase of land or stock, it was 
tmst. held that there was an express trust to which the Statute 

of Limitation did not apply. Burdick v. Garrick. W 
Limitation can- (2-j ) A fund was established at Bombay by the Conve- 

not be pleaded , ,' ._ _, * .% ^ »■..•» 

against a mem- nanted Civil Servants of the East India Company serving 

berofafnndad- .,,,_., „ ,. . , ... 

vancing claim in that Presidency, for granting pensions and annuities 
to members, their widows and children. By the original 
articles certain persons were appointed managers, and 
they were declared to be "the Trustees of the fund," and 
the property was vested in them. It was held, that they 
were not mere trustees for the association, but " trustees" 

(1) I. L. R., 2 Calc, 323. | (2) 1 b. L. R., S. &., 11. 
(8) L. R., 5. Ch, 23S. 



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BBC. 10] PABT II —LIMITATION OP SUITS, APPEALS AND APPLICATIONS. 75 

properly so called, and that the members of the fund were 
the beneficiaries, so that the defence of the Statute of 
Limitations could not be set up against a claimant on the 
fund merely on account of lapse of time.* 1 * 

(2-k) la Hodgson t?. Williamson,^) it was held that Money advanc- 

• j , ° , . .,. . . edforthesup- 

momes advanced by a stranger in providing necessaries for port of a mar- 

. ried woman 

the support of a married woman living separate from her being debt pay- 
husband are debts binding her separate estate ; and, funds held in 

. trust for her 

being debts payable out of funds held in trust for her separate use is 

not barred* 
separate use, are not barred by the Statute of Limitations. 

Bacon, V. C, observes, " now, the only manner in which 
a married woman can contract is by Charging her separate 
estate, and the remedy of the creditor is not at law, but 
in equity against the trustee of her separate estate ; and, 
unless I depart from plain and well-established principles, 
I must hold that a charge was created on her separate 
estate for the re-payment of the money expended'in pro- 
viding her with necessaries — absolute necessaries — and 
that the Statute of Limitations does not apply and cannot 
now be pleaded." 

<2-l) In Burdick v. Garrick/*) Lord Hatherley says, Lord Hather- 
•* it would indeed be a strange thing if this court should shews their may 

• •fi.iiij.il*!* #., be an express 

be obliged to hold that if a person, for instance, were trust without 
to deposit plate or jewels with his bankers, intending: pression in 

A i_ i x * i * x , - words when 

to be absent from home for a greater number of years, property or 

and those chattels were converted by his bankers to posited for de- 

their own use in fraud of the owner, and the owner were fit. 

to come back after the end of seven or eight years, he 

is utterly remediless, either in the shape of an action Reason why a 

at law or of a suit in this court, because the dealing trustee while a 

with his property has been in the nature of an agency, is a trustee. 

I apprehend that the true rule applicable to these cases 

is to be found in the case of Foley v. Hill (2 H. L. C. 

£&35), where it is clearly stated by Lord Cottenham, 

who distinguishes between the confidence reposed in a 

factor or agent, and the confidence reposed in a person 

(1) 1 App. Ca*., 281 | (2) L. B. Ch. D. 15, p. 87. 
(3) L. ft. Ch. D. 6 p. p, 238, 239. 



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76 PART II. LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [BBC. 10 

A banker is not who is merely in the position of banker. A mere banker 

in any fiduciary 

relation to cos- who takes charge of his customer's money is not in any 

particular coins fiduoiarj relation whatever to him with respect to the 

•4. particular coins or notes deposited, because it is the 

ordinary course of trade to make use of them for his own 

profit. He does make use of them and he invests the 

money deposited with him ; and his customer does not 

require from him those very coins or exchequer bills 

which he deposited with him. But in the present case 

we have an agent who is intrusted with those funds, not 

for the purpose of being remitted when received to the 

principal, but for the purpose of being employed in a 

An agent en- particular manner in the purchase of land or stock, and 

trusted with * 

money to be em- which monies the factor or agent is bound to keep totally 
ticuiar manner, distinct and separate from his own money ; and in no 
keep it separate way whatever to deal with or make use of them. How 
from his own a person who is intrusted with funds under such circum- 
money. stances differs from one in an ordinary fiduciary position 

I am unable to see. That being so, the Statute of Limita- 
tion, appears to me to have no application to the case." 
First mortgagee (2-m) In Tanner v. Heard,< x > the first mortgagee of a 

selling mortgag. v ~ \ , _ 

edtproperty ship, with the sanction and authority of tbe second mort* 

with the sane- . , . 

tionof2nd gagee, sold it, and received the sale proceeds, which 

accountable for exceeded the amount due to him. It was held, that the first 

the surplus as 

trustee. mortgagee was accountable to the second mortgagee in the 

character of trustee. Master of the Bolls, observes, "lam 
of opinion that this is not a case in which the principles 
which obtain in a suit between mortgagees are applicable ; 
I think it distinguishable. It is a case of this descrip- 
tion : The defendant was first mortgagee of a ship ; the 
plaintiff was the second. The defendant with the sanction 
and authority of the plaintiff, sold it at Amsterdam, and 
received the proceeds of the sale. Being entitled, in the 
first place, to the amount due on his mortgage and the 
expenses of the sale of the ship, and there being a 
surplus, he was bound to account to the plaintiff in the 
character of trustee. 

(1) 28 Bear., 555. 

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SBC. 10] FART II. LIMITATION OF SUITS, APPEALS AND APPLICATIONS. 77 

(2-n) In Banner v. Berridge/ 1 ) the second mortgagee First mortgagee 
of a ship claimed an account against the first mortgagee Sort^eed 8 
who had sold the vessel upon the mortgagor becoming tte statutor^ 
bankrupt. Defendant offered to pay a specific amount. £pr£e*£2*|£ 
The action having been commenced more than six years tor *** Bnr P Xtm * 
after the sale, the defendant pleaded the Statute of 
Limitations. The plaintiff set up au express trust as a 
bar to the Statute. It was held that there was no 
express trust ; tbat in case of an ascertained surplus the 
first mortgagee might be constructively a trustee of the 
surplus, but after six years, evidence could not be adduced 
to prove a surplus. 

(2-0) Iu Seagram v. Tuck/*) it was held, that money A receiver 
not accounted for and due from a receiver under the court is a trustee. 
is, by his recognizance made a debt of record, although the 
balance due has not been ascertained. The receiver is a 
trustee of such money for the persons entitled thereto, 
and cannot, as against them, avail himself of the Statute of 
Limitations, although his final accounts have been passed 
and the recognizances vacated. Kay, J., observes " I 
should be strongly inclined to hold that as to any 
money due from a receiver and not brought into account, 
either through mistake or through fraud, he would be a 
trustee for the persons entitled to that money. It is 
important to hold the position of a receiver to be one in 
which liability to account would not easily be barred, and 
so long as he was living he must be held to have been a so long as he 
trustee of the money. Therefore, in whichever way it is trustee of the 
taken, whether the debt is held to be of record or to be into his hands. 
due on a trust either would be an answer to the defence 
of the Statute of Limitations. 

(2-p) " It seems clear from all the cases that have where the trus- 
been decided on this subject, that the only ground on <»«*»• *«« tmat 
which cestui* que trustent are allowed a direct remedy 
against a person who is under a legal obligation to pay a 
trust fund is either that he is a party to the trust, or privy 
to a breach of trust. Therefore, where neither of these 



is also barred. 



(1) L. B., Ch., 18 p. 264. | (2) L. R., Ch., P. 18 p. 296. 



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78 PART II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. [BBC. 11 

grounds exist, their only remedy against each person is 
by action brought in the name of the trustees ; and when 
the right of the trustees to bring such an action is barred 
by the Statute, the cestui* que tnwtent are necessarily en- 
tirely without remedy against him, whatever their remedy 
against the trustees themselves may be." (Darby and 
Bosanquet p. 186.) 

suite on foreign 11, Suits instituted in British India on 

contract*. 

contracts entered into in a foreign country are 
subject to the rules prescribed by this Act, 
Foreign limit*. No foreign rule of limitation shall be a de- 

tionlaw. & 

fence to a suit instituted in British India on 

a contract entered into in a foreign country, 

unless the rule has extinguished the contract, 

and the parties were domiciled in such country 

during the period prescribed by such rule. 

This section re- (a) This section refers to suits instituted only on 

contracts only contracts entered into in a foreign country and is silent 

to suits for pro- as to suits regarding property or for enforcement of rights 

of other kinds, of other kinds. The second clause saves prescription 

acquired under the foreign rule of limitation. 

in matters of (b) Their LordshipB of the Privy Council in Lopez v. 

aliens and liege Burslew/ 1 ) have observed, that in matters of procedure, 

bound by^the all mankind, whether aliens or liege subjects, are bound 

forum. by tbe law of the forum. The reasons of the rule as given 

by Story in his Conflict of Laws are, " Courts of law are 

maintained by every nation for its own convenience and 

benefit, and the nature of the remedies and the time and 

manner of the proceedings are regulated by its own views 

of justice and propriety, and fashioned by its own wants 

and customs/ 1 " It is not obliged to depart from its own 

notions of judical order from mere comity to any foreign 

nation". (Story on the Conflict of Laws, section 581). 

Law of limita- (c) They observe in H. H. Ruckmaboyee v. Lulloo- 

latingtopro- bhoy.W " In truth, it has become almost an axiom in 

oedure having 

reference to the 

l** fo*. (1) 4 Moo. P. 0. C, 300. | (2) 5 Moore, L A. 206. 



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SEC. 11] PAET II. — LIMITATION OP SUITS, APPEALS AND APPLICATIONS. 79 

jurisprudence, that a law of prescription, or law of limi- 
tation, which is meant by that denomination, is a law 
relating to procedure having reference only to the lex 
fori." This axiom will apply in its integrity only when 
the law of limitation affects the remedy, but does not ex- 
tinguish the right. The above Privy Council case was 
tried in the late Supreme Court of Bombay when the 
English Statute of Limitations was in force in the Presi- 
dency towns. It was held that the Statute applied to 
Hindus and Mahomedans, although the charter provided 
that all suits between them should be determined by their 
respective laws and usages or by such laws and usages that 
a Native Court would adopt if it happened to try the suit. 
In Don v. Lippmann/ 1 ) action was brought in Scotland 
upon bills which were drawn and accepted, and became 
due in France, but the acceptor, a Scotchman, before such 
bills became due, returned to Scotland, and there con- 
tinued till his death. It was held that the law of a 
country, where a contract is to be enforced, must govern 
the enforcement of such contract, and that more than six 
years having elapsed between the time of the bills becom- 
ing due and the action being brought, the Scotch Law of 
prescription applied, and that its effect was not prevented 
by the fact that the' payee had taken legal proceedings in 
France during the absence of the debtor, and had obtained 
judgment against him. 

(d) Huber v. Steiner< 2 > was a suit in England upon Defendant's 

. i • -n * ,* • 7. plea of foreign 

a promissory-note made in France, where the prescription rule of umita- 

- t * x/ • -n i -i m. -x j- tion which does 

is shorter than m England. The suit was commenced in not extinguish 

riffhC was held 

England after the expiration of the French prescription, but a bad plea. 
within six years. The defendants pleaded the French pre- 
scription. The question, was whether it was a good plea. 
The rule being that the Statute of Limitation of a parti- 
cular country barring the remedy and extinguishing the 
right may be set up in any other country to which the 
parties remove, by way of extinguishment, the court, 

(1) Tudor* a Leading Gases on Mercantile Law, 288. 

(2) Smitk's Loading Cases, vol. I, p. 658. 



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80 PART II. — LIMITATION OF SUITS, APPEALS AND APPLICATIONS. [8EC. 11 

upon examination of the French law of prescription, 
thought that its effect was not to extinguish the right, but, 
as in England only to bar the remedy, and held therefore 
that the defendant's plea was a bad one. 
if foreign law (6) In Phillips v. EyreG> Willes J., observed, " As to 
the riRht, it is & foreign laws affecting the liability of parties in respect 

bar to an action . _° x " . , . , x , . .- A , 

as if the extin- of by -gone transactions, the law is clear, that if the 

Been by a re- foreign law touches only the remedy or procedure for 
lease of the . °. xl , ,. x . . A , * ,. 

£arty or the enforcing the obligations, as m the case of an ordinary 
w of the court _, * _ . . ? , , . , . 

in which the ac- Statute of Limitations, such law is no bar to an action in 

tion is brought. 

this country, but if the foreign law extinguishes the right, 
it is a bar in ibis country equally as if the extinguishment 
had been by a release of the party or an act of our own 
legislature. This distinction is well illustrated on the one 
hand by Huber v. Steine/*) " " and on the other hand by 
Potter v. Brown. M ( 8 ) In Ellis v. M'Henry,<*) Boville, C. J., 
observes, " In the first place, there is no doubt that a debt 
or liability arising in auy country may be discharged by 
the laws of that country, and that such a discharge, if it 
extinguishes the debt or liability, and does not merely 
interfere with the remedies or- course of procedure to 
enforce it, will be an effectual answer to the claim, not 
only in the courts of that country, but in every other 
country. This is the law of England ; and is a principle 
of private international law adopted in other countries." 
The authority (f) " But although Statutes of Limitation or prescrip- 

on this point, tion of the place where the suit is brought may thus 
properly be held to govern the rights of parties in such 
suit, or, as the proposition is commonly stated, the re- 
covery must be sought and the remedy pursued within 
the times prescribed by the lex fori, without regard to the 
lex loci contractus, or the origin or merits of the cause ; 
yet there is a distinction which deserves consideration, 
and which has been often propounded. It is this. Suppose 
the Statutes of Limitation or prescription of a particular 
country do not only extinguish the right of action, but 

(1) 40 L. J. Q. B., 28. I (3) 6 Bast, 124. 

(2) 2 Beng. N. C, 202. | (4) 40 L\ J. G. p. 114. 

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8BC. 11] PABrtl. — LIMITATION OP SUITS, APPEAL8 AND APPLICATIONS. 81 

the claim or title itself, ipso facto, and declare it a nullity 
after the lapse of the prescribed period, and the parties 
are resident within the jurisdiction during the whole of 
that period, so that it has actually and fully operated 
upon the case ; under such circumstances, the question 
might properly arise, whether such statutes of limitation 
or prescription may not afterwards be set up in any other 
country to which the parties may remove, by way of ex- 
tinguishment or transfer of the claim or title. This is a 
point which does not seem to have received as much con- 
sideration in the decisions of the common law as it would 
seem to require. That there are countries in which such 
regulations do exist is unquestionable. There are States 
which have declared that all right to debts due more 
than a prescribed term of years shall be deemed extin- 
guished ; and that all titles to real and personal property 
not pursued within the prescribed time shall be deemed 
for ever fixed in the adverse possessor. Suppose, for in- 
stance, (as has occurred) personal property is adversely 
held in a State for a period beyond that prescribed by the 
laws of that State, and after that period has elapsed the 
possessor should remove into another State which has a 
longer period of prescription, or is without any prescrip- 
tion ; could the original owner assert a title there against 
the possessor, whose title by the local law and the lapse of 
time had become final and conclusive before the removal ? 
It has certainly been thought that, in such a case, the 
title of the possessor cannot be impugned. If it cannot, 
the next inquiry is, whether the bar of a statute extin- 
guishment of a debt, lege loci, ought not equally to be 
held a peremptory exception in every other country. 
This subject may be deemed by some persons still open 
for future discussion. It has however the direct authority 
of the Supreme Court of the United States in its favour ; 
and its correctness has been recently recognised by the 
Court of Common Pleas in England. In the American 
Courts other than the Supreme Court it does not seem 
hitherto to have obtained any direct approval or recog- 
nition. But in all the cases in which the question might 
11 



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82 PART II.— LIMITATION OP SUITS, APPEALS AND APPLICJ<PPNS. [SEC. 11 

have been incidentally discussed in these courts, the sta- 
tutes under consideration did not purport to extinguish the 
right, but merely the remedy." (Story on the Conflict of 
Laws, sec 582). 
Obligor of a (g) In the British Linen Company v. Drummond/D 

in one country (10 B. & C, 903) plaintiff sued in England upon a contract 
another can made in Scotland. The defendant pleaded the Statute 
the shorter limi- 21, James 1, C. 16, which prescribed a shorter period, 
latter. It was held that the plea was a good one though the 

contract might in Scotland have been put in suit at any 
time within forty years. " The rule," said Tindel, C. J., 
delivering judgment in the case of Trimbey v. Vignier, 
(1 Bing, N. C, 151) " which applies to the case of con- 
tracts made in one country, and put in suit in the courts 
of law of another country, appears to be this, that the 
interpretation of the contract must be governed by the 
law of the country where the contract was made : the 
mode of suing, and the time within which the action must 
be brought, must be governed by the law of the country 
where the action is brought. ,, 
Case where (h.) The Alliance Bank of Simla v. Carey* 2 ) was a 

held entitled to suit brought in England on a bond to secure re-payment 
limitation to a of 14,000 Rupees and interest executed in India in 1871. 
England on a™ The defendant pleaded that the debt was barred, as more 
in India. than three years had elapsed since payment of instalments 

or interest. Specialty debts in India have no higher 
legal value nor greater efficacy than simple contract 
debts ; and the same period of limitation, viz., three years, 
bars the remedy for both, but it was held by Lopez, J., 
that where an action on a bond executed in India is 
brought in England, the bond cannot be treated as a 
simple contract ; and therefore, as the English Statutes 
of Limitation apply, the remedy is not barred until after 
the lapse of the period of twenty years prescribed by 3 
and 4, Wm. 4, c 42, S 3, as the limitation for actions on 
contracts under seal. The Judge observes, " if this action 

(1) Smith's Leading Cases, vol. 1, p.p. 667. 668. 

(2) L. R., 6 C. P. D., 429. 



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SEC. 11] PART II. — LIMITATION OP 8I7IT8, APPEALS AND APPLICATIONS. 83 

had been brought upon this bond in India, the plea of the 
Statute of Limitations as pleaded would have been a good 
answer." " The question is one of procedure, and as such 
must be determined by the law of the country where the 
action is brought." 

(i) " In the case of the legislature of the United King- An English oer- 
dom making laws which will be binding upon her Colonies ruptcy was held 
and dependencies, a discharge either in the Colony or in the to & debt arising 
mother-country may, by the Imperial Legislature, be made sued for .in the 
a binding discharge in both, whether the debt or liability there!" 1 * 
arose in one or the other, and a discharge created by an 
Act of Parliament, here would clearly be binding upon the 
courts in this country, which would be bound to give effect 
to it in an action commenced in the English Courts. 
In Edwards v. Bonald (Knapp. P. C, 259) it was decided 
that an English certificate in bankruptcy was a good answer 
to a debt arising in Calcutta and sued for in the Supreme 
Court there. In Lynch v. M'Kenny (2 H. Black, 554,) 
a defendant who was sued in England for a debt contracted 
in Ireland was considered as discharged by an English cer- 
tificate. In the Royal Bank of Scotland v. Cuthbert, 
(Hose, 462, 486) it was held by the Court of Session that 
an English certificate was a bar in the Scotch Courts to a 
debt contracted in Scotland. And in Sidaway v. Hay, 
(3 B. & C, 12) a discharge under a Scotch sequestration 
in pursuance of an Act of the Imperial Parliament, was 
held to be a good answer to an action in the Eng- 
lish Courts for a debt contracted in England. Ellis v. 
McHenry."<i> 

(1) 40 L. J., C. P., p. 114. 



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84 PART III. — COMPUTATION OP PERIOD OP LIMITATION. [SBC. 12 



PART III. 

COMPUTATION OP PERIOD OP LIMITATION. 
Excision of 12. In computing the period of limitation 

day on which r o r 

right to sue ac- p rescr ibed f or any suit, appeal or application, the 
day from which such period is to be reckoned 
shall be excluded. 

Exclusion in In computing the period of limitation pre- 

case of appeals x ° * * 

putatfo^ 11 ap " scribed for an appeal, an application for leave to 
appeal as a pauper, and an application for a 
review of judgment, the day on which the judg- 
ment complained of was pronounced, and the 
time requisite for obtaining a copy of the decree, 
sentence or order appealed against or sought to 
be reviewed, shall be excluded. 

Where a decree is appealed against or sought 
to be reviewed, the time requisite for obtaining 
a copy of the judgment on which it is founded 
shall also be excluded. 

In computing the period of limitation pre- 
scribed for an application to set aside an award, 
the time requisite for obtaining a copy of the 
award shall be excluded. 
The words "ap- (a) The words " appeal or application" in this section 
cation" were" had not been included in the corresponding section 13 of 
section 13 of Act Act IX of 1871, and consequently, in Dhonessnr Kooer v. 
Boy G-ooder Sahoy/ 1 ) an application for execution made on 
the 8th January, 1875, the last preceding application 
haying been made on the 8th January, 1872, was rejected 
by the Lower Court as barred on the ground that the day 

(1) I. L. R., 2 Calc, 886. 



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SEC. 12] PART HI. — COMPUTATION OP PERIOD OF LIMITATION. 86 

from which the period was to be reckoned could not be 
excluded. Garth, G. J., reversing the decision of the 
Lower Court held, that it was obviously the intention 
of the legislature to give the decree-holder three years, 
and not less, from the time of his former application, and 
that the only way of carrying out that intention is by stui the day 

i j- it j *.- i_^i_ * i. x. upon which tne 

excluding the day upon which the former application was former appiica- 
made. With reference to these remarks, probably the wa sexciuded. 
words "appeal or application" have been inserted in 
section 12 of Act XV of 1877. The above decision was 
followed in V. K. Gujar v. V. D. Barve,^) in which West, 
J., observes, " it is now a received principle that when a 
certain number of days are allowed for doing any act, 
the whole of the day to which the computation reaches 
is available to the person thus limited." 

(b) In calculating the period allowed by the Indian The time that a 
Limitation Act, 1877, for presenting an appeal, the time pending can 

, . , . ' \- jf * • m • \ j. - not be excluded 

during which an application for review of judgment is as a matter of 

right in calcu- 

pending cannot be excluded as a matter of right. But, lating time for 
if an application for review has been presented with due 
diligence, and admitted, and there was a reasonable pros- 
pect that the petitioner would obtain by the review all he 
could obtain by appeal, the court would be justified in 
admitting an appeal presented out of time. Where a 
District Court admitted an appeal presented out of time 
on the ground that the appellant, having filed an appli- Such time ex- 
cation for review within the time allowed for an appeal, triot Judge was 
was entitled to exclude the time occupied in prosecuting with by H. o. 
the review, it was held that the High Court could not 
interfere on revision. Vasudeva v. Chinnasami.( 2 ) In the 
petition of Brojendro Coomar Roy< 8 > it was held that in 
computing the period within which an appeal may be 
preferred, the time during which an application for 
review was pending is to be excluded. When an appli- in the case of 
cation to review a judgment is rejected by the High Sme runs from 
Court, the six months allowed for appeal to Her Majesty ment°and U not 



of review peti- 

(1) I. L. B., 2 Bom., 678. | (2) I. L. B., 7 Mad., 684. tion * 

(8) B. L. B., Sup., 728. 



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86 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8EC. 12 

in Council runs from the date of the judgment, and not 

from that of the order rejecting the review. Sondaminee 

Dossee v. Maharaja Dheraj Mahatab Ghand Bahadoor.W 

p. b. (c) In Bani Madhnb Mitter v. Matungini Dassi,(*> it 

C. H. held ap- N ' «. 

peiiant entitled was held, that where a suitor is unable to obtain a copy of 

to exclude time # 

between deli- a decree from which he desires to appeal, by reason of the 

very of judg- rr * 

ment and dgn- decree being unsigned, he is entitled under section 12 
(May 1886.) of the Limitation Act to deduct the time between the 
delivery of the judgment and that of the signing of the 
decree in computing the time taken in presenting his 
appeal. In this case judgment was pronounced on the 
17th July, 1883. Decree was signed on the 23rd July. 
Appellant applied for copy on the 3rd August, and obtain- 
ed it on the 11th. It was held that the fact that the 
decree was not in existence until the 23rd July, that is, 
six days after the date that it bears, entitles the appellant 
to deduct those six days in addition to the eight days. 
Time occupied (d) In Gunga Dass Dey t?. Bamjoy Dey,W a decree 
requisite num- was passed on the 22nd September, and application for a 
a copy cannot copy was made not until 29th, and then with insufficient 

be deducted ex- . *■■-,«■ • «^.<. 

cept when delay folios, and the court was closed for the vacation from 30th 
is unavoidable. 

September to 1st November, the deficient folios being filed 

on the day it re-opened, 2nd November; the copy was 

delivered on the 6th, and the appeal filed on the 14th, and 

the appellant claimed to be entitled to a deduction of the 

time occupied in ascertaining what the requisite number 

of folios was. It was held, that the appellant was not 

entitled to a deduction of that time and that the appeal 

was out of time. The court observe, that although partieB 

should not be allowed to extend the period prescribed for 

appeal by any unnecessary delay in putting in the requi- 

Oan be deduct- site stamps, it would be grossly unfair to disallow the 

were not pro- application if requisite papers were not procurable, or if a 

curable or if a ., . j • i i *• xi r. . i_ . 

mistake was mistake were made in calculating the number of Bheets 

tft ft/ift in oalcu- . _ , - _ 

latingthe num- required, and that each case must be decided on its own 

ber of sheets re- T ,- . .. _ ,_ . ,, 

merits. In this case it was argued that the paper was 

(1) B. L. E., Sup., 685. | (2) I. L. R., 18 Calo., 104. 
(3) I. L. R., 12 Cab., 80. 



oh case must 
be decided on its 
own merits. 



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SEC. 12] PAET m.— COMPUTATION OF PERIOD OF LIMITATION. 87 

not procurable on the 29th September, and that it was put 
in on the next court day, 2nd November. The High Court 
observe: "These facts, however, would be before the 
Judge, who was in a better position than this court can 
be, to say whether the omission to file the paper on Sep- 
tember 29th was unavoidable or intentional. The con- 
tention before the Judge apparently was, not that the 
paper could not be procured, but that the appellant was 
entitled to a deduction of the time requisite for ascertain- 
ing the number of folios required." 

(e) In Barney v. Broughton,* 1 ) plaintiff, wishing to Appeal rejected 
appeal from a decision passed against him on the original of time as plain- 
side of the High Court, dated 16th August, 1883, pre- count for delay. 
sented, for filing, his memorandum of appeal to the Regis- 
trar on the 5th September, 1883, but by reason of the 
decree not having been signed on that date no copy of 
the decree was presented therewith. The Registrar 
refused to accept the appeal. On the 6th September, 
the decree was signed, and on the 7th an office copy was 
obtained by the defendant's attorney, who, on the 8th 
September, served a copy at the office of the plaintiff's 
attorney. On the 12th September, the plaintiff applied 
for an office copy, which he obtained on the 13th, and on 
the 15th tendered such copy and his memorandum of 
appeal to the Registrar. The Registrar refused to accept 
the appeal unless under an order of court, it being in 
his opinion out of time. On the 6th December, 1883, a 
Judge sitting on the original side admitted the appeal. 
The appeal subsequently came on for hearing, when the 
defendant contended that the appeal was barred, it not 
having been filed within twenty days from the date of 
the decree. The court held that the appeal was barred. 
It was held upon a review, that the plaintiff having 
allowed five days to expire after the decree was signed 
before applying for a copy, and not having filed his appeal 
after so obtaining a copy at the earliest opportunity 
possible, such a delay, being entirely unaccounted for, 



(1) I. L. E., 10 Calo., 652. 



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88 PART III. — COMPUTATION OP PERIOD OP LIMITATION. [81C. 12 

could not be held to 'be " time requisite for obtaining a 
copy of the decree," and that, therefore, the appeal was 
out of time. 
This section (f) Jawahir Lai v. Narain Das* 1 ) was an application 

held not to sp- x ' . . rr 

ply to Privy for leave to appeal to the Privy Council from a decree of 
peSs? ap * the High Court dated 20th August, 1877. The applica- 
tion was preferred on the 27th February, 1878, or 7 
days after the time. It was contended that, under this 
section, the seven days* time required for obtaining a copy 
of the judgment should be excluded. It was held by 
Stuart, C. J., that this section does not apply to Privy 
Council appeals, and that chapter 45 of the Code of Civil 
Procedure contained no express provision requiring a copy 
of judgment appealed against. 
Appeal under (g) In Fazal Muhammad v. Phulkuar,(2) it was held 
Letters Patent that in calculating the period of limitation prescribed for 

!iuire copy of an appeal under clause 10 of the Letters Patent, the time 
udgment. and . . - 

ime requisite requisite for obtaining a copy of the judgment cannot be 

for copy cannot _ * 

be deducted. deducted. 

Time in obtain- (h.) In the matter of Jhabhu Singh/ 8 ) certain accused 

judgment ex- persons were convicted, on the 29th February, 1884, and 

eluded in allow- ,,,.„, ,. . . - * ^ . j r 

tag a Criminal made their first application for a copy of the judgment 
on the 25th March, tendering stamped paper for such 
copy on the 26th and 29th March. The copy was pre- 
pared on the 30th, and the prisoners, who had been admit- 
ted to bail on the 5th March, presented their appeal on 
the 7th April, 1884, which was rejected as being out of 
time. It was held that the appeal ought to have been 
admitted. 
T»m« taken ** (i) * n Q ueen Empress v. Lingaya/ 4 ) it was held that 
pjjaogw's ap- in computing the period of limitation prescribed for an 
copy and trans- appeal from a sentence of a Criminal Court by Article 154 

mittimr copy to 

the jaS exclud- of schedule II of the Indian Limitation Act, 1877, the 
ecU . 

time taken in forwarding an application by a prisoner for 

a copy of the judgment and in transmitting the same 

from the court to the jail must be excluded, and that in 

(1) I. L. B., 1 All., 644. I (3) I. L. B., 10 Calc, 642. 

(2) I. L. B., 2 All., 192. | (4) I. L. R., 9 Mad., 258. 



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8J5C. 13] PAET m. — COMPUTATION OP PEBIOD OP LIMITATION. 89 

the case of such appeals, presentation of the petition of Presenting to 

appeal to the officer in charge of the jail is, for the charge of the 

purpose of the Limitation Act, equivalent to presentation ing to the court. 
to the court. 

13. In computing the period of limitation Exclusion of 

r o r time f defen- 

prescribed for any suit, the time during which ^VSH? 1 * 
the defendant has been absent from British 
India shall be excluded. 

It is to be observed that the concluding words of the 
corresponding section in the Act of 1871, limiting the 
application of the section to cases where the defendant 
cannot, during his absence, be served with summons, 
have been omitted in this Act of 1877. 

(a) In Venkatasubha Paitar v. Giri Animal/ 1 ) it was Plaintiff's vo- 
luntary or invo» 
held in June, 1864, that the plaintiff's voluntary absence in luntwrv absence 

a foreign country after he had attained his majority prevent opera- 

• tion of limita* 

could not bar the operation of the Act. In Domun t?. tion. 
Sudunkolah,( 2 > Peacock, C. J., observes there is no excep- 
tion in the Limitation Act with regard to plaintiffs who 
are beyond seas, whether voluntarily or involuntarily, in 
consequence of transportation. 

(I)) Defendant's mere entry within the British juris- Defendant's re- 
diction for a temporary purpose, such as by touching in porary purpose 
a vessel at Bombay, may not be a sufficient termination natenisab- 
of his absence from British India (Banning, 87.) If a 
defendant, who is beyond seas when the cause of action plaintiff's i*no- 
arises, returns to England for ever so short a time, even ant's return will 
without the plaintiffs knowledge, the time begins to run. tion. 
Gregory v. HurrellW. 

(c) In Mahomed Mnseeh-ood-deen v. Museeh-ood- ignorance of 
deen/ 4 ) it was held, that ignorance of defendant's residence sidencedoes not 

suspend limit** 

does not fall within any of the provisions of the Limitation tion. 
Act extending the periods of limitation prescribed by that 
Act. 

(d) Suit and application in this Act are separately This section 

does not apply 
to applications 

2 Mad, H. C, 113. I (S) S B.AC..M1. for execution. 

" B. L. B, S. N., 25. I (4) 2 N.-W. P., H. C. R, 173. 



(1)2 
(2) 1 



12 

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90 PART III.— COMPUTATION OF PERIOD OT LIMITATION. [SBC. 13 

treated as would appear from clause §, section 4, and 
consequently the word " suit" in this section does not mean 
and include an application for execution. Section 3 of the 
Act defines that the word " suit" does not include an appeal 
or application. The word "suit," in section 15 of Act IX 
of 1871, has been so construed by a Full Bench in Jivan 
Singh v,. Sarnam Singh. &) Ahsan Khan v. Oanga Ram.( 2 > 
? h te 8 Si ti def af " ^®) This section is in no way affected or qualified by 

danto who may section 9, and the intention of the legislature is to give 
be absent. m . 

the plaintiff the benefit of adding to the prescribed period 

the time during which the defendant may have been 

absent after the accrual of the cause of action, otherwise a 

debtor by leaving India immediately after his debt became 

payable, could deprive his creditor of his legal remedy 

by staying away for three years. Although the Bombay 

High Court, in a suit on its original side, first held that 

this section must be read in connection with section 9, and 

Subsequent ab- that consequently defendant's absence subsequent to the 

senoe of a de- , . , -, >«• 

fendant can be accrual of the cause of action cannot avail the plaintiff, 
excluded. 

they have, in a subsequent case, overruled it, and held that 

subsequent absence of a defendant can be excluded. 

No provision (f) This section does not provide for the case of several 

for tbe case of 

joint contrac- defendants one of whom only has been absent from British 

tors of whom ' ' , ,-r^. , 

one may be ab- India after the accrual of the cause of action. (Vide 
Notes, L. and M.) 
<^H. (g) Harrington v. Gonesh Roy < 3 > was a suit governed by 

does not apply section 27, Bengal Act VIII of 1869, and instituted on the 

to a case of de- ' ° ' 

fendant navinp 25th May, 1881, against Mr. Crowdy, who was the manager 
tuted agejt in and mookhtar of the defendant in charge of a factory, to 
(February 1884) recover land said to have been forcibly taken away. Mr. 
Crowdy, on the 14th June, represented that the land apper- 
tained to the factory and that he was simply the manager 
of the proprietor who was in England. The plaintiff when 
asked whether he sued Mr. Crowdy as manager or as pro- 
prietor, amended the plaint on the 16th June, by putting 
in the place of the defendant * E. T. Harrington, pro- 
prietor, by W. S. Crowdy.' On the above date, more than 

(1) I. L. R., 1 AIL, 97. | (2) I. L. R., 3 All., 185. 

(3) I. L. R., 10 Caic, 440. 



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BBC. 13] PAET in.— COMPUTATION OPPEBIOD OP LIMITATION. 91 

one year having elapsed from the date of dispossession, 

viz., 10th June, 1880, it was held that the suit was barred 

on the ground that this section does not apply to a case 

when, to the knowledge of the plaintiff, the defendant, in this case 

though not residing in British India, is represented by a agent within 

duly constituted agent and mookhtar, and that, if the knowledge. 

interpretation of the section be otherwise, there would be 

no limitation at all as against a proprietor in England, 

although suits might be conducted for and against him, 

through his agent in this country, and that it is impossible 

to believe that such could be the intention of the law. 

(h.) In Narronji Bhimji v. Mugnirum Chandaji,* 1 ) B. H. held in 
plaintiff sued for money due on an adjusted and signed that defen. 
account dated 13th January, 1871. The period of limita- from 'British* 
tion began to run from the date of the account. It ap- cause of action 
peared from the evidence that the defendant was in Su^the statute. 
Bombay at the time of the adjustment, and shortly after- (This has been 
wards went to reside out of British India, in the territories ** ° 
of his Highness the Nizam. The plaintiff relied on section 
13. Bay ley, J., in rejecting the suit as barred, observes 
that this " section ought to be read in connection with 
section 9, which provides that, when once time has begun 
to run, no subsequent disability or inability to sue stops 
it. These two sections adopt, in fact, what had long 
before been the law of limitation in England. In Doed 
Duroure v. Jones (4 T. R. 300) it was held by the King's 
Bench in 1791, that 'when once five years, allowed to an 
infant to make an entry for the purpose of avoiding a 
fine, begin, the time begins to run notwithstanding any 
subsequent disability.' In Cotterell v. Dulton (4, Taunton, 
826) which was a real action upon a writ of formedon, it 
was held that the demandant was barred by the statute 
of limitation (21 Jac., I C. 16). Chambre, J., said : ' The 
ten years do not run at all while there is a continuance of 
liabilities, but they run without intermission from the 
time that the disabilities first cease.' (p. 830). Gibbs, J., 
said : ' When once the statute begins to run, nothing 
stops it.' In Rhodes v. Smithurst, (6 M. & W. 351) de- 

(1) I. L. B., 6 Bom., 103. 



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92 PART III.— COMPUTATION OF PERIOD OP LIMITATION. [SEC. 13 

cided in the Exchequer Chamber, it was held that ' when 
time has once begun to run, no subsequent interruption to 
the (plaintiff's) right of suing, even from causes beyond 
his control, will stop it.' 
a. h. dissenting (i) In Beake v. Davis/ 1 ) plaintiff sued in May, 1882, 
decision held, to recover value of goods sold to the defendant between 
Smce* 1 oTa a de- November, 1878, and January, 1886. The plaintiff claimed 
excluded. exemption from limitation on the ground that during the 

greater part of 1880-81, the defendant was absent from 
British India. Straight, J., in allowing the plaintiff's 
claim, held that this section was in no way affected or 
qualified by section 9, and that its obvious scope and in- 
tention was to save creditors, subsequent to suing their 
debtors, the period during which debtors have been 
absent from British India. 
B. H. followed (j) In Hanmantram Sadhuram Pity v. Arthur Bowles^ 

the above ruling ^ ' ,. A . in n. A 

of a. h. dissent- one of the questions was whether a creditor was en- 

Ing from that of 

it own and held titled to the benefit of this section, if the debtor after the 
is entitled to the accrual of the cause of action absented from British India. 
section if debt- Bird wood, J, on the original side of the High Court, follow- 
of' action, ab- ing the above decision of the Allahabad High Court, held 

sents from Brit- ... . 

ish India. that this section occurs in a different part of the Act, and 

that its provisions appear to him to be unrestricted by 
section 9 and to be distinctly imperative. His Lord- 
ship further observes, that if it were otherwise, a debtor, 
by leaving India immediately after his debt became pay- 
able, could deprive his creditor of his legal remedy by 
merely staying away for three years, and that a suit 
against defendant whose residence out of British India is 
known, being possible as would appear from section 89 of 
the Procedure Code, the words " inability to sue" in sec- 
tion 9 of the Limitation Act seem to be inapplicable to 
a plaintiff in reference to an absent person against whom 
he has a right of action, that the words " disability or 
inability to sue" in section 9 when read with the im- 
mediate context would evidently appear to refer to legal 
disabilities of plaintiff such as minority, insanity, and 

(1) L. I. R., 4 A1J., 531. | (2) I. L. R., 8 Bom., 569. 

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SEC. 13] PART III.— COMPUTATION OF PERIOD OF LIMITATION. 



93 



idiotcy, occurring in section 7, or in other words, to personal 
inability affecting the plaintiff himself and not to the 
circumstances of the person against whom he is entitled 
to institute a suit, and that this section seems to be there- 
fore unrestricted by section 9 and to be distinctly imper- 
ative. 

(k) In Ahsan Khan v. Ganga Ram/ 1 ) judgment- 
debtor was a soldier in Her Majesty's Indian Army, and at 
the time that his real property was sold for the decree 
debt on the 20th November, 1879, he was on foreign ser- 
vice with his regiment at Cabool. On the 30th March, 
1880, he applied to the court, under section 311 of Act X 
of 1877, to set aside the sale on the ground of irregularity ; 
it was held, that this section of the Limitation Act did 
not apply to proceedings in execution and that the appli- 
cation was barred under Article 166. 

(1) The rule which was laid down by the Court of Ex- 
chequer in the case of King v. Hoare, (13 M. & W., 494, 
505), and subsequently by the Exchequer Chamber in the 
case of Brinsmead v. Harrison (L. R., 7. 0. P., 547) is not 
a rule of procedure only, but of principle, — viz., that a 
judgment obtained against one or more of several joint 
contractors or joint wrong-doers operated as a bar to a 
second suit against any of the others. There is but one 
cause of action for the injured party in the case of either 
a joint contractor or a joint tort ; and that cause of action 
is exhausted and satisfied by a judgment being obtained 
by the plaintiff against all or any of the joint contractors or 
joint wrong-doers whom he chooses to sue. If a plaintiff, 
under such circumstances, were allowed to sue each of his 
co-debtors or wrong-doers severally in different suits, he 
would be practically changing a joint into a several lia- 
bility. This rule is fully explained by Baron Parke, in 
King v. Hoare (13. M. & W., 494, 505), and by Chief Baron 
Kelly, in Brinsmead v. Harrison (L. R, 7. C. P., 547). It 
has been founded on strict justice and public convenience, 
and it has been acted upon in the case of Nuthoo Lall 



Does not apply- 
to the case of 
soldier defen- 
dant absent on 
service at 
Cabool when bis 
property was 
sold\ applying 
for cancellation 
of sale. 



In the case of 9 
joint contrac- 
tors One absent 
from British 
India, creditor 
has to choose 
between remedy 
against an in- 
solvent debtor 
and having his 
debt barred. 



Rule is that a 
judgment ob- 
tained against 
one of several 
joint contract- 
ors is a bar 
against second 
suit against any 
of the others. 



The above rale 
is founded on 
strict justice 
and public con- 
venience. 



(1) I. L. R., 3 All., 186. 



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94 PART III. — COMPUTATION OP PERIOD OP LIMITATION. [SIC. 13 

Garth, c. J. ob- Chowdry v. Shoukee Lall.W Garth, C. J., observes, " It is 
rule leads to true that the rule upon which I am acting may possibly lead 

hardship when . , . . . # 

one of several to some hardship in cases when one or more of several 

ore is absent be- co-contractors is out of the jurisdiction, and the plaintiff, if 

he waits for his return, would be barred by the Statute of 

Limitation. But this is an injustice which the legisla- 

it has been re- ture, if they so pleased, could easily remedy, and which 

medied in En- 

gland by sta- has been, in fact, remedied in England by the Statute of 
19 and 20 Vict., c. 97," section 11, which directs that 
the period of limitation as to joint-debtors shall run not- 
withstanding that some are beyond seas, but expressly 
provides that the creditor sball not be barred as against 
those out of the jurisdiction by judgment recovered 
against those who remain within it. 

The effect of (ill) The above observations have been made in Hem- 

section 43 of the v***' 
Contract Act is endro Coomar Mullick v. Bajendro Lall/ 2 ) in which it was 

not to create a d 

joint and seve- held that a decree obtained against one of several joint 

ral liability in o j 

the case of joint makers of a promissory -note is a bar to a subsequent 

contractors. r •* ^ 

suit against others, and that the effect of section 43 of the 
Contract Act is not to create a joint and several liability 
in such a case. 
Uunder the (n) Section 17, clause 2, relates to the case of a debtor 

Indian Limita- 
tion Act ere- dying before the accrual of the creditor's right to sue, and 

elude the time allows the creditor to compute in such a case the period 
death of a of limitation from the time that there is a legal represen- 
seas and grant tative of the deceased against whom he may institute a 
tion. suit ; but there is no exemption in the case of a debtor 

dying abroad after the accrual of the right to sue. There- 
fore, if a debtor absent from British India dies during the 
statutory period or after its expiration, the creditor who 
is entitled under this section (13) to deduct the whole 
time up to the date of the death of the debtor, would not 
be entitled to exclude the time between the death and the 
time that there is a legal representative. 
Under the En- (o) " If a person liable to an action dies beyond seas, 

rfish Limitation -. ' ..* .... _ x _ _ ,. /, . ,. .* 

Act he can de- his representatives are liable, although the period of limi- 

duct that time. 

tation has elapsed during his life, and time runs in their 
(1) 10 B. L. R., 800. | (2) I. L. R., 3 Calc, 368- 

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BBC. 14] PART ni. — COMPUTATION OF PERIOD OP LIMITATION. 95 

favour, not from his death, bat from the grant of adminis- under the Eng. 

. « liflh Limitation 

tration or the time when the executor proves or acts Act he can de- 
before proving. If, however, at the time of the death the time that legal 
executor is absent beyond the seas, time will not run till £ P absent be? 
he has both returned home aud either acted in England yon ***** 
or proved the will." " In the case of a person liable to an 
action remaining abroad from the time when the cause of 
action accrues until his death, an action, no doubt, lies 
against his representatives, although the six years may 
have elapsed in his lifetime, and time will not begin to 
run till letters of administration are taken out, or the 
executor has proved or acted; and if the executor be 
himself abroad at the time of the death of the testator, 
time will not begin to run till the executor has both 
returned home, and either acted in England or proved 
the will." (Flood v. Patterson, 29 Beav., 295 ; 30 L. J., 
Ch. 486)(D 

(p) Section 8 of the General Clauses Act, 1868, British India. 
defines " British India" to mean the territories for the 
time being vested in Her Majesty, by the Statute 21 & 22, what is "Bri- 

° J J J tish India" and 

Vic, Chap. 106 (an Act for the better Government of what are places 

out of it? 

India) other than the Settlement of Prince of Wales' 
Island, Singapore and Malacca. 

Chandernagore, Pondioherry, Goa, Ceylon, Cashmere, 
Cooch-Behar, are foreign Countries. 

14. In computing the period of limitation ^^^^L. 
prescribed for any suit, the time during which j^^S^t 
the plaintiff has been prosecuting with due dili- 
gence another civil proceeding, whether in a 
court of first instance or in a court of appeal, 
against the defendant shall be excluded, where 
the proceeding is founded upon the same cause 
of action, and is prosecuted in good faith in a 
court which, from defect of jurisdiction, or other 
cause of a like nature, is unable to entertain it. 



in 
jurisdiction. 



(1) Darby and Bosanquet, pp. 44, 104. 



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96 



PART III. — COMPUTATION OF PERIOD OP LIMITATION. [8EC. 14 



Like exciuaion In computing the period of limitation pre- 

in cane of order . * . L 

o^re^code* 0- scribed for a suit, proceedings in winch have 
86Ction ^ been stayed by order under the Code of Civil 
Procedure, section 20,* the interval between the 
institution of the suit and the date of so staying 
proceedings, and the time requisite for going 
from the court in which proceedings are stayed 
to the court in which the suit is re-instituted, 
shall be excluded. 

In computing the period of limitation pre- 
scribed for any application, the time during 
which the applicant has been making another 
application for the same relief shall be excluded 
where the last-mentioned application is made in 
good faith to a court which from defect of juris- 
diction, or other cause of alike nature, is unable 
to grant it. 

Explanation 1. — In excluding the time during 



Like exclusion 
in case of appli- 
cation. 



* 20. If a suit which may be instituted in more than one oonrt 

is instituted in a oonrt within the local limits 

i^L^^LE^^ of whose jurisdiction the defendant or all 

do not reside within juris- the defendants does not or do not actually 

61 on " and voluntarily reside, or carry on business, 

or personally work for gain, the defendant or any defendant may, 
after giving notice in writing to the other parties of his intention to 
apply to the court to stay proceedings, apply to the court accord- 
ingly ; 

and if the Court, after hearing such of the parties as desire to be 
heard, is satisfied that justice is more likely to be done by the suit 
being instituted in some other court, it may stay proceedings either 
finally or till further order, and make such order as it thinks fit as 
to the costs already incurred by the parties or any of them. 

In such case, if the plaintiff so requires, the court shall return the 
plaint with an endorsement thereon of the order staying proceedings. 

Every such application shall be made at the earliest possible 
opportunity, and in all cases before the issues 

Application when to be B!re settled ; and any defendant not so apply- 
ing shall be deemed to have acquiesced in 
the institution of the suit. 



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SIC. 14] PAET in.— COMPUTATION OF PEEIOD OP LIMITATION. 97 

which a former suit or application was pending 
or being made, the day on which that suit or 
application was instituted or made, and the day 
on which the proceedings therein ended, shall 
both be counted. 

Eoeplanation 2. — A plaintiff resisting an appeal 
presented on the ground of want of jurisdiction 
shall be deemed to be prosecuting a suit within 
the meaning of this section. 

(a) Section 14 of Act XIV of 1859, enacted that the The words 

■ . ... "claimant, &o. ( 

time " during which the claimant, or any person under waged in pro- 
whom he claims, shall have been engaged in prosecuting tion u of Act 

., . ^. . x xi_ XlVof 1869 were 

a suit upon the same cause of action against the same held to apply 
defendant" shall be excluded. With reference to the above who, as^Slend- 
wording, the Calcutta High Court, in Maharajah Jugu- suit, urged a 
tendur v. Dindyal/ 1 * observed " we think that these words 
are to be construed liberally and not literally according 
to the decision of the Privy Council, vol. 7, of Moore's 
Reports, p. 357, case of Pran Nath Chowdhry v. Rookea 
Begum. In this case their Lordships laid it down as a 
rule that a person was not barred when ' he had been 
allowed to intervene, and was a continuing party to a suit,' 
and that it would be inconsistent to hold ' that the pen- 
dency of litigation with the proceedings on it' did not 
furnish a good and sufficient cause for his not proceeding 
in his suit." It was held that a plaintiff is entitled to 
deduction, from the period of limitation, of the period of 
pendency of a former suit in which he, as defendant, was 
urging the same claim as he preferred as plaintiff in this 
suit. 

(b) In Hanzunessa v. Bhyrab (Thunder/*) plaintiffs, such person 
who were defendants in a former suit, supposed that they deduction of 
had a right to claim a particular sum by way of set-off, and set-off was re- 
laid claim to the same. As it turned out that their claim of jurisdiction 
was against the law relating to the plea of set-off , it was of a iike C&UB ° 

nature." 



(1) 1. W. R., p. 310. | (2) 13 C. L. R., 214. 
13 



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98 PABT III.— COMPUTATION OP PERIOD OP LIMITATION. [Baa 14 

held that the plaintiffs were not entitled to the benefit of 
section 14 of Act XIV of 1859 ; it was further held that a 
person who was defendant in a former suit and who unsuc- 
cessfully urged a claim of set-off cannot, in a suit brought 
by him, claim the benefit of the above section unless the 
set-off was disallowed for some defect of jurisdiction or 
some other cause of a like nature. 
To entitle a ((») Raiah Borodakant v. SookmoyW was a suit to 

plaintiff to the x ' J J 

benefit of this obtain possession of lands belonging to the plaintiff s 
mer proceeding zemindari, which were falsely declared by the defendant 

most have been 7 J J 

prosecuted by to be lakheraj. The court observe " an attempt has been 

him or by some J r 

person under made to obtain for the plaintiff the benefit of section 14 

whom he claims. r 

of the Act, and to exclude from the computation the 
time during which the suit for assessment was pending. 
But we find that that suit was not brought by the plain- 
tiff, nor by any person under whom he claims. The 
plaintiff therefore cannot avail himself of this section, 
even if its provisions were otherwise applicable, which is 
very doubtful." 
The former pro- (d) In Mussamut Munna v. Laljee Roy,W it was held 

ceedings must ' . J J 

have been pro- that no deduction can be allowed under section 14, Act 
the same iSefen- XIV of 1859, if the former suit had been prosecuted 

dant or the per- 
son from whom against the wrong party, 
the defendant ^> ~o r j 

derived title. 

institution of (6) In Nilmadhub Surnokar v. Kristo Doss Surno- 

against one of kar/ 3 ) the former suit was not brought against the same 

in the 2nd suit defendants but only against one of them, and it was 

sufficient to en- merely in consequence of the non- joinder of the other, 

deduction under who has been made a party to this suit, that the former 

xiv of 1869. suit was non-suited. It was held that the time of its 

pendency cannot be deducted in computing limitation 

whether the dismissal of the former suit was right or 

wrong. 

whether a suit (f) I" Sheth Kahandas v. Dahiabhai,**) it is observed, 

w jwTmust " whether a suit was pursued bond fide and with diligence, 

mo^oTiosTa 1 " must in almost every case be more or less a question of 

question of de- degree, and the same course of action which on the part 

(Jan. 1879.) 

(1) 1 W. R., 29. I (3) 5 W. R., 281. 

(2) 1 W. R., 121. j (4) I. L. R., 3 Bom., 182. 



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BBC. 14] PART III.— COMPUTATION OP PERIOD OP LIMITATION. 99 

of a plaintiff, in Bombay, within reach of skilled advice, 
would indicate bad faith or want of diligence, might be 
consistent with good faith and diligence in a Mofussil Com- 
munity." In Hiralal v. Badri Das/ 1 ) the Privy Conncil 
held that a proceeding taken bond fide and with due dili- 
gence, before a Jndge whom the judgment creditor be- 
lieved bond fide, though erroneously, to have jurisdiction, p. o. on bond 
was a proceeding to enforce the decree within the mean- of Act xiv of 
ing of section 20 of Act XIV of 1859. 18W ' 

(g) In Chunder Madhub Ghuckerbutty v. Bissessnree F. B. c. H. 
Debea,( J ) the question was whether plaintiff can deduct suit was pend- 
from the period of limitation the time that a former non-suited held 
litigation on the same subject was pending, the former ducted. 

, . , -x j im- i • xM», i i!_ (9th Mar. 1886.) 

case having been non-suited. The plaintiff s appeal from 
the order was unsuccessful. It was held that according 
to section 14 of Act XIV of 1859, a plaintiff was not en- 
titled to deduct the time occupied by him in prosecuting 
the former suit in which he was non-suited, much less the 
time occupied in appealing from that decision and the 
time intervening between the non-suit and the filing of 
appeal. Peacock, 0. J., obseves, " I am of opinion that Defect of juris- 
the words ' or other cause' must mean a cause of like not include 
nature as defect of jurisdiction. Now, a defect of juris- foot either in" 
diction would be a cause that would not include any or in other res- 
neglect on the part of the plaintiff either in stating his 
case or in other respects." Jackson, J., observes, " It inability of 
appears to me that the inability of the court must be some circum- 
either some unavoidable circumstance over which no one which no one 
has any control, or something incidental to the court 
itself, and unconnected with the acts of the parties." 

(h.) In Karuppan Chetti v. Veriyal/ 8 ) it was held that m. h. 

* , rtKrk _. , - . . Under the cor- 

section 14, Act XI V of 1859 applied to the case m which responding sec- 

,, . . ' , , - , ,. . tionofActXIV 

the plaintiff was unable, after due diligence, to procure of mm, piain- 
due service upon the defendant of the summons to appear to procure ser- 

x A vice of sum- 

and answer the claim, and consequently to prosecute the mons held, en- 

' ^ J r titled him to the 

suit to a decision, and would prevent a suit against the benefit of that 

x ° section. 

(Jan. 1868.) 

(1) I. L. E., 2 All., 792. | (2) 6 W. R., 184. 

(3) 4 Mad., H. C. E., p. 1. 



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100 PART III.— COMPUTATION OF PERIOD OP LIMITATION. [8IC. 14 

m. h. defendant's representatives from being barred. The said 

ciroS^stancee section was also held applicable wherever the success of 
preventing 1 ^™!- the proceeding had been prevented by causes not arising 
CAprii 1863.) from laches on plaintiff's part, in other words, by acciden- 
tal circumstances beyond his control. Bamakristna v. 
D. Lakshmi Devamma.* 1 ) 
Time that a suit . (i) In Raj Krishto Roy v. Beer Ghunder Joobra*r,<*> 

was pending in . ° 

the couptof iBt it was held that, where a suit was brought and dismissed 

instance which .... 

rejected it for for want of jurisdiction, and an appeal was preferred in 
diction, and the which the Lower Court's decree was affirmed, and then 

time that plain- 
tiff's appeal when a suit was brought in the right court, the period 

pending, were which elapsed between the decision of the first court and 

deducted under 

Act xiv of 1859. the disposal of the appeal should be excluded in comput- 
ing the period of limitation prescribed for the suit by 
Act XIV of 1859. The court observe, " we also think that 
Plaintiff is en- he is engaged in prosecuting the same suit ' bond fide, and 
cuting a civil with due diligence', whilst he his considering whether or 

proceeding while 

he is consider- no he shall appeal against the decision of the first court. 
not he should The time within which the appeal is required to be 

appeal against 

the Lower brought is fixed by the law, in order to give the unsuc- 

Court's decision ° . , , . , , . 

cessful party time to take advice and come to a conclusion 

whether or no he should contest the decision which has 

been given against him. And it seems to us that, if he 

appeals at any time within the prescribed period he 

ought to be considered as proceeding with due diligence." 

Dismissal for (j) Dismissal of the former suit for want of jurisdic- 

diction, right or tion, whether the decision is legally right or wrong, entitles 

plaintiff to such the plaintiff to claim a deduction in the computation of 

The time during the period of limitation. Hurro Chunder Roy t?. Shooro- 

Ippeai was dhonee Debia.W In G. Lee Morris v. Sapamtheetha 

also deducted. Pillay,W it was held that the period during which a suit 

is pending in a court not having jurisdiction, is to be 

excluded from the period of limitation provided By Act 

The fact that XIV of 1859, and the fact that the second suit, in bar of 

pending when which the Act is pleaded, was instituted before the court 

was brought not having jurisdiction had disposed of the first suit, is 



held immate- 
rial, 



(1) 1 Mad., H. 0. R., 320. I (8) 9 W. R., 410. 

(2) 6 W. R., 308, | (4) 6 Mad., H. 0. R., 45. 

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8SC. 14] PART III.— COMPUTATION OF PERIOD OF LIMITATION. 101 

immaterial. In Luchinarain Mittar v. Khettro Pal Singh 
Roy/ 1 ) it was held, in July, 1873, that the plaintiff was 
entitled to deduct the time during which he was bond fide 
prosecuting with due diligence a suit for the same purpose 
in a court not having jurisdiction. In this case the Privy 
Council held that according to the true construction of 
section 14, the whole time occupied in the former suit, in- 
cluding the time during which the special appeal to the 
High Court was pending, must be deducted. Principal 
Suddr Amin gave decree for plaintiff. The District Judge 
reversed the decision and it was confirmed by the High 
Court. It was found as a fact that the suit was prose- 
cuted bond fide. 

(k) In Bam Dass v. Watson/ 8 ) it was held that prose- Preferring an 
cutinff an appeal or other proceeding which is expressly prewiy prohi- 
prohibited by law is not prosecuting a civil proceeding m not proeectifciiwr 
good faith. In Vencatasawmy Naidu v. Vencataraju inp in good 
Naidu/ 3 ) a regular suit was filed under section 269 of Act 
VlJLL of 1859, after the expiration of one year from the 
date of the final order, and the plaintiff pleaded that an 
intervening period, spent by him in appealing from the 
order, should be excepted, under section 15 of Act IX of 
1871, in applying the statute. It was held that the 
filing of the appeal was not the institution of a suit with- 
in the meaning of the section. An appeal from an order 
under section 269 of Act VIII of 1859, (corresponding 
with section 335, of Act XIV of 1882) is expressly pro- 
hibited by the Code. 

(1) Ajoodhya Pershad v. Bisheshur Sahai/ 4 ) prose- Where appellate 
cuted bond fide and with due diligence, was dismissed in suit for want of 
appeal for want of jurisdiction in the court of first instance, time between 
and a second suit was afterwards brought in a right court, and institution 
It was held that in computing, under section 14 of Act eluded 5 under" 
XIV of 1859, the period of limitation of the suit, the time xiv of 1869. 
between the decree of the court of first instance and the y 
institution of t)ie appeal should be excluded. 



(1) 13 B. L. B., 146. I (3) 4 Ind. Jur., 20. 

(2) W. B., Gap. No. 371. | (4) 6 N.-W. P. H. C, 141. 



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102 PART III.— COMPUTATION OP PMtlOD OP LIMITATION. [SEO. 14 

a. h. declined (m) The plaintiffs sued the eon of a deceased debtor 

to deduot in the ..... 

case of a suit without ascertaining- whether or not he was of aire, and 

rejected in ap- ° ^ ' 

peal for defect then, when the plaint was returned to them, they sued 

of parties. \ ' J 

(May 1875.) the minor 8 mother also without ascertaining whether 
she was legally constituted guardian of the minor. The 
Lower Courts determined the suit, but the High Court 
was unable to support their decrees in consequence of the 
defect, which came to light in special appeal. The 
plaintiffs having brought a second suit, it was held that, 
in computing the period of limitation, they were not 
entitled, under the provisions of section 15 of Act IX joi 
1871, to an exclusion of the time occupied by ' them in 

Court doubted prosecuting the first suit. The court doubted whether, 

whether the r . ® . . ' 

Kiaintiif could assuming the case fell under the provisions of the section, 
b said to have 

prosecuted the the plaintiffs could be said under the circumstances to 

first suit with 

due diligence have prosecuted the first suit with due diligence and in 
faith. good faith. Bhal Singh v. Musammat Gauri.W 

Period deducted (n) Where a part-proprietor of a certain Talook, who 
wrongly prose- was also co-sharer in a fractional portion thereof, brought 
nue Court and suits against his co-talookdars, in the Revenue Courts, 
want of judis- for arrears of rent without allowing any deduction on 
(Dec?i874.) account of his share, which suits were dismissed for want 
of jurisdiction, and afterwards brought a suit for the rent 
for the same period in the Civil Court, it was held, that 
the suit was not one for the recovery of arrears of rent 
within the meaning of section 29, Ben. Act VIII of 1869. 
but was governed by the provisions of Act XIV of 1859. 
The suit was one for rent of land, and fell within the scope 
of clause 8, section 1 of that Act ; and the plaintiff was, in 
computing the limitation, entitled under section 14, to a de- 
duction of the period during which he was prosecuting his 
suit in the Revenue Courts. Gobindo Coomar v. Manson.t*) 

b. h. allowed (o) When an appeal had been preferred by the plain- 
appeaiwrongiy tiff to the Judge, which ought to have been perferred to 
Judge instead of the Collector, the High Court made an order giving the 
(April 1871.)' plaintiff thirty days within which to prefer his appeal to 

the Collector instead. Maharani of Burdwan v. Parikhit 

(1) 7 N.-W. P. H. C, 284. | (2) 15 B. L. R., 66. 

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8BC. 14] PART III. — COMPUTATION OF PERIOD OP LIMITATION. 103 

Rawtra.C 1 ) In Kristo Inder Roy Chowdhry v. Roopinee c. h. directed 
Bebee/ 2 ) the court, finding that the appeal had been pre- lector of an ap- 

i peal wrongly 

ferred bond fide under a mistake to the wrong court, presented to 



ordered the case to be transferred to the right court — 
that is to say, to the court of the Collector for disposal. 
In Erskine v. Gholam Khezur,( s > appeal from the Deputy 
Collector's decision under section 9 Act VI of 1862, lay A case of a 
to the Zilla Judge and not to the Collector. While so, the oh. allowed' 
plaintiff preferred his appeal to the Collector, who re- prefer to the 
versed the decision. The defendant appealed against it appeal wrongly 
to the Zilla Judge at Beer Bhoom instead of to the proper Collector and 
District Judge. The Judge of Beer Bhoom, considering Judge. 
he was competent to entertain the appeal, reversed the 
Collector's order as made without jurisdiction. The 
plaintiff specially appealed to the High Court, who ob- 
served, " plaintiff was wrongly advised and took his case 
to the wrong tribunal. He ought not, we think, under the 
circumstances, to be shut out altogether from obtaining a 
decision on his appeal, and we therefore set aside the 
judgment of the Zilla Judge and the Collector, and de- 
clare that the plaintiff is at liberty, if so advised, to 
appeal, within 20 days from the date of this judgment, to 
the Zilla Judge having jurisdiction in the matter." 

(p) A Hindu of the Southern Maratha country, having p. o. held plain- 
two song undivided from him, died in 1871, leaving a will d^ucttimethat 
disposing of ancestral estate substantially in favor of his tor partSon"* 
second son, excluding the elder, who claimed his share in JSf rejected^or 
this suit. In 1861, a suit brought by this elder son against Son° aa^to*" 
his father and brother to obtain a declaration of his right SdnSn^cnud 
to a partition of the ancestral estate was dismissed on uona^tomov£ 
the ground that he had no right in his father's lifetime (Under Act xrv 
to compel a partition of moveables ; and that as to the im- of 18W#> 
moveables the claim failed, because they were situate 
beyond the jurisdiction of the court. It was held that the 
suit was not barred under the Limitation Act XIV of 
1859, sec. 1, cl. 13. As to the immoveables ; setting aside 

(1) 7 B. L. B., App., 15. | (2) 6 W. R., Act X, Bui. 56. 
(3) 9 W. R., 520. 



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104 PAET III.— COMPUTATION OF PERIOD OP LIMITATION. [8EC. 14 

the fact that the plaintiff had remained in possession of 
one of the houses of the family which had been treated 
by the father as continuing to be part of the joint pro- 
perty, the decision of 1861, based as to the immoveables 
on the absence of jurisdiction to declare partition of 
them, caused this part of the claim to fall under the 
provisions of Act XIV of 1859, section 14. As to the 
moveables ; assuming that they could, on the question of 
limitation, be treated as distinct from the moveable, and 
that no payment had been made within twelve years 
before this suit by the ancestral banking firm to the plain- 
tiff, the adjudication of 1861, whether in law, correct or 
incorrect, had been that the elder son could not assert his 
rights in the moveables until his father's death. The de- 
fendant in this suit, who had taken the benefit of that 
judgment, could not now insist that it did not suspend 
the running of limitation on the ground that his brothers 
might have appealed from it, if erroneous. Lakshman 
Dada Naik v. Ramchandra Dada Naik.t 1 ) 
To entitle to de- (q) In Joitaram Bechar v. Bai Ganga,< 2 > plaintiff 
cause of° action brought two suits, one against one branch of the family, 
Same, in a case and the other against another branch, to recover a share 
suits after dis- of that portion of the property which was in the posses- 
separate suits, sion of each, and these suits were rejected on the ground of 
held not n per? their having been improperly brought. It was held that, 
(Deol b i87i.) ^ bringing a consolidated suit against all sharers for a 
general partition, the plaintiff was not entitled to deduct 
the time occupied in prosecuting his former suit. In 
G. Lee Morris v. Sivaramayyan and others,^ plaintiff was 
for sometime before the suit prosecuting suits against 
defendants separately for the arrears of rents alleged to 
be barred, and they were all dismissed on the ground that 
the plaintiff could not sue the defendants separately as 
they had executed a mutchilika jointly. In this suit, 
brought against all the defendants jointly, the plaintiff 
claimed the benefit of section 14 of Act XIV of 1859. 

(1) I. L. R., 5 Bom., 48. | (2) 8 Bom., H. C. B., A.o. 228. 

(3) 7 Mad., H. C. B., 242. 



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BKC. 14] PAST III.— COMPUTATION OF PIBIOD 09 LIMITATION. 105 

It was held that tha cause of action was not the same, for 
in the former suits the obligation sued upon was several, 
while here it is joint, and that the court which decided 
the former suits not only did not fail to decide them, but 
did decide them. 

(r) In Cheigu Naogiah v. Pidatala Venkatuppah,* 1 ) Court returning 
plaintiff presented his plaint On the 5th May, 1870, to the want of juris- 

. . diction cannot 

District Munsiff of Nundialpet, who had no jurisdiction; limit a time for 

its presentation 

the District Munsiff returned the plaint on the 7th May to the proper 
to the plaintiff, to be presented to the proper court within plaintiff is not 
one month from the date on which it was returned. The duct the time so 
claim was barred by limitation on the 11th May, 1870, tnis t sectioS der 
and a plaint was presented to the proper court on the 21st * Augutt 1870# ' 
May, 1870. It was held that the suit was barred. The 
High Court observe, " as the presentation of a plaint is 
the commencement of a suit, we should probably have 
held that the bar of the suit was saved by the provisions 
in section 14 of the Act of Limitations (XIV of 1859) 
if it had appeared that by excluding the time between 
the presentation and the return of the plaint, the period 
of limitation was not exceeded, but the fact is otherwise." 
It was not the duty of the court to name a time for the 
presentation of the plaint in the proper court under sec- 
tion 3 of Act XXHI of 1861, and the case must be looked 
at as if the court had not named a time. In Abhoya But the period 
Churn Chuckerbutty v. Gour Mohun Dutt,^) District waited to get 
Munsiff decreed the plaintiff's suit, and the Subordinate from court was 
Judge on appeal reversed his decision, holding that the 
Lower Court had no jurisdiction, and ordered the plaint 
to be returned. It was held that the period after the 
decree in appeal during which plaintiff was waiting to 
receive back his plaint before re-filing it in the Small 
Causes Court, could not be deducted. 

(g) In Timal Kuari v. Ablakh Rai,( 8 > plaintiff, who a. h. observed 
was illegally ejected from certain land before 1873, applied visions of the 
in January, 1876, under section 95, of Act XYIII of 1873, sectS?i6d?ifct 
for possession, alleging, that though section 95 of that not applicable to 

tions under Act 
(1) 6 Mad., H. C. E., 407. | (2) 24 W. R., 26. xvin of 1878. 

(3) I. L. E., 1 All., 254. (June 18 *«.) 

14 



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106 PAST IIL-~COMPUTATIOH OF PERIOD OF LIMITATION. [SIC. 14 

Act provided for institution of such suits within six 

months from the date of dispossession, he was entitled to 

the benefit of section 15 of the Limitation Act, as he was 

prosecuting a prooeeding for the recovery of land in courts 

which had no jurisdiction to try such suits. Following 

the rulingof the Privy Council in Unnoda Persaud Mooker- 

jee v. Kristo Goomar Moitro/ 1 ) in which it was held that 

the analogous provisions of section 14 of Act XIV of 

1859 do not apply to suits under Act X of 1859, which 

is a special law, and Mahomed Bahadur Khan v. The 

Collector of Bareilly,(*) in which it was held that the 

provisions of the Limitation Law do not apply to enlarge 

the period of limitation prescribed by Act IX of 1859, the 

court observed that section 15 of Act IX of 1871, which 

corresponds to this section, did not apply to suits or 

applications under Act XVTH of 1873. 

B. h. held sec- (t) Plaintiff in May, 1872, sued a police constable for 

xrv of 1869 in. damages for having made a false report. The Sub- judge, 

suit for dam*, on the 5th August, 1872, rejected the suit for want of juris- 

ge6 under sec- 

tion 48 of the diction. On the 7th August, 1872, plaintiff filed a fresh 

Bom bay Act •.., . , . ,. 

vn of 1867. suit in the proper court which rejected it as barred under 

^p* 11873, section 42 of Bombay Act 7 of 1867. The High Court 
affirmed the Judge's order, holding that section 14 of Act 
XIV of 1859 was not applicable to the plaintiff's case. 
Hari Biamchandra v. Vishnu Krishnaji.W 
n.-w. p. h. o. (ll) In Mussumat Nona v. Dhoomun Dass,W it was 
of Act xrv of held that section 14 of Act XIV of 1859 apply only to 
bie 'to a PP suit periods of limitation prescribed by that Act, and conse- 
of 1863. quently no deduction can be made in the period of limi- 

tation of a suit under Act XIV of 1863, of the time in 
which a party was engaged in prosecutipg his suit in 
a wrong court. 

miJiiatedlw thafc ^ v ) "^ wo P 61 " 80118 joined in instituting a suit in a Sub- 
2 ^» i ~2„ of ordinate Judge's Court on the 26th August, 1878, while the 



t£feS*3* ** period of limitation was to expire on the 21st September, 

deolined to de- 
duct the time 

that a suit was (1) 15 B. L. E., N.p. 60. 

Juws'mr 04 (2) L. B-, 7 Ind. App., P. C 167, Sc. 13, B. L. a, 392. 

(JwTiew!) (*) 10 Bom. H. C, 204. | (4) 5 N.-W. P. H. C, 30. 



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880. 14] PAST III.— COMPUTATION 09 P8BI0D 09 LIMITATION, 107 

1878. The suit was transferred to the District Court, 
which, on the 16th September, 1878, returned the plaint 
to the plaintiffs on the ground that they should have 
sued separately. On the 23rd September, 1878, one of 
them presented a fresh plaint to the District Court which 
rejected it on the 1st October, 1878, on the ground that it 
had no jurisdiction. The plaintiff appealed to the High 
Court, which affirmed the order on the 28th January, 1879, 
and returned the plaint on the 10th April, 1879. The 
plaintiff on the same day re-presented it to the Sub-court. 
It was held that the plaintiff could claim to exclude only 
the period between the 23rd September, 1878, and 10th 
April, 1879, and not the period between 26th August and 
16th September, 1878, as the inability of the District 
Court arose from misjoinder of plaintiffs, a defect for 
which they were responsible. Bam Subhag Das v. Gobind 
Prasad.'*) 

(w) On the 2nd September, 1869, a suit was instituted o. h. dissenting 

from the above 

for, among other things, the possession of land claimed ruling held that 
under a Kobala, dated the 31st October, 1867. The suit defective jurie- 

dietion were 

was dismissed on appeal on the ground of misjoinder of euros of a 

similar nature, 

causes of action. On the 14th April, 1881, the plaintiff (August ires.) 

.sued for possession of the land only. It was held, that 

the suit was not barred, that " misjoinder of parties" and 

" def eotive jurisdiction" are causes of a similar nature, and 

that the plaintiff was entitled to have the deduction of 

the time that the former suit was pending. Deo Prosad 

8ing v. Pertab Kairee.W In Mohan Chunder Koondo v. Bringing a suit 

Azam Gazee, (8J Sir Barnes Peacock, C. J., held that bring- haatted n befere 

ing a suit bond fide against a person who had died before f similar"* 

the suit was instituted was a cause of a similar nature section w of Act 

within the meaning of section 14 of Act XIV of 1859. 

But a plaintiff who, before the expiry of the period of But not suing a 

. . person errone* 

limitation, sues certain persons whom he erroneously ousiy supposed 

to be the repre- 

supposes to be the representatives of his deceased 0°***"™ <* » 
debtor, and after the expiry of the period obtains leave to or. 



(March 1873.) 



(I) I. L. B., ? AIL, 6(8. | (2) I. L. B., 10 Gala, 87. 



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108 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [SBC. 14 

amend his plaint by substituting the true representatives 
as defendants, was held not entitled to deduction of time 
lapsing between the date of the suit and that of amend- 
ment. Kavasji Sorabji v. Barjorji Sorabji.W 
Time that a suit (x) In Putali Meheti v. Tulja,(*> plaintiff had first 
™tod D though filed a suit in July, 1876, in respect of the same subject, and 
for non-produc- founded on the same cause of action as the present suit, 

tion of the Col- ,,.*,,,, . -*r * 

lector's oertifl- and when it had reached its latest stage, m November, 

cate under the 

Pensions' Act 1877, the defendant for the first time objected to the court's 
XXin of 1871. .... . 

(April 1870.) jurisdiction on the ground that the plaint had not been 
accompanied by the Collector's certificate as required by 
Act XXIII of 1871. The Sub-judge rejected the plaintiff's 
application for time to produce the required certificate 
and rejected the suit on that ground. In the present suit 
the question was, whether the time that the former suit 
was pending can be deducted in computing the period of 
limitation. West, J. being of opinion that the non-pro- 
duction of the certificate did not necessarily constitute 
such a want of due diligence on the plaintiff's part as to 
West, J. held disentitle him to the deduction of time allowed by this 
auction of certi- section, held that the case was one of an error committed 
error committed in good faith and not one of want of due diligence, and 
that the plaintiff was entitled to have the time deducted. 
m. h. declined (y) Bamakristna Castrulu v. Darba Lakshmide- 
time that a vamma^ was a suit for Inam lands instituted in 1849, the 
pending which cause of action having accrued nearly 12 years before. 
non-productioiT The suit was dismissed on the ground that the plaintiff 
under C Reguia- had no certificate as required by regulation IV of 1831. 
(April 1863.) ' Eight years afterwards, the plaintiff having obtained the 
requisite certificate, commenced a suit for the lands ; it was 
held that the institution of the former suit had not sus- 
pended the Statute of Limitations, and that the plaintiff 
was barred. 
Time that a (z) This section corresponds to section 15 of Act IX of 

the^flieTf °a 1871. In the case of Sham Kant Banerjee t>. Baboo 
mon^courtde- q^ lM Tagore,< 4 ) a Division Bench ruled that no 

(Jan. 1879.) 

(1) 10 Bom. H. C. R., 224. I (8) 1 M. H. C. B., 820. 

(2) I. L. R., 8 Bom., 223. | (4) 1 W. R., (civ. Rul.) 888. 

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8BC. 14] PABT III-^COMPUTATION OP PERIOD OP LIMITATION. 109 

deduction could in any case be allowed for the institution 
of a suit in the wrong court. West, J., being of opinion 
that this would deprive the saving clause of the Limita- 
tion Act of its whole effect, observed in Sheth Kahandas 
Narandas v. Dahiabhai/ 1 ) " Whether a suit was pursued 
bond fide and with diligence must in almost every case 
be more or less a question of degree, and the same course 
of action which on the part of a plaintiff in Bombay, within 
reach of skilled advice, would indicate bad faith or want 
of diligence, might be consistent with both good faith 
and diligence in a Mofussil community unfamiliar with 
the refinements of the Mercantile law, and practically 
inops consilii on such matters." 

(2-a) In Obhoy Churn Nundi v. Kritartha Moyi Dos- Time that a 

plaint was on 

see,**) Subordinate Judge, seven months after the insti- **» file of a 

7 ° court until re- 

tution of this suit, returned the plaint to be filed in a turned was de- 
ducted. 
Munsifs Court on the ground that the suit had been (April i88i.) 

overvalued. As there was nothing to shew want of bond 

fides in the plaintiff's instituting the suit, the time during 

which the plaint was on the Sub-judge's file was deducted 

in computing the period of limitation. Similarly, in 

Chandi Dasi v. Janakirara,(*) the time that a plaint was in 

Munsifs Court which returned it for want of jurisdiction 

was deducted under Act XIV of 1859. 

(2-b) In Rajendro Kishore Singh v. Bulaky Mahton.W c. h. 

i - i-L t .,. Al 5 , , , Time occupied 

plaintiff s manager s suit for the value of trees cut down by suit rejected 

and carried away by the defendant was dismissed on the manager cannot 

ground that the manager had no cause of action. When (May msi.)' 
the suit was brought by the plaintiff it was held that the 
time occupied by the manager's suit could not be excluded 
as the suit was dismissed neither from defect of jurisdic- 
tion nor from any cause of a like nature. 

(2-C) Section 374 of the C. P. C, makes reference to Decree-holders 

suits withdrawn and not to applications. Melvill, J., in application 

Pirjade v. Pirjade,<*) observes that the bar created by eion to present 

a fresh one, not 
entitled to the 
benefit of this 

(1) I. L. B., 3 Bom., 182. | (8) 1 B. L. R., 8. N., 12. ESS? 11 ;^ , 

(2) I. L. B., 7 Calc, 284. | (4) I. L. R., 7 Calc, 867. (Sept * 18M -> 

(5) 1. L. B., 6 Bom., 681. 



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110 PART III.— COMPUTATION OF PERIOD OP LIMITATION. [SBC. 14 

section 374 of the Code is, in snoh cases, not remoyed by 
this section, as causes for which the withdrawal of a suit 
or application may be permitted, are not causes " of a like 
nature" with defect of jurisdiction. This has been referred 
to in Kifayat Ali v. Ramsingh/ 1 ) in which A. H. expres- 
sed their dissent from Bamanadan Chetti v. Periatambi<*) 
which held in February, 1883, that an application for 
execution which does not comply with the requirements 
of section 235 of the C. P. C, and which having been 
returned to the decree-holder for amendment, has not 
been proceeded with, may still suffice under cl. 4, article 
179 of sbedule II. of the Limitation Act. 
Time that plain- (2-d) In Nobin Chunder Kurr v. Bojomoye Dossee/ 3 * 
the previous plaintiff on the 31st of March, 1884, sued in the Small 
limitation, was Cause Court, on a pro-note dated 24th April, 1879. In his 
suit was reject- plaint he omitted to set out certain payments endorsed on 

ed for the plain- 

tiff's not having the pro-note signed by the defendant's agent, which pay- 
net out inhia* o* «=» » * 

plaint payment ments, if so set out, would have had the effect of saving 

endorsed rn the ' , . , ,. . mi n " 

pro-note sued the suit from being barred by hmitatiom. The Small 

on and signed . 

by defendant's Cause Court rejected the plaint on the 24th April, 1884, 
(Feb. 1886.) under clause c. of section 54 of the Civil Procedure Code 
as barred on the face of the plaint. On the 25th of April, 
1884, the plaintiff brought a fresh suit on the same pro- 
note, setting out in his plaint how it was that he claimed 
exemption from limitation. It was held that in computing 
the period of limitation, the plaintiff was not entitled 
under this section to exclude the time during which he was 
Under Act xrv prosecuting the previous suit. In Chunder Madhub 
the former suit Chuckerbutty v. Bissesuree Debea, W Full Bench held under 
sitting oSt n ° section 14 of Act XIV of 1859, that the time that a suit 
was not deduct- was on the file, rejected for not setting out boundaries 
in the plaint, could not be deducted from the period of 
limitation when the plaintiff filed a fresh plaint in respect 
of the same subject matter. 
Time that a (2*6) In Sheth Kahandas Narandas v. DaJuabhaLfo) 

plaint was on ^ 

the file until 

High Courts' re- 

t^S^^ on 0) I- L - *•» * All., 859. | (8) I. L. B., 11 Calo., 264. 

i&ff&Stod. 9) I- 1- E » « Mad., 260. | (4) B. L. E., Sup. Vol., 668. 

(Jan. 1879.) (6) I. L. R., 8 Bom., 182. 



ed. 



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8EC. 14] PART IU.— COMPUTATION Of PBJUOD OP LIMITATION. Ill 

plaintiff, as payee of an order drawn by defendant at 
Ahmedabad, where he (defendant) resided, on a firm at 
Bankok in Siam and dishonored on presentation, sued de- 
fendant and an agent of the Bankok firm who resided at 
8nrat, in the Subordinate Judge's Court at Surat. Permis- 
sion to proceed with the suit against the defendant (the 
drawer) having been refused by the High Court, plaintiff 
withdrew his plaint, and filed his suit in the court at 
Ahmedabad against the drawer alone. The Subordinate 
Judge rejected the claim as barred by limitation. It was 
held by the court in appeal that, under section 15 of the 
Limitation Act, (No. IX of 1871) a deduction might pro- 
perly be made of the time during which the suit was 
pending in the court at Surat, and that the deduction on 
this account was to run from the filing of the plaint to the 
final refusal of the High Court to allow the suit to pro- 
ceed at Surat against the drawer. 

(2-f) Khetter Mohun Chuckerbutty v. Dinabshy o.H. 
ShahaC*) was a suit brought under section 77, of the Regis- plies to aUAcS» 
tration Act for the purpose of obtaining registry of a deed special 'lfmita- 
which provides for the institution of such suits within This was a suit 
thirty days after making the order of refusal by the Regis- X^Regiatral 
trar. In this case, Registrar's refusal was dated 12th (Deo. 1888.) 
December, 1879. The plaintiff first filed this suit in a 
Munsif s Court on the 7th January, 1880. On the 28th 
September, 1880, the Munsif decided that he had no 
jurisdiction and returned the plaint on the 29th. On 
the 30th the suit was filed in the proper court. It was 
held that the plaintiff was entitled to the benefit of this 
section. 

(2-g) In Gnracharya v. The President of the Belgaum b. h. 

Town Municipaties/*) the suit was brought under section section allowed 
86, of the Bombay Municipal Act VI, of 1873, in the court the* Bomba^ er 
of the District Judge of Belgaum, on the 30th January, (janeus*.) 
for the cancellation of an order passed by the Municipality 
on the 31st October, 1881. The plaint was returned for 



(1) I. L. R., 10 Calc, 265. | (2) I. L. R., 8 Bom., 529. 



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112 



PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8EC. 14 



B. H. 

Application 
made within 
time to a con- 
ciliator for exe- 
cution of a de- 
cree passed be- 
fore the Dekkan 
Agriculturists' 
Relief Act 17 of 
1879 held not to 
save limitation. 
(October 1881.) 



B.H. 

Bat time occu- 
pied in obtain- 
ing such a cer- 
tificate to sue 
was excluded in 
computing the 
period for it. 
(April 1884.) 



want of jurisdiction on the 6th February, 1882, and was 
subsequently presented on the same day to the Sub- 
ordinate Judge of Belgaum. Section 86, of the Municipal 
Act required institution of such a suit within three months 
next after the final order. It was held that the provisions 
of this section, taken together with section 6 of the Act, 
applied to the case so as to exclude the period between 
30th January and 6th February, 1882, in computing the 
period of three months. 

(2-h) In Manohar v. Gebiapa,* 1 ) plaintiff applied on the 
7th July, 1877, for execution of his decree. The Sub-judge 
directed that the application must be accompanied by a 
conciliators certificate, which the plaintiff applied for, on 
the 5th July, and obtained on the 17th July, 1880, and 
renewed his application to the court on the 23rd July, 
1880, that is after the expiration of three years. It was 
held in October, 1881, that a conciliator appointed under 
the Dekkan Agriculturists' Relief Act, not being a court, 
the presentation of an application to him for execution of 
a decree would not save the limitation, if the application 
to the proper court was time-barred. 

(2-i) In Durgaram Maniram v. Shripati,W plaintiff's 
attachment of debtor's property having been raised on the 
7th October, 1879, at the instance of the defendant, he 
filed the suit on the 14th December, 1880, to have it 
declared that the property was liable to be sold. The 
suit was brought more than a year after the property was 
released. The necessity to procure a conciliator's certi- 
ficate before the entertainment of suit to which an agri- 
culturist, residing within any local area, for which a 
conciliator has been appointed, is a party, is not limited 
to suits specified in section 3 of Act XYII of 1879, but 
extends to all matters within the cognizance of a Civil 
Court. It was held by a Division Bench (Nanabhai Hari- 
das and Birdwood J. J.,) that, as such certificate was 
necessary before a suit was commenced, in computing the 
period of limitation for such a suit, the time intervening 

(1) I. L. E., 6 Bom., 31. | (2) I. L. R., 8 Bom., 411. 



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SBC. 14] PART m.— COMPUTATION OP PERIOD OF LIMITATION. 113 

between the application to the conciliator and the grant 
of a certificate by him nfust be excluded. 

(2-j) In Parry and Go. v. Appasami Pillai/ 1 ) plaintiff This lection 

sued to recover the price of Indigo sold to the defendant in to plaintiff who 

February, 1875, the payment of which was decreed by the court which ac- 

tribnnal of Pondicherry in November, 1875. The ground laws had juris- 

of the present action was, first the judgment of the foreign cording to law 

J of British India 

court, and secondly, the alleged sale and delivery of indigo, had no jurisdio- 
The defendants pleaded that the French Court had no 
jurisdiction, and that the claim was barred. Muttusami 
Ayyar, J., held that there was nothing in the language of 
this section rendering it inapplicable to proceedings 
instituted in a foreign court. In appeal, a Division Bench 
(Turner, 0. J. and Forbes, J.,) observe, "The French Courts 
were not, from defect of jurisdiction or otherwise, unable to 
entertain the claim. In the proper exercise of a jurisdic- 
tion conferred *bn them by the law of France, they have 
entertained the claim and passed decrees which are 
effectual in French territory. The respondents elected 
the forum, and although under the circumstances the 
British Courts may refuse to enforce the decree they have 
obtained, this circumstance does not bring the case within 
the provisions of section 14 of the Limitation Act. The court expresses 
claim on the contract is then barred by Limitation." They whetheTunder 
further observe, " We desire to be understood as ex- stances this seo- 

. . , , , j . , tion can bo ap- 

pressing no opinion whether under any circumstances plied to suits 

those provisions allow the deduction of the period occu- Foreign courts, 
pied by litigation in foreign courts, for on another ground 
we hold them inapplicable in this case." 

(2-k) In Mangu Lai v. Kandhai Lal,W plaintiff and where plain- 
defendant having had some pecuniary dealings adjusted his redemption 
their accounts in October, 1881, which resulted in a from the mort- 
balance of Rs. 1,457, of which defendant paid Rs. 885-15-0 mo^y^uTby 
and reduced tbe balance to Rs. 600. The plaintiff in account, was 
1873 having purchased the equity of redemption of certain S^aaS* °to 
property which the defendant held on mortgage, sued the agreement so to 
latter in November, 1884, for redemption. In that suit hefdnotentiSed 



to the benefit 



(1) I. L. R., 2 Mad., 407. | (2) I. L. R., 8 All., 475. 
15 



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114 PART III. — COMPUTATION OF PERIOD OF LIMITATION. [fiBC, 1 5 

of this section the plaintiff deducted from the mortgage amount the 

when he sued _ 

for the money balance on account, alleging that in December, 1881, it had 
been settled that whenever he should claim redemption 
he should be allowed to take credit the balance due on 
account. In February, 1885, the plaintiff's claim to deduct 
the balance was disallowed on his failing to prove the 
alleged oral agreement, and he was directed to redeem on 
payment of the full mortgage debt. The plaintiff brought 
the second suit in March, 1885, and claimed the benefit of 
this section by stating that the time that the former suit 
was pending should be deducted. The court held that 
although it could not be doubted that the plaintiff pro- 
secuted the former suit with due diligence and in good 
faith, and that that suit was another civil proceeding, yet, 
as the former suit was not founded upon the same cause of 
action and as it was disallowed not for a defect of juris- 
diction or any cause of a like nature, the plaintiff was held 
not entitled to the benefit of this section. 

Exclusion of 15. In computing the period of limitation 

time during j. o j. 

m^wm^of prescribed for any suit, the institution of which 
SunctioTl>? y has been stayed by injunction or order, the 

order. ~ * » t • • 

time of the continuance of the injunction or 

order, the day on which it was issued or made, 

and the day on which it was withdrawn, shall 

be excluded. 

This section (a) This section does not apply to application for 

to decrees the execution of decrees where such exeoution has been stayed 

which was by an injunction, or order, pending either the disposal of 

junction. 7 ' an appeal or a regular suit instituted for the purpose of 

removing obstructions to execution. But in the case of 

an injunction issued pending the disposal of a regular 

when staved suit, the difficulty is got over by treating the application 

posaiof suit, of the decree-holdjer after the removal of the injunction, 

over by treating as au application for the continuance or revival of the 

^revival *©? 11 former proceedings. In the case of suspension of execn- 

in££ er &> dim- tion pending the disposal of an appeal against a decree, 

outy w en no difficulty k as j, een f e ^ ^ ^he d^ree under execution 



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8BC. 15] PART in.— COMPUTATION OF PERIOD OF LIMITATION. 115 

becomes final only after the disposal of appeal (vide Btayed pending 

__ " disposal of ap- 

Note, I.) peaL 

(b) Civil Procedure Code of 1882, section 320, pro- o. p. o. of 1882 
Tides for execution of decrees by a Collector under special of time that a 

, , , ^ x M. * Civil C 011 ^ i8 

rules that the local Government may prescribe from time prohibited from 
to time. Section 323 provides for the adoption of a oree referred to 
scheme by the Collector according to his discretion, of liqui- execution. 
dation of money decrees. Section 325- A., clause 1, places 
restriction on alienation in any way by judgment-debtor 
or his representative and prohibits prosecution of reme- 
dies by decree-holders. Clauses II and III run as follow: — 
" During the same period no Civil Court shall issue any 
process of execution either against the judgment-debtor 
or his property in respect of any decree for the satisfac- 
tion whereof provision has been made by the Collector 
under section 323. The same period shall be excluded in 
calculating the period of limitation applicable to the 
execution of any decree affected by the provisions of this 
section in respect of any remedy of which the decree- 
holder has thereby been temporarily deprived." 

(C) One of two partners died. His widow sued the creditor or Re- 
surviving partner to wind up the partnership, and on the dncTtne^riod 
29th October, 1880, obtained an injunction prohibiting prohibiting 
the collection of debts due to the firm. The order inti- debta totLe date 
mated that application might be made to recover debts appointment? 
that might become barred. On the 20th September, 1882, 
the widow obtained a decree, awarding to her a very 
large sum. After finding it difficult to execute the decree, 
she got a receiver appointed, who brought a suit to re- 
cover a debt due by a debtor upon mutual accounts, 
balanced up to the 20th March, 1880. The defendant 
pleaded that the receiver's appointment was ultra vires and 
that the debt was barred. It was held, that although an order to sue for 
application might have been made for a special order to become leaned 
recover any debt that might become barred, the person, title the creditor 
having the right to sue, was not bound to make an appli- time. 
cation, and that the plaintiff was entitled to a deduction 
of the period from the date of the injunction up to the 



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(January 1868.) 



116 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [SEC. 15 

date of the receiver's appointment. Shnnmngam v. Moi- 

din.(D 
Time that a (<J) Where a bond was seized under legal process of 

attachment ex- attachment after it had become dne, but before the lapse 

eluded under * 

Regulation n of of 12 years from its date and remained under attachment 

1802 sec 18 

ci.i " ' for several years, it was held, that there was "good and 
sufficient cause" for the lapse of time within the meaning 
of Regulation II of 1802, section 18, clause 4, and that a 
suit on the bond was therefore not barred. Kadar 
Bacha Sahib v. Rangasami.(*) 
This section (e) In Lutful Huq v. Sumbhudin Pattuck< 3 > Princep, J, 9 

tosuspensto^o? observes, "it is contended that execution is barred under 
SSSe^ln* Article 179, schedule II, Act XV of 1877, and it has been 
junction. brought to our notice that, under the terms of section 15 

of that Act, a decree-holder would not be entitled to any 
exclusion of time during which execution was suspended 
by an injunction, in calculation of the period allowed by 
the Law of Limitation. It might thus happen that, if 
the injunction remained in force for three years, execu- 
tion could be absolutely barred. This appears to be the 
present state of the law." In Kalyanbhai Dipchand v. Gha- 
nasham Lai Jadunathji,* 4 ) it was held, that as this section 
only relates to injunctions staying the i institution of suits, 
and as the word " suit" does not include an application, 
the time during which an injunction obtained against the 
execution of a decree was in force cannot be deducted in 
injunction had computing the period of Limitation within which an 

been issued . # 

pending the application for execution may be made. In this case exe- 
suit by a third cution had been stayed by injunction pending the disposal 
of a suit brought by a third party. 
b. h. (f) In Chandi Prasad Nandi v. Raghunath Dhar,< 6 > it 

The time that a - , , . _ r ,,-»„« ., , . ,,,. ., . -. ~ 

decree was un. was held in May, 1869, that in calculating the period of 
should net be three years from the date when effectual proceedings had 
the time within last been taken to keep alive a decree, the period during 
should be taken which the decree had remained under attachment in exe- 
(juiy 1874.) cution of a decree against the judgment-creditor should 



m I. 

(2) i: 



L. R., 8 Mad., 230. I (8) I. L. R., 8 Calo., 248 
Mad., H. C. R M 160. | (4) I. L. R., 5 Bom., 29. 
(5) B. L. R, 3 App., 62. 



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SBC. 15] PART III.— COMPUTATION 01 PERIOD OP LIMITATION. 117 

be deducted. In Mir Ajmnddin v. Mathura Das/ 1 ) the c. h. bad held 
Bombay High Court held, in July, 1874, that the period MaJTSSi 
during which a decree remains under attachment Bhonld 
not be deducted from the time within which proceedings 
must be taken for the execution of the decree. A notice 
or order to judgment-debtor A> not to pay the amount 
decreed to his judgment-creditor B, will not in any case 
serve to keep the decree alive in favor of C, a judg- 
ment-creditor of By at whose instance the notice or order 
is issued, much less in favor of other judgment-creditors 
of B, with whom A, had nothing to do. 

(g) In Krishna Chetty v. Rami Chetty,< 2 > on the last M. h. held that 
application for execution, dated September, 1871, judg- lsn the time, 
ment-debtor's property was attached in November, 1871, debtor "prose? 1 
but the attachment was withdrawn on the claim pre- suit to remove 
ferred by a third party ; and the application was struck execution, can- 
.off the file in February, 1872. The plaintiff sued to hold ed from the 
the property liable for his decree, and lost his case in the Son for exeou- 
court of first instance in October, 1873, but succeeded in (October 1875.) 
appeal in October, 1874, on which date the Appellate 
Court held the property liable. The decree-holder subse- 
quently applied for execution within three years from Feb- 
ruary, 1872. A Division Bench (Morgan, C. J., and 
Kindersley, J.,) in October, 1875, held " the application as 
made is barred, for the appointed time has expired and 
we are not authorized by the Act to apply to proceedings 
in execution, provisions enacted for extending the period 
in certain cases where the limitations of suits is in ques- 
tion." In this case, the decree was one passed in a suit in- 
stituted before the 1st of April, 1873, and under section 1, 
clause A. of Act IX of 1871, Act XIV of 1859 governed 
the application for execution, but the High Court follow- 
ing their own decision in Naranappa v. Nanna AmmaK*) 
and the decision of the Bombay High Court, dated June, 
1874, in Govind Lakshuman v. NarayanW held that the 
application was governed by Act IX of 1871, and that 



(1) Bom. H. C.,11, p. 206. I (3) 8 Mad., H. C. R., 97. 

(2) 8 Mad., H. C. R., 99. | (4) 11 7 ~ " 



Bom., H. C. R., 111. 



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118 PART III. — COMPUTATION OP PERIOD OP LIMITATION. [8EC. 15 

time should be computed from the date of the prior ap- 
AnothorMadma plication. In Mahalakshmi v. Lakshmi,* 1 ) in execution 
effect. e of a decree, dated June, 1868, attachment of property was 

(October 1875.) withdrawn in February, 1870, on the claim of a third 

party, and the application was dismissed on the same 
date. The decree-holder's regular suit dated October, 
1870, was disposed of in his favour in October, 1873, and 
the decree was affirmed on appeal in April, 1874. The 
decree-holder, in June, 1874, applied for execution. The 
High Court held that the application was barred. The 
Court observed Judges observe that the litigation between the decree- 
Act xiv of 1860 holder " and a successful claimant would have saved the 
have been made decree-holder under the old Act, for it was a proceeding 
taken within the meaning of section 20, but the new Act 
makes the date of applying to the court to enforce, Ac., 
the time from which the computation must be made. We 
can no longer, therefore, make deductions on account of 
proceeding between the decree-holder and third persons." 
Decree-holder's (h) In Bagava Pishardi v. Ayuman Jiri Mankal Thu- 
Jaie o?au2ched pan/ 2 ) a decree-holder applied for the sale of certain 
d^posaTof ter property then under attachment in the suit. The court 
exdtoraspectinff refused to issue process for the sale on the ground that 
as renewal of the property could not be sold as certain claims and suits 
tioTfor aaFe. *" respecting it were still pending. The claims and suits 
derTLct xiv°of having been determined, the application was renewed 
(March 1860.) when more than three years had elapsed between the date 
of the order on the 1st application and the date of the re- 
newed application. It was held in March, 1869, that the 
second application was not barred, the order upon the first 
application operating simply as a temporary stay of pro- 
cess for the sale of the property, and there was a pending 
proceeding to enforce the decree during the stay. 
b.h. (i) In Kalyan Bhai Dipchand v. Ghanasham Lai 

execution after Jadunathji/ 3 ) it was held, that where an application for 
the injunction execution has been made and granted, but the right to 
the digpoeaiof a execute has been subsequently suspended by an injunction 

suit, woe treat- 
ed as revival of 
the execution 

poceedings. (1) 8 Mad., H. C. R., 105. | (2) 4 Mad., H. C. R., 261. 

tSep. lSaT.) (3) i. L . R>> 6 Bom,, 2 9. 

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SEC. 15] PART IU. — COMPUTATION OF PERIOD OP LIMITATION. 119 

or other obstacle, the decree-holder may apply for a revi- 
val of the proceedings within three years from the date 
on which the right to apply accrues, t. e., the date on 
which the injunction or other obstacle is removed. Such Such case was 

* i i , * ii -i a j • i i »*<-» mi . neld to faU 

cases were held to fall tinder Article 178. This was a case under Article 

178 

where execution was stayed pending the disposal of a 

regular suit. The Allahabad High Court adopted the a. h. followed 

same view in Basant Lai t?. Batul Bibi,^) which was a decision in July 

* * . . Till. 1 » 1883 "** al8 ° 

case of suspension of execution pending the disposal of an applied to an 

execution case. 

objector's suit, and they also followed it in Buti Begam 

v. Nihal Chand,( 2 > in which execution had been stayed, 

pending the disposal of an appeal against the decree. In 

Lutful Huq v. Sumbhudin Pattuck/ 3 ) in which execution c. h. held stay 

of an ez-parte decree was suspended, pending the disposal pending appeal 

of an appeal by the defendant, it was held, that though the decreeSioider, 

decree-holder was not entitled to deduct the time that ing'ftnai only 

execution was suspended by court's order, his application, appeal. p08a ^° 

made more than three years after the decree, is not barred, 

the decree not becoming final until the dismissal of the 

appeal. The words " where there has been an appeal" 

used in clause 2, Article 167 of Act IX of 1871, occur in 

clause 2 of Article 179 of Act XV of 1877. With reference 

to these words the Allahabad High Court in Sheo Prasad 

v. Anrudh Singh/ 4 ) held that those words contemplate 

and mean an appeal from the decree and do not include 

an appeal from an order dismissing an application to set 

aside a decree under section 119 of Act VIII of 1859. 

(j) Section 29 of the Punjab Act, IV of 1872, operates Can the time 
by way of an injunction, as it provides " such order of dis- proceedings in 
charge shall preclude any creditor whose claim is regis- excluded under 
tered from suing the debtor in respect of such claim, unless 
it be shewn that the debtor has acquired property, since 
the order of discharge, out of which the claim might have 
been defrayed." With reference to these provisions it was 
held in Wazir Mahomad Khan v. Mahomad Imam Khan, 
Punjab Becord No. 66 of 1874, referred to by Mr. H. D. 

(1) I. L. R., 6 All., 23. I (3) I. L. R., 8 Oalc, 248. 

(2) I. L. R., 5 All., 469. | (4) I. L. R., 2 All., 273. 



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120 PART HI.— COMPUTATION Of PERIOD OP LIMITATION. [SRC. 15 

Rivaz, in his work on limitation, that the time occupied 

by proceedings in bankruptcy with regard to the claim of 

c. p. c. of 1881 a registered creditor must be excluded. Chapter 20 of 

does not proride 

ft>r«uyof legal the Civil Procedure Code of 1882 contains no such pro- 
* gftiMt l nd° r ' 8 v * 8 ^ on or provision to stay legal proceedings against the 
ff rt3 Denden g P 61 " 8011 an d property of a judgment-debtor pending the 
for toJS ** 4011 ^ 18 P 08a l °* n * 8 application for a certificate of insolvency. 
Section 352 requires creditors to prove their debt, and a 
schedule to be framed, and provides that " the declaration 
under section 351" (declaration of insolvency) " shall be 
deemed to be a decree in favour of each of the said credi- 
tors for their said respective debts." Section 353 provides 
for applications by unscheduled creditors. Section 357 
provides against an insolvent discharged under section 
351 being arrested or imprisoned on account of any of the 
schedule debts. It also provides for attachment and sale 
of debtor's property attachable for debt, whether previ- 
ously or subsequently acquired, until the debts due to the 
scheduled-creditors are satisfied to the extent of one-third, 
or until the expiry of twelve years from the date of 
discharge. 

(k) Creditors opposing the application may consist 
of decree-holders who may have taken out execution, and 
persons who may have instituted regular suits to recover 
debts in other courts. While they are entitled to oppose 
the application and prove their debts in the courts in 
which the petition is pending, they need not enforce their 
decrees or prosecute their suits in the other courts. In 
the absence of any express provision, notice served upon 
creditors will not have the effect of an injunction or order 
binding the other courts to stay proceedings. 
Indian B*nk. (1) The Indian Bankruptcy Bill No. 6 of 1886, in- 
tTJn* o and 10 troduced into the Imperial Council on the 20th May, 1886, 
of proceedings, propose, by sections 9 and 10, to empower the court enter- 
taining a bankruptcy petition to. stay by an order any 
suit or other legal proceeding pending before any Judge 
or in any court in British India, and service of the order 
on such Judge or court. The latter part of clause 2, section 



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SEC. 16} PABT HI.— COMPUTATION OF PERIOD OP LIMITATION. 121 

9, proposes to empower any court in which proceedings 
are pending against a debtor, on proof that bankruptcy 
petition has been presented against the debtor, either to 
stay the proceedings or allow them to continue on such 
terms as it may think just. 

16. In computing the period of limitation Exclusion of 

. * time during 

prescribed f or a suit for possession by a pur- ^JiJjJS" j, 
chaser at a sale in execution of a decree, the JS^'exec^. 
time during which the judgment-debtor has 
been prosecuting a proceeding to set aside the 
sale, shall be excluded. 

(a) This section is one of the five sections, namely, 9, This Motion 
13, 14, 15, 16, which provide for the extension of the any condition 
prescribed period of limitation under certain circumstan- uandisdo! 
ces. The provisions of this section were for the first time 
enacted by section 17 of Act IX of 1871. Without un- 
loosing the conditions of good faith, diligence and want 
of jurisdiction as the other sections do, this section simply 
entitles the purchaser to exclude the time during which 
the judgment-debtor has been prosecuting a proceeding to 
set aside the sale. The corresponding section, 17 of Act 
IX of 1871, used the word " suit/' which has been altered 
in this Act (of 1877) into "proceeding." Plaintiff in tf 
trait may be judgment-debtor within the meaning of that 
term used in this section, if he owed the defendant costs of 
the suit or any sum of money under the terms of the 
decree for which his property may be attached and sold. 

Cb) Distinct provisions similar to those contained in Even before Act 

,. . , » , i A * • xi t- -x x- ax iXofisnc.H. 

this section had not been enacted in the Limitation Act held a pnrobas- 

of 1859. The Calcutta High Court in Copaul Chunder exclude the time 

Ghose v. Raj Chunder Dutfc,* 1 ) held that in a suit for debtor's case to 

possession of property by a purchaser at a sale in exe- was pending. 

cution of a decree, limitation will, not reckon during the 

time that the judgment-debtor's case to set aside the sale 

was pending in the Civil Court. The case, as reported, 

is as follows : — 



(1) 2 W. £., Misc. A., 9. 
16 



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122 PART III.— COMPUTATION OP PERIOD OF LIMITATION. [81C. 17 

The petitioner purchased some property belonging to 
a judgment-debtor, Tripoora Dossee, so far back as 
1846. He applied for certificate and possession ; but 
the Civil Court in 1847 held that, till the suit brought by 
Tripoora to set aside that sale was disposed of, no order 
for possession could be given. Tripoora's case was not 
finally disposed of till 1856, and in 1861 the petitioner 
applied for possession under the provisions of sections 
259 and 263 of Act VIII of 1859. This application was 
struck off in 1862. The petitioner applied again for pos- 
session in 1863, and the first court held that the application 
was barred by limitation. On appeal, to the Judge, he 
rejected the petition, on the ground that the law did not 
provide for an appeal in such cases. We think the view 
of the law taken by the Judge is correct ; but looking at 
the decision of the first court, we do not see very clearly 
how the Principal, Sudder Ameen, has been able to apply 
the law of limitation, for it is clear that the petitioner is 
entitled to all the time during which Tripoora's case was 
pending in the Civil Court. As, however, there is no 
appeal to this court, we think the proper course for the 
petitioner to follow is to ask for a review of the judg- 
ment of the first court, if so advised. This appeal is re- 
jected with costs. 

Effect of death 17. When a person who would, if he were 

before right to r * 



sue accrues. 



living, have a right to institute a suit or make 
an application, dies before the right accrues, 
the period of limitation shall be computed from 
the time when there is a legal representative 
of the deceased capable of instituting or making 
such suit or application. 

When a person against whom, if he were 
living, a right to institute a suit or make an 
application would have accrued dies before the 
right accrues, the period of limitation shall be 
computed from the time when there is a legal 



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8BC. 17] PABT III.— COMPUTATION OF PERIOD OF LIMITATION. 123 

representative of the deceased against whom 
the plaintiff may institute or make such suit or 
application. 

Nothing in the former part of this section 
applies to suits to enforce rights of pre-emption 
or to suits for the possession of immoveable 
property or of an hereditary office. 

(a) " It is laid down that ' a cause of action cannot a ohm of 
exist, unless there be also a person in existence capable exist unless 
of suing.' Hence, if a person to whom a cause of action person in ex- 
would have accrued if he were living, die intestate be- of suing. 
fore the cause of action accrues, the statute does not 
begin to run till administration has been taken out; 
this was first held in Stamford's case, which, although 
decided on the Statute of Fines, 4 Hen. 7, c. 24, applies in 
principle to the Statute of James ; it was approved of in 
Cary v. Stephenson, and ultimately established in Murray 
v. East India Company. (5 B. and Aid., 204.) In that 
case certain bills drawn in favor of a testator were accept- 
ed, and became payable after his decease ; no executor was 
appointed, and administration with the will annexed was 
granted after the bills became payable ; the first adminis- 
trator died, and administration de bonis non, with the will 
annexed, was granted to the plaintiff. More than six 
years had elapsed since the bills became payable, but not 
since the time of the grant of the first letters of adminis- 
tration. It was decided by the Court of Queen's Bench, 
that, on the principle laid down above, the time did not 
begin to run till such grant. A common case to which this 
principle would apply is, where an administrator brings 
an action on a policy effected on the life of the intestate. 
On the same principle, it was held that if a suit abated 
by the death of the plaintiff intestate, his personal repre- 
sentative might file a bill of revivor or supplement within 
six years after administration was taken out, however long 
a time might have elapsed between the abatement and Executor may 
the granting of the letters of administration. It will be § ng. omvmr " 



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124 PART III.— COMPUTATION OF PERIOD OP LIMITATION. [SBC. 17 

observed that in all these cases the plaintiff was adminis- 

strator, and not executor, and it is clear that the rule does 

Where an ex©- not apply where an executor is appointed, and after the 

appointed by cause of action accrues proves the will, for the right of 

be said that an executor to sue vests in him by virtue of the will, and 

person capable he may commence the action, although he has not yet 

proved, and, therefore, it cannot be said that there was 

not a person in existence capable of suing." 0) 

No one has a (b) " As a cause of action, or, more strictly speaking, 
complete cause 

of action until a perfect cause of action, cannot exist unless there is a 

there is some 

one that he can person in existence capable of suing ; so, on the other 

hand, a perfect cause of action being the right to prosecute 
an action with effect, no one has a complete cause of action 
until there is somebody that he can sue. If, therefore, a 
person is dead at the time when a cause of action would 
have arisen against him, the time does not begin to run 
against the plaintiff until there is a personal represents^ 
If an executor tive in existence whom the plaintiff may sue." " If, how- 
ting the'wEiT ever, an executor has acted before proving, as he thereby 
from hisaoting. renders himself liable to be. sued, the time would run from 
his acting, and not from his proving the will. In Webster 
v. Webster, (10 Yes. 93) in which this point was first decide 
If ^"J^SSt 1 to e ^* ** 8eem8 *° nave heen overlooked that the testator might 
plaintiff in the have been sued in his own life-time. It is. however, per- 

life-time of the _ r 

person liable to f ectly clear that the time having begun to ran against a 
of a personal plaintiff in the life-time of a person against whom he has a 

representative r . - 

will not prevent right of action, the want of a. personal representative to 
ning. be sued will not prevent the time continuing to run."< 2 ) 

Le$ai represen- (c) In the case of persons governed by the Indian 

tatave under « . * , 

Indian Sucoes- Succession Act, none but an executor who has taken out 

sion Act is exe- . . 

cntor or ad- probate, or an administrator who has obtained letters of 

ministratorwho ,..,,.. , * ..,.. 

has taken out administration from a court of competent jurisdiction, 
fetters of ad- can be their legal representative in a suit relating to the 

ministration. or . o 

property of the deceased. (Vide Note K.) 
Legal represen. (d) In the case of Hindus, Jainas, Sikhs, and Bud- 
Hindu, jama, dhists in the territories subject to the Lieutenant-Governor 

Bikh or Bud- . J 

dhist coming of Bengal and m the towns of Madras and Bombay, if the 

within the " 

(l) Darby and Bosanquet, p. 31. | {%) Darby and Bosanqnet, p. 8a. , 

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B1C, 17] JPABT in. — COMPUTATION OF PERIOD OF LIMITATION. 125 

deceased deed not die intestate, his executor or administra- Hindu Wilis Act 
tor with the will annexed is his legal representative with- or administra- 
in the provisions of the Hindu Wills Act XXI of 1870. taken out pro- 

x-rr-jt it ± r\ j a \ bate or letters of 

{Vxde Notes O. and 0.) administration. 

(6) In the case of Hindus and Buddhists who would Lena renresen. 
come within the Hindu Wills Act XXI of 1870 when Hindu or Bud- 

_ , , . dhist coming 

a deceased left a will, if a person dies intestate, and in within Hindu 

_Z/ , ,«,,*. * i, , W0lB Act if he 

the case of other Hindus and Buddhists, and Maho- left a will, dying 

intestate, and of 

medans, and persons exempted from the operation of the other Hindus 
iTidmn Succession Act by section 332 of thai Act, the and Mahome- 

. . . dans and per* 

grantee of probate or administration alone is legal repre- sons exempted 
sentative if probate or administration has been applied Succession Act, 

r rr is grantee of 

for and granted under the probate and administration probate or ad- 

° r ministration if 

Act V of 1881. (Vide Note P.) But neither Act V of obtained under 

„^ rt , .i a . [ * , . Act V of 1881. 

1881, nor any other Act operates so as to vest in an 
executor or administrator any property of a deceased 
person which would otherwise have passed by survivor- 
ship to some other person. The object of this Act is to 
provide for the grant of probates of wills and letters of 
administration to the estates of deceased persons in cases 
where the Indian Succession Act does not apply. 

(f) Under the above Act V of 1881, an executor of any Under the above 
Hindu or Mahomedan Will may establish his right in a without probate 
Court of Justice without taking out probate. (Vide Note R.) his 7 right in 

(g) Where the deceased is a Hindu, Mahomedan or Ef^iSJjSJ-L^ 
Buddhist, or a person exempted from the operation of the ^^ pr 22Ji** 
Indian Succession Act, and to whom the Hindu Wills Act ^L^Hind 11 ^ 
does not apply, or whose estate has not been represent- ^^jf^tJF 1 
ed under the Probate and Administration Act V of 1881, ?*"** « 8tate 

' has not been re* 
there is often much difficulty in ascertaining who is his ? r ® B S lt ? d , u 5i der 

y __ ACt V OX JLotU. 

representative. (Broughton's notes of cases on C. P. C, 
published in 1884, p. 317.) 

(h) In any case a person who takes possession of the in any case 

person fa*-iHttg & 
property of a deceased person without letters of adminis- deceased's es- 
. . . tate constitutes 

tration or probate, constitute* himself representative to himself his re- 

preventative, 
the extent of the property he takes. (Vide Note T.) 

When the heir of a deceased person is undetermin- where the heir 

ed, an administrator may be appointed in the Bombay undetermined 



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126 PART III. — COMPUTATION OP PERIOD OP LIMITATION. [8BC. 17 

tiombay R«gu : Presidency, (but not the scheduled Districts, see Act 

lation vm of 

1877 provides XV of 1874) under Bombay Regulation VIII of 1827, 

for appointment * 

of an adminu- section 9, and he represents the estate. Shivalingaya, v. 

(July 1878.) Nagalingaya.W There is a similar Regulation appli- 
cable to the Madras Presidency, — Regulation III of 1802, 
section 16. 

Limitation for (i) In Lawless v. Calcutta Landing and Shipping Co., 

against Man*- Limited/ 8 ) it was held that, in the case of a person employ* 

gel's heir does r r J 

not commence ed as Manager, the right of the employer is to have an ac- 

until adminis- ° ° r * 

trationtoMana- count rendered by the person employed whenever he is 
obtained. called on to do so under reasonable circumstances. In this 

This decision •.,-., 

illustrates the case, there was nothing to show that the Manager was 

2nd paragraph . 

of this section, ever called on during his life-time to account for the 
money now sued for or to account generally. He died in 
August, 1877, and his agency terminated. Wilson, J., ob- 
served that, by his death, the employer acquired a fresh 
right to have an account rendered by his representative, 
and that right is recognised by Article 89, and that as the 
Manager died in August, 1877, the right accrued then, but 
no administration was taken out till July, 1880, and that 
the case was protected by this section under which limi- 
tation will not commence to run until administration has 
been taken out to the Manager's estate. 
To a suit f or (j) In Kali Krishna Pal Chowdhry v. Srimati Jagat- 
deoeasrt U aMn^ tara< 8 > which was a suit against a deceased agent for 
to^^from his balance of money drawn by the deceased as general agent 
xrc h of 1869 of the plaintiff in the management of his business, the 
ed hi no special' agent died before he was asked to render an account. It 
p n# was held that the period of limitation should be computed 

not from the time when the agent drew the monies, but 
from the time of his death. 
Under the (k) Under section 179 of the Indian Succession Act X 

sion Act u the of 1865, legal representative of a deceased person governed 
taSre " or^au" by that Act is the executor or administrator as the case 
o^oea^person may be, for all purposes, and all the property of the deceas- 
f£at ™ct is his ed person vests in him as such. Under the above section, 



executor or ad- 
ministrator, 



(1) I. L. E., 4 Bom., 247 | (2) I. L. E. 7, Calc, 627. 
(3) 2 B. L. E., Ac, 139. 



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SBC. 17] PAST m.— COMPUTATION Of PIRIOD 09 LIMITATION, 127 

and also section 190, no person could be dealt with as He can be re* 
the legal representative unless he had taken out probate each only when 

. probate is taken 

or had obtained letters of administration. or letters of ad- 

ministration are 
obtained. 

In Pogosev. Beebee Dishkoon Waris Calchuck,( l > P. N. & H . held so. 

. t» . . . . (March 1878) 

Pogose, Zamindar of Dacca, a British subject domiciled in 
British India, died in November, 1876. Previous to his 
death, several decrees had been passed against him and he 
had conveyed his property to tbe Official Trustee for the 
benefit of his creditors. No letters of administration to 
the estate of the deceased were taken out. On the appli- 
cation of one of the judgment-creditors for execution, the 
Subordinate Judge of Dacca granted it against the pro- 
perty of the deceased which was in the hands of his son. 
A Division Bench (Markby and Princep, J J) in March, 
1878, set aside so much of the Sub- judge's order that made 
the son of the deceased a party to the execution proceed- 
ings, and observed, " The original judgment- debtor was 
dead ; he was an Armenian, and therefore succession to his 
estate is governed by the Succession Act, and the only 
person who could, be his representative is the person indi- 
cated by that Act." 

(1) Where the deceased person was not a Hindu, Bud- When a deceas- 

ed person is not 

dhist, (Parsi, as amended by section 2 of Act IX of 1881) » Hindu, Bud. 

dttiflt, Maho- 

or Mahomedan, or a person exempted from the operation of medan, or a per. 

. . son exempted 

the "Iridic Succession Act, the Judge of the District is from the Indian 
directed, by section 64 of Act II of 1874, the Administrator- the District 
Generals'. Act, to take possession of the property of the ed to take pos- 
deceased lying within his district, and to hold possession estate as custo- 
of it until the estate is represented by some one who shall tion 84 of Act 

II of 1874. 

obtain a grant of probate, or letters of administration, 
from a competent court, or a certificate from an Adminis- 
trator-General, which can be given (see section 36, et 
seq. of the same Act) only when the value of the property 
left by the deceased does not exceed 1,000 Rupees. The 
decree cannot be executed against the Judge or against 
the property pending the grant of probate, administration, 

. (1) 2 C. h. E., 278. 

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128 PART III.— COMPUTATION OF PBftlOD OP LIMITATION. [sEC. 17 

The Judge is in or a certificate. The Judge is in no sense the represent- 
no sense repre- , 

•enutive, bat is ative of the deceased, bnt is merely the custodian of the 

required to . 

deliver the pro- property, and is directed to deliver it, not to an execution 

legal represen- creditor, but to the representative of the deceased ; the 

estate is unrepresented and steps should be taken to get 

if the executor it represented. If the property exceeds 1,000 Rupees 

for administrZ in value, and the executor or next-of-kin, i.e., to say, 

nistrator-Gene-" the absolute next-of-kin, not merely the next-of-kin in 

where the wfue India, does not apply for administration within a month, 

ceea8°^0QOBs?' the Administrator- General must apply (see Act II of 

1874, sec. 16) within a reasonable time after he has notice, 

and he may apply before that period has elapsed ; (see sec. 

if the value 23) ; but where the property is not of greater value than 

l.ooo Bs. Admi- 1,000 Rs., the Administrator-General need not apply ; and 

rai may himself in that case he may grant a certificate to the executor, or 

administer or . _ , * _ , , - , 

grant certificate widow, or any person entitled to administer, other than a 
or widow or to a creditor (sec. 36), or to a creditor after the lapse of threer 

months, unless he elect to take charge of the estate him- 
Thepenon en- self without letters of administration (sec. 37), or the 
nister may apl person entitled to administer may apply in the ordinary" 
probate? * way to a court of competent jurisdiction for probate or 

letters of administration. (Broughton's Civil Procedure* 

Code, 1878, p. 311.) 
Creditor of a de- (m) In Prosunno Chunder Bhuttacharjee t;. Kristo 

ceased person ~, / . * . 

governed by the Cuytunno ral,w a widow who was sued as representative 

fiirtiy jn Succee- M , 

sion Act, cannot of a deceased debtor did not defend the suit. After de- 
the trick of cree, her brother, obtaining probate of the will said to have 
the existenoe of been left by the deceased, procured release from attach- 

awin until his - 

•claim is barred, ment, of the property of the deceased which had been taken 
in execution of the decree. The decree- holder brought 
a second suit. Markby, J., observes, "The question 
is really this — are the creditors of a deceased person 
liable to have their claims defeated by the trick of keeping 
secret the existence of a will until their claims are barred 
by limitation P If this had been the estate of a European 
British subject, there would have been no difficulty. 
Under section 206 of the Succession Act, the plaintiff, ad 

(1) I. L. B., 4 Gale, 346. 

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SRC. 17] PAST in.— COMPUTATION OP PIEIOD OF LIMITATION. 129 

a creditor, might have applied for letters of administra- 
tion. Then, whether the party in possession of the will 
had produced it or not, the administration would have 
gone on, and the creditors would not have lost their 
remedy. But section 206 of the Succession Act does not 
apply to Hindus." 

(n) In Snkh Nandan v. Bennick/ 1 ) S sued some of the a. h. 
heij-s to a person governed by the Indian Succession Act, realised by sale 
1865, who died intestate, such heirs being in possession of an intestate 
a part of the estate of the deceased, for a debt due to him iweeaion y Act 
by the deceased, and obtained a decree against such per- decree, obtained 
«ong. In execution of this decree, property belonging to brother and 
•the deceased was sold. Before the sale-proceeds were tobeiongto the 
paid to 8, By an heir to the deceased obtained in the Dis- uSve 'SnTot* 
trict Court letters of administration to the estate of administration 
deceased, and an order for payment to her of such sale- to the°decre*. 
proceeds. Thereupon 8 sued B for such sale-proceeds and 
to have the District Court's order directing payment 
thereof to her set aside. It was held that, with reference 
to sections 190 and 191 of the Indian Succession Act, 
1865, the decree obtained by 8 against persons who did not 
legally represent the estate of the deceased, and the pro- 
ceedings taken against such persons in execution of such 
decree gave 8 no title to the sale-proceeds, which formed 
part of the estate of the deceased, and the suit was there- 
fore not maintainable. 

(O) The Hindu Wills Act XXI of 1870, was passed The legal rente- 
en the 19th July, 1870, and its preamble is as follows : — deceased Hindu 
" Whereas it is expedient to provide rules for the execu- the Hindu wais 
tion, attestation, revocation, revival, interpretation and 1870) ia his exe- 
probate of the wills of Hindus, Jainas, Sikhs, and Bud- nfetrator who 
dhists in the territories subject to the Lieutenant-Governor .probate or 
of Bengal and in the towns of Madras and Bombay ; it is nitration. 
hereby enacted as follows." " In the case of a will of 
a Hindu, Ac., falling within the said Act, " the 179th 
section of the Indian Succession Act also applied, and 
enacted that * the executor or administrator' (with a copy 

(1) I. L. B., 4 All., 192. 
17 



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ISO PART HI.— COMPUTATION Of PERIOD Of LIMITATION. [SIC. 17 

of the will annexed) • of a deceased person, is his legal 
representative for all purposes, and all the property of the 
deceased person' (including, of course, his rights under a 
decree) ' vests in him as such.' Section 187 of the same Act 
also applies, and ' no right as an executor or legatee can 
be established unless a court of competent jurisdiction 
within the Province shall have granted probate of the 
will under which the right is claimed, or shall have grant- 
ed letters of administration under section 180,' which is 
An the sections also applicable ; see sec. 2, of Act XXI of 1870."< 1 > All the 
Soocsss^Aot sections of the Indian Succession Act relating to grants 
probatejfcc^ex- of probates and letters of administration which were 
have been re- formerly incorporated in the Hindu Wills Act, with 
Hindn Wilis Act the exception of section 187, which provides against an 
in Act v of executor or legatee establishing a right without obtaining 
probate or letters of administration, are now removed 
■ Retention of from that Act by section 154 of Act V of 1881, and are 
shows that pro- re-enacted verbatim in Act Y of 1881, with the exception 
saiy in the case of section 187. Section 187 still remaining incorporated 
oomtaTwtthin by reference with the Hindu Wills Act, shows that pro- 
Act, omission bate is necessary in the case of such Hindu Wills as fall 
Act v of 1881 within the Hindu Wills Act, and the omission of simi- 
cntorofaHindn lar provision from Act Y of 1881, which applies to all 

not falling with- r i 

in the Hindu Hindus and Mahomedans, shows that an executor of any 

Wills Act canes- * 

taoiish right in Hindu or Mahomedan will, not falling within the Hindu 

a court without 

probate. Wills Act, may establish his right in a Court of Justice 

without taking probate. Shaik Moosa v. Shaik Essa.<*> 
when a Hindu (p) In Greender Ghunder Ghose v. Mackintosh.^) 

to whom the ^Jr' ' 

H ouid wm f A 2 Pontifex, J., observes, "a Hindu being thus competent up 
he left a will, to the day of his death to alien his lands without regard 

dies intestate, J ° 

his heirs are his to his creditors, a disposing power by will, unknown in 

legal represen- 9 

tatives, the Act primitive times, came into existence by a kind of evolu- 

not providing * 

for grant of ad- tion or development of the law ; and it would be natural 

geestateof an that by the same process the devisee should, with respect 

to his testator's creditors, be saddled with the same 

liabilities as the heir had theretofore been saddled with 

(1) Bronghton's notes of oases on C. P. C, 1884, p. 316. 

(2) I. L. R., 8 Bom., 241. | (3) I. L. R., 4 Gale, 907. 



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MC. 17] PART in.— COMPUTATION OF PERIOD OF LIMITATION. 131 

respect to the creditors of his ancestor. This principle 
has heen recognised in Act VIII of 1859 and Act X of 
1877, hoth of which Acts, however, are intended only as 
Codes of Procedure. Sections 203, 210, and 21 1 of Act VIII 
of 1859 deal with the subject, the former section using 
the word * representative,' and the other sections the 
words ' legal representative' ; but whether any distinc- 
tion between these terms was intended, it is not necessary 
to consider. In the Act of 1877, the corresponding sec- 
tions are 252 and 234, in each of which the words ' legal 
representative' are used. But though this Act was 
passed after the Hindu Wills Act, by section 179, of 
which a distinct meaning is given to the words ' legal 
representative,' namely, an executor or administrator with 
the will annexed, in whom all the property of a testator 
vests, I think sections 252 and 234 are intended to apply 
to the heir of an intestate." Section 200 of the Indian Section s of the 
Succession Act provides for grant of letters of adminis- does not make 
tration of the estate of a person who died intestate to *»of theindian 
persons who are connected with him either by marriage applicable to 
or consanguinity, and in the absence of any such person, coming within 
section 206 provides for grant of administration to a °^ 

creditor. These 2 sections occur in part 29 of the Act, But section ss 
which is not made applicable to Hindus, Ac., coming andAdministra- 
within the Hindu Wills Act, XXI of 1870. But section i^ £^jf P £in.* 
23 of the Probate and Administration Act V of 1881, grant of admi. 
which is applicable to all Hindus, provides for a creditor creditor, if it is 
taking out letters of administration when it is not applied &y person en- 
for by the person who would be entitled to the whole or tateof an into*. 
any part of the estate of an intestate. 

(q) " Except under the Hindu Wills Act, the courts Until before the 
in the mofussil do not in India grant letters of adminis- ministration 
tration to the estates of natives dying intestate, or probate, which can be ex. 

tended to the 

if they have wills. Regulation V of 1799, (which has mofussil, the 

mofussil Courts, 

been partially repealed by section 4 of Act XXI of 1870) except under 
which is in force throughout Lower Bengal and the North- Act, had no 

power to grant 

Western Provinces, except the scheduled districts (see Act probate, Ac., to 

r x the estate of a 

XV of 1874), prohibits the interference of the court except deceased native. 



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1S2 PART III.— COMPUTATION OF PBBIOD 01 LIMITATION. [8BC. 17 

on regular complaint ; see also Madras Begulation III of 
1802, section 16. But where there are debts of the de- 
ceased person to be collected, the courts are empowered to 
grant certificates, which enable the certificate holder to 
give a good receipt to the debtor who cannot be compelled 
to pay the debt without the production of the certificate, 
unless it can be shewn that he does so from fraudulent or 
vexatious motives. It does not constitute the holder a 
* representative for any other purpose, nor can it be more 
than primd fade sufficient to induce the court to make 
him representative for the purpose of a suit, and to the 
extent of the debts he has collected under it, or other 
property of which, assuming himself to be the represen- 
tative, he has taken possession."* 1 * 
b. h. held that (r) In Sheik Moosa v. Sheik Essa/ 2 ) A* one of three 
failing under executors of a Mahomedan will, none of whom had taken 

the fflndu Wills x _ x _ . _ , ., . . „ . ... . - 

Act, an exe- out probate, desired to carry on a suit originally instituted 
Hindu or Maho- by their testator to recover a share of an estate, all the 

medan Will may _ , . . . - - 

establish his other parties to the suit being desirous that the suit should 
taking out pro- be dismissed. West, J., who tried the case, being of 
v of i88i. opinion that, since the passing of Act V of 1881, a Ma- 

(January 1884.) 

homedan cannot claim to represent the estate of his tes- 
tator unless he has taken out probate, rejected the suit. 
It was held by a Division Bench (Sargeant, G. J. and 
Bayley, J., that, -4, under section 92 of the Probate Act (V 
of 1881), being only one of three executors, could not carry 
on the suit without first taking out probate of the testa- 

Before Act v of tor's will. Previously to the passing of the Probate Act, 

1881 an executor 

of a Hindu will (V of 1881) executors appointed by such wills as fell 
Actxxi of 1870, within the Hindu Wills Act (XXI of 1870) acquired the 

had the same , 

right in repre- same estate and interest in the property of their deceased 

senting the de- . 

ceased^ estate testator with the same restrictions in representing the 
under English estate in a Court of Justice as obtained under English 
Law. See the following note. 

(g) All the sections of the Indian Succession Act (X 
of 1865) relating to grants of probates and letters of ad- 
ministration, which were formerly incorporated in the 

(1) Broughton on C. P. C. of 1877, p. 313. | (2) I. L. R., 8 Bom., 241. 

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Law. 



SEC. 17] PART III. — COMPUTATION OP PERIOD OP LIMITATION. 133 

Hindu Wills Act, (XXI of 1870) are now, with the excep- 
tion of section 187, removed from that Act by section 154 
of Act V of 1881, and are, with the exception of 187, re- 
enacted verbatim in Act V of 1881. Section 187, however, 
still remains incorporated by reference with the Hindu Probate is ne- 
WillsAct. (See section 154of Act V of 1881.) The result ca£"of HindS 
is that probate is necessary in the case of such Hindu Wills within Actxxi 
aa fall within the Hindu Wills Act. But the omission, 
from Act Y of 1881, (which applies to all Mahomedans 
and Hindus) of any provision corresponding to section 
187 of the Indian Succession Act, and the retention of that 
section in the Hindu Wills Act, shows that it was the 
intention of the Legislature that, except in cases falling 
tinder the Hindu Wills Act, an executor of any Hindu or Probate is not 
Mahomedan Will may establish his right in a Court of caseoin^HindQ 
Justice without taking out probate. In cases, however, win not faffing* 
falling within the provisions of Act XXVII of 1860, Endu wuis 
debtors have still the right, under section 2 of that Act, 
of insisting upon a plain tiff -executor taking out probate. (*> 

(t) In any case, a person who takes possession of the in any case 
property of a deceased person without letters of adminis- possession of 
t rat ion, probate, or a certificate, constitutes himself repre- perty without 
sentative of the deceased to the extent of the property he totes himself re^ 



a 
pro- 



» . . ? presentative, 

takes, and is bound to account for it in the same *ay as 
a duly constituted representative. Chowdry Wahed Ali 
v. Mussamut Jumaee.W "A person who intermeddles with Person inter- 

meddling with 

the estate of the deceased, or does any other act which a deceased's 

property is exe- 

belongs to the office of the executor, while there is no cutorofhisown 

. . wrong. 

rightful executor or administrator in existence, thereby 
makes himself an executor of his own wrong."^ 8 ) 

" When a person has so acted as to become an executor Bach executor 
of his own wrong, he is answerable to the rightful executor extent of assets 
or administrator or to any creditor or legatee of the de- come u/his™ 
ceased, to the extent of the assets which may have come 
to his hands after deducting payments made to the right- 
ful executor or administrator, and payments made in a 

(1) I. L. E., 8 Bom., 241. | (2) 11 B. L. B., p. 150. 
(3) Sec. 265 of Act X of 1865. 



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134 PAST III. — COMPUTATION OF PIBIOD Of LIMITATION. [8EC. 17 

due course of administration. 9 '^) Where a representative 
is appointed by the court, or when one takes possession 
of the property of a deceased person and so renders him- 
self liable to the oztent of the property he takes, the 
court can make the representative a party to the suit 
before decree under chapter XXI, or execute the decree 
in his favour under section 231, or against him under 
When no form- section 234k. But where no such formally constituted 

ally constituted . * . 

representative represeotative exists, as may be the case in the instance 
seeking to exe- of property of a Hindu, Mahomed an or Buddhist, or per- 
mnit prove th&t son exempted from the operation of the Indian Succession 
the deoeaeed Act, and where no grant of probate or letters of adminis- 
or that the per- tration has been made, the applicant for execution, must 
whon^heseeks be prepared with evidence to make out his case if he 
ieg*rrepreeen. claims to represent the deceased creditor, or to show that 
ye i°debtor. the person against whom he seeks to execute his decree 



is the legal representative of the debtor, and liable as 
such, or that having wasted or misapplied the property 
of the deceased, he is so far personally liable. 
P oeeeeri t n k oP ^ u ^ * n * >r081lnno Chunder Bhuttacharjee v. Krisfco 
SSoeatSdH^S Chytunno Pal/ 2 ) the plaintiff, in 1871, had lent a certain 
mi hL be tre * ted 8Um °^ money to one Prankristo, who, prior to his death, 
tative f andjadjr- lived with one Bibuty as his wife. The debtor died in 

ment obtained J 

against him is 1872, and the said woman performed his funeral, and 

not a nullity ... . . . 

even though lived in his house, taking possession of his property. The 
obtained after plaintiff sued Bibuty as widow of the deceased and obtain- 

decree a probate r * 

X deceased.** e< * a ^ ecree * 0P m0I *ey. When he proceeded to execute 
the decree against the property of the deceased, he found 
that it had all been transferred to Bibuty's brother, who, 
although he was a distant relation of the deceased, claim- 
ed the property attached under a will by which he 
alleged that the deceased had made him devisee of his 
whole property for Bibuty's maintenance, and performance 
of certain religious ceremonies, and . subject thereto for 
his own benefit. Bibuty's brother obtained probate of the 
will after the decree and claimed the property under 
attachment and its release. Then plaintiff brought the 

(1) Sec. 266 of Act X of 1865. | (2) I. L. R., 4 Calc, 842. 

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8KC. 18] PART m.— COMPUTATION OP PIRIOD OP LIMITATION. 135 

present suit to have it declared that the property in the 
bands of Bibuty's brother was liable to satisfy the decree 
obtained against Bibnty as representative of 'the deceased. 
The Lower Courts decreed the plaintiff's claim. In the 
second appeal, Markby, J., while confirming the decision, 
observes, " The executor does not represent the deceased 
by virtue of the will until he has obtained probate. Who, 
then, represents the deceased, who has left a will from his 
death until probate has been obtained P Surely some one 
must do so, or the law would not have provided that the 
Statute of Limitations should run between the death and 
the grant of probate as it undoubtedly does." 

" The decisions of the Courts in India have been liberal Observations of 
in recognizing the acts of the defacto manager of a de- the effect oV the 
ceased's estate as valid. If Bibnty had actually paid the 
debt of the plaintiff, or if the plaintiff had actually seised 
and sold the property of the deceased whilst in her pos- 
session, and had received payment out of the proceeds, I 
do not think the executor could have recovered back either 
the money paid to the plaintiff or the property sold in 
execution." 

"Upon the whole, I think that, until some other claimant 
comes forward, the party who takes possession of the 
estate of a deceased Hindu must, in the present state of the Bren if the 
law, be treated for some purposes as his representative, be executed 

' . . against the el- 

and that a judgment against such a representative is not tate in the 

hands of the 

a mere nullity. Even if it cannot be executed against executor it is 

sufficient to en* 

the estate in the hands of the executor when he has taken able the decree- 
holder to sue 
out probate, it is at any rate sufficient to enable the plain- the executor for 

..j- . . . , the satisfaction 

tiff to bring a suit against the executor m order to have of the debt. 
the decree satisfied." 

18. When any person having a right to Meet of fraud. 
institute a suit or make an application has, by 
means of fraud, been kept from the knowledge 
of such right or of the title on which it is 
founded, 

or where any document necessary to establish 



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186 PART IH.-rC0MPUTAT10N OP PERIOD OP LIMITATION. [SRC. 18 

such right has been fraudulently concealed from 
him, 

the time limited for instituting a suit or 
making an application, 

(a) against the person guilty of the fraud 
or accessory thereto, or, 

(b) against any person claiming through 
him otherwise than in good faith and 
for a valuable consideration, 

shall be computed from the time when the 
fraud first became known to the person inju- 
riously affected thereby, or, in the case of the 
concealed document, when he first had the 
means of producing it or compelling its produc- 
tion. 
Definition of (a) The interpretation clause of the Limitation Act 

"misrepreften- does not define fraud. Sections* 17 and 18 of tbe Indian 
Indian Contract Contract Act IX of 1872, define " fraud" and " misrepre- 
sentation." Fraud or no fraud is a question of fact. 

* 17. " Fraud" means and includes any of the following acts corn- 

« _ «. , „ ^ mitted by a party to a contract, or with big 

•' Fraud" defined. . ? %_. ....... 

^ connivance, or by his agent, with intent 

to deceive another party thereto or his agent, or to induce him to 
enter into the contract : — 

(1).— The suggestion, as a fact, of that which is not true, by 

one who does not believe it to be true ; 
(8). — The active concealment of a fact by one having knowledge 

or belief of the fact ; 
(3). — A promise made without any intention of performing it j 
(4.) — Any other act fitted to deceive ; 

(6.) — Any such act or omission as the law specially declares to 
be fraudulent. 
Explanation.— Mere silence as to facts, likely to affect the willing- 
ness of a person to enter into a contract is not fraud, unless the 
circumstances of the case are such that, regard being had to them, 
it is the duty of the person keeping silence to speak, or unless his 
silence is, in itself, equivalent to speech. 

Illustration*, 
(a.) A sells, by auction, to B t a horse which A knows to be unsound. A 
says nothing to B about the horse's unsoundness. This is not fraud in A. 



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88C. 18] FAST in.— COMPUTATION OF PERIOD OP LIMITATION. 137 

(b) This section, which corresponds with section 19 of 
Act IX of 1871, includes also " applications" as well as 
" suits." In the second paragraph, the words " from him 1 ' 
are introduced, and consequently the document mentioned 
in that paragraph must have been fraudulently concealed 
from the " person having a right to institute a suit or 
make an application." 

In order to apply this section, it is necessary that the 
suit should be by the plaintiff, or some one through whom 
he claims on whom the fraud has been practised, 

(1) " against the person guilty of the fraud or 

accessory thereto, or 

(2) against any person claiming through him other- 

wise than in good faith and for a valuable 
consideration." 

(C) This section applies to three classes of oases. This section ap- 

P UeB *° three 
(1). — Where the right to sue is concealed from the classes of c 

plaintiff by the fraud of the defendant. 
(2). — Where the title on which the right to sue is 

founded is so concealed. „ 
(3). — Where any document necessary to establish 

such right is so concealed. 



(h.) B is A'b daughter and has just come of age. Here, the relation be* 
tween the parties would make it A't duty to tell B if the horse is unsound. 

(c.) B says to A— "If you do not deny it, I shall assume that the horse is 
sound ;" A says nothing* Here, A'$ silence is equivalent to speech. 

(d .) A and B, being traders, enter upon a contract, A has private infor- 
mation of a change in prices which would affect B*$ willingness to proceed 
with the contract. A is not bound to inform B. 

•^representation" 18. Misrepresentation means and in- 

eludes— 

(1) the positive assertion, in a manner not warranted by the 
information of the person making it, of that which is 
not true, though he believes it to be true ; 

(2) any breach of duty which, without an intent to deceive, 
gains an advantage to the person committing it, or any 
one claiming under him, by misleading another to his 
prejudice, or to the prejudice of any one claiming under 
him; 

(8) causing, however innocently, a party to an agreement, to 
make a mistake as to the substance of the thing which 
is the subject of the agreement. 
18 

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138 



PART III. — COMMUTATION OF PERIOD OF LIMITATION, [SEC. 18 



The English li- 
mitation Act re- 
quire** reason- 
able diligence 
also on the part 
of plaintiff. 



Latham, J., has 
observed that 
diligence iB also 
required of a 

S'ntiff claim* 
benefit of 
section. 
(May 1882.) 



(d) The corresponding ^Section of the English Statute 
expressly provides that in ease of fraud, the right shall 
be deemed to accrue from the time at which such fraud 
shall be or with resonable diligence might hare been 
first known or discovered. 

(e) In Merwanji Hormusji t;. Eustomji Burjorji,< l > 
plaintiff, as heir of his father who died in December, 1872, 
without obtaining a formal dissolution of his partnership 
with the first defendant, sued the first defendant in July, 
1880, claiming a moiety of a certain amount found to have 
been realized by him in 1878. It was alleged that the 
money realized consisted of Rs. 10,000 in cash in 1878, 
and Es. 10,000 by a pro-note dated 1878, payable in 1881 
for the claim of the firm which the first . defendant 
assigned to the 2nd defendant in February, 1873. The 
plaintiff pleaded that he became aware of the assignment 
and the arrangement between the defendants in 1880, 
and claimed the benefit of this section. Latham, J., 
observes : " I cannot accede to this argument. I see 
nothing in plaintiff's evidence to show misrepresentation 
by the defendant. I am not going to attempt to define 
what fraud would suffice to satisfy that section, nor do I 
say that there may not be silence under such circum- 
stances as itself to be fraud within its meaning, but I 
see none such here. Moreover, diligence is required of a 



(1) I. L. R., 6 Bom., 628. 



* The section of the English Statute is as follows. — That in every 
case of a concealed fraud, the right of any person to bring a suit in 
equity for the recovery of any land or rent of which he, or any 
person through whom he claims, may have been deprived by such 
fraud, shall be deemed to have first accrued at, and not before, the 
time at which such fraud shall or with reasonable diligence might 
have been first known or discovered, provided that nothing m this 
clause contained shall enable any owner of lands or rents to have a 
suit in equity for the recovery of such lands or rents, or for setting 
aside any conveyance of such lands or rents, on account of fraud, 
against any ootid yule purchaser for valuable consideration who has 
not assisted in the commission of such fraud, and who, at the time 
that he made the purchase did not know and had no reason to 
believe that any suoh fraud had been committed. 



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8KC. 18] PABT in,— COMPUTATION OF PIBIOD OP LIMITATION. 189 

plaintiff who claims the benefit of that provision." Willis 
v. Lord Howes. (29 W. R., 70). 

(f) In Yenkateswara Iyen v. Shekhari Varma/ 1 * plain- p. o. found a 
tiff alleged thai a grant which he sought to set aside had of inaction and 
been fraudulently concealed from him. The grant was should have ex- 
dated 1851. The Privy Council held that the plaintiff Suet, implying* 
should have stated what was the occasion of the discovery ugenoe was ne- 
of the fraud, or the circumstances which led to it, and that (Marol'isso.) 
the plaintiff had given no word of explanation of his ex- 
traordinary inaction. 

(g) " In order to constitute a case of fraud, which in (English autho- 

the contemplation of equity takes a case out of tl^e opera- in order to oon- 

tion of the Statute of Limitations, it is not sufficient that there most be 

abuse of oonfl> 

there should be merely a tortuous act unknown to the in- dentiai pod- 

tion, some in- 
jured party, or enjoyment of property without title while tentionai in> 

the rightful owner is ignorant of his claims ; there must be some deuberat* 

concealment oc 

some abuse of a confidential position, some intentional im- note. 

position, or some deliberate concealment of facts. Taking 

coal tortuously from another's mine is not fraud, which 

will entitle the plaintiff to an account more than six years 

afterwards ; but if the coal be taken intentionally, and 

steps be taken to prevent the plaintiff from discovering Fraudulent 

transactions 

the wrong, this is a fraud which will take away the def en- against which 

court would 

dant's right to plead the statute. Where a testator having grant relief. 

a sum of £100 owing to him from (?, made a specific bequest 

of the debt to B on certain trusts, and after the testator's 

death B set off the amount against a private debt due 

from himself to 0, G, having notice of the trusts, it was 

held that this was a fraudulent abstraction of the trust 

property by B and a fraudulent receipt and appropriation 

of it by O for his own personal benefit; relief against such 

a transaction being given on the ground of fraud, the 

remedy was not taken away by lapse of time, and Q y 

the debtor, was ordered after the lapse of more than 20 

years to refund the amount of the debt to the parties 

beneficially entitled. Where a guardian and devisee in 

trust obtained a conveyance at an undervalue from his 



(1) I. L. R., 3 M., 399. 



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140 PART IIL— COMPUTATION OP PERIOD OF LIMITATION. [SEC. 18 

wards as soon as they obtained their majority, and where 
a reversionary grant at an undervalue was obtained from 
an expectant heir in distressed circumstances by an attor- 
ney, who had full knowledge of the value of the estate, 
and had considerable influence over the grantor, these 
were held fraudulent transactions against which the court 
would grant relief after more than 20 years." (Darby and 
Bosanquet, p. 198.) 
Fraud mast be (h) In Ramdoyal Khan v. Ajoodhia Ram Khan,* 1 ) 
the"party y plaintiffs ancestor had obtained, in 1817, from the Zemin- 
rigb? 8 * *»!?** < l &r > a lease of a certain portion of his property. The 
Government, in 1837, sold the entire zemindari for arrears 
of revenue, purchased it in auction, and granted 20 years' 
lease thereof to one W. In 1842, the Government restored 
the estate to the Rajah Zemindar with all the prior in- 
cumbrances, but subject to the lease to W. In 1844, the 
plaintiff's father sued to recover possession of his tenure, 
and it was finally settled by the Privy Council that his 
light to sue could only arise on the expiry of the lease to 
W. In the meantime, owing to certain fraudulent trans- 
actions, one A got into possession of the estate as the 
purchaser of the interests of certain mortgagees of the 
Rajah, and the property was again sold for arrears of re- 
venue, and was purchased by M, a party to the fraudulent 
transactions. The Rajah got the sale reversed in 1866 
and obtained possession in 1871. The plaintiff, in October, 
1873, sued the Rajah and his lessees, and alleged that, 
when the lease to W expired, the property was in the pos- 
session of Jf, of the fraudulent character of whose title 
they had no knowledge, and that his right to sue in the 
present case consequently arose only in 1871. The court 
observed that the corresponding section 19 of Act IX of 
1871 was applicable only to those cases where the fraud 
was committed by the party against whom a right is 
sought to be enforced. 
Plaintiff's igno- (i) Azroal Sing v. Lalla GopenathW was a suit to 
cruai of his recover money paid by Government to the defendant 

right, unless 
brought about 

(1) I. L. B., 2 Calc, l r | (2) 8 W. K., 23. 

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SRC. 18] PART III.— COMPUTATION OP PERIOD OP LIMITATION. 141 

as compensation for land taken for public purposes which, by the defend- 
the plaintiff alleged, to belong to him and not to the not prevent the 
defendant. It was held that the plaintiff's right of action ning against" 1 " 
against the defendant accrued at the time when the 
defendant first took the money from Government, and 
that the ignorance of the plaintiff in regard to the accrual 
of his right did not prevent the time from running 
against his suit, unless it had been brought about bj the 
fraud of the defendant. 

(j) "In this case, which also proceeded upon the frau- Case where 
dulent sale to McArthur, it was held by Markby and fauduientiy 

_. _ _ _ ., . , ,, ., ,. . ,., *r» . made to believe 

Birch, J. J., that where the allegations in a plaint suffici- he had no right 

ently stated that the plaintiffs being entitled to property 

and being in enjoyment thereof were ousted therefrom 

under color of a fictitious revenue sale in pursuance of a 

fraudulent contract, the fraud being so contrived as to 

make plaintiffs believe that they had no right of action 

at all, and the allegations were proved, the fraud would 

entitle the plaintiffs to claim the benefit of section 9 of 

Act XIY of 1859."<i> 

•(k) A man is not at liberty to shut his eyes to informa- From existence 
tion within his reach and so lengthen indefinitely the period knowledge of 
of limitation within which he should make his claim ; may find actual 
Dhunput Sing v. Rahoman.* 2 ) In Bibee Solomon v. Ab- piatatSff part. 
dool,(*) it was held that although this section does not re- 
quire due diligence on the part of a plaintiff, the court 
may from the existence of the means of knowledge of the 
fraud, find as a matter o! fact that the plaintiff had actual 
knowledge of it. Wilful ignorance attaches to the party, 
the consequences of knowledge of fraud. In Radhanath 
Dutt v. Govind Chunder,< 4 ) the Judge observe, " where 
plaintiff had such information, a person of ordinary care 
and prudence would have acted on it to investigate the 
state of the accounts with Sreenath Doss, and, so acting, 
could have discovered the payment of the sum and the 
fact of its not having been accounted for. He cannot 

(1) I. L. R., 2 Calc, 8. I (3) 8 C. L. R. 169, 184. 

(2) 9 W. R., 329. I (4) 4 W. R., 8, C. R., 19. 



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142 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [SEC. 18 

now say that he wae not then cognisant of the fraud, 
when he might have been had he wished ; and when, 
but for his own laches, the fraud must have become 
known to him, had he acted with ordinary diligence and 
precaution." 
Case where (1) In Bygnath Suhaye v. Brohmo Deo Narain,* 1 ) 

wm held not to plaintiff sued to recover three items of landed property to 
mentofcauseof which he made title by inheritance. It appeared by the 
section 1> Act evidence of the plaintiff himself that his father, through 
whom he claimed, was dispossessed of the property by his 
co-sharers in it so far back as 1242 F. S., and afterwards 
brought a suit for the same in which he was non-suited. 
One of the three items from that time had never come back 
to the possession of either the plaintiff or his father or any 
one in their behalf. As to the other two items, the def en- 
dant pleaded that they were restored to the plaintiff's 
mother, who, as guardian of the plaintiff when he was 
a minor, sold them to him, aud that the plaintiff, after 
coming of age ratified the sale by a petition to the Collec- 
tor, praying for mutation of names. The plaintiff totally 
denied ever having presented such a petition. The Lower 
Court found that the defendant's case on this point was a 
fraud. It was held that, even if the allegation of fraud 
were true, as it did not exhibit concealment of the cause of 
action within section 9, Act XIV of 1859, and the alleged 
fraud did not constitute an ingredient in plaintiff's cause 
of action,- it could not get rid of the effect of time. 
Plaintiff's right Coi) *" Penuballi Subbaramareddi v. Bhimaraja Rama- 
money which va » W a vakil received money for his clients and gave it 
SSdJ^Sl to theip a S ent for delivei T to *h em - Tlie a fiT ent did not 
■<pn^af ll puty deliver it accordingly, and the vakil was compelled by the 
£SE£ tat did Civ* 1 Court to pay it over again. The vakil then sued the 
•^Tfc>m el d£ agent for money. It was held that if the defendant was 
covery of fraud. in ^^ the plaintiff » 8 Bgmi9 but had induced the plaintiff 

to pay the money to him by the fraudulent representation 
that he was agent of the clients, the cause of action would 
have arisen at the discovery of the frauds ; but the case 

(1) 9 W. R. 266. | (2) 2M. H.C.R., 21. 

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BBC. 18] PART in. — COMPUTATION OP P1BIOD OP LIMITATION. 143 

was treated to fall under clause 16, section 1, of Act XIV of 

1859. If an agent receive money for his principal and Agent conceal- 

° * * * ingmone j he re- 

COnceal the fact from his principal, the agent is guilty oelved for his 

of fraud, and cause of action to recover the money accrues 

to the principal from the date of the discovery of the fraud. 

Hoesain v. Syed Tnssudduck.") 

(n) In Gibbs v. Grield,W plaintiff sued for damages, English one. 

said to have resulted from fraudulent representations damages for 

contained in the defendant's letter, memorandum, pros- presentation, 

pectus and balance sheet regarding a company which was did not discover 

established and registered in 1870. The plaintiff alleged reasonable 

that by reason of such false representation he was induced ©overing fraud 

J within time, 

to purchase shares which were always worthless, and so he held good plea. 
lost £25,000. The defendant alleged that the cause of 
action did not arise within six years prior to the suit. 
The plaintiff replied that he did not discover the fraud or 
that the defendant had been a party to it, and that he 
(plaintiff) could not, by the exercise of reasonable diligence 
have discovered, and had not the means of discovering 
the matters stated in his bill until within six years next 
before the commencement of the action, and that the means 
of discovering fraud had been concealed by the defendant. 
It was held, that the plaintiff's plea was good. Field, observations of 
J., observes, " The making of the fraudulent representation 
complained of is, no doubt, the first step going to the 
existence of a cause of action : but the fraudulent re- 
presentation does not of itself give a cause of action; 
damage to the plaintiff must ensue before that comes into 

existence. Moreover, fraud and damage only bring into Fraud and da- 
mage only bring 

existence a cause of action when the plaintiff elects into existence a 

cause of action. 

to treat it as such, and seeks to avoid the transaction, 

which in no case can he of course do until he has disco- 
vered his right to elect, or has so omitted to make use of 
reasonable means at his command for making the discovery 
as to make it unjust not to treat the omission as equivalent 
to a discovery, and so to hold the plaintiff as having 
been put upon his election." In this case, Field, J., alludes 

(1) 21 W. E., 245. | (2) 8 a B. D., 296. 

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144 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [SBC. 18 

to Hovenden v. Lord Annesley, (2 Sch. and Lep. 607, 629) 

in which Lord Redesdale is said to have stated the reason* 

for the decision of Booth v. Lord Warrington (4 Bro. P.C., 

statute flhouid 163). Field. J., states " he said that the principle of 

not operate du- . . r / 

ring the time that case was that fraud is a secret thing, and may 

that fraud is on" . . 

discovered. remain nu discovered until such time that the statute 
might run, but during that time the statute should not 
operate, because until discovery the title to avoid the 
transaction does not arise." 

The Law of Li- (q) In Kowar Poresh Narain Roy v. Watson and 

mitation being v^^ ^ * 

express, diaho- Co.,W the court observe, " if they took possession of 

nesty in obtain- rf r 

ing possession land which they knew did not belong to them, they took 

will not prevent J 6 . ' ^ 

the possessor (as the Civil Law calls it) a knavish possession. Speak- 

from availing r r 

himself of the ing of possession and prescription, the Civil Law says : 'To 

Law of Limita. ^ . r .*..*. . , * 

tion. acquire prescription, it is necessary to have possessed 

honestly and fairly, i. e., that the possessor must have 
been persuaded that he had a just cause of possession, 
and must have been ignorant that what he possessed 
did belong to another person. And this integrity is always 
presumed in every possessor, if it is not proved that he 
has possessed with bad conscience, knowing the thing to 
be another's." (Domat's Civil Law, 2208, p 876). I do 
not mean to say that the fact of obtaining possession 
dishonestly or knavishly will prevent a man from availing 
himself of an express Law of Limitation. On the contrary, 
it appears from a note in the same book that it will 
not. (Idem, 2209}. The Law of Limitation in this coun- 
try being express, dishonesty in obtaining possession will 
not prevent the possessor from availing himself of the 
provisions of that law. But the law cannot relieve him 
from the charge of dishonesty. In the same note it is 
said : ' But as to the point of conscience, it is most cer- 
tain that the length of time does not secure unjust 
possessors from the guilt of sin, and that, on the contrary, 
their long possession is only a continuation of their 
injustice.' " 



(1) 5. W. E., 288. 

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SEC. 18] PAST in.*— COMPUTATION OP PIEIOD OP LIMITATION. 145 

(n) When a sale of land subject to the right of pre- vendor's inten. 

J • j .m , .. . iL , tional failure to 

emption is made without previous notice to the pre-emptor, inform pre- 
if the vendor and vendee intentionally conceal the fact of posed sale, is 
sale, the pre-emptor is kept from the knowledge of his intentional oon- 
right to sue by a fraud, of which the vendor and vendee by vendor and 

, vendee is fraud* 

were alike guilty ; but the mere omission by a vendor to 

give due notice to a pre-emptor of a proposed sale is not 

a fraud even if the omission is intentional. Murad v. 

Bhag Singh (Punj. Bee, No. 46 of 1879). See also Bam 

Dyal v. Beli Bam (lb., No. 29 of 1878). It was again held 

in a suit for pre-emption, that the fact that the sale was 

not notified was not sufficient to establish fraud within the 

meaning of this section. It must be shown that there was it most be 

an industrious and artful concealment of the fact of sale, there was an 

and the facts must necessarily lead to the inference that mentof the fact 

there was a design to keep the pre-emptors in the dark. 

Arsala t?. Yar Muhammad (Punj. Bee. No. 32 of 1881.) a> 

(q) In Mungamuru Ananta Lakshminarusu Pantalu v. oase where it 
Srimant Baja Yarlagedda Ankavid Bahadur/ 2 ) plaintiff Sent not 
sued for money upon two documents, dated August, 1851, awinot"?™- 
which had been wrongfully extorted by illegal pressure ceaied* within 
from the bailee and which the plaintiff recovered by a xiv of law. 
decree of court. With reference to the words " if any 
document necessary, &c," in section 9 of Act XIV of 1859, 
the court observe : " It seems to us that the preceding 
words of the section show clearly that the documents 
must have been fraudulently concealed from the know- 
ledge of the plaintiff ; he must, through the fraudulent 
concealment, be unaware of its existence, and, when this 
is so, the statute runs against the person guilty of the 
fraudulent concealment, or accessory thereto, from the 
time at which plaintiff had the means of producing, or 
compelling its production, if it is a document necessary 
for establishing such right of action." " In one sense 
every document may be said to be necessary, if the word 
necessary is to mean anything which it would be more 
prudent to be provided with." " But the documents in 

(1) Revaz's Limitation Act, p. 51. | (2) 7 Mad., H. G. R., 22. 
19 



(March 1870) 



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146 PART III.— COMPTTTATIOH OF PIMOD OF LIMITATION. [SIC. 18 

the present case do not seem in themselves, and still less 
upon the facts of. the case, to be necessary within the 
meaning of the section." " It is easy to pnt cases in 
Oases in which which the document would be necessary, as in the case of 
would be neoM- a will, or a eodicil fraudulently concealed from the know- 
ledge of the legatee/' 
where plaintiff (r ) In Robert and Charriol v, Lombard/ 1 ) the defen- 
obtein a copy of dant, in his official report to the Minister of Marine in 
report aaooneai France, had made a defamatory libel concerning the plain- 
ment, wEch" 1 " tiff who, knowing of the matter shortly after, applied to 
famatorv state- the defendant for a copy, which was refused. The plain- 
was refused tiff, however, obtained a copy from the French Minister 
tion 9 of Act" and instituted his suit for defamation within one year 
though it ap- from the date of his having obtained the copy, but after 
Santeioded^' one year from the date of the original publication. The 
cmiry to* know plaintiff had used every endeavour to obtain a copy of the 
chawSerof the report, but the defendant had successfully eluded the 
on * enquiry. It was decided that the conduct of the defen- 
dant did not amount to fraud so as to enable the plaintiff 
to claim the benefit of the corresponding section 9 of Act 
XIV of 1859. Phear, J., was of opinion, that, if it was 
shown that the defendant had concealed the letter with 
the object of having the plaintiff's claim barred, the con- 
duct of the defendant might be held fraudulent. The 
Judge thought that the words " document necessary/' <&c, 
in the second clause of this section, hardly applied to a 
document which was merely useful in evidence. 
Time for Coiiee- (s) In execution of a decree, the judgment-debtor's 
tion to PP eanoei recognised fourth share in a certain bhag was sold in Feb- 
der e Bom£ayAct ruary, 1876, and the purchaser was subsequently put in 
from the <iateof possession of a portion on the 30th September, 1880. The 
Limitation Act Collector applied to the court to set aside the sale, on the 
* pp ground that it was illegal under Bombay Act V of 1862. It 

appeared that the Collector did not know till November, 
1877, that the land sold was an unrecognised portion of the 
bhag and not the whole of it. It was held that the sale 
might be set aside under section 2 of Bombay Act V of 

(1) 1 Ind. Jur. N. 8., 192. 

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81C. 18] PAST m.— COMPtJTATION OV P1RIOD or LIMITATION. 147 

1862, notwithstanding its confirmation and delivery of pos* 
session, and that even if this Limitation Act applied to the 
case, time ran against the Collector only from November, 
1877. The Collector of Broach v. Raja' Ram 9 Laldie.O) 

(t) In the Collector of Broach v. Desai fUghnnath,<*> Limitation Act, 

^^ does not apply 

it was held, that the law of limitation does not apply to such cmob 
to Collector's application nnder the Bombay Act Yof 
1862, to set aside court sales of portions of a bhag. 

<tl) "In the case of property purchased bend fide for Possession of a 
valuable consideration from a party who had acquired it chaser in caws 
by a concealed fraud, adverse possession as against such fraud! 
purchaser commences from, the time that the party en* 
titled was deprived of the property by means of such fraud. 
The purchaser, from a trustee or mortgagee, may by due 
diligence discover the nature of the interest under which 
the seller has occupied, but the purchaser of property 
from a person who has acquired it by a oonoealed fraud 
can have no reason to suspect any defect in the title of 
the seller. This is why the Indian Limitation Acts do 
not place such a purchaser in the same category with 
purchasers from trustees, mortgagees and depositaries/' 

" See the special report of the Indian Law Commission- 
ers, dated 26th February, 1842. Sir James Colville, in his 
amended Bill, proposed that the possession of the pur- 
chaser should be deemed adverse from the date of the 
purchase, but he withdrew the proposition afterwards."< 8 > 

(V) In Chetham v. Hoare,* 4 * the plaintiff sued to re* Haiins. v. c_ 
cover property to which his predecessor, as he alleged, of the section of 
became entitled in the year 1769, and insisted that a holding: that 
register book containing a certificate of marriage, forming proper Am? 
the principal link in his title, had been fraudulently la^isoovered 
mutilated in order to prevent him or his ancestors from alleged frandn- 
obtaining evidence of the marriage. Matins, Y. C, held of marriage re- 
upon demurrer, that by reasonable diligence, evidence of 
the marriage might have been ascertained within 20 
years after the alleged fraud had been committed, and 



(1) I. L. B., 7 Bom., 542. I (8) Mitra/s Limitation Act, pp. 164—165. 

(2) L L. B.,7 Bom., 646. | (4) L. B^ 9 Eq., 571. 



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148 PART in.— COMPUTATION OF PERIOD OP LIMITATION. [SEC. 1 8 

that the plaintiff had not brought his case within the 
26th section of the Statute of Limitations. 
Case where (w) In Vane v. Vane/ 1 ) the plaintiff, by his bill, stated 

mother, by to the following effect ; that an estate being limited to the 
illegitimate son plaintiff's father for life, remainder to his first and other 
legitimate son, sons successively in tail, the father in 1797 intermarried 
plaintiff of his with a woman who had been his mistress, and had just 
time was 'held borne him a son; that after the marriage the parents 
discovery of the agreed to pass off the son as legitimate, and he was always 
a more direct recognized as such ; that the plaintiff, who was born ten 
posiUve°fraiid years afterwards, was the eldest, but was brought up in the 
conceived. 7 belief that he was the second legitimate son ; that when 
the illegitimate son came of age, he was informed by the 
father that he was illegitimate, and with that knowledge 
joined the father in suffering a recovery to bar the 
entail ; that on the marriage of the illegitimate son in 
1823, he and the father made an ante-nuptial settlement 
of the estates, which was negotiated by the wife's father, 
as her agent, and on her behalf, with full knowledge that 
the husband was illegitimate ; that the father died in 
1832, upon which the illegitimate son entered into pos- 
session, and remained so till his death in 1842, ever since 
which time his eldest son had been in possession ; that the 
plaintiff had never until 1866 believed or suspected, or 
had any reason to believe or suspect, that his elder 
brother was illegitimate ; and the bill prayed for a decla- 
ration that the plaintiff was entitled to the estates, and 
that the defendants, who claimed under the settlement of 
1823, might be ordered to give up possession to him. The 
defendants demurred. It was held that a Court of Equity 
had jurisdiction, and that the designedly bringing up 
the plaintiff in the belief that he was the second legitimate 
son was a case of concealed fraud within the meaning of 
the Statute of Limitations (3 and 4, Will 4, c. 27, s. 26), and 
that time did not begin to run against the plaintiff's right 
to sue in equity until the time when he might first, with 
reasonable diligence, have discovered the fraud. 

(1) Law Rep., 8 Ch., 383. 

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8BC. 18] PABT TO. — COMPUTATION OF PERIOD OF LIMITATION. 149 

(x) " It was contended by the Solicitor-General that Bond jide par- 

..ti ..i , * /% , , , chaser means 

the onlj person protected was a bond fide purchaser, and real purchaser 
that we onght, on the authority of Lord Hardwiclce, to taking a giftun- 

,.,,*. . . _ . „ _ , , der the form of 

hold that a person is not a bond fide purchaser whose a purchase. 
agent was affected with notice of that which should have 
prevented his purchasing. In this proviso, however, we 
think that the words " bond fide" were introduced alto- 
gether for a different purpose, and with a different meaning, 
that it was meant that the purchaser should be really a 
purchaser, and not merely a donee taking a gift under the 
form of a purchase. For example, a person might take 
an assignment of a leasehold in consideration of covenants 
to pay the rent and perform all the covenants — might 
take a conveyance of a mortgaged estate in consideration 
of his paying off the mortgage. These might be bond 
fide purchasers, or they might, according to the facts, be 
in truth and substance volunteers receiving a gift of a 
valuable chattel real or a.valuable estate incumbered. It 
would be easy to suggest many other circumstances hy 
which it might be shewn that an apparent purchaser had 
not entered into the transaction honestly and substantially 
as a purchaser, but in some other character, or for some 
indirect purpose. And we conceive that it was with 
reference to that class of cases the words " bond fide" were 
introduced here, and that they were not meant to include 
and cover all, and more than all, that is afterwards ex- 
pressed in the remainder of the proviso. What, then, is 
the legal meaning and effect of that which is so afterwards 
expressed? At the time this statute was passed it had At the time that 
undoubtedly been held by the highest authority that the statute was 
actual knowledge of the agent through whom an estate is fceenheidbythe 

. . , . . , highest autho- 

acquired is m this court equivalent to the actual personal rity that the 
i * »i • • i rm • • * actual know- 

knowledge of the principal. This is also in accordance i<xto> of the 

. . agent through 

with the invariable course of decision at Common Law in whom an estate 

is acquired is 

regard to purchases of chattels. No one dealing through Jg^I^JJ 
an agent is ever permitted to allege himself ignorant of ySf^rincfpaL 
that which is actually communicated to the agent in the 
course of the transaction* The agent in the matter, and 



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150 PART in.— COMPUTATION OF PSBTOD OF LIMITATION, [file. 18 

in the course of the transaction acting within the limits 
of his agency, is the alter ego of the principal." 

(y) " It appears to us beyond all question that, as the 
law of this court stood when the statute was passed, the 
knowledge of the purchaser's agent acquired in the course 
of the transaction was for all purposes treated as the 
knowledge of the principal. It is also, we conceive, be- 
yond question that in every other case, except under this 
section, this court would treat the knowledge of the pur- 
chaser's agent as the knowledge of the purchaser. Was 
it then meant to make such a material alteration of the 
law ? It is said in support of that (and not without force) 
that the words well-known in this court, " purchaser for 
valuable consideration without notice," were designedly 
not used, and that the words " who had not participated 
in the fraud, and did not know, and had no reason to 
believe," were designedly introduced, so that only those 
purchasers should be affected who had actual knowledge, 
and who were in truth making themselves morally accom- 
plices in the fraud— in fact, receivers of stolen goods." 

The Legfeia- (z) " But we think that what the Legislature really 

teration, meant meant to do was to exclude that constructive notice which 
structive notice had certainly been carried to a very startling extent in 
carried to a very many instances, and that it did not mean to subvert, in 
respect of one small portion of the law of this court, the 
well-settled principles and rules on which all the courts 
have acted in respect of the relation of principal and agent, 
and in respect of the extent to which the knowledge of the 
latter is deemed to be the knowledge of the former. The 
The word "who courts had, in fact, held, almost in so many words, that 
or "had not what the agent knows the principal knows, that the know- 
Here" were in- ledge of the agent was sufficient to create mala fides in 
" who ( did not the principal ; and we think it therefore reasonable to 
by him»eif or hold that the Legislature used the words in the same 
Whone know- sense, and that when they said * who did not know or had 
settled law, "* not reason to believe,' they meant ' who did not know or 
hie. had not reason to believe, either by himself or by some 

lon»Jknow? er " agent, whose knowledge or reason to believe is by settled 



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SEC. 19] PABT III.— COMPUTATION OF PERIOD OF LIMITATION. 151 

law deemed and taken to be his/ We think it would lead ledge fereqnir- 
to very startling consequences if any other interpretation ration might ac- 
were put on the clause. It is obvious that if actual per- to property 
sonal knowledge were required, every Corporation or Joint- citors were con- 
Stock Company might acquire a good title to property, grossest fraud 
although its officers and solicitors were perfectly con- the vendor, 
versant with the grossest fraud perpetrated by the 
vendor ; and in fact any person might deal with impunity Any person 

might deal with 

in the purchase of what is in substance stolen property, impunity in the 

• «-*-*» purchase of sto- 

provided he takes care to leave the whole dealing from fen property by 

leaving the mat- 

first to last in the hands of his agent." ter in the hands 

w • of his; agent. 

19. If, before the expiration of the period wept of ack- 

* * * nowledgment in 

prescribed for a suit or application in respect of writin «- 
any property or right, an acknowledgment of 
liability in respect of such property or right 
has been made in writing signed by the party 
against whom such property or right is claimed, 
or by some person through whom he derives 
title or liability, a new period of limitation, 
according to the nature of the original liability, 
shall be computed from the time when the ac- 
knowledgment was so signed. 

When the writing containing the acknowledg- 
ment is undated, oral evidence may be given of 
the time when it was signed ; but oral evidence 
of its contents shall not be received. 

Explanation 1. — For the purposes of this 
section an acknowledgment may be sufficient, 
though it omits to specify the exact nature of 
the property or right, or avers that the time 
for payment, delivery, performance or enjoy- 
ment has not yet come, or is accompanied by a 
refusal to pay, deliver, perform, or permit to 



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152 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [SEC. 19 

enjoy, or is coupled with a claim to a set off, 
or is addressed to a person other than the per- 
son entitled to the property or right. 

Explanatian 2. — In this section " signed" 
means signed either personally or by an agent 
duly authorized in this behalf. 
This section ap- (a) The corresponding section 20 of Act IX of 1871, 
fcdginent of w " referred only to acknowledgment in respect of a debt or 
pert oFaqrf££ legacy , while Article 148 of the second schedule provided 
{Irtdfe secrioof for the acknowledgment by a mortgagee of the mort- 
retei^^ac- gagor's title giving a fresh starting point. This section 
rtTd$FTL (19) of the Act of 1877 has been so altered as to apply 
goes only. ^ ac ] niow i e( jg me ] 1 t of liability in respect of " any pro- 

perty or right" The acknowledgment of a mortgagor's 
title, therefore, comes under this section. 

As to the effect of an acknowledgment by one of 
several joint contractors, partners, executors or mortga- 
gees, see section 21. 
Under section (b) The corresponding section 4 of Act XIV of 1859, 
i860, aoknow- did not say that the promise to pay must be made before 
afterthe period the period of limitation had expired. By that Act, there- 
vived a debt, fore, a debt barred by limitation could be revived by a 
promise to pay the debt made after the period of limitation 
That section is had passed, and such a promise could be sued on. That 
tion 20 of Act section has been split up into the Limitation Act of 1871, 
section 25 clause section 20- A, and into the Contract Act, section 25, clause 
tract Act. 3. Section 20- A of Act IX of 1871, makes it compulsory 

that the promise should be made before the period of 
limitation had expired, and that period is extended by the 
Contract Act, section 25, clause 3, which lays down that 
o. h. held that a written promise to pay a debt barred by limitation is not 
executed for a void agreement, but is a contract enforceable in law. 
der a barred In Heera Lall Mookhopadhya v. Dhunput Singh/ 1 ) which 

decree is not .. . . _\~ * r ? / . 

void. was a suit upon kist-bundi, or an agreement to pay by 

monthly instalments the debt secured by a decree of 
court, the defendant contended that, on the date of the 
(1) I. L. R., 4 Calc, 600. 



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8EC. 19] PABT III.-^-COMPUTATJQN OF PERIOD OF LIMITATION. 153 

agreement, as the decree had been barred, there wag no 

valid consideration for the agreement. The court, while 

holding that the decree had not been then barred, observed, 

in December, 1878, that even had there been no valid 

consideration for the kist-bundi, yet the principle laid 

down in section 25, clause 3 of Act IX, 1872, and which The principle of 

prevailed before the passing of that Act, would have 26, prevailed 

even before the 

saved the kist-bundi from becoming void for want of con* contract Act 

was passed. 

sideration. In Tillak Chand Hindumal v. Jitamal Soda- 
ram/ 1 ) the court observe, that the efficacy of such promises 
is now based upon the principle, that where the considera- 
tion was originally beneficial to the party promising, and 
he be protected from liability by some provision of the 
Statute or Common Law, for his advantage, he may re- b. h. 
nounce the benefit of that law, and if he promise to pay renounceThe 
the debt, he is bound by the law to perform that promise, statutoof Limi- 
This has been followed in Baghoji v. Abdul Karim,W and n^^to^pay^ 
Chatur Jagsi v. Tulsi.W See also Mullins Beddy.W barred do6t - 

(c) " The legal effect of an acknowledgment of a debt Observations of 
barred by the Statute of Limitations is that of a promise on the legal '' 

effect of an ac- 

to pay the old debt, and for this purpose the old debt is a knowiedgment 
consideration in law. In that sense and for that purpose 
the old debt may be said to be revived. It is revived as a 
consideration for a new promise. But the new promise 
and not the old debt is the measure of the creditor's right. 
If a debtor simply acknowledges an old debt, the law im- 
plies from that simple acknowledgment a promise to pay 
it, for which promise the old debt is a sufficient considera- 
tion. But if the debtor promises to pay the old debt when 
he is able, or by instalments, or in two years, or out of a 
particular fund, the creditor can claim nothing more than 
the promise gives him.'' Phillips v. Phillips (3 Ha., 281, 
300.W 

(d) In ShambhuNathNath*. Ram Chandra Shaha,<«> ^ <£$££• 
plaintiff claimed money due on a balance of accounts, ?L^ent k shaji 
alleging that the defendant had given a written acknow- J^d 8 ™* 6 *?*" 

override the 
(1) 10 Bom., H. C. R., 206. I (4) 6 N.-W. P. H. 0., p. 150. general rule as 

(8) I. L. R., 1 Bom., 690. 5) Banning, p. 48. g^ Kgg; 

(3) L L. R,, 2 Bom,, 230. 1 (6) L L. R. # 12 Calc, 267. ary evidence. 



20 



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154 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8EC. 19 

ledgment of the debt. As the acknowledgment, which 
was the only means of avoiding limitation, was said to 
have been lost, the Mnnsiff dismissed the suit, on the 
ground that secondary evidence of its contents could not 
be received. The Sub-judge decreed the claim, being of 
opinion that the words in para. 2 of this section had not 
the effect of overriding the rule of evidence as to the 
production of secondary evidence in the case of a docu- 
ment lost or destroyed. The corresponding section of Act 
IX of 1871, distinctly provided against the reception of 
oral evidence of the contents of a written acknowledgment, 
lost or destroyed. Act IX of 1871 was passed "before the 
present evidence Act came into existence, and the above 
provision had not the effect of excluding secondary evi- 
dence of an acknowledgment in the possession of the 
opposite party or beyond the jurisdiction of the court or 
of one contained in a public document. Section 65 of the 
Evidence Act gives the various cases in which secondary 
evidence may be given. Then came the Limitation Act 
Pam. Prefers to of 1877. The words of para. 2 refer to oral evidence, but 
bat not to ' not to secondary evidence. It was held that para. 2 of this 
dence. section belongs to that branch of the law of evidence 

which is dealt with by section 91 of Act I of 1872, and 
ought not to be read in derogation of the general rules of 
secondary evidence so as to exclude oral evidence of the 
contents of an acknowledgment which has been lost or 
destroyed. The court observe, "There is nothing in the 
terms of the Act constraining us so to hold, and the conse- 
The oorae- quences of doing so would be serious. If we interpret 
preSngthtesed section 19 of the Limitation Act as excluding secondary 
secondary evi- evidence, when the original document is lost or destroyed, 
acknowiedg- it must also exclude secondary evidence of the contents 
aerioufl. of a document in every one of the cases mentioned in 

section 65 of the Evidence Act. For example, the party 
objecting to secondary evidence may have the original in 
his pocket, and when called upon to produce it, may 
pertinaciously refuse to do so. If secondary evidence 
Anacimowiedg- cannot be given, justice will be frustrated. So again an 
the form of a acknowledgment may be in the form of a public record, 



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8IC. 19] PABT III. — COMPUTATION OP PBRIOD OP LIMITATION. 155 

as was apparently the case in Daia Chand v. Sarfrazf x > or public reoord { 
the document may be out of the jurisdiction and control control and ju- 

- ,, , ,, riadiction. 

of the court. 

(e) " It would seem that if there is no date on the English cases 
written acknowledgment, it may be supplied by parol dence allowed 
evidence. This, in one report of Edmonds v. Downes, written* ac- 
(2 Cr. <fe M., 463) is given as a direct decision, but in ow 
another report of the same case (4 Tyr, 179) it appears 

to have been left in doubt, though, even according to that 
report, the inclination of opinion of Bayley, B., was in 
favor of this view. And it is submitted that the name of the name of ore- 
the creditor, if not mentioned in the acknowledgment, may 
be supplied in the same way. (See Hartley v. Wharton, 
11 Ad. <fc £11., 984). If it is not clear from the acknow- 
ledgment itself to what debt it refers, this also may be the debt to 
proved (Spickemell v. Hotham, Kay, 669) by parol, and referred^Sd 1 
if it is lost parol evidence of its contents is admissible, contents of a 
(Haydon v. WilHams, 7 Bing, 163)." (Darby andBosan- tedgment. 
quet, p. 61.) 

(f) In Luvar Chunilal Ichharam v. Luvar Tribhovan b. h. oonstraed 

. "prescribed 

Laldas/ 2 ) plaintiff sued on the 22nd September, 1877, for period" in sec- 
money paid on the 16th November, 1868, for the defen- ix of isn to 
dant's use. The plaintiff relied upon two acknowledg- prescribed by 
ments of the claim, dated 3rd November, 1872, and 11th 
November, 1874, and signed by the defendant's agent. It 
was pleaded that plaintiff had six years under Act 14 of 
1859, and that the first acknowledgment was within that 
time. It was held that the expression " prescribed period" 
in section 20- A of Act IX of 1871, meant the period pres- 
cribed by Article 59 of schedule 2 of that Act, namely, 3 
years from the period when the money was paid, and that, 
as the first acknowledgment was not so made, the claim 
was barred. 

(g) In Mohesh Lai v. Busunt Kumaree/ 3 * it was Acknowledge 
held that acknowledgments which under Act XIV of 1859 given before ix 
were insufficient to keep alive a cause of action, because sufficient under 

it, but not so 
under XIV of 
1850, held suffi- 

(1) I. L. B., 1 AH., 117. | (2) I. L. R., 6 Bom., 688. ^?i t08avetU ° 

(8) I. L. E., 6 Calc, 340. ciMm ' 



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156 



PART IEL— COMPUTATIOH OF PBRIOD Of LIMITATION. [8BC. 19 



Under section 
SO of Act IX of 
1871, agent mav 
sign either his 
name or his 
principal's 



It matters not 
in what form 
the instrument 



Under the fit** 
tuteof Frauds 
auctioneer's 
clerk writing 
purchaser's 
name binds the 



Drawer's letter 
to drawee after 
dishonor to pay 
money, is suffi- 
cient acknow- 
ledgment. 



Acknowledg- 
ment of debt 
due would not 
revive a barred 
right to sue. 



they were signed duly by an agent, were sufficient to sus- 
tain a suit on the same cause of action under Act IX of 
1871, and that where a series of acknowledgments of a debt 
have been made, each within 3 years of the one next pre- 
ceding, and the first of the series has been made within 
three years of the date on which the debt was contracted, 
a suit for the recovery thereof is, under Act IX of 1871, 
in time, if instituted within 3 years from the date of the 
last acknowledgment. In this case, letters written to the 
plaintiff by the debtor's Dewan,-whose ordinary duty was 
to carry on a correspondence of that kind, were considered 
as written by the Dewan as debtor's agent generally 
authorised for that purpose. It is further observed that 
as long as the acknowledgment is signed with the prin- 
cipal's name by his duly authorized agent in such a way 
86 to make it appear that the acknowledgment is his, 
and that he is the real author of it, it matters not in what 
form the instrument is. If the agent is authorized to 
write the letter, it matters not whether he signs the name 
of the principal or his own. Under the 17th section of the 
Statute of Frauds, an auctioneer's clerk writing the pur- 
chaser's name at his instance as such was sufficient 
signature to bind the purchaser. 

(h) Raman v. Vairavan< 1 ) was a suit brought by a 
creditor to recover money due to him, for which the 
debtor had drawn a hundi on a third person, who dis- 
honored it. It was held, that a letter written subse- 
quently by the debtor to the drawee of the hundi request- 
ing him to pay the amount due upon it, was sufficient 
acknowledgment of the debtor's liability for the debt. 

(i) In Nahani Bai v. Nathu Bhau,< 2 > a sum of money 
was deposited with the defendant's firm in 1857. Three 
years afterwards interest was paid by the firm, which was 
debited in the ledger to the creditor against a credit of a 
like amount. In 1875, a balance was struck and carried 
to another account signed by the defendant acknowledg- 
ing the same to be "due for balance of old account." 



(1) I. L. R., 7 Mad., 392. | (2) 1. 1* B., 7 Bom., 414. 



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8IC. 19] PART III.*— COMPUTATION OF PERIOD OP LIMITATION. 157 

In 1878 the account was again balanced, and the balance 
again transferred to a fresh account similarly signed. It 
was held that although, after the acknowledgment in 1875, 
the account was again balanced in 1878, and an acknow- 
ledgment of a sum due was repeated, the latter could not 
revive the right to sue, which the acknowledgment of 1875 
had not revived. The court further held that this could 
not be treated as an account stated. The court observes 
with reference to the acknowledgment, " We should have Acknowiedg- 
under section 19 of the Act, an acknowledgment ineffectual tuai under this 
to bar limitation, because not made within the prescribed not be effectual 
period, while one of exactly the same character might be 
made under Article 64 of schedule II at any time what** 
ever, and would bar limitation, because no time is pre- 
scribed within which an account must be stated. The 
Legislature cannot have intended to lay down rules which 
would be self-contradictory, or have meant by Article 64 
to defeat its own purpose in section 19* We must Bee if 
a reasonable construction cannot be found, which will give 
a distinct operation to each of the two rules, and an opera- 
tion that will obviate clashing and inconsistency." 

(j) In Hemchand Kuber v. Vohora Raji Haji/ 1 ) a Baianoe of re- 
balance of account was written by a person at the request debtor's name! 
of an illiterate debtor in the debtor's name, and signed by Writer in his 7 
the writer in his own name. It was held, that as the within expia- 
defendant could not write he got the acknowledgment *** 10n 
including his name written by a third party and thus made 
that third party his agent, and that therefore he was 
bound by the acknowledgment. 

(k) In Mahalakshmibai v. The Firm of Nageshwar Entry in debt* 
Purshotam,( 2 ) plaintiff deposited with the defendant not amount to 
Rupees 50 in December, 1876, and again Rupees 80 in De- ment, unless 
comber, 1877. In February, 1881, the defendant credited to his creditor 
the plaintiff in his ledger with the sum due to him including his behalf, 
interest. The defendant credited the plaintiff with inter* 
est yearly from the time of the deposit in his interest 
book. The Subordinate Judge held that the entries 



(1) I. L. R., 7 Bom., MS. | (2) I. L. E., 10 Bom., 71. 



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158 PART III. — COMPUTATION OP PERIOD OF LIMITATION. [8BC. 19 

written by the defendant were not acknowledgments con- 
templated in this section. It was held, on a reference, 
that an entry in a debtor's own book does not amount to 
an acknowledgment within the meaning of section 19, 
nnless communicated to his creditor or to some one on 
his behalf, explanation 1 to this section showing that the 
acknowledgment is contemplated as " addressed" to the 
creditor, and that every acknowledgment, in order to 
create a new period of limitation, must be signed by the 
debtor or some one deputed by him, no matter in what 
part of the document the signature is placed. 
Debtor writing (1) In Andarji Kalyanji v. Dulabh Jeevan^ 1 ) an ac- 
with^uuneat count stated was written by a debtor himself with his name 
to be°8affidLont at the top of the entry. Westropp, C. J., held, that the 
mentT* account stated had been sufficiently signed within the 

meaning of section 4 of Act XIV of 1859, and that the 
signature was in one of the modes of signing most gene- 
nerally practised by natives. Following the above ruling 
and the ruling of the Madras High Court in Khwaja 
Muhammad Janula v. Vencatarayar and another/ 2 ) it was 
held, in Jekisan Bapuji v. Bhowsar Bhogajetha/ 8 ) that 
where the whole of an account stated was written by the 
debtor himself with the introduction of his name at the 
top of the entry, the account stated was sufficiently signed 
within the meaning of section 19 of Act XV of 1877. 
Agent autho- (m) In Mathura Doss v. Bahu Lai/ 4 ) the debtor's 
letter In iSf agent, under the orders of the debtor, wrote a letter to the 
name to "ere- creditor containing an acknowledgment in respect of a debt, 
nowiedgment " This letter was headed as follows : " written by Babu Lai 
ed. " to Shah Benarsi Doss," the concluding portion of the letter 

was written by the debtor in his own hand- writing. The 
debtor admitted that the letter was written by his direc- 
tions. It was held that the admission of the debtor, that 
the fetter was written by his gumastah under his orders, 
and the circumstance that he added a paragraph at the 
conclusion, were sufficient evidence that the heading was 

(1) I. L. R., 6 Bom., 88. I (3) I. L. R., 6 Bom., 89. 

(2) 2 Mad., H. G. R., 79. | (4) I. L. R., 1 All., 683. 



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SEC. 19] PART III.— COMPUTATION OF PERIOD OF LIMITATION. 159 

written by the duly authorised agent, and that whenever 
the maker of an instrument or his agent acting with author- 
ity introduces the name of the maker with a view to au- 
thenticate the instrument as the instrument of the maker, 
such an introduction of the name is a sufficient signature. 

(n) In Laljee Sahoo v. Raghoo Nundun Lall Sahoo,M Uncontradicted 

# acknowledg- 

the disputes between the parties which were unsettled ment of debtor 

not openly ad- 

until the 23rd November, 1873, were referred to arbitrators mitted by cre- 
ditor, is an ack- 
who never held regular meetings, but on the 24th Decern- nowiedgment 

° ° within the 

ber, 1874, an Ikrarnama was executed by the defendant meaning of thi» 

section. 

and his deceased father in which the sums due were said 
to have been ascertained. The plaintiff sued on the 21st 
December, 1877, on the Ikrarnama. Garth, C. J., observes 
" It may be then said, that the plaintiff, by never openly 
assenting to the amount of the debt thus acknowledged 
to be due to him by the defendant, has placed it out of 
his power to take advantage of it now ; but we think that 
he has a right to take advantage of it at any time, so long 
as the acknowledgment of the debt remains uncontradic- 
ted and unexplained by the defendant. Assuming that 
the execution of the Ikrarnama was unknown in the first 
instance to the plaintiff, still if he afterwards became 
aware of it, and communicated to the defendant, as he did 
at any rate by bringing this suit, that he had assented to 
the adjustment, unless the defendant repudiated or ex- 
plained away the admission that be had made, we con- 
sider that the plaintiff is entitled to take advantage of 
that admission in this suit." 

(O) Iu Young v. Mangala Pilly Ramaiya,W it was statement that 
held, that an admission of a debt with the appended aver- come payable 
ment that it is not yet payable in point of time, may be an tag of a future 
acknowledgment of a debt under section 4 of Act XIV of actoowiedg- *" 
1859. An assertion that a sum of money will be payable (junewei.) 
on the happening of an event future and uncertain is not 
an acknowledgment of a debt, but the allegation of inci- 
dents out of which a debt may at sometime arise. The 
court observe, " it is clear that this is no acknowledgment 

(1) I. L. B., 6 Ciflb., 447. | (2) 3 M. H. B., 308. 

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160 PART III.~COMPUTATION OF PERIOD OF LIMITATION, [SEC. 19 

of a debt, but of a transaction which would give rise to a 
debt, on the performance of a condition. There may be a 
present debt although there is not a present liability to 
pay, but there is no debt where the liability is dependent 
upon a condition." 
Unregistered (p) Nundo Kishore Lall v, Musst Ramsookhee Kooei-W 

coxnpuSoriiy was brought for the recovery of money due under a regis- 
ml?ted*to prove tered bond, dated 30th February, 1868. This suit was 
ment°of debt to brought in November, 1876. The principal objection taken 
(Under Act ii by the defendant was, that the suit was barred by limita- 
tion. It was alleged by the plaintiff that there was an 
agreement between him and the defendant's husband to 
pay off the debt due under the plaint bond by the sale to 
him of his property, and that the terms of the agreement 
were reduced to writing and signed by the defendant's 
husband in 1875, The agreement was not registered. It 
was held that although under section 49 of Act VIII of 
1871 no instrument required by section 17 to be registered 
can be received in evidence of any transaction affecting 
the property, that section does not prevent such instru- 
ment being used in evidence to prove an acknowledg- 
ment of some other debt therein contained, for the pur- 
pose of showing that a fresh period of limitation has been 
acquired under section 20, clause c of Act IX of 1871. 
Case where an (Q.) Where plaintiff sued for the money due on an un- 
nS^geSeed registered mortgage-deed, in which defendant recited that 
toowiefeS * e owed plaintiff Its. 199-8-0 on a balance of account, 
not°to avai£ e Js as security for which he mortgaged his land, stipulating 
taSsof theluit! for the payment of interest, <fcc., and it was contended for 
the plaintiff that the mortgage-deed, though unregistered 
and inadmissible in evidence to affect the land mortgaged, 
could be accepted as an acknowledgment of a subsisting 
liability, so as to prevent a suit for the original debt being 
barred by limitation, it was held, that as plaintiff had not 
sued on the old accounts, and offered the bond as proof of 
acknowledgment, but had sued to enforce the bond, the 
suit must fail, as there was no 9greement in the bond sued 

(1) I. L. R., 6 Calc., 215. 

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SIC. 19] PABT III.— COMPUTATION OP PERIOD OP LIMITATIOH. 161 

upon which could be separated from the mortgage. 
Chuhar v. Waaira, (Punj : Bee : No. 17 of 1881.) (1 > 

(r) Faki v. Khotu,(*> was a suit for possession of real Unregistered 
property of more than hundred rupees value. The plaintiff, cont&LrS^ P ack- 
to prove that the defendant's possession was not hostile, title to land *» 

_i . i . iiii« inadmissible to 

produced an unregistered receipt granted by the defen- prove that de- 
dant within 12 years preceding the suit. The receipt also session is not 
contained an admission or acknowledgment of the plain- 
tiff's title to* the land. It was held that the document was 
inadmissible in evidence as such acknowledgment, as, if 
admitted, it would operate to declare a right, title, and 
interest in immoveable property of a higher value than 
one-hundred rupees. Used as evidence of title, the court 
observed, (and this is the only use which can be made of 
it under the old Limitation Act), such a document indirect* 
ly prevents the extinction of that title through the opera- 
tion of the Law of Limitation. Under the new Limitation 
Act (XV of 1877) it would directly produce the same 
effect, for by section 19 of that Act it would create a 
new period of limitation from the date of the acknowledg- 
ment. 

(8) In Kanhaya Lai v. Stowell,< 3 > plaintiff sold and insufficiently 
delivered certain goods to the defendant. The defendant note accepted as 

aoknowlcidif" 

gave the plaintiff, in respect of the price of such goods, ment of debt. 
the following instrument : " Agra, 14th November, 1877. 
Due to K, cloth merchant, the sum of Rupees 200 only to 
be paid next January, 1878." This instrument was stamp- 
ed with a one-anna adhesive stamp. The plaintiff claimed 
in the present suit from the defendant Rupees 200, and 
interest on that amount at 12 per cent, per annum from 
the 14th November, 1877, to the date of suit. It was 
held that although such instrument was not admissible 
in .evidence as a promissory-note, as it was insufficiently 
stamped, it was nevertheless admissible as proof of an 
acknowledgment of such debt. 
(t) In Khuahalo v. Bahari Lai/ 4 ) the debtor having Acknowiedg. 

ment of debt in 
an unregistered 

' (1) Bivai's Limitation Act, p. 69. I (3) I. L. E., 8 All., 681. ba?Xs^uS 

(2)LLIL,4 Bgm., .690. | (4) I. h. £., 3 AIL, 623. 

21 



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162 PART III. — COMPUTATION OF PERIOD OF. LIMITATION. [8EC. 19 

owed a balance of Bs. 3,500, on adjustment of mutual open 

account on the 19th November, 1876, executed a conveyance 

of his property on the 11th December, 1876, for which the 

balance was partly the consideration. In. the conveyance, 

the debtor acknowledged his liability for the balance. 

He died before the conveyance was registered and it did 

not operate. On the 18th November, 1879, the ct editor 

sued the debtor's widow for the debt. It was held, that 

the acknowledgment in the unregistered conveyance saved 

the debt from the statute. 

Rush or ad- (u) In Bamji v. Dharma,* 1 ) plaintiff sued on the 29th 

count can March, 1879, for money due on an account adjusted on the 

a« acknowiedg- 26th February, 1879. The original account contained an 

ment or as evi- ,, _ _ , _ _ _ _. i-,i 

dence of a new item of Bs. 100 advanced nine years before the account, 

contract. __ 

which at the foot bore the defendant's signature. The 
Lower Court gave decree for plaintiff. In appeal certain 
items were pleaded as barred, as they were more than 
three years old on the date of the account. The High 
Court allowed the objection, observing that the Ruzu on 
which this suit was brought must be used either as revival 
of an original promise or as evidence of a new contract. 
As an acknowledgment it would obviously have no effect 
if not made before the expiration of the period of limita- 
tion prescribed ; and if it is relied on as furnishing a new 
The bare state- cause of action, the bare statement of an account is not a 
count is not a contract, there being no promise in writing such as is re- 
quired by section 25, clause 3 of the Contract Act. 
M. H. held that (v) In Kumarasami Nadan v. Pala Nagappa Chetti,(*> 

manaffer ot a 

Hindu family is plaintiff sued the defendant for money borrowed by the 
in section 20 of first defendant as the managing member of a Hindu 
(April 1878) " family in November, 1869. The first defendant on the 
Since modified. 5th January, 1873, made an endorsement on the bond 
acknowledging the payment of Rupees 10 and promising 
to pay the balance in two yearly instalments in December, 
1873 and December, 1874. It was held that the relation 
of the managing member of a Hindu family to his co-par- 
ceners does not necessarily imply an authority upon his 

i (1) I. L. E., 6 Bom.., 683. | (2) I. L. E., 1 Mad., 886. 

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SBC. 19] PART III.— COMPUTATION OP PERIOD OP LIMITATION. 163 

part to keep alive, as against his co-parceners, a liability 
which would otherwise become barred. The words of 
section 20 of Act IX of 1871, must be construed strictly, 
and the manager of a Hindu family, as such, is not an 
agent " generally or specially authorized" by his co-parce- 
ners for the purpose mentioned in that section. 

(W) In Sankara Aiyan v. Lingam Aiyan/ 1 ) bond was m. h. in a 
executed by the 1st defendant alone not as manager, and said tEey were 
the bond did not purport to affect the joint family with acoept^he 
any liability. The original debt for which there may withontfrSrSier 
have been a joint liability, had become barred before there (March isso) * 
was any payment and the payment made was a payment 
not on account of that date, but of liability created by the 
bond. The court observe " it is not necessary, then, that 
we should express any opinion as to whether the manager 
of a Hindu family is, as such, generally authorized to 
acknowledge debts or make payments on behalf of the 
family, so as to give a new starting point for the compu- 
tation of the period of limitation. On this point we need 
say no more than that we are not prepared to accept the 
ruling in Kumarasami Nadan v. Palaniappa Chetti with- 
out further consideration." 

(X) In Gopalnarain Mozoomdar v. Muddomutty Gup- c. H. held that 
tee,< 2 ) it was held, that the manager of a joint Hindu f i860 a mana- 
f amily, or the executor of a Hindu Will, had no power under Hindu family, 
Act XIV of 1859, section 4, to revive a debt barred by limi- Hindu wdl 
tation except as against himself. Couch, C. J., in that case barred debt, 
observed, "I am speaking of what the law was at the observation* of 
time of this transaction, section 4 of Act XIV of 1859 g^gj^j on 
being then applicable. It would not, we think, be right ^ 'icTxiv^of 
to apply in India the decisions of the English Courts as 186e * 

rr J . . . English de- 

' to the executors in England being at liberty not to avail cisTon* as to 

».▼••• i * . executor's liber- 

themselves of the Law of Limitation, because those deci- ty cannot be ap- 
plied to India, 
sions probably rest upon the peculiar position of an ex- 
ecutor in England, and the rights which he may have 
from his having been considered originally to be the re- 
presentative of the ordinary, and to have entire power 

(1) 4 Ind. Jur., 668. | (2) 14 B. L. R., 49. 

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164 PABT HI.-HttMPUTATlON OF PERIOD OP LIMITATION. [SBC. 19 

over the estate. They would not be a safe guide in this 

country, where amongst Hindus an executor really is not 

Probate of a recognized. The probate of a will by a Hindu does not 

HinduWillhad , B _ _ v x _ j . J .„ . _ _ , 

not the same ef- have the same effect as probate of a will in England, nor 
of a win in Eng- does the calling the man to whom the property is left 
executor, put him in exactly the same position as an 
English executor. We therefore cannot apply those 
cases here, and there is no ground here for saying that 
any acknowledgment of Gourinarain would prevent the 
operation of the Law of Limitation." 

m.h.f.b. held (y) In Chinnaya v. Gurunatham/ 1 ) plaintiff and first 
of a Hindu defendant carried on a joint trade, and on settlement, the 
same authority 1st defendant signed the settlement in April, 1870. In 

to acknowledge 

as he has to May, 1874, the 1st defendant executed a bond for the 
the family, but money due by the settlement. The plaintiff sought for a 
revive barred decree binding all the members for thegdebt. The court 

debt. ° 

(Pebruarv 1881) upon a review of its former decisions held " the bond of 
May, 1874, is not expressed as binding on the family, and 
if it had been so expressed, it would not have affected with 
liability any but the persons who executed it. A manager 
lias authority to make payments for the family ; he has 
the same authority to acknowledge as he has to create 
debts, but he has no power to revive a claim barred by 
limitation unless he is expressly authorized to do so ; and 
on the 17th May, 1874, the debt acknowledged in April, 
1870, had become barred." 

Mr. Broughton (z) " The later enactments regarding Limitation and 

fcnowiedgment the Hindu Wills Act have made considerable alterations 

under the Hindu in the law, and an acknowledgment by an executor, who 

has proved the has proved a will under the latter Act, would, if other- 

the testator's wise sufficient, bind the estate of his testator; but neither 



Such executor such an executor, nor any other executor, can be said to 
executor cannot be the agent of a beneficiary under the will so as to bind 



be agent of the 



beneficiary un- him in respect of matters unconnected with the estate, 
and it is very doubtful whether a manager of a Hindu 
family could even, in respect of the estate, bind any one 

(1) I. L. R., 6 Mad., 169. 

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StC. 19] PABT HI.— COMPUTATION OP PERIOD OP LIMITATION. 165 

but himself or some person from whom he had received 
due authority to do so." 

(2-a) " Amongst the provisions so made applicable to b. h. observed 
Hindus by that Act (XXI of 1870) ai-e those contained in 3E? STerau- 
sections 179 and 187, by the former of which it is declared wrn^cSn^ 11 
'that the executor or administrator, as the case may be, oVi^^uhS 
of a deceased person is his legal representative for all pur- JJj ^SereS^ 
poses, and all the property of the deceased person vests {^peny*!* an 
in him as such;* and by the latter * that no right as exe- JhT^uSS^ 
cutor or legatee can be established in any Court of Jus- jjK;™ i^j 
tice unless a court of competent jurisdiction within the 
province shall have granted probate of the will under 
which the right is claimed or shall have granted letters 
of administration under the 180th section.' Executors 
appointed by the particular class of Hindu Wills contem- 
plated by the Hindu Wills Act, thus acquired the same 
estate and interest in the property of the deceased, to- 
gether with the same restrictions as to representing the 
estate in a Court of Justice, as obtained by English Law." 
Shaik Moosa v. Shaik Essa.W 

(2-b) The executor or administrator, as the case may Section 4 of Act 
be, of a deceased person, is his legal representative for all duces the pro- 
purposes, and all the property of the deceased person tiona 170 of the 
vests in him as such. But nothing herein contained shall aion Act. 
vest in an executor or administrator any property of a 
deceased person which would otherwise have passed by 
survivorship to some other person. 

(2-C) Following the decision of the Privy Council Mortgagee's 
in Luchmee Buksh Roy t?. Kunjeet Bam PandayW under ledRment of 

mortgage is in- 

Act XIV of 1859, A. H., in Bahmatii Bibi v. Hulasa KuarW sufficient under 

, \-« * ? * i * i • • Act IX of 1871, 

held in April, 1878, that an acknowledgment of the title Article i«. 
of the mortgagor or of his right of redemption, signed by 
the mortgagee's agent, is not sufficient, under Article 148, 
schedule 2 of Act IX of 1871, to create a new period of 
limitation, though it is sufficient under the Act of 1877, of 
Which the terms are more equitable. 

(2-d) In Dharma Vithal v. Govind Sadvalkar,W ^Sg^ 

acknowledment 

(1) I. L. B., 8 Bom., 242. I (3) I. L. B., 1 All, 642. mfiSSSSfit 

(2) 18 B. L. &, 177. I (4) I. L. B., 8 Bom., 99. lafion. 

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166 PART HI.— COMPUTATION OP PERIOD OP LIMITATION. [SEC. 19 

plaintiff's ancestor mortgaged a piece of land to the de- 
fendant's ancestor in 1797, and placed Him in possession 
as agreed npon. Three years afterwards, both the mort- 
gagor and the mortgagee went out of the country. The 
mortgagor returning first resumed possession of the land ; 
the mortgagee returning afterwards, filed a suit in 1826, 
to recover possession under the terms of the mortgage, 
and obtained a decree in his favour. Possession was res- 
tored to him by the Civil Court in 1827, when the mort- 
gagee passed to the officers of the court a receipt in which 
he acknowledged having received possession of the mort- 
gaged land as directed by the decree. The plaintiff, the 
representative of the original mortgagor, on the 4th of 
December, 1880, sued the defendant, the representative 
Receipt inoor- of the original mortgagee to redeem the land. It was held 
cnetjy refer- that the suit was barred as the receipt incorporating the 
an acknowledge decree by reference did not operate as an acknowledgment 
ment * of a mortgage subsisting in 1827, so as to give to the 

mortgagor a new period of limitation under this section, 
which intends a distinct acknowledgment of an existing 
liability, or jural relation, and not an acknowledgment 
without knowledge that the party is admitting anything. 
Anacknowiedg. In this case, the plaintiff, to take his claim out of the 
iTvukii, in*uffl. statute, relied upon the plaint signed by the mortgagee's 
alive a cause of vakil in the suit brought in 1826 by the mortgagee to 
Act ix of i87i t recover possession. It was held, that a plaint signed by 
sustain a suit a vakil before the Limitation Act IX of 1871 came into 

on the same ... «• T . . 

cause of action, operation, does not save limitation, as the earlier Limita- 
tation Acts do not give authority to an agent to sign an 
acknowledgment for his principal similar to that given by 
section 20 of that Act, and section 19 of Act XV of 1877. 

Acknowiedg. (2-6) Under Article 148 of Act IX of 1871, time for 

Article 148 of a suit to redeem began to run from the date of the mort- 

must be of a gage, unless where an acknowledgment of the title of the 

title in the mortgagor or of his right of redemption has, before the 

mortgagor. 

expiration of the prescribed period, been made in writing, 
signed by the mortgagee or some person claiming under 
him, and, in such case, the date of the acknowledgment. 



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*BC. 19] PART III.— COMPUTATION OP PERIOD OP LIMITATION. 167 

In Daia Chand v. Sarfraz/ 1 ) the court held that the ac- 
knowledgment required by Article 148 of Act IX of 1871, 
must be an acknowledgment of the title of the mortgagor 
or of his right to redeem, and that such an acknowledg- 
ment must be unqualified and made touching the mort- 
gage. In Ram Das v. Birjnundun Das,W plaintiff sought 
to redeem, in December, 1879, a mortgage of July, 1815. 
The plaintiff relied upon an acknowledgment made by the 
defendants in a written statement filed, by them in a suit 
in 1872. It was an acknowledgment of the original 
making of the mortgage deed and of possession being 
taken under it, but the statement alleged the execution, 
subsequently of two other deeds, practically superseding 
the mortgage, and altering the relation of the parties. It 
was held, that it was not a sufficient acknowledgment 
within the meaning of the above Article such as would 
prevent limitation from operating. 

(2-f ) This section re-enacts the provision contained Acknowledge 
in Article 148, schedule 2 of Act IX of 1871. Daia Chand gagor's title in 

_ . . , -niiY-fc t • « * • . M settlement re- 

v. Sarfraz W is a Full Bench case m which plaintiff sought cord gives fresh 

starting point, 

to redeem a mortgage said to have been made by their though it did 

4 n °t name the 

ancestors to the defendant's ancestors in 1811 , and relied mortgagor, 
upon an acknowledgment of the defendant's mortgage 
tenure recorded in a settlement record of 1841. The Set- 
tlement Officer had prepared the record of rights, showing 
the interests in the village of persons holding lands, and 
in this record he had entered the defendants or their an- 
cestors as mortgagees, and obtained their signatures to the 
correctness of the entry. It was held, that as the law of 
British India does not require the acknowledgment to be 
given to the mortgagor, the acknowledgment in the set- 
tlement record, though it did not mention the name of the 
mortgagor, was sufficient to give a new period of limita- 
tion. 

(2-g) In the above cade the Lower Courts having Acknowiedg- 
differed as to whether the acknowledgment was sufficient g^oVs* title 1 *" 

need not be 
made within 00 

(1) I. L. B., 1 All., 117. | ^ (2) T. L. R., 9 Calc, 616. ££"* nnde 

7 Of 1860. 



1 All., 117. pj J- 1* I*., V UsYle., 010. nwrtaage mider 

(3) I. L. H., I All., 117, 425. KSEftl 



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I 



168 PART in. — COMPUTATION OP PERIOD OP LIMITATION. [SEC. 19 

without proof that it was made within 60 years from date 
of the alleged mortgage, it was held that inasmuch as 
there was no limitation to suits for redemption of mort- 
gage of landed property prior to Act XIV of 1859, it was 
unnecessary to ascertain when the mortgage was effected, 
the acknowledgment of 1841 being an acknowledgment 
of a right still subsisting and one which fulfilled the re- 
quirements of Article 48, schedule 2 Act IX of 1871. 
M. h. held that (2-h) In Mukkanni v. Manan/ 1 ) plaintiff sued in 1878, 
£d£inent™SMt to redeem a Kanam mortgage of 1761. The Lower Appel- 
^ithiJTeo 1 yean late Court found that the mortgagor's right to redeem 
of themortgage. had hem admitted m 1838> ^ fche deed of assignment 

from the original mortgagee, and also in 1847 and 1856, 
but held that the plaintiff's right to redeem was barred, 
as more than 60 years had elapsed between the date of 
the mortgage and the date of the admission, in 1838, of 
the mortgagor's right of redemption. It was held that 
prior to 1859 there was no limitation for redemption suits, 
and that clause 15, section 1 of Act XIV of 1859, pres- 
cribed 60 years, unless there was an acknowledgment in 
the meantime, that is, within 60 years from the date of 
the mortgage. In Mahomed Abdool Buzzah v. Syud 
a. h. aim had Asif Ali,( 2 > the Allahabad High Court held in May, 1871. 

held so in May ° * f 

1879. that under Act XIV of 1859, an acknowledgment of mort- 

gagor's title must have been made within 60 years of the 
mortgage. 
Auction poroha- (2-i) I 11 Raman t7. Krishna/ 3 ) plaintiffs sought to 
gee's interest redeem certain lands demised on Kanam in 1817 to one 
oertSScate fenot Kunholen, whose rights were purchased by Mutha, ances- 
mentl ° w " tor of the defendant at a court sale in 1824. The Lower 
Appellate Court held that the sale certificate of 1824 was 
an acknowledgment of the mortgagor's title. The court, 
finding no special circumstance in the demise, treated it as 
a mortgage, and held that the sale certificate is not an ac- 
knowledgment by the purchaser which will satisfy the 
conditions of this section, and give a fresh starting point 
for limitation to run for redemption. 

(1) I. L. R., 6 Mad., 182. | (2) 3 N-W P., H. C. R., 119. 
<3) LL.JL,6Had.,a2& 



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8IC. 19] PAST III.— COMPUTATION Of PBBIOD OP LIMITATION. 169 

(2-j) In Vencataramana v. Srinivasa,* 1 ) plaintiff sued Acknowtedg- 
to recover arrears of rent due from a tenant who entered different feS? 
in 1862, as a Chalgaini tenant for one year and continued win not mil 
in possession without executing a fresh agreement. The 
Lower Appellate Court, finding that in a deposition dated 
1876, the defendant admitted his liability to pay rent as 
a Mulgaini tenant, awarded rent from 1874. It was held 
that the deposition containing an acknowledgment of a 
right different from that claimed, was not an acknowledg- 
ment of the landlord's right, which, under this section, 
would entitle him to recover arrears of rent for 3 years 
prior to the date of the admission. 

(2-k) In Raghoji Bhikaji v. Abdul Karim,W plaintiff A Button a bond 
sued on the 18th August, 1875, to recover front the defen- aideration of a 
dants two instalments on a bond dated 7th August, 1873. not affected by 
Though the defendant denied the bond, it was found that ix of lsn oor- 
he had executed it ; the bond purported to have been eecSoniifof Act 
granted for a prior instalment bond under which the first 
instalment which fell due in September, 1864, was not 
paid ; but payments since made had been received by the 
creditor up to 1873. The contention was that the bond 
sued on was merely an acknowledgment or promise to 
pay a barred debt. It was held that the suit was not 
barred. Melvill, J., observes : " The alteration in the for- 
mer law (section 4 of Act XlV of 1859) made by the 
introduction into section 20 of Act IX of 1871, of the 
words " promise" and " before the expiration of the pre- 
scribed period," gives some color to the argument that it 
was the intention of the Legislature that a debt once barred 
by lapse of time should not, under any circumstances, be 
recovered. But the supposition of any such intention is 
contradicted by section 25, clause 3, of the Indian Con- 
tract Act ; from which it is clear that the " promise" re- 
ferred to in section 20 of Act IX of 1871, is a promise 
introduced, by way of exception, in a suit founded on the 
original cause of action, and not a promise constituting 
a new contract, and extinguishing the original cause of 

(1) I- L- B., 6 Mad., 182. | (2) I. L. B., 1 Bom., 590. 
22 

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170 PART III.— COMPUTATION OF PERIOD OF LIMITATION. [SIC. 19 

action. The distinction is pointed ont in the cases cited 
at the bar : Malchand v. Girdhar/ 1 ) Hargopal Premsuk- 
das v. Abdul khan Haji Muhammad,* 2 ) and also in 
Gopeekishen Goshamee v. Brindabunchunder Sircar. ( 8 > 
Following the above decision, B. H., in Chatur Jagsi v. 
Tulsi,W in which plaintiff sued on two promissory notes 
executed on the 5th April, 1874, or 4 days after the old 
debt secured by a prior note of 4th April, 1871, had become 
barred, held that section 20 of Act IX of 1871 does not 
prevent a plaintiff from maintaining a substantive action 
on a promissory note passed to secure the amount due 
on an old note which was barred by limitation at the time 
of the making of the new, the plaintiff's right to bring 
such an action being recognized by the later enactment, 
Act IX of 1872, section 25, clause 3. 
0. H. held the (2*1) The word 'debt' used in this and the following 
sections 20—21 section applies only to a liability for which a suit may be 
does not include brought and does not include a liability for which a judg- 
* aa8mai ment has been obtained. It was held in Kally Prosonno 

Hazra v. Heera Lai Mundle,(*) that under sections 20 and 
21 of Act IX of 1871, a petition put in by a judgment- 
debtor and creditor on the 28th April, 1873, notifying 
part-payment towards the decree, would not take the 
decree out of the statute, and that the application for exe- 
cution made on the 27th April, 1876, was barred. 
o.h. Judgment- (2-m) In Mungol Prashad Dichit v. Shama Kanto 
nowied|mentof Lahory Chowdhry,( e > application for execution was made 
tion fepwu' on the 26th July, 1871, and a sale proclamation was issued 
£2STdoes not on the 30th November, 1871 ; the judgment-debtor ac- 
tion aoofActix knowledged his debt in writing by an application for two 
(January 1879) months' postponement of sale. The next application for 
execution was made on the 5th September, 1874. The 
Lower Court rejected the application as barred. It was held 
that the judgment-debtor's acknowledgment was not such 
an acknowledgment as was contemplated by section 20 of 
Act IX of 1871, and that the word " debt" referred to in 



(1) 8 Bom., H. C. Eep., 6, A. C. J. 

(2) 9 Idem, 429. 

(3) 18 Moore I. A. 37, see p. 64. 



(4) I. L. R., 2 Bom., 230. 

(5) I. L. B., 2 Calo., 468. 

(6) L L. R., 4Calo.,708. 



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MC. 19] PAST m.— COMPUTATION Of P1BIOD Of LIKITATIOH. 171 

that section was not a judgment-debt, but a liability to 
pay money for which a suit can be brought. If orris, J^ 
observes " a consideration of the terms of Act IX of 1871, 
with the light thrown upon them by Act XIV of 1859 
which precedes it, and by Act XV of 1877, which succeeds 
it, leads to the conclusion that " debt" referred to in sec- 
tion 20 Act IX of 1871, is not a judgment-debt, but, as 
explained in the judgment of a Division Bench of this 
court in Rally Prosunno Hazar v. Heera Lai Mundh,^) a 
liability to pay money for which a suit can be brought." 

(2-n) In Bam Coomar Kur. v. Jakur Ali, W judgment- 0. H. held deb*, 
debtor's vakil applied on the 7th December, 1877, for fortimeforpey. 
additional time for payment of the amount of the decree debt, ituao- 
dated 24th March, 1876. The petition was granted and under this eeo- 
ou the 4th December, 1880, the next application for exe- (March isas) 
cution was made. It was held, that the petition consti- 
tuted an acknowledgment of liability under section 19 of 
the Act and a new period of limitation began to ran from 
the 7th December, 1877, the object of the words " applica- 
tion in respect of any property or right" in section 19 being 
to extend to the applications mentioned in schedule 2 the 
same privilege as is accorded to suits. This decision was (March 1883) 
followed in Toree Mahomed v. Mahomed Mabood Bux.< 3 ) 

(2-0) In Venkatrav Bapu v. Bijesing Vithal SingW B. ( H. held debt- 
plaintiffs obtained on the 20th July, 1871, a decree against for postpone- 

ment of sale 
the defendants for the sum of Rs. 4,083 and for the sale of promising pay. 

their mortgaged property. On the 16th July, 1877, the Judiraent-debt 
r to oe an aok* 

plaintiffs applied for execution. The application was nowiedjpnent 

granted, the property was attached, and the sale was fixed right to execute. 

(Sept. 1885) 
for the 30th November, 1878. On the 18th November, 

1878, one of the defendants applied for a postponement of 

the sale until harvest time, when he said he would pay 

the amount of the decree. The sale was accordingly, with 

the plaintiff's consent, postponed to the 31st May, 1879. 

On the 13th June, 1879, the plaintiffs informed the court 

that negotiations were proceeding between themselves and 

(1) I. L. E., 2 Calc, 468. I (3) I. L. R., 9 Calo., 730. 

(4)1. 



(2) I. L. B., 8 Calc, 716. | (4) I. L. &., 10 Bom., 108. 



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172 PART III.— COMPUTATION OF PBBIOD Of LIMITATION. [siC. 19 

the defendants for the settlement of the decree, and prayed 
that their application of the 16th July, 1877, might be 
struck off, adding that, if the negotiations failed, they 
would present a fresh application. The negotiations for 
settlement proved abortive, and the case being one to which 
the Dekkan Agriculturists' Belief Act (XVII of 1879) ap- 
plied, the plaintiffs took steps to obtain a conciliator's cer- 
tificate. These proceedings occupied the period from the 
3rd July, 1880, to the 19th January, 1881. The certificate 
was granted on the 1st December, 1881. On the 13th De- 
cember, 1881, more than three years after the date of the 
previous application, vie., 16th July, 1877, the plaintiffs 
made the present application for execution. The defen- 
dants contended that it was barred by limitation. It was 
held, that the application was not barred. As it was un- 
derstood between the parties, when the application of the 
16th July, 1877 was struck off on the 13th June, 1879, 
that, if negotiations failed, a fresh application should be 
presented, the application of the 13th December, 1881, 
was to be regarded as an application for the revival of the 
old execution proceedings. But, in any case, the applica- 
tion by the defendant, of the 18th November, 1877, for a 
postponement of the sale of his property, when he pro- 
mised to pay the amount of the decree, was an admission 
of the plaintiff's right to execute the decree within the 
contemplation of this section and created a new period of 
limitation, which would ordinarily have expired on the 
18th November, 1881. 
a. h. held (2-p) In Shib Dat v. Ealka Prasad/ 1 ) it was held, in 

fattowie&ient September, 1879, that the judgment-debtor having, three 
wuty Pl Lder lia " years after the first default, acknowledged in writing his 
(Sept. 1879) liability under the decree and signed such acknowledg- 
ment, it did not create a new period of limitation as the 
decree had been already barred. 
P. B.. A. h. (2-q.) In Ramhit Rai v. Satgur Rai,W application for 

^oVsappS^ execution was made on the 28th May, 1875, and property 
ponement of* was proclaimed for sale on the 20th August, 1875. On 

sale is an ac- 

taiowledgment (J) L L ^ g ^ ^ ( ^ ^ ^ r ^ ^ ^ 



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SBC. 19] PAST III.— COMPUTATION Of PIBIOD Of LIKITATIOtf. 173 

the 13th August, 1875, judgment-debtor applied for poet- holder's right 
ponement of Bale for the 20th September, 1875. On the limitation. 
20th August, 1875, the judgment-debtor made a second 
application for postponement of sale. On the 29th July, 
1878, decree-holder applied for execution of the decree. 
It was held, that limitation should be computed not from 
the date of previous application for execution, but from the 
13th and 20th August, 1875, the dates of the judgment- 
debtor's application which contained an acknowledgment 
within the meaning of this section, and therefore gave a new 
period of limitation. Stuart, J., observes that the judg- 
ment-debtor's application was an acknowledgment in res- 
pect of right within the meaning of this section. The 
above application having been signed by a pleader speci- 
ally authorised by a Vakalut to make it, it was held that 
the vakil was an agent duly authorised in debtor's be- 
half. 

(2-r) In Janki Prasad v. Ghulam Ali,W a money decree a. h. held that 
dated 24th June, 1878, directed that a certain instalment OTWritt^ac- 
should be paid on the 22nd July, 1878, and alike on the jTJ^Td^ 
20th December, 1878, and the balance by certain instal- ^ J7Siw& 
ments, commencing from a certain date, and that in case of following 1 J^ 6 
default the decree-holder might realize the whole amount (Sept. ism.) 
of the decree. The instalments were not paid at the fixed 
dates. It was admitted that on the 7th May, 1879, 
Rupees 50 was paid on behalf of the debtor, who, on the 
4th February, 1880, paid Rupees 70, and on the 13th 
January, 1881, paid Rupees 80. All these payments were 
made ont of court, and on the last two occasions the judg- 
ment-debtor endorsed the payments in his own hand- 
writing. On the 5th September, 1881, the decree-holder 
applied for execution of the whole decree. The court dis- 
senting from Asmutullah Dalai v. Kally Churn Mitter,W 
held in September, 1882, that the application was govern- 
ed by the rule contained in section 19 of Act XV of 1877, 
that the endorsement made by the judgment-debtor on 
the decree was an acknowledgment of liability under the 



(1) I. L. B., 5 All., 202. | (2) I. L. B., 7 Calc., 66. 



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174 PART in.— COMPUTATION OP PERIOD OF LIMITATION. [SBC. 19 

decree and that consequently limitation should be comput- 
ed from the date of such endorsement, and that the 
application was therefore within time. It was also held 
that part payment made and endorsed by the judgment- 
debtor on the decree fell within the terms of section 20 of 
this Act. 
Judgment- (2-8) In Fateh Muhammad v. Gopal Das/ 1 ) decree- 

noSrtedJment of holder applied for the execution of his decree, dated 
£ta£^& 14 tk J^ n ©» 1878, by attaching a certain mortgage bond, 
thoue^the and the same was advertised for sale on the 11th Janu- 
notenforoedT 18 ar 7> 1881. On this date, an ikrarnama, which refer- 
(Pebruaiyi886) re ^ ^ ^^ decree debt in question containing various 
arrangements for its satisfaction, was put in by the par- 
ties, who at the same time applied to the court to strike off 
the record the execution case then pending. The ikrar- 
nama, not having been followed, the decree-holder applied 
on 24th December, 1883, for execution of the decree. 
The judgment-debtor pleaded the statute. It was held 
that the judgment-debtor, having admitted the decree- 
debt in the ikrarnama dated 11th January, 1881, and the 
same being an acknowledgment of debt under section 
19 of Act XV of 1877, the application in question was not 
barred. 
M. h. held this (2-t) In Rama v. Venkatesa/ 2 ) a Full Bench case, 
cable n to appli- the question was, whether this section is intended to 
cation* of de- apply to applications for execution of decrees ? The 
(March i88t) judgment of Turner, C. J., runs thus : " It would be 
productive of the greatest inconvenience (if it indeed were 
possible), to apply the provisions of section 19 of the 
Limitation Act of 1877 to applications made in the 
course of suits or proceedings, and, if the terms of the 
section can be otherwise satisfied, we are at liberty to 
construe them so as to avoid such inconvenience. There 
are numerous applications known to the law which would 
be correctly described as applications in respect of a 
property or right in the sense we have indicated, proceed- 
ings where a party seeks the aid of a court to give 

(1) I. L. R., 7 All., p. 424. | (2) I. L. E., 5 Mad., 172. 

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MC. 20] PART HI.— COMPUTATION Of PERIOD OF LIMITATION. 175 

him relief in respect of some property or right otherwise 
than by regular suit. Of these, the Acts regulating 
the rights of landlord and tenant in the North- Western 
Provinces and generally in Bengal afford instances. We 
arrive, then, at the conclusion that the provisions of 
this section were not intended to apply to applications in 
execution of decrees, and that we are not constrained 
to apply them to such applications." 

20. When interest on a debt or legacy is, Effect of pay- 

, » Al .. - , •■■ -i • -i ment of interest 

before the expiration of the prescribed period, ■*sueh. 
paid as such by the person liable to pay the 
debt or legacy, or by his agent duly authorized 
in this behalf, 

or when part of the principal of a debt is, Effect of put- 
before the expiration of the prescribed period, pnncipei. 
paid by the debtor or by his agent duly author- 
ized in this behalf, 

a new period of limitation, according to the 
nature of the original liability, shall be com- 
puted from the time when the payment was 
made : 

Provided that, in the case of part-payment of 
the principal of a debt, the fact of the payment 
appears in the hand- writing of the person mak- 
ing the same. 

Where mortgaged land is in the possession of Effect of receipt 

of produce of 

the mortgagee, the receipt of the produce of J^g?* 8 * 1 
such land shall be deemed to be a payment for 
the purpose of this section. 

This section corresponds with section 21 of Act IX of 
1871. In the proviso of the section (20 of the Act of 
1877) the Legislature have omitted the words " the deht 
has arisen from a contract in writing" and the words 
" on the instrument, or in his own books, or in the books 



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176 PAST III.— COMPUTATION OF P1BIOD OF LIMITATION. [SKC. 20 

of the creditor" which were in the proviso of section 21 of 
the Act of 1871. The clause relating to the receipt of 
the produce of mortgaged land is new. 
The principle of (a) " The principle of this doctrine is that any such 
put-payment, payment is an acknowledgment of the existence of the 
debt, and from it the law raises an implication of a pro- 
mise to pay the residue or the principal as the case may 
be, just as it does from a simple acknowledgment in 
writing." " The effect of payment into court as a part- 
payment was not questioned, and the case is in fact 
governed by the principle stated below, that a payment 
unless made as part-payment of a greater debt has no 
effect. It is submitted, however, that if a debt properly 
carries interest, the principal and interest constitute one 
demand, and therefore payment of the principal or of part 
of it takes the interest out of the statute also."* 1 ) 
Part-payment (b) In Raja Icvaia Das v. Richardson/') the plaintiff 

to keep aSfve a sued three executors for the balance due of their testator's 
xiv of i860. simple contract debt of more than three years stauding. 
A part-payment had been made by the defendants within 
the three years previous to the commencement of the suit. 
Two of the defendants had also, but during their testator's 
life-time, given a personal undertaking in writing to pay 
the debt out of a fund coming to their hands. The 
defendants had also signed, as executors, and sent a letter 
to the plaintiff, informing him that they had registered 
his claim against the testator's estate, and that notice 
would be given to him when the assets, if any, were to be 
distributed. It was held first, that the case was not 
taken out of Act XIV of 1859, by the part-payment, and, 
secondly, that neither the personal undertaking nor the 
letter was such an acknowledgment in writing as to bring 
the case within section 4 of the same Act. See also 
Gora Chand Dutt v. Lokenath Dutt.W 
The words (c) In Ramasebuk v. Ram Lall Koondoo,(*) the argu- 

pe^iod^mean ment was, that the words in section 20 of Act XV of 1877 

the prescribed 

period of limi. (1) Dftpby and Boganqnet#> pp 7Q A n 

(2) 2 Mad., H. C. R., 84. | (3) 8 W. E., 334.. 

(4) I. L. B. f 6 Calo , 815., S. C, 8 Calc, L. R., 467. 



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8EC. 20] PART III. — COMPUTATION OF PERIOD OF LIMITATION. 177 

* before the expiration of the prescribed period' refer, not 
to the prescribed period of limitation, bnt to the period 
prescribed for the payment of the debt. " In our opinion, 
however, they mean the prescribed period of limitation, 
although the section does not expressly refer to suits. 
Reading section 20 together with section 4 of the Act, 
which is the section that prescribed the different periods 
of limitation for different descriptions of suits, the 
words ' prescribed period' in section 20 have, we think, re- 
ference to section 4 and the second schedule of the Act. 
The words * prescribed period' alone are obviously used for 
the purpose of conciseness, as it will be found that they 
are similarly used in illustration (b) of section 4 of the 
Act, while there can be little doubt about their meaning 
in the illustration referred to." 

(d) In Valia Tamburatti v. Vira Rayan^ 1 ) plaintiff Payment of in. 
sued in June, 1874, to recover the principal sum and one cient under Act 
year's interest due on a bond of 11th March, 1866, by held sufficient 
which the rent of certain land was assigned as security tion. 
for interest. No date was specified for re-payment of the 
principal sum. Interest was paid up to October, 1871. 
It was held that, assuming that the period of limitation 
was three years, and that it had run out both before action 
was brought and before Act IX of 1871 came into oper- 
ation, section 21 of that Act operated to save the action ; 
that at the period of that law coming into force, there 
was still a contractual right existing, and that the right 
of action was restored by the payment of interest. In 
Teagaraya Mudali v. Mariappa Pillai,W it was held, that 
the exception of payment of interest contained in section 
21 of Act IX of 1871 was not confined to payments made 
after that Act came into force, but applies also to payments 
made before that date. In this case payments endorsed 
before Act IX of 1871 came into force, on a registered 
bond, dated 9th August, 1867, providing for re-payment 
on the 10th of April, 1868, was considered sufficient 
to save the claim. 



(1) I. L. E., 1 Mad., 228. | (2) I. L. E., 1 Mad., 264. 
23 



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178 PABT III. — COMPUTATION OF PERIOD OP LIMITATION. [SEC. 20 

m. h. (e) The requirement of the proviso, that part-pay- 

Murk or iriffiis~ 

tare to an en- ment of the principal of a debt must be in the hand- writing 

dor s ement 

satisfies the je- of the person making the same, is satisfied if the payer 

anirement of 

this Motion. signs or affixes his mark beneath an endorsement not 
written by him. Sesha v. Seshaya.M In following the 
above ruling, Hutchins, J., in Ellappa v. Annamalai/ 2 ) 
observes " that when there is a writing setting out the 
fact of payment and the debtor affixes his mark or sig- 
nature thereto, he adopts the writing and makes it his 
own, and by his signature causes the fact to appear in 
his own hand- writing." In Vadlamudi Pichina v. Tanuiru 
Appadu,(*) which was an earlier case, a Division Bench, 
held in April, 1881, that the payer's mark to the endorse- 
ment will not satisfy the requirement of this section. They 
observed, that part-payment of principal should " appear 
in the hand-writing of the person making the payment. 
This requirement is not satisfied by a mere signature ; 
and signature by a mark would be the least satisfactory 
form of signature." 

Endorsement of (f) In Ankamma v. Rama, W plaintiff sought to take 

payment on 

bond need not the case out of the statute by an endorsement of payment 

■how that pay- 

ment was made on the bond in the defendant's hand-writing. In reply 

toward* princi- ° r J 

pal. to the question, whether endorsement should show that 

payment was made towards the principal, it was held that 
it need not show it, but only the fact of payment. 

Endorsement of (or) In Mackenzie v. Tiruvengadathan,( 5 ) defendant 

cheque by debt- ° ° 

©r not showing granted to plaintiffs in September, 1881, a pro-note for 

wmenC^d Rs. 4,000, agreeing to pay the same by monthly instal- 

the conditions ments of Rs. 500 each, and to pay the whole debt on 
ef this section. r * 

demand if any instalment was in arrear. The defendants 

paid on twelve different dates sums amounting to Rs. 1,799, 

but these payments were not made according to the tenor 

of the bond. The last payment was Rs. 100 by a cheque 

endorsed by the 2nd defendant to the plaintiff on the 

4th September, 1882. The endorsement did not state for 

(1) I. L. B., 7 Mad., 55. I (3) 5 Ind. Jar., 520. 

(2) I. L. E., 7 Mad., 76- | (4) I. L. B., 6 Mad., 281. 

(5) I. L. B., 9 Mad., 271. 



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8BC. 20] PABT III. — COMPUTATION OP PERIOD OP LIMITATION. 179 

what purpose the payment was made, but the plaintiffs 
had credited the sum in their books on the 4th Septem- 
ber, 1882. The other payments had been made more than 
three years before the suit. It was held that the cheque 
was only an order for payment and it did not evidence any 
part-payment at all as it did not show for what purpose 
the payment was made, and that such an endorsement did 
not satisfy the conditions of this section so as to give rise 
to a new period of limitation. The suit was rejected 
under Article 75. 

(h) In Hanmantmal Motichand v. Rambabai,* 1 ) plain- Payment by 
tiff sued on the 12th March, 1877, for Us. 10,000 on an inanition 2? 
account stated and signed by the defendant. The defen- to&tenet.doeB 
dant pleaded that the suit was barred. The account was clans© l. 
dated 19th October, 1873, and since, two items were 
advanced to the defendant on the 8th November, 1873, 
and 12th September, 1876 respectively. The defendant 
made payments in October and December, 1875, and March 
and September, 1876. It was held that, as there was no 
intimation by the defendant that any payment made by 
him was to be appropriated to interest, the plaintiff 
cannot claim the benefit of the 1st clause of section 21 of 
Act IX of 1871. 

(i) A payment made by an agent after the death of Payment by 
his principal cannot give a fresh starting point from which principal's 
to calculate limitation under this section, as under section save limitation. 
201 of the Contract Act an agency is terminated by the 
death of the principal. Sirdarni Kishen Kour v. Manna 
Lai (Punj. Rec., No. 78 of 1880.) W 

(j) Where in a suit (Whitley v. Lowe, 25 Beav., 421 ; Bngiisa case on 
2 DeGex and J., 704) for partnership accounts, a receiver payment by a 



was appointed, and made payments to the plaintiffs on ac- 
count of a debt due to them from one of the defendants 
under a covenant in the partnership deed, but such pay- 
ments were not authorized by the terms of his appoint- 
ment, nor was it proved that the defendant sanctioned their 
being made, it was held that the receiver was not the 

(1) I. L. E., 3 Bom., 198. | (2) Rivaz'a Limitation Act, p. 63. 



reoeiver. 



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oeive as mort- 
gagee. 



180 PABT III. — COMPUTATION OF PBBIOD OF LIMITATION. [SBC. 20 

agent of the defendant for the purpose of making the pay- 
ments, and that they did not prevent the operation of t lie 
What would be statute. Nothing was said as to what would have been 
court had au- the effect in case the receiver had been authorized by the 
payment? court to make the payments relied on.M 

Mortgagee re- 00 *n Pichandi 1?. Kandasami/ 2 ) plaintiff sued for 
S^Se^o? 1 ?^ money due upon an unregistered mortgage-deed of 
ie^te^dmc 1 ^ August, 1869, alleging that he was in possession of the 

e£&%d n to °^' ian* «* tne date of the STlit «* A P ril » 1883 - Jt waB held 
that the deed being inoperative to create a mortgage, the 

plaintiff cannot claim to have received the profits of 
the mortgaged property nor to have received them as 
mortgagee. 
Receipt of rent (1) In TJmmer Kutti v. Abdul Kadar,W defendant, 
SdeTaleaae 6 who mortgaged, in 1858, his land to the plaintiff with 
mortgage, held possession for a term of 5 years, took a lease of the land 
to payment^ in 1861 from the plaintiff and paid him rent under it 
Act ix of 1871. until 1870-71. The mortgage debt was re-payable on the 
expiry of the term. Plaintiff brought the suit Out of 
which this appeal arose to recover the debt from th« 
mortgagor. It was pleaded that the suit was barred by 
limitation, to which plaintiff replied that the receipt of 
rent was in fact a payment of interest, and that from the 
last payment of interest a new period of limitation arose. 
It was held, that the case being governed by the pro- 
visions of Act IX of 1871, the payment of rent under an 
agreement entirely independent of the original mortgage 
could not be regarded as a payment of interest. 
Paymentof rent (m) In Palliagatha Ummer Kutti v. Abdul KadarW a 
under°a eubae- Kanom was granted in 1858 for five years, to secure re-pay- 
him 11 by mort- ment of a loan, and a lease was made in 1861 to the grant- 
garded not aa" or of the Kanom by the Kanom-holder, and rent was paid 
terest under Act under the lease until 1871. The suit was brought in Sep- 
tember, 1877, to recover from the defendants personally 
the Kanom amount and the arrears of rent for seven years. 
It was pleaded that payment of rent was in fact a pay* 

(1) Darby and Bosanquot, p. 107. I (3) I. L. R., 2 Mad., 165. 

(2) I. L. R., 7 Mad., 539. | (4) I. L. R., 3 Mad., 57. 



IX of 1871. 



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SBC. 20] PABT m. — COMPUTATION OF PERIOD OP LIMITATION. 181 

ment of interest from which date the plaintiff had a new 
period of limitation. The court held that the suit to re- 
cover the Kanom amount and the arrears of rent for seven 
years was barred by limitation except as to three years' ar- 
rears of rent. As to the payment of rent, the court observe : 
" Under the present law, this may be so, if it be held that 
payment of rent by the mortgagor is such a receipt of pro- 
duce in virtue of a usufructuary mortgage as is to be 
deemed equivalent to a payment of interest ; but this 
provision is not to be found in Act IX of 1871, and although 
if the payment of rent had, as part of the original agree- 
ment or otherwise, been agreed as a provision for the 
interest in the debt, we might have held that it fell with- 
in the narrower terms of Act IX of 1871, yet, in the cir- 
cumstances of the present case, it is impossible in our 
judgment to hold that the payment of rent under an 
agreement entirely independent of the original mortgage 
can be regarded as a payment of interest as such." 

(n) In a suit on a bond which stipulated that half the Case where 
produce of certain land should be given as long as the dace was held 
principal remained unpaid, held, that the delivery of the payment of in- 
produce was equivalent to the payment of interest and 
operated to keep the claim on the bond alive within the 
meaning of section 21 of the Act of 1871. Haji v. Mus- 
samat Hasan (Punj. Rec, No. 6 of 1874.) But held, that 
the mere receipt of the produce of mortgaged land is not 
equivalent to the receipt of interest within the above sec- 
tion, so as to keep the mortgage-debt alive. Ram K is hen 
v. Nawab (Punj, Rec, No. 74. of 1874..)<D 

(O) In Ramchendra Ganesh v. Devba/ 2 ) plaintiff sued Money walked 

, nnr . - , . . _ , _ , , in execution of 

in looU, tor money due on a registered bond, dated decree cannot 
June, 1861. The debt was secured on service land, of part-payment 

,.. r .r j i , » . . , under this sec- 

whicn the debtor was to remain in possession and pay tion. 
annual rent to the plaintiff in lieu of interest. This suit 
was brought to recover the principal with arrears of 
unpaid interest. To meet the plea of bar, the plaintiff 



(2) 



Rivaz'g Limitation Act, p. 64. 
I. L. E., 6 Bom., 626. 



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182 PART ni. — COMPUTATION OP PERIOD OP LIMITATION. [SEC. 20 

pleaded that under a decree be had obtained against 
one of the defendants, he recovered money through court 
Payment to the in 1879. The High Court observed, that payment to the 
payment to ere- Nazir of the court in satisfaction of the judgment-debt is 
as such, not a payment to the creditor of interest as such. 

W. Moran v. Dewan Ali Sirang (8 Bom., L. R., p. 418). 
An acknowledgment must contain an express or implied 
promise to pay : Smith v. Thorne, (18 Q. B., 134.) Pay- 
ment of interest under a judgment recovered, not being 
such, that promise to pay the principal could be inferred 
in fact from it is not sufficient to take the principal debt 
out of the Statute of Limitations : Morgan v. Rowland 
(L. R., 7 Q. B., 493). The principle underlying all the 
Statutes of Limitation is, that a payment, to prevent the 
barring by statute, must be an acknowledgment by the 
person making the payment of his liability, and an admis- 
sion of the title of the person to whom the payment is 
made. See. Harlock t?. Asherry (19 L. R., Ch. Div., 539 
reversing Fry, J's. judgment, in 18 Ch. Div., 229). 
Section 19 re- (p) Section 19 of the Limitation Act, relating to the 
iect of acknow- effect of acknowledgment in writing, distinctly provides for 
tion 2o n rotates a new period of limitation to be computed from the date 
payment. of acknowledgment, also of an " application in respect of 

any property or right," while section 20, clause 1, which 
relates to the effect of payment of interest, as such, refers 
to "a debt or legacy," and clause 2, which relates to 
part-payment of principal, refers only to " a debt." 
High Courts of (q) As to the applicability of section 19 to the acknow- 
baj% AUahabadj ledgment of decree-debt by judgment-debtor, the High 
to apply to de- Courts of Calcutta, Bombay and Allahabad agree, while 
erees. ^ e High Court of Madras holds that section inapplicable 

to applications in execution of decrees. (Vide Notes 2-N, 
2-0, 2-Q, 2-E, 2-5, 2-T, section 19.) 

c. h. holds sec- (p) As regards the application of section 20 to pay- 
cabled dec^ ments made out of court towards a decree, the Calcutta 
holds othe?' High Court held, that such payment could not stop limi- 
wwe * tation once begun, while A. H., dissenting from it, held 

such payment to fall within this section. 



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8EC. 20] PART III. — COMPUTATION Of PERIOD OF LIMITATION. 



183 



(8) Section 206 of Act VIII of 1859 related to pay- section aoe of 
ments made out of court towards decree, and the corres- and 268 of the 
ponding section 258 of the Civil Procedure Code of 1877 issa exhibited 
has been reproduced as section 258 in the Code of 1882. table. 
Before proceeding to review the decisions bearing upon 
these sections, it is necessary to refer to them, and they 
are exhibited in the following table for ready reference. 



Act VHI of 1859. 



Act X of 1877. 



Act xrv 

of 1682. 



206. All monies pay- 
able under a de- 
cree shall be paid 
into the court, 
whose duty it is to 
execute the decree, 
unless such court 
or the court which 
passed the decree 
shall otherwise di- 
rect. No adjust- 
ment of a decree in 
part or in whole 
shall be recognised 
by the court un- 
less such adjust- 
ment be made 
through the court 
or be certified to 
the court by the 
person in whose 
favour the decree 
has been made or 
to whom it has 
been transferred. 



258. If any money payable under a de- 
cree is paid out of court, or the decree 
is otherwise adjusted in whole or in 
part to the satisfaction of the decree- 
holder, or if any payment is made in 
pursuance of an agreement of the na- 
ture mentioned in section 257-A, the 
decree-holder shall certify such pay- 
ment or adjustment to the court whose 
duty it is to execute the decree. 

The judgment-debtor also may inform 
the court of such payment or adjust- 
ment, and apply to the court to issue 
a notice to the decree-holder to show 
cause, on a day to be fixed by the 
court, why such payment or adjust- 
ment should not be recorded as certi- 
tified ; and if, after due service of such 
notice, the decree-holder fails to ap- 
pear on the day fixed, or having ap- 
peared fails to show cause why the 
payment or adjustment should not be 
recorded as certified, the court shall 
record the same accordingly. 

No such payment or adjustment shall 
be recognized by any court unless it 
has been certified as aforesaid. 



o 

1 

ft. 

s . 



*H 3 



00 
§ 



GQ 



(t) In Bhubaneswari Debi v. Dinanath,0) it was held Peacock, o. J., 

in March, 1869, that a judgment- creditor is entitled to holder could 

prove payment made according to the terms of a kist- out of court to- 

bundi for the purpose of showing that his right to sue out take decree out 

r r ° ° of the statute. 

(1) 2 B. L. E., Ac, 820. < March 18W > 



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184 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8KC. 20 

execution troder the kist-bundi was not barred by limi- 
tation. The kist-bnndi executed by the judgment-debtor 
to pay off the decrees by instalments, was ordered by 
the judge to be entered in the register book. Peacock, 
C. J., observes : " I think that the plaintiff was entitled to 
prove the payments made under the kist-bundi for the pur- 
pose of showing that his right to sue out execution under ^ 
the kist-bundi was not barred by limitation. I am not sure 
that a part-payment under a decree may not be proved for 
the purpose of avoiding limitation, although the payment 
has not been made through the court, or certified to the 
court. lam disposed to think that the words " no adjust- 
ment of a decree in part or in whole shall be recognized 
by the court," in section 206, mean that no adjustment 
shall be recognized as an adjustment in favour of the 
debtor unless it is made through the court, or certified 
to the court by the person in whose favor decree has been 
made ; the meaning being, that the person in whose favor 
the decree has been made is not to be bound by an alleged 
payment out of court unless he has certified it. If the 
Legislature had contemplated the Statute of Limitation, 
and had intended to prevent a payment made within the 
period of limitation from being made use of to prevent 
the operation of limitation, I should think they would 
have required the payment to be certified by the defend- 
ant, who would in that case be affected by it. I am 
corroborated in this view by finding that no time is fixed 
within which the plaintiff is to certify. If the plaintiff 
comes in at any time, and certifies that he has been paid, 
he must be bound by it ; but if limitation was the object 
of the Legislature, they would have required the certifi- 
Peacock, c. J., cate to be made within a fixed time. The above decision 

followed hfo 

own ruling in was followed in Fakir Chand Bose v. Madan Mohan 
Ghose/ 1 ) where the same judge held, that on the decree- 
holder proving payments to the satisfaction of the court, 
the defendant will be at liberty to show that he had not 
made the payments and that the decree was barred. 

(1) 4 B. L. B., F. B., 182. 

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8EC. 20J PART III.— COMPUTATION OP PIBIOD OP LIMITATION. 185 

(u) With reference to the above observations, the Article iei wu 

. for the first time 

Legislature enacted in the Limitation Act of 1877. by Arti- enacted in the 

Limi tation Act 

ole 161, for the issue of a notice under section 258 of the of 1877. 
Procedure Code, to show cause why the payment or adjust- 
ment therein mentioned should not be recorded as certi- 
fied. The application is required to be presented within 
20 days from the date of payment or adjustment. The B. H. obeeme, 
Bombay High Court observe, that the provisions of section oie renders nu- 

ffatorv section 

"258, wbich enables a judgment-debtor to apply for a 168 of o. p. c. 

notice is, in effect, rendered nugatory by the shortness of 

the period of 20 days within which the Limitation Act 

requires such an application to be made : Patankar v. 

Devji.W 

(V) In Kally Prosonno Hazra v. Heera Lai Mundle,<*) c. h. 

the last application for execution of the decree had been of debt doe un- 
made on the 14th of December, 1872, and a notice under held not to come 
section 216, Act VIII of 1859, issued on the 19th of Janu- » of Act ex of 

1871 

ary, 1873, and on the 28th of April, 1873, the judgment- (June iot.) 
debtor filed a petition notifying part-payment, which peti- 
tion was signed by the judgment-creditor. In an appli- 
cation for execution made in April, 1876, it was held, that 
the execution was barred inasmuch as the word " debt" 
in sections 20 and 21 of Act IX of 1871 did not include 
a liability for which judgment has been obtained. Fol- Another deoi- 
lowing the above decision, the court, in Mongol Prashad (January 1870.') 
Dichit v. Shama Kanto Lahory,( 8 > held in January, 1879» 
that the judgment-debtor's acknowledgment of the decree 
debt by an application for two months' postponement of 
sale, would not extend the period of limitation. 

(w) In Asmutullah Dalai v. Kally Churn Mitter,W o. h. held that 
the terms of compromise in a suit for money provided made towards 
that the debt should be paid by monthly instalments, and ttop limitation 

once begun. 

that on the failure to pay any three successive instalments (Marohiwi.) 
the entire amount should be recoverable by application to 
execute the full decree. The decree was dated 12th June, 
1875, the first instalment was due in July, 1875, and the 

(1) I. L. E., 6 Bom., 146. I (3) I. L. E., 4 Calo., 708. 

(2) I. L. E., 2 Calo., 468. | (4) I. L. B., 7 Calo., 56. 



24 



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186 



PART III. COMPUTATION OP PERIOD OP LIMITATION. [8BC. 21 



A. H. dissent- 
ing from 0. H. 
held part-pay- 
ment to fall 
within this sec- 
tion. 



One of several 
joint-contrac- 
tors, Ac, not 
chargeable by- 
reason of ac- 
knowledgment 
or payment 
made by an- 
other of them. 



8. 4 of Act XIV 
of 1869. 



8. SO, Act IX of 
1871. 



Section £L r .of 
1877. 



Observations of 
Scott, J. 



last in October, 1877. Default was made in payment of 
the first three instalments, but the decree-holder did not 
apply for execution, and accepted a subsequent payment. 
On the 13th December, 1879, he applied for execution for 
the amount then remaining due. It was held that the 
period of limitation prescribed by Article 179 of Act XV of 
1877, began to run on the third default taking place, and 
that no subsequent payments should stop limitation once 
begun. 

(X) In Janki Prasad t?. Ghulam Ali,(*) in which the 
judgment-debtor, for a decree, dated 24th June, 1878, had 
paid out of court rupees 50 on the 7th May, 1879, 
rupees 70 on the 4th February, 1880, and rupees 80 on 
the 13th January, 1881, and had endorsed the last two 
payments in his own hand-writing on the decree. The 
last application for execution was made on the 5th Sep- 
tember, 1881. It was held in September, 1882, that the 
part-payment made and endorsed by the debtor on the 
decree fell within the terms of this section. 

21. Nothing in sections 19 and 20 renders 
one of several joint-contractors, partners, exe- 
cutors or mortgagees chargeable by reason only 
of a written acknowledgment signed, or of a 
payment made by, or by the agent of, any other 
or others of them. 

(a) Section 4 of Act XIY of 1859 provided that, if 
more than one person be liable, none of them shall become 
chargeable by reason only of a written acknowledgment 
signed by another of them. This section referred only to 
legacy or debt. 

Explanation 2 of section 20 of Act IX of 1871, referred 
only to the cases of " several partners or executors. " 

Section 21 of the later Act (1877) refers to 4 classes of 
persons, r«., "several joint-contractors, partners, exe- 
cutors or mortgagees." 

(b) " It will be noticed that this goes further than 

(1) I. L. R., 5 All., 201. 



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8SC. 21] PART III.— COMPUTATION OP PERIOD OP LIMITATION. 187 

the English Law, which does not expressly mention part- 
ners, hut only includes contractors or co-debtors — Mercan- 
tile Law Amendment Act 1856, section 14. I think, 

however, the meaning of the word * only* in section 21 is, "Only" means 

, i ii , , ., that partner 

that it mast also be shown tbat the partner signing the signing ac- 

. . i* j knowledgment, 

acknowledgment had the authority, express or implied, most also be 

~ i . shown to have 

to do so. In a going mercantile concern, such agency is, had authority 

I think, to be presumed as an ordinary rule : (see Lindley 
on Partnership and Goodwin v. Parton. 41 Law Times, 91)" 
Premji Ludha v. Dossa Doongersey.W 

(O) Notwithstanding the provisions of this section, it One of joint- 
may always be shown that the joint-contractor, partner, Ac, may be 

i.i.iiii , shown to act 

executor, or mortgagee, who signed the acknowledgment as authorised 
or made the payment, was acting as a duly authorized 
agent of the other joint parties within the meaning of 
section 19. 

(d) In Khoodee Bam Dutt v. Kishen Chand Gole- Explanations 
cha,W the court held that section 20 of Act IX of 1871 Act ix of lsn, 
cannot apply to partnership accounts or to cases where bie to cases 

i.i t i * i i • • i i A where one part- 

One partner by the ordinary rules of partnership is able to ner by rules of 

. partnership can 

bind his co-partner. Each partner who does any Act bind his co-part- 
necessary for, or usually done in carrying on the business (Feb. 1878.) 
of such a partnership as that of which be is a member, ^^nTco^pLru 
binds his co-partners to the same extent as if he were Sot? 2&\ of Act 
their agent duly appointed for that purpose. 1X ot 1872, 

Exception. — If it has been agreed between the partners, 
that any restriction shall be placed upon the power of 
any one of them, no act, done in contravention of such 
agreement, shall bind the firm with respect to persons 
having notice of such agreement. 

(6) In Premabhai Hemabhaiv. T. H. Brown/ 8 ) which a partner of a 
was a suit brought on two promissory notes granted by one tile character " 
of the partners of a firm of carriers, Melvill, J., observes, thority to bind 
" It is clear that one partner of a partnership in trade, has the partner of a 
an implied authority to bind the firm by drawing a bill, Mining Com- 
or giving a promissory note in the name of the firm ; but Attorneys. 

(1) I. L. R., 10 Bom., 362. | (2) W. R. 26, p. 146. 

(3) 10 B. H. C. R.,321. 



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188 PART III.— COMPUTATION OF PESIOD OF LIMITATION. [SIC. 21 

in the case of partnerships which are not of a mercantile 
character, there is no such implied authority. Thus, in 
the case of a Mining Company, Dickinson v. Valpy (10 B. 
and C, 12£), or a Farming Company, Greenslade v. Dower 
(7 B. and C, 635), or a firm of Attorneys, Hedley v. Bain- 
bridge (3 Q. B., 316), a partner cannot bind the firm by a 
Bill of Exchange or a promissory note, unless he has ex- 
press authority to draw or make it. In the present case, 
the firm of Hewett & Co. was certainly not an ordinary 
trading partnership. It was merely a Carrying Company, 
formed for the purpose of carting goods from the railway 
to the town of Ahmadabad, and the drawing and accepting 
of bills, or making of promissory notes, was in no way 
necessary for the purpose of carrying on the business of 
such a partnership. We must hold, therefore, that Hewett 
had no implied authority to make the uotes on which the 
plaintiff sues." 
if acknowledge (f) In Premji Ludha v. Dossa Doongersey,* 1 * the 
given by one plaintiff, as heir of his mother, sued a firm in which he 
the firm is a go- was himself a partner, to recover the amount of certain 
authority to' ac- loans which he alleged his mother in her lifetime had 
be presumed, made to the said firm. The plaintiff was made a defen- 
dant in the suit along with the other partners. The 
alleged loans were made on the 2nd November, 1881, and 
the 12th October, 1882. The present suit was not filed 
until December, 1885. The plaintiff, however, relied on 
an acknowledgment signed in his mother's account book 
by himself as partner in the firm on the 1st November, 
1883. The 1st defendant did not appear or put in any 
defence. The 2nd defendant pleaded limitation, and 
alleged that on the 2nd November, 1880, prior to the date 
of the alleged loans, he had retired from the firm, and 
therefore was not liable. From the evidence given at the 
hearing, it appeared that the business stopped, so far as 
buying and selling and fresh trading were concerned, at 
the end of the year 1881, and that subsequently to that 
date the partners were occupied solely in winding up the 

(1) I. L. R., 10 Bom., 358. 



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8«C. 21] PART III.— COMPUTATION OP PBBIOD OP LIMITATION. 189 

affairs of the firm. It was held, that, under the circum- 
stances, the acknowledgment given by the plaintiff did not 
bind the other partners, and that the claim against them 
was barred. If, at the time the acknowledgment was 
given, the firm had been a going concern, the plaintiff's 
authority to make such an acknowledgment on behalf of 
the firm might have been presumed ; but in this case the. In this cue no 
business had been closed, and the partnership entirely tion was heidto 
dissolved. The presumption, therefore, which arises in nership had 
active partnership no longer existed, and there was no evi- 
dence that the plaintiff had been expressly authorized to 
act for the other partners in making an acknowledgment. 

(g) " It should be observed that though partnership- English Law as 
debts are joint-debts, they stand on a somewhat different one partner on 
footing from other joint-debts during the continuance of nership debts. 
the partnership, because so long as the partnership exists, 97, sec. 14 does 
one partner, in making payments on account of partner- refer to partner, 
ship-debts, may be presumed to do so as agent of the firm, 
and therefore to bind the firm ; but on the dissolution of 
partnership by death or otherwise, the agency determines, 
and therefore no payments made after that time can affect 
any other party than the person who makes them." 
(Thompson v. Waithman, 3 Drew., 628 ; Brisfcow v. Miller, 
11 Ir. L. Rep., 461). (D In Watson v. Woodman,(2) Sir 
Charles Hall, V. C, observes, " if while the partnership 
subsisted, each partner could and should be deemed to 
be the agent of the other to make payments, so as to 
exclude the operation of the statute, such agency, I consi- 
der, terminated on the dissolution of the partnership ; no 
such agency being by the deed of dissolution expressly or 
necessarily or otherwise impliedly created." He alludes 
to Bristow v. Miller, in which Crampton, J., said " Kilgorn 
v. Finlyson, (1 H. B., 155), is a clear authority to shew that 
after a partnership is dissolved, one of the late firm can- 
not by his act or admission involve his co-partner in any 
new legal liability. In that case, one partner had upon a 
dissolution been appointed to liquidate the debts of the 



(1) Darby and Bosanqnet, p. 85. | (2) L. R., Eq. 20, p. 730. 



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190 PART III —COMPUTATION OF PERIOD OP LIMITATION. [BBC. 21 

partnership, but it was held that any acknowledgment of 
debt by him would not affect the other partner. The 
acknowledgment was referred to the new capacity of the 
partner as manager to wind up the concern." 
Acknowiedg- (ft) Section 271 of Act X of 1865, and section 92 of 

ment by one of N 

several execu- Act V of 1881, provide that when there are several execu- 
tors or adminis- r 
trators as such, tors or administrators, the powers of all may, in the 

absence of any direction to the contrary, in the will or 
grant of letters of administration, be exercised by any one 
of them who has proved the will or taken out adminis- 
tration. In Chander Kant Mitter v. Ram Narain/ 1 ) the 
court observe that where property is devised by will to 
executors, any admission by parties other than the execu- 
tors to the will, would not bind the estate of the deceased, 
and the admission of one executor would not bind another, 
particularly if not made in the character of executor. 
Acknowiedur- (i) Where there are several joint-mortgagees, an ac- 

mentbyoueof _, . 

several mort- knowledgment by one of them neither gives a new period 
of limitation as regards a share of the mortgaged property, 
nor in respect of the whole property, if the case be gov- 
erned by Act IX of 1871, or Act XIV of 1859, neither of 
which Acts recognize an acknowledgment by an agent in 
suits for redemption, and is therefore absolutely without 
effect. Hakim Devi Doyal v. Prab Dyal, (Punj. Rec, No. 
85 of 1880), and Mussammat Mah Bibi v. Motan Mai (lb., 
No. 61 of 1877). But see Kbair Muhammad v. Ahmudin. 
(Punj. Rec., No. 78 of 1878). Under the present Act, the 
question might arise in such cases as to whether or no the 
mortgagee signing the acknowledgment was acting as 
a duly authorized agent for his co-mortgagees. In the 
English case of Richardson v. Younge, (L. R., 6 Ch., 478) 
which is cited by Fitzpatrick, J., in Mussammat Mah 
Bibi v. Motan Mai, (ubi supra), the question was as to the 
English statute effect of an acknowledgment by one of two joint-mortga- 
breaking up a gees under section 28 of III and IV Wm. 4, C. 27, which 
portions to give section, however, provides for the case of an acknowledg- 

eff ect to the ac- . . . 

knowledgment ment by one of a number of mortgagees or persons claim- 

of one of several 

&£—*■•• (l)8W.B.,p.63. 



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BBC. 21] PART in. — COMPUTATION OP PBBIOD OP LIMITATION. 191 

ing under a mortgagee, enacting that such acknowledg- 
ment shall be binding only as against the person making 
it, and providing for the apportionment of the mortgage- 
debt between him and the others. The joint-mortgagees 
in the above case were, however, trustees, and had, there- 
fore, no several and apportionable interest in the premises. 
Three views were suggested in the argument. First, that 
an acknowledgment by one bound both ; secondly, that it 
bound one-half of the property, and enabled the plaintiff 
to redeem one-half on payment of one-half the debt ; and, 
thirdly, that the acknowledgment by one was ineffectual 
altogether. This last view, which was in accordance with 
that of the Vice-Chancellor (from whose decision the case 
was on appeal before the Lords Justices) was adopted by 
the court, but it was expressly stated by James, L. J., 
that the decision was confined to the case of mortgagees 
who are trustees, and are shown to be such on the face of 
the deed. See Banning, pp. 169, 170. Section 21 of the snch acknow- 
present Act expressly provides that an acknowledgment section 21 of the 
made by one mortgagee shall not bind his co-mot-tgagees, wholly ineffec- 
and there being no provision in the Act (as in the Eng- 
lish Act) giving such acknowledgment the effect of break- 
ing up the mortgage into portions, the acknowledgment 
must still be wholly ineffectual in the absence of proof 
that the mortgagee signing tbe acknowledgment was 
acting as a duly authorized agent for the other mortga- 
gees. This rule would, however, probably be held only to 
apply in the case of a single mortgage to a number of per- 
sons. As pointed out by Fitzpatrick, J., in Mussammat Mortgagor can 
Mah Bibi v. Motan Mai, where a single mortgage is really knowiedgment 

* j-i* . .. T „•«. \ ifhehadmort- 

a number of mortgages of different properties to different gaged different 
persons executed in the same deed, the transaction will be different per. 
treated as a number of different mortgages, and an ac- deed, 
knowiedgment by one of the mortgagees in respect of the 
property mortgaged to him will enable the mortgagor to 
take advantage of the acknowledgment for the purposes 
of limitation as against such mortgagee. M 



(!) Bivaz's Limitation Act, pp. 64—66. 



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192 PART III.— COMPUTATION OF PERIOD OF LIMITATION. [siC. 22 

Effect of sat**!- 22. When, after the institution of a suit, a 

toting or adding 

SJtendinu iffor new plaintiff or defendant is substituted or 
added, the suit shall, as regards him, be deemed 
to have been instituted when he was so made a 
party. 

proTi*> where Provided that, when a plaintiff dies, and the 

original plain- # m 

««••• suit is continued by his legal representative, it 

shall, as regards him, be deemed to have been 
instituted when it was instituted by the deceas- 
ed plaintiff : 

provuo where Provided also, that, when a defendant dies, 

original defend- 

"'^ and the suit is continued against his legal 

representative, it shall, as regards him, be 
deemed to have been instituted when it was 
instituted against the deceased defendant. 

(a) This section refers only to new plaintiff or defen- 
dant being substituted or added. There is no analogous 
provision with respect to appeals. 
Provisions of c. Clause 5, section 32 of the Code of Civil Procedure, 
tag parties. which provides for adding parties in the court of first 
instance, runs thus. All parties whose names are so 
added as defendants, shall be served with a summons in 
manner hereinafter mentioned, and (subject to the pro- 
visions of the Indian Limitation Act, 1877, section 22) the 
proceedings as against them shall be deemed to have 
begun odIj on the service of such summons. Section 
559 of the Code providing for the addition of respon- 
dents, makes no reference to section 22 of the Limitation 
Act. The amended section 582 of the Code of. 1882, does 
not make the terms " plaintiff" and " defendant" in section 
32 include " appellant" and " respondent." 
Appellate (b) In Monickya Moyee v. Boroda Prasad Mooker- 

tionary power jee,W the Lower Court discharged the original martgagor 
par^todecree from liability to pay interest. In the appeal preferred 

m respondent 
under section. 

(1) I. L. R., 9 Calc, 355. 



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SIC. 22] PABT III.— OOMPUTATIOM OF PIRIOD OF LUflTATION. 193 

without making him a party, the question was whether, 668 of o. p. c. 

apart from the discretion vested in the court by section 5 by this section. 

of the Limitation Act, the court had power to make him 

a party under section 559 of the Civil Procedure Code, 

which does not refer to this section as section 32 of the 

Civil Procedure Code does. It was held that section 559 

gives full power to make the mortgagor a respondent, and 

that the discretion conferred by that section is not limited 

by any provisions in the Limitation Act. 

(C) In the Court of Wards v. Gaya Prasad,") two de- a. h. ai»o held 
fendants were jointly liable. The plaintiff, by Borne care- (January 187».) 
lessness, appealed against the first defendant only, and the 
2nd defendant was made respondent after the appeal time 
had expired. It was held, that section 22 of the Limita- 
tion Act referring to " suit," and there being no analogous 
provision with respect to appeals, an Appellate Court has 
a discretionary power to substitute or add a new appellant 
or respondent after the period of limitation prescribed for 
an appeal. 

(d) 8 sued N and B jointly and severally for certain a. h. held Ap. 

mi ,#,.,.. « j * peltate Court in- 

moneys. The courts of first instance gave a a decree for competent to 
such moneys against N and dismissed the suit against B. a respondent 
N appealed from the decree of the court of first instance, peal time and 
but 8 did not appeal from it. The Appellate Court, at the claim by the 
the first hearing of N*8 appeal, made B a respondent, the (Nor. 1879.) 
period allowed by law for 8 to have preferred an appeal 
having then expired, and eventually reversed the decree 
of the court of first instance, dismissing the suit as against 
N and giving 8 a decree against B. It was held, that 
although the Appellate Court was competent to make B 
a party to the appeal under sections 32 and 582 of Act X 
of 1877, yet it was not competent, with reference to section 
U2 of Act XV of 1877, to give 8 a decree against B, the 
former not having appealed from the decree of the court 
of first instance within the time allowed by law. Ranjit 
Singh v. Sheo Prasad Ram.< 2 > 

(1) I. L. R., 2 All., 107. 

(2) I. L. K. 2 All., 487. 

25 



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194 PART III.— -COMPUTATION OF PERIOD OP LIMITATION. [SBC. 22 

A. H. held sec- (e) In Atmaram v. Balkishen,^) it was held that 
Odo<* not°emI where a defendant, having an nnappealed decree in his 
fZ*Cwut*u> favor, is not interested in the result of the plaintiff's 
SpeuISS^K appeal against a co-defendant, section 559 of the Code 
respoodMitt. 118 * does not empower the court to add him as a respondent to 
Unwary law.) the appeal gfcajght, J., observes : " we do not think that 
section 559 of the Code empowers an Appellate Court 
virtually to make an appeal for an appellant, who has 
refrained from availing himself of his privileges under 
the law, by introducing for him other respondents than 
those he has included in his petition of appeal." 
Salt against (f) In Obhoy Churn Nundi v. Kritharthamoyi Dos- 

ded after the see,W plaintiff, after instituting the suit for property 
rejected** bar- against one of several persons in possession thereof, added 
such persons as defendants after the period of limitation 
prescribed for a separate suit on the same cause of action 
against them had elapsed. It was held, that the suit as 
against the added defendants must be dismissed as barred. 
Abdul Karim v. Manji HansrajC) was a suit instituted 
before the 1st of April, 1873, and subsequent to that day 
B was made a co-defendant. It was held that the Law 
of Limitation applicable, as far as B was concerned, was 
Act IX of 1871, and therefore under section 22 the suit 
was not to be deemed to have been instituted against B 
till the day on which he was made a party. 
Assignees of (g) In Suput Singh v. Imrit Tewari,<*) after the 

terest after suit plaint had been filed, and before summons to the def en- 
are not affected dants had been issued, the plaintiffs assigned their in- 

by this section. . 

terest in the claim to certain other persons who were 
since added as parties, and the summons and other 
proceedings were issued and taken in their names. It 
was held, that section 22 of Act XV of 1877 does not 
apply to a case in which the person to whom a right 
of suit is assigned after the institution of the suit ob- 
tains leave to carry on the suit. The court observe : " in 
the first instance the original plaintiffs were the only 

(1) I. L. R., 5 AIL, 266. I (3) I. L. R., 1 Bom., 295. 

(2) I. L. R., 7 Calo. 284. | (4) I. L. R., 5 Calc, 720. 



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8BC. 22] PART III.— COMPUTATION OF PERIOD OP LIMITATION. 195 

persons who could institute the suit ; and when they 
afterwards assigned their interest, it was perhaps not 
necessary for the persons to whom they assigned it 
to become parties at all ; but if they did so, they would 
only continue the suit, not in substitution, but in con- 
junction with, and as the representatives in interest of, 
tbe original plaintiffs ; and it was merely a mistake in 
form to have summoned the defendants at the suit of the 
assignees." 

(h) In Fisher v. Pearse,^) plaintiff was arrested on in a salt for da- 
the 27th June, 1883, by a bailiff of the Small Cause Court as against twa 

defendant* 

for the defendant's decree, dated May, 1883. The plaintiff, since added re- 

. jeoted as barred, 

who had already paid the amount into court, having been 

unable to produce his receipt for payment, the bailiff re- 
fused to release him until payment was made. The 
plaintiff filed his suit in March, 1884, against the 1st 
defendant, and on the 5th of July, 1884, added as defen- 
dants the Cashier who had received the money and the 
Chief Clerk who had issued a certificate of non-satisfaction. 
It was held that the suit should be rejected as against the 
1st defendant as there was no bad faith, fault or irregular- 
ity on his part, and that the suit as against the Cashier 
and the Clerk was barred as more than one year had 
elapsed fi-om the date of the termination of the plaintiffs 
imprisonment. 

(i) In Manni Kasaundhan v. Crooke,(*) plaintiff, after Substitution of 
filing his plaint, and three months after the accrual of the President for 
cause of action, applied to substitute the name of the retary after 
President for that of the Secretary. It was held that by ed by this seo- 
reason of such substitution, the suit could not be deemed 
to have been instituted against such committee when such 
substitution was made, section 22 of Act XV of 1877 ap- 
plying to the case of a person personally made a party to 
a suit and not to the case of a committee sued in the 
name of their officer, and that such substitution when 
applied for should have been made. 

(1) I. L. R., 9 Bom., p. 1. 

(2) I. L. R.,2 All, 296. 



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196 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8EC. 22 

Plaintiff who (j) In Ganpat Fandurang v. Adarji Dadabhai,* 1 ) plain- 

tnbseqtirat^ 00 tiff as assignee of an equitable mortgage sued for foreclo- 
piaint by call- sure, and was subsequently allowed to amend his plaint 
torney for the and sue as attorney for the original mortgagee. It was 
--, knot af- contended that the period of limitation must be reckoned 



section. back from the date of the amendment. Sargent, J., obser- 

Ilgl18 ^ ved : " but, though,i f this plaint were amended by altering 

the description of the plaintiff, and making him sue as the 
attorney of Pes ton ji Dinsha, there might nominally be a 
new suit, yet virtually it would still be the same. It 
would still be, in fact, the suit of this plaintiff. I should 
be of opinion that no new plaintiff had been introduced 
within the meaning of the Limitation Act." 
Substitution of (k) In Kavasji Sorabji v. Barjorji,@) a plaint was 
tative of do- D " filed before the expiration of the period of limitation un- 
after the sta- der Act 14 of 1859, against persons whom the plaintiff 
tSSuo bar the erroneously supposed to be representatives of his deceased 
(March 1873.) debtor. After the expiration of the period, the plaintiff 
obtained leave to amend his plaint by substituting the 
true representatives as defendants. It was held that the 
claim was barred. The principle of the proviso was, under 
the old law, applied to a case in which the person origi- 
nally named as defendant was dead at the time of the 
institution of the suit, and his heirs were made parties 
after the expiry of the prescribed period. Sreekishen 
v. Ramkristo". < 8 > 
Suit in which (1) In 1864, a Hindu widow, having a minor son, sued, 
a2 n piatotiff in her own name and on her own behalf, to recover 
held barred certain inmoveable property. The action was brought on 
filed m tSne W by » lease which expired in 1854. The defendant denied 
(Feb^im.) the lease, and contended that the suit should be dismissed, 
as it could not be maintained by the widow in her own 
name. In 1871, the son, who had in the meantime 
attained his majority in 1865, was made a co-plaintiff on 
his own application. It was held that the suit was bar- 
red, inasmuch as it must, if maintainable, be deemed to 

(1) I. L. R., 3 Bom., 312. | (2) Bom., H. C. 10, p. 224. 
(3) 10 W. B., 317, 

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SEC. 22] PABT III.— COMPUTATION OF PERIOD OP LIMITATION. 197 

have been instituted in 1871, when the eon was made 
a co-plaintiff, the plaint previously to that time having 
been in the widow's own name and expressly on her own 
behalf. Gopal Kashi v. Ramabai Saheb Patvardhan.W 

(m) In Habibnllah v. Achaibar Pandey,< 2) plaintiff, on Suit against one 
the 12th of April, 1880, sued one of two joint- vendees to dees Lt pre-" 
enforce a right of pre-emption in respect of the sale of a not P mSntatn- 
share of an undivided estate under a sale-deed, dated 12th of /the other " 
April, 1879. The joint-vendee was the defendant's minor 
brother, who was brought in as defendant on the 3rd May, 
1880. It was held that, inasmuch as the suit as regards 
the minor was beyond time and as the only relief which 
could be granted was the invalidation of the joint-sale, such 
suit, even admitting that it was within time as regards 
the adult brother, was not maintainable. 

(n) In Boydonath Bag v. Grish Chunder Roy,W two of „ 0. h. 

M ' , , * ^^, , ^ : . ,. Suit by two of 

four brothers sued for enhanced rent due to their undi- four brothers 

.,, ,-x,i»i f i • • a i for rent allowed 

vided tenure. On the defendants objection, the other « claim was 

. , , , . , indivisible. 

two brothers, after the statutory period had expired, (Junei877.) 
signified by a petition their assent to the suit. It was 
held by Markby, J., that although the rights of such add- 
ed parties were absolutely barred, yet the court could pro- 
ceed to adjudicate upon and declare the rights of the re- 
maining plaintiffs who had originally filed the suit, and 
that, as the claim for rent was indivisible, the decree in 
their favor should be for the whole amount. 

(O) Dissenting from the above decision, the court o. h. dissenting 
dismissed, as barred, Bamsebuk v. Rami all Koondoo,(*) ruling, dismiss? 
in which two of the sons, out of a joint Mitakshara family as one nrt main- 
consisting of a father and three sons, and the widow and 
sons of a deceased son, and carrying on business in 
partnership, sued to recover money due on a hathchitta, 
dated the 11th December, 1876, the last payment made 
and entered by the defendant being on the 20th July, 
1877. No time was fixed for payment of the money, so 
that it became payable on the date of the hathchitta. The 



tainable. 



Si 



12 Bom., H. 0., 17. I (3) I. L. R., 8 Calo., 26. 
L. R., 4 All., 146. I (4) I. L. R., 6 Calc, 815. 



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198 PART III.— COMPUTATION OP PERIOD OP LIMITATION. [8BC. 22 

suit was brought on the 19th of July, 1880, and on the 
defendant's plea of non -joinder, and on the application 
of the original plaintiffs, the father and the third son 
were added as plaintiffs after the suit was, as regards 
them, barred by limitation. It was held that, inasmuch 
as the original plaintiffs could only enforce their claim 
in conjunction with the added plaintiffs, the added 
plaintiffs' claim was barred and the claim of the original 
plaintiffs was also barred. " In England, since the pass- 
ing of the Common Law Procedure Act of 1852, the 
amendment might have been made, if the court thought 
proper, so as to protect the claim of the plaintiffs from the 
limitation, because, after the amendment, the suit would 
be considered as having been commenced by all the 
plaintiffs at the time when it was first instituted. If the 
court had reason to believe that all the plaintiffs had not 
been joined for some improper motive the amendment 
would be refused, bnt if it considered that the non-joinder 
was a bond fide mistake, the amendment would be made 
for the express purpose of protecting the plaintiffs' rights, 
and of preventing the Limitation Act from working in- 
justice. See Lakin v. Watson (2 Cr. & M., 685), Brown 
v. Fullerton (13 M. <fc W., 556), and cases there cited at 
p., 556 of the report. But the policy of the Legislature 
in this country has been to make the Law of Limitation 
much more strict than in England, and to take away, 
as far as possible, any discretion from the courts to modi- 
fy its strictness. The provisions of section 22 of the 
Limitation Act seem to have been passed with the avowed 
object of preventing such amendments being made in 
such a way as to relieve the plaintiffs from limitation ; 
and the effect of those provisions in such a case as the 
present is to render the amendment virtually useless 
to the original plaintiffs." 
B. h. following (p) In Kalidas Kevaldas v. Nathu Bhagvan/ 1 ) plain- 
ing dieted a tiff, who was one of four brothers composing a joint 
four DTotberg Hindu family, sued in his own sole name to recover a 

for money due 
to their father. 
(Feb. 1881) (1) I. L. R M 1 Bom., 217. 



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81C. 23] PART III. — COMPTJTATIOX O? PERIOD OT LIMITATION. 199 

joint-debt due to their deceased father. On the plea of 
non- joinder, the three brothers, when as regards them 
the debt became time-barred, represented to the court 
that their father, before his death, gave the debt to the 
plaintiff. It was held upon a review of the decisions 
of the High Courts of Calcutta and Allahabad, that such 
assent did not obviate the necessity of joining all the 
proper parties as co-plaintiffs, and that the suit therefore 
as framed would not lie. Sarjent, C. J., observes, whether 
this section " should not be amended to meet the case of 
joint-contractees is worthy of consideration." 

(q) Dular Chand v. Balram Das/ 1 ) was brought by A. H. in appeal 
one of five partners of a firm in his own name on a com- non-joinder a 
mon cause of action. On the defendant's objection to the five partner*. 
non- joinder of the other partners, the plaintiff, on behalf 
of the other partners, signified their assent to the suit, and 
the Lower Court, deciding this issue in favor of the 
plaintiff, rejected the suit on other grounds. The ap- 
pellant prayed that the other partners may be made par- 
ties. The court rejected the suit on the preliminary 
ground that all the necessary parties were not joined 
as plaintiffs. 

§ 23. In the case of a continuing breach of continuing 

° breaches and 

contract and in the case of a continuing wrong wron « 8 - 
independent of contract, a fresh period of limi- 
tation begins to run at every moment of the 
time during which the breach or the wrong, as 
the case may be, continues. 

(a) This section differs from sections 23 and 24- A, 
Act IX of 1871, the provisions of which relating to " suc- 
cessive breaches of contract", and " continuing nuisance*' 
have been omitted. The Act of 1877 extends to any 
" continuing wrong independent of contract" and to " con- 
tinuing breach of contract." 

(b) The purchasers of certain land agreed to pay the Non-payment 
Tendon certain fees annually in respect of such land, and nnder & sale 

* r deed ia not "a 

continuing 
(1) I. L. R., 1 All., 468. breach." 



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200 



PABT in.— COMPUTATION OF PIBIOD OF LIMITATION. [SEC. 28 



Obstructing the 
flow of rain- 
water through 
a gutter consti- 
tutes a continu- 
ing noisance. 



Seizure of a well 
is trespass on 
real property 
continuing as 
such till tres- 
passer's pos- 
session conies 
to an end. 



that, in default of payment, the vendors should be entitled 
to the proprietary possession of a certain quantity of such 
land. The purchasers never paid such fees, and more 
than 12 years after the 1st default the vendors sued 
them for possession of such quantity of such land. It was 
held that there had not been a " continuing breach of con* 
tract" within the meaning of section 23 of Act XV of 
1877, and that therefore the provisions of that section were 
not applicable to the suit, and further, that the suit being 
governed by No. 143, schedule 2 of Act XV of 1877, and 
more than twelve years having expired from the first 
breach of such agreement, was barred by limitation. 
Bhojraj t?. Gulshan Ali.^ 

(C) In Punja Kuvarji v. Bai Kuvar,W plaintiffs enjoyed 
the right of having an egress for his rainwater through 
a drain in the defendant's land from time immemorial, and 
for more than twenty years prior to the date of the ob- 
struction by the defendants. The plaintiff more than 
two years after the date of the obstruction sued the de- 
fendants for its removal. It was held that the obstruc- 
tion complained of constituted a continuing nuisance, and 
that as cause of action as to it was renewed, de die in diem, 
the plaintiffs claim was saved by the express provision 
of this section. 

(d) Iu Narasimma v. Ragupathi/ 8 ) plaintiff sued on 
the 9th of February, 1880, for compensation for loss of 
crops caused by the defendants taking possession of his 
well in January, 1877. The District Judge on appeal dis- 
missed the suit on the ground that time began to run 
against the plaintiff from January, 1877. The court 
observe : " as to damages, the seizure of the well was a treat 
pass on immoveable property, and it continued to be a tres- 
pass until .the possession of the trespasser came to an end; 
the limitation for suits for compensation in such a case is 
three years, and for any damage which accrued within 
three years before 9th February, 1880, the date on which 



(1) I. L. R., 4 All., 493. | (2) I. L. R., 6 Bom., 20. 
(a) I. L. R., 6 Mad., 176. 



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8SC. 23] PART III.— COMPUTATION OF PERIOD OF LIMITATION. 201 

the suit was brought, the respondents would be liable." Opening a 
In a suit in which plaintiff claimed to have a drain closed tiff's land? 
on the ground that it passed through his land, it was held, 
that each act of trespass on the plaintiff's land would con- 
stitute a fresh cause of action, and the plaintiff would be 
competent to rely upon the last act of trespass as consti- 
tuting a cause of action unless the defendant had acquired 
an indefeasible right of easement by user. Ramphul Sahoo 
v. Misree LalM 1 ) In Jogal Kishore v. Mulchand,**) it was if injury accrue 
held, that at any time within twenty years, should injury within 7 *) yean 
accrue from the recurring use of an easement to the owner u^of an ease- 
of the servient tenement, a new cause of action arises to the cause of action 
owner of the servient tenement, which he may put in suit 
within twelve years from its accrual. 

(e) In Ponnusawmi Tevar v. The Collector of Madu- Diversion of 
ra,< 8 ) the plaintiff sued to establish his right to an unin- tinning injury 
terrupted flow of water through a channel which ran into tution of the 
a tank in a village which was the plaintiff's property, and 
to compel the removal of sluices erected across the said 
channel by the 1st defendant's predecessor in office, and 
used for the purpose of diverting the flow of the water. 
It was held, that the diversion of the water was a continu- 
ing injury down to the time of the institution of the suit, 
and that the plaintiff's suit was not barred. In Sri Vis- interference 
wambhara v. Sri Saradhi Oharana/*) plaintiff sued to rights the flow 
recover damages for loss caused during 1862, 1863, and canal. m 
1864, by defendant's interference with plaintiff's right to 
the flow of water from a canal. The court observe " for an 
obstruction to a right to water, plaintiff would be entitled 
to at least nominal damages ; but an obstruction, such as 
that alleged in the present suit, *ould be a continuing in- 
jury giving rise to a fresh cause of action as fresh damage 
resulted from it." In Subramaniya Ayyer v. Bamachan- interference 
dra Bau,( 6 > plaintiff complained of defendant's interfer- have drainage 

•j* i • . •■ i , «■ ji. a • x ^_ i_- watertoflowoff 

ence with his right to have the drainage water from his in the usual 
land to flBw off in the usual course. It was held that the 

(1) 24 W. B., 97. I (3) 6 M. H. 0. R., 6. 

(2) 7 N.-W. P., H. C. R., 298. | (4) 8 M. H. C. R., 111. 

(6) I. L. R., 1 Mad., 385. 

26 



course. 



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202 FART III.— COMPUTATION OF PERIOD OF LIMITATION. [SIC. 23 

defendant's act was actionable whether special damage had 
or had not accrued, and that so long as the obstruction 
was continued, there was a continual cause of action from 
day to day. 
p. c. held that (f) Rajrnp Koer v. Abul Hossein/ 1 ) was a suit for the 
the flow of removal of obstruction to the flow of water along an arti- 
anificiai water- ficial water course on the defendant's land. Less than 20 
fendant'a land years before the suit the defendants had obstructed the 
act. flow of water in several places. The Lower Courts differed 

as to whether some of the obstructions had not been made 
more than two years before the suit. It was held that such 
obstructions being continuous acts as to which the cause 
of action accrued de die in diem, Act IX of 1871, schedule 
2, part Y, clause 31, fixing two years from the date of the 
obstruction as the period of limitation for obstructing a 
water course, did not preclude a suit complaining of ob- 
structions though made more than two years preceding 
the date of the commencement of the suit, 
Oase where (g) I n Imdad Ali v. Nijabad Ali,W proprietor of two 

agreement was houses died, leaving a widow and a nephew. On the 18th 
£& d b^°h. tina " Jll ly, 1875 > the widow sold one of the houses for Rupees 300, 
but was unable to give possession as the nephew held pos- 
session of both the houses. On the 16th September, 1875, 
the widow sued the nephew for her dower and for the 
houses, and on the 9th December, 1875, they both entered 
into a compromise by which the nephew was to take for 
his share the house sold by the widow, while she agreed 
to take the other house for her share and dower. The 
widow further agreed to refund to her vendor the Rupees 
800 she had received for the house. The widow died 
without refunding the purchase-money, and on the 23rd 
July, 1878, the vendee sued the nephew for possession 
of the house sold, but obtained a decree only for a fourth- 
share and took possession thereof in July, 1888. The 
nephew died, and his heirs brought the suit against the 
heirs of the widow for Rupees 75, value of tfie \ share 
decreed to the vendee. The Lower Court rejected the suit 

(1) I. L. R., 6 C*lo., 894. | (2) I. L. R., 6 All., 467. 

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8SC. 23] PART III.— COMPUTATION OF PERIOD OF LIMITATION. 203 

as barred by Article 115. It was held tbat such breach 
of the agreement was a continuing breach and had not 
even yet ceased, and that the suit was not barred by 
Article 115. 

(h) Bajubalu v. Krishnarav,^) was a suit brought in Breach of om- 
1872, for damages for breach of the covenants for title possessions a 
contained in a deed dated July, 1865. It was held that breach. 
the breach of the grantor's covenant, so far as related to 
his present right to convey, took place on the day the con- 
veyance to the covenantee was executed, vi*., 15th July, 
1865, and consequently a suit in respect of such breach 
was barred ; but tbe covenant for quiet possession admit- 
ting of a continuing breach was not barred so long as the 
breach continued, and that of the covenant for further 
assurance, there had been no breach at all, as such cove- 
nant would be broken only by refusal on the part of the 
covenantor or his representatives to execute a further 
assurance when required so to do by the covenantee or 
his representatives. 

(i) In a suit between Mahomedans, when a husband a wife with- 
claims as against his wife, restitution of conjugal rights, from her has- 
the relation of husband and wife still subsisting, it was tinning breach 
held that the withholding of herself from her husband 
by the wife is a continuing breach of contract within the 
meaning of this section. Ghizni v. Mussammat Mehran 
(Punj. Bee., No. 60 of 1879). <*> 

(j ) False imprisonment is a continuing cause of action, English case, 
or rather a fresh cause of action arises f rom day to day as ment STa con" 
long as the imprisonment continues ; hence, if the imprison- ofacSon?* 11 * 8 
ment began more than four years before action, but con- 
tinued to a time within the four years, the defendant may 
divide the time and plead the statute to so much of the 
imprisonment as took place more than four years from 
the time of action brought. Coventry v. Apsley, 2 Salk 
420. See Massey v. Johnson, 12 East, 67.< 8 > Article 19 of see Article i» 
the Limitation Act provides that for a suit for compensa- the Indian Act. 

(1) I. L. R., 2 Bom., 273. | (2) Rivaz'g Limitation Act, p. 68. 
(3) Darby and Bosanqnet, p. 30. 



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204 PART III. — COMPUTATION OF PERIOD OF LIMITATION. [8SC. 23 

tion for false imprisonment, time runs from the termi- 
nation of the imprisonment. 
Although a (k) In Whitehouse v. Fellowes,* 1 ) the trustees of a turn- 

recovered da 08 pike-road converted an open ditch, which used to carry off 
sue^for^fresh the water from the road, into a covered drain, placing 
tresh^damajre catchpits with gratings thereon to enable the water to 
ance °o? the" enter the drain. Owing to the insufficiency of such grat- 
wfajdh caused it ings and catchpits, the water, in very wet Seasons, instead 
tute a new cause of running down the ditch as it formerly did before the 
m ° n * alterations by the trustees, overflowed the road, and made 

its way into the adjoining land and injured the colliery of 
the plaintiffs. It was held, that the trustees were liable 
for such injury, if they were guilty of negligence in i 



This in a case pect of such gratings and catchpits. It was further held, 

of continuing * 

injury and not that a fresh damage to the plaintiff 8 colliery ooca- 

continuing da- , . 

mage. sioned by the trustees continuing such insufficient gratings 

and catchpits was a distinct cause of action ; and that, 
therefore, an action brought in respect of it, within three 
months from the time of such fresh damage, although 
after more than three months from the first damage, was 
not defeated by the General Turnpike Act 3, Geo. 4, C. 
126, S. 147, which limits the action against such trustees 

Observations of to three months after the fact committed. Williams, J., 
observes, " I am of opinion that the continuance of the tort 
on the highway, if accompanied by fresh damage to the 
plaintiff, constitutes a fresh cause of action, and that an 
action may be commenced in respect of it within three 

in the case of months from the time such fresh damage occurred. There 

mage fresh da- is no doubt that a fresh damage does not give a cause of 

macro does not — «__ 

give a new action. The authority for that is the case of Fetter v. 

cause © on. g ea j e ^ Qai]^ n) where the defendant had beaten the 

Plaintiff in one plaintiff's head against the ground, and the plaintiff 

covering da- brought an action for assault and battery, and recovered. 

mage for assault ° * 

sued again for Afterwards it appeared that a piece of the plaintiff's skull 
piece of Ms skull came out, and that the injury was greater than was first 

supposed, and he accordingly brought a second action. 

The defendant pleaded the recovery in the former action, 



(1) 80 L. J. 0. P., p. 306. 



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81C. 23] PAET HI. — COMPUTATION OP PBRIOD OP LIMITATION. 



205 



and averred it to be for the same assault and battery. To 
this there was a demurrer, and it was urged for the plain- 
tiff that the subsequent damage was a new matter which 
could not be given in evidence on the first recovery, and 
he compared it to the case of a nuisance where every new 
dropping is a new act ; but Holt, C. J., said ' every new 
dropping is a new nuisance, but here is not a new battery, 
and in trespass, the grievousness or consequence of the 
battery is not the ground of the action, but the measure of 
the damage which the jury must be supposed to have 
considered at the trial.' Now, in the present case, sup- 
pose an action to have been brought after the first flow of 
water in consequence of negligence by the trustees in the 
way they kept the catchpits. When that cause came to 
be tried, the question would be the amount of damages 
the plaintiff would be entitled to recover. It would surely 
have been a monstrous thing to have presumed that the 
trustees meant to persevere in keeping the catchpits in 
that state, and to have argued that the plaintiff ought to 
recover damages calculated on the presumption that the 
trustees would continue the wrong. All that injury could 
have done would have been to have found the amount of 
damage the plaintiff had sustained up to the time when 
the action was brought ; and if the defendant should not 
have discontinued the nuisance, that might have been the 
subject of a fresh action. The assumption on which the 
present action is founded is, that the plaintiff has been 
again damaged by reason of the defendant's continued 
neglect of duty. Can it be said that it was intended by 
the Legislature that the plaintiff should have no remedy 
for this subsequent damage ? The true answer, I think, 
is, that although a party should not be allowed to bring 
a fresh action merely because there has been a fresh 
damage, yet when there has been not only a fresh damage, 
but a continuance of the wrongful act which caused it, 
that is a new cause of action in respect of which the party 
may bring his action." 

(1) Where the defendant had been exercising a right 
of fishing in certain water adversely to the plaintiff for 



Plaintiff com- 
pared his case 
to the case of a 
nuisance where 
every new 
dropping is a 
new act. 

Holt, C. J., said 
every new 
dropping is a 
new nuisance 
but in this case 
there is not a 
new battery. 



The assumption 
on which the 

E resent action 
i founded is 
that plaintiff 
has been da- 
maged again by 
defendant's 
continued neg- 
lect of duty. 



Section 23 can- 
not operate to 
prevent the pos- 



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206 FART III. COMPUTATION OF PERIOD OF LIMITATION. [SBC. 24 

session of a tres- more than 12 years, it was held that a suit bj the 
£uL8hTng X owTi- plaintiff for a declaration that he was entitled to the ex- 
•ertion 28?° er elusive right of fishing in such water was barred by limi- 
tation. Parbutty Nath Roy Chowdhry v. Mndho Paroe.W 
So where the plaintiff claimed aright to a turn of worship 
of an idol, it was held that the cause of action did not 
recur as the term of worship came round, but that be must 
sue within the period of six years computed from his dis- 
possession. Gour Mohan Chowdry v. M. Mohan Chow- 
dry. (*) 

suit for com. 24. In the case of a suit for compensation 

pensation for . . 

Sbie^ith^ut 11 f° r an ac * which does not give rise ,to a cause 
gpociaidamage. Q ^ BtC ^ on un i ess some specific injury actually 

results therefrom, the period of limitation shall 
be computed from the time when the injury 
results. 

Illustrations. 

(a.) — A owns the surface of a field. B owns the sab-soil. B digs 
coal thereout without causing any immediate apparent injury to the 
surface, but at last the surface subsides. The period of limitation 
iu the case of a suit by A against B runs from the time of the 
subsidence. 

(6.) — A speaks and publishes of B slanderous words not action- 
able in themselves without special damage caused thereby. C in 
consequence refuses to employ B as his clerk. The period of limi- 
tation in the case of a suit by B against A for compensation for the 
slander does not commence till the refusal. 

When injury is (a) " Although time commences usually to run in a 

complete at the . 

time of the act, defendant's favour from the time of his wrong-doing, and 

limitation com* , . 

menoes then, not from the time of the occurrence to the plaintiff of any 

When the act is . , _ . . f , , - 

not legaUv in- consequential damage, yet it is necessary for the truth of 

mage occurs this proposition that the wrong- doing should be one for 

damage. which nominal damages might he immediately recovered. 

Not every breach of duty creates an individual right of 

action, and a distinction something similar to that which 

has been drawn by moralists between duties of perfect 

(1) I. L. R., 3 Oalc, 276. | (2) 6 B. L. R., 962. 

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SIC. 24] PAST ID. — COMPUTATION OP PERIOD OF LIMITATION. 207 

and imperfect obligation may be observed in duties arising 
from the law. In this way, a breach of public duty will 
not inflict any direct immediate wrong on an individual ; 
and neither his right to a remedy, nor his liability to be 
precluded by time from its prosecution, will commence 
till he has suffered some actual inconvenience ; while it 
is otherwise, as has been noticed, where there is a private 
relation between the parties, where the wrong-doing of 
one at once creates a right of action in the other. In fact, 
when the injury, however slight, is complete at the time 
of the act, the statutory period then commences, but 
when the act is not legally injurious until certain conse- 
quences occur, the time commences to run from the conse- 
quential damage."* 1 ) 

(b) In Bonomi v. Backhcfuse,* 2 ) plaintiffs were owners Excavating 

of an ancient house. The defendant, for more than six and working 

years before the commencement of the action, worked not in them- 

some coal mines, 280 yards distance from the house. No acta. 

actual damage accrued until within the six years. The ensue© to tie 

question was whether the cause of action accrued within cause of action 

the six years. The majority of the Court of Queen's him only then. 

Bench thought it did not. Willes, J., observes " we are not Observations of 

. . Willes, J. 

insensible to the consideration, that the holding damage 

to be essential to the cause of action may extend the time 
during which persons working minerals and making ex- 
cavations may be made responsible. But we think that 
the right which a man has, is to enjoy his own lands in 
the state and condition in which nature has placed it, and 
also to use it in such a manner as he thinks fit ; subject 
always to this, that if his mode of using it does damage 
to his neighbour, he must make compensation. Applying 
these two principles to the present case, we think that no 
cause of action accrued for the mere excavation by the No cause of ao- 
defendant in his own land, so long as it caused no damage mere excava- 
to the plaintiffs ; and that cause of action did accrue when 
the actual damage first occured." 

(1) Banning, p. 271. 

(2) 28 L. J. Q. B., 378. 



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208 PART III.— COMPUTATION OP PERIOD OF LIMITATION. [SEC. 24 

inmanyinstan- (c) " We should be unwilling to rest our judgment 
S* S^o^ie upon mere grounds of policy ; but we cannot but observe 
S°£S££ f d£ that a rule of law, or rather the construction of a 
SS^nSfuX statute of Limitations which would deprive a man of 
SES^T redress after the expiration of six years, when the act 
SS^ttaiSt causing the damage was unknown to him— when, in very 
Hm^eSavat many instances, he would be in invincible ignorance of it— 
S!S£, W whtf£o?" would be harsh, and contrary to ordinary principles of law." 
£TO£jS£ With reference to the defendant's contention that the 
deride u£ol *° action must be brought within six years after the excava- 
SSSS?* 1 ™ **" tion whether any actual damage has occurred or not, the 
same Judge observed, " The Jury, according to this view, 
would have therefore to decide upon the speculative ques- 
tion, whether any damage was likely to arise; and it 
might well be, that in manp cases they would, upon the 
inconvenience evidence of mineral surveyors and engineers, find no 
npon^JSuia- damage was likely to occur, when the most serious injury 
tive damage. afterwards might, in fact, occur ; and in others, find and 
give large sums of money for apprehended damage, which, 
in point of fact, never might arise." 
inaintaeonent (d) I* lamb v. Walker/ 1 ) which was an action for 
oTjudg^l beS injury to the plaintiffs land and buildings, by removal of 
twe ££age°" lateral support through mining operations carried on by 
was^ recover- ^ e defendant on his own land adjoining, it was found 
by a referee to whom the amount of damage was referred, 
that, in addition to existing damage, there would be future 
damage to the extent of £150. It was held by the 
majority of Judges, (Cockburn, 0. J., dissenting), that 
such damage was recoverable in the action. 
Observations of Manisty, J., observes : " It is a well-settled rule of law 
Mani8ty ' J * that damages resulting from one and the same cause of 
Damages re- action must be assessed and recovered once for all. And 
o^oMse'ofao- it seems to me, that in the present case there is but one 
oovereT'onoe ' and" the same cause of action, namely, that which I have 
te •"• already mentioned." 

it may be said " It may be said that it would be more just and 
SfJ^yw- equitable in a case like the present that the plaintiff should 



cover actual 

damage np to 

^^ (1) 3Q.B.D.,p.896. 



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8BC. 24] PART III. — COMPUTATION OP PERIOD OP LIMITATION. 209 

only be entitled to recover the amount of damage actually the date of fate 
done to his property up to the time of bringing his action, subsequent da- 
leaving him to recover subsequent damage, if any, by a ier^of^ubse- 
subsequent action, or, if need be, by a series of subsequent q *° *** 
actions. The same might have been said in many cases 
in which, however, the contrary principle has for a very The contrary 
long time been, and as I think wisely, acted upon. Take, been for a long 
for instance, the case of the wrongful obstruction of in many cases; 
light by means of the erection of a new building lawful in the case of 
in itself. In that case it might be said the plaintiff ought light by a new 
only to be allowed to recover the damage sustained up to 
the time of the commencement of his action, because, . 
possibly, the obstruction may be removed, and therefore it 
would be unjust to permit the plaintiff to recover pros- 
pective damage unless and until it is actually incurred." 

" If that principle were adopted, one consequence would if plaintiff can 

be that the Statute of Limitations would cease to be tuaftomw up 

operative'. A plaintiff might lie by until after the ex- bis action, the 

. ,. - . .,, , , . ,. , Statute of Limi- 

piration of six years, without bringing any action, and tations would 

then not only bring an action for the damage sustained ratire; 

during the period of six years next before action brought, 

but he would be entitled to bring a series of subsequent 

actions for the damage subsequently accruing. Again, in the case of 

. , , . /, / , - . , slander it would 

take the case of slander actionable only by reason of special not be sumest- 
damage. The speaking of the defamatory word is dam- could only re- 
num absque injuria, and consequently not actionable with- mage up to the 
out special damage, just as the removal of the necessary uon, and again 
support in the present case was damnum absque injuria, quent damage ; 
and not actionable until the plaintiff's property was in- 
jured, but I should suppose it would not be suggested that 
in such a case the plaintiff could only recover the damage 
actually sustained up to the time of bringing his action, 
and that for subsequent damage he might bring a subse- 
quent action or a series of subsequent actions. The fact 
is that the principle hitherto acted upon, namely, that a Though the rule 

i • x-*» x * n i j A that' plaintiff 

plaintiff must recover once for all, by one and the same must recover by 
action, all damage past, present, and future, resulting from mage past, pre 

- ,. , , • sent, and future 

one and the same cause of action, may not always insure 
27 

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210 PART III.— KJOMPUTATION OP PIRIOD OP LIMITATION. [s«C. 24 

reeaitinff from perfect justice, but as a rule it is, in my opinion, a whole* 
not always in- samp principle, and I donbt whether any better could be 
tioe f it i»a whole- devised. It may be that in some exceptional cases, such 

some principle. ... . . , . , . . 

in some excep- * or instance, as injury sustained by a passenger owing to 
ebln^of^aw *ke negligence of the carrier, some useful change might be 
8&to*ft?ttU made in the law. If so, that is a matter for the Legislature* 
Legislature ; j^ ^ j aw 8 tands, the passenger must recover once for all, 
because there is only one cause of action, and it seems to 
And anything me that anything more disastrous than allowing a series 

more disastrous ? * Z * A * ■■ •• * .• 

than allowing of actions to be brought for damage arising from time to 
for one cause of time in respect of the same cause of action could not well 
wen be conoeiv- be conceived. If, in the present case the reversioner must 
resort to successive actions for injury to his reversion, so 
must his several tenants for injury to their possession, and 
the consequence to the defendant would, I should think r 
be very much worse than that of having the damages 
assessed once for all in one and the same action." 
Observatioup of (g) Cockburn, G. J., dissenting from the majority, 
onthe^eflect of was of opinion, that in a case such as Bonomi v. Back- 
house, " the wrong consists in causing the plaintiff's 
premises to fall; consequently it extends only, as far as 
the actual damage goes, hence, each fresh damage be- 
comes a fresh wrong, a fresh cause of action." " Can the 
plaintiff, by bringing his action immediately on the 
happening of a slight amount of damage, and claiming 
therein for prospective damage, which it is assumed will 
happen at some future time, thereby deprive the defendant 
of his right to prevent such future damage by recourse 
to artificial means P The law, beyond all question, allows 
him to avert all liability on account of possible damage in 
respect of the entire amount of damage which may result 
from his operations. If, finding that some damage has 
arisen, possibly contrary to his expectations, he seeks to 
prevent further mischief, I am at a loss to see on what 
principle he is to be prevented from taking measures to 
do so. Yet such would be the effect of such decision. 
d). In Gillon v. Boddington,( 1 > where A by digging 

(1) B. and M., 161. 

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TOO. 25] P4J2T UK— COMPUTATION OF PERIOD OF LIMITATION. 211 

a basin or canal in his own land, caused a stream to flow 
against his neighbour's wall, and gradually to undermine 
it, so that at last the wall fell, the period of limitation 
was held to run from the falling of the wall, and not from 
the time of the digging of the basin or canal. 

25. All instruments shall, for the purposes computation of 

time mentioned 

of this Act, be deemed to be made with refer- in i**™***. 
ence to the Gregorian calendar. 

IUxtstration$. 

(a.) — A Hindu makes a promissory note bearing a Native date 
only, and payable four months after date. The period of limitation 
applicable to a suit on the note rnns from the expiry of four months 
after date computed according to the Gregorian calendar. 

(b.) — A Hindu makes a bond, bearing a Native date only, for the 
repayment of money within one year. The period of limitation ap- 
plicable to a suit on the bond runs from the expiry of one year after 
date computed according to tbe Gregorian calendar. 

(a) In Bungo Bujaji c. Babaji,* 1 ) plaintiff sued on a Astobondbear* 

ing Native date» 
period should 
be calculated 
according to the 
Gregorian Ca- 



note, dated 7th August, 1877, and containing a stipulation period should 

be calculated 

to the effect that " in the month of Kartik Shake, 1799, according to the 



that is to say, in four months, we shall pay in full the lento" 
principal and interest." The plaint was filed on the 6th 
December, 1880, in the Court of Small Causes, at Poona. There u no sav- 
The Judge was of opinion that the claim was barred. On where lunar 
his referring the case to the High Court for its decision, nar years were 
it was held that the period of four months was, for the parties. 
purpose of ascertaining whether the suit was barred by 
lapse of time, to be calculated according to the Gregorian 
Calendar, although the word Kartik will thereby have 
no effect, and the fourth month would expire in Margas- 
hirsha Shudha. In Alemas Banee v. Mahomed Ruja,( 2 ) a 
bond, by its terms, stated that money advanced should be 
re-paid on the 30th Pons, 1288 B. S., and it so happened 
that, in the year 1283, the month of Pons consisted 
only of 29 days (the 29th Pons, answering to the 12th 
January, 1877). It was held, that the suit brought on the 
13th January, 1880, when the money had become re-paya- 
ble on the 13th of January, 1877, was in time. 

(1) I. L. R., 6 Bom., 83. | (2) I. L. R., 6 Oalo., 289. 



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212 FAST in. — COMPUTATION Of PERIOD Of LIMITATION. [sKC. 25 

In Nilkantb v. Datt&traya/ 1 ) it was held that where a 
bond bears a Native date only, and is made payable after 
a certain time, that time, whether denoted by the month 
or the year, is to be computed according to the Gregorian 
(British) Calendar. 
Periods of Umi- (b) In Mahomed Elahee Bnksh v. Brojokishore Sen/*) 
Acts held, it was held in accordance with former decisions, that for 
koned accord." the purpose of computing the period of limitation prescrib- 
cSend*r, in the ed by section 29 of the Beng. Act VIII of 1869, the cal- 
speciai pro^ 7 culation should be made according to the English Calendar, 
trary. In Khasro Mandar v. Premlal/ 8 ) suit was governed by 

section 27 of Act VIII of 1869, of the Bengal Council. 
Although Act I of 1868, the General Clauses' Act, expressly 
referred to Acts passed by the Governor-General in Coun- 
cil, it was held that in the absence of any provision in 
the Bengal Council Act, the interpretation of "years" 
. and " months" given in Act I of 1868, must be followed. 
In Maharajah Jay Mungul Singh v. Lall Bung Pal 
Singh,**) it was held that the periods of {imitation in 
Limitation Acts should be reckoned according to the 
English Calendar unless a different intention is expressed. 
Following the above decision, 0. H., in Saroda Pershad 
v. Pahali Mohanti,**) held in June, 1884, that the word 
" months" in section 32 of Act X of 1859 should be com- 
puted according to the English Calendar, inasmuch as in 
that section, or in sections 33, 90, and 93, which provide 
for limitations, there was nothing to indicate that any 
other calendar was intended. 

(1) I. L. R., 4 Bom., 103. I (3) 9 B. L. R., App., 42. 

(2) I. L. R., 4 Calc, 497. | (4)13 W. R., 183 ; 4 B. L. R., App., 63. 

(5) I. L. R., 10 Calc, 913. 



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SEC. 26] PART IV. — ACQUISITION OF OWNEE8HIP BY POSSESSION. 213 



PART IV. 

ACQUISITION OF OWNERSHIP BY 
POSSESSION* 

26. Where the access and use of light or air Acquisition of 

° right to eaee- 

to and for any building have been peaceably ment8 - 
enjoyed therewith as an easement, and as of 
right, without interruption, and for twenty 
years, 

and where any way or watercourse, or the use 
of any water, or any other easement (whether 
affirmative or negative) has been peaceably and 
openly enjoyed by any person claiming title 
thereto as an easement and as of right, without 
interruption, and for twenty years, 

the right to such access and use of light or 

* Section 8 of Act V of 1882 repeals in the territories of Madras, 
Coorg and the Central Provinces, sections 26 and 27, and the defini- 
tion of easement, and provides that in any Act or Regulation all re- 
ferences to the said sections, or to sections 27 and 28 of Act IX 
of 1871, shall in snch territories be read, as made to sections 15 and 
16 of Act V of 1882. 

Section 3 of Act V of 1882. (See under section 3 page 21.) 

Section 15. Where the access and use of light or air to and for 

Acquisition by pre- any building have been peaceably enjoyed 
scription. therewith, as an easement, without inter- 

ruption, and for twenty years, 

and where support from one person's land, or things affixed there- 
to, has been peaceably received by^ another person's land subjected 
to artificial pressure, or by things affixed thereto, as an easement, 
without interruption, and for twenty years, 

and where a right of way or any other easement has been peace- 
ably and openly enjoyed by any person claiming title thereto, as an 
easement, and as of right, without interruption, and for twenty 
years, 

the right to such access and use of light or air, support or other 
easement shall be absolute. 

Each of the said periods of twenty years shall be taken to be a 



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214 PAST IV.— ACQUISITION OF OWNERSHIP BT POSSESSION. [SEC. 26 

air, way, watercourse, use of water, or other 
easement, shall be absolute and indefeasible. 

Each of the said periods of twenty years 
shall be taken to be a period ending within two 
years next before the institution of the suit 
wherein the claim to i^hich such period relates 
is contested. 

period ending within two yean next before the institution of the 
suit wherein the claim to which each period relates is contested. 

Explanation. I. — Nothing is an enjoyment within the meaning of 
this section when it has been had in pursuance of an agreement with 
the owner or occupier of the property over which the right is claim- 
ed, and it is apparent from the agreement that such right has not 
been granted as an easement, or, if granted as an easement, that it 
has been granted for a limited period, or subject to a condition on 
the fulfilment of which it is to cease. 

Explanation II. — Nothing is an interruption within the meaning 
of this section unless where there is an actual cessation of the enjoy- 
ment by reason of an obstruction by the act of some person other 
than the claimant, and unless such obstruction is submitted to or 
acquiesced in for one year after the claimant has notice thereof and 
of the person making or authorizing the same to be made. 

Explanation IIL — Suspension of enjoyment in pursuance of a 
contract between the dominant and servient owners is not an inter- 
ruption within the meaning of this section. 

Explanation IV. — In the case of an easement to pollute water, the 
said period of twenty years begins when the pollution first preju- 
dices perceptibly the servient heritage. 

When the property over which a right is claimed under this sec- 
tion belongs to Government, this section shall be read as if, for the 
words " twenty years," the words " sixty years" were substituted. 

Illustration*. 

(a)-k. suit is brought in 1688, for obstructing a right of way. The defen- 
dant admits the obstruction, but denies the right of way. The plaintiff proves 
thai the right was peaceably and openly enjoyed by him, claiming title there- 
to as an easement and as of right, without interruption, from 1st January, 1862, 
to 1st January, 1882. The plaintiff* is entitled to judgment. 

(bj— In a like suit the plaintiff shows that the right was peaceably and 
openly enjoyed by him for twenty years. The defendant proves that for a year 
of that time the plaintiff was entitled to possession of the servient heritage as 
lessee thereof, and enjoyed the right as such lessee. The suit shall be dismissed, 
for the right of way has not been enjoyed " as an easement" for twenty years. 

(c)— In a like suit the plaintiff shows that the right was peaceably and 
openly enjoyed by him for twenty years. The defendant proves that the plain- 
tiff on one occasion during the twenty years had admitted that the user was 
not of right and asked his leave to enjoy the right. The suit shall be dismissed, 
for the right of way has not been enjoyed " as of right" for twenty years. 
Section 16. (See under section 27.) 



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i 



SBC. 26] PART IV. — ACQUISITION OP OWNERSHIP BY POSSESSION. 215 

Explanation. — Nothing is an interruption 
within the meaning of this section, unless 
where there is an actual discontinuance of the 
possession or enjoyment by reason of an ob- 
struction by the act of some person other than 
the claimant, and unless such obstruction is " 
submitted to or acquiesced in for one year 
after the claimant has notice thereof and of the 
person making or authorizing the same to be 
made. 

IUvMrations. 

(a.) — A suit is brought in 1881, for obstructing a right of way. 
The defendant admits the obstruction, but denies the right of way. 
The plaintiff proves that the right was peaceably and openly enjoyed 
by him, claiming title thereto as an easement -and as of right, with- 
out interruption, from 1st January, 1860, to 1st January, 1880. The 
plaintiff is entitled to judgment. 

(o.) — In a like suit, also brought in 1881, the plaintiff merely 
proves that he enjoyed the right in manner aforesaid from 1858 to 
1878. The suit shall be dismissed, as no exercise of the right by 
actual user has been proved to have taken place within two years 
next before the institution of the suit. 

(c.) — In a like suit the plaintiff shows that the right was peace- 
ably and openly enjoyed by him for twenty years. The defendant 
proves that the plaintiff on one occasion during the twenty years had 
asked his leave to enjoy the right. The suit shall be dismissed. 

(a) In Ponnusami Tevar v. The Collector of Madura, Before Act ix 

of 1871 1 M. H. 

which was decided in October, 1869/ 1 ) it was thought by thought 12 

. years' enjoy - 

Sir C. H.. Scotland, that no period of enjoyment short of ment conferred 
ln ,, . . , \ x 1 xx. * ri & ht to ease- 

12 years would confer a right to an easement. His view ment. 

was based upon an analogy between the acquisition of an 

easement (which implies a loss to the servient owner) and 

the limitation period of 12 years after which, through 

adverse enjoyment, the owner of the property may be 

debarred from recovering it. Justice tones was of opinion 

that in the absence of common law on the subject, user 

for a shorter period than 12 years, accompanied by cir- 

(1) 5M.H.G. E., 6. 

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1 



216 PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. [8SC. 26 

c. H. also held cnmstances indicative of a grant might be sufficient. In 
the Presidency of Bengal, user, for a period of at least 12 
years, was considered necessary to establish a right to 
easement. Mohim Chundee v. Chnnder Churn. W In Jay 
Prokash Singh v. Ameer Ally/ 2 ) Peacock, C. J., held, 
in 1868, that the English Prescription Act did not apply 
to the mofussil, and that the plaintiff conld not sue to 
remove the band if the defendant had exercised the right 
Bombay Regn- of having it for a period of 12 years. In the mofussil of 
required 30 ' the Bombay Presidency, enjoyment without interruption 
m?nt!ntbe°mo- for a period of more than 30 years was required to 
acquire a right by prescription under Reg. V of 1827, 
section 1, cl. 1. Rambhau Bapushet r. Bhai Babushet* 3 ) 
in the Preri- Anaji Dattushet v. Mumshet Bapushet. (*) In the Presi- 
yeara' enjoy- dency towns, 20 years' uninterrupted user was considered 
quired accord- ^necessary to confer a right to an easement by prescription. 
Sib Law which It was held so by the Bombay High Court in 1862, in 
JT^Wm.iv* Pranjivan Dais v. Mayaram,< 5 ) and in 1871, in Narotam 
e * * Bapu v. Ganpatrav Paudurang.W In Elliott v. Bhoobun 

Mohun,< 7 > the Calcutta High Court held, in 1873, that the 
English Law which prevailed before the passing of the 
Prescription Act, 2nd and 3rd, William IV, c. 71, being 
applicable, plaintiffs were required to shew an uninter- 
rupted user of at least 20 years with the acquiescence of 
Since the above the defendants. Since these decisions, the Legislature, 

decisions, Act 

jx of 1871 fixed in section 27 of Act IX of 1871, fixed 20 years as the period 
20 years. r 

for the acquisition of an easement, but they did not define 

the term " easement." It has been since defined by sec- 
tion 3 of Act XV of 1877. The right asserted in a claim 
founded on prescription should be strictly and clearly 
defined, and cannot be based on rights which are incon- 
sistent. Rajah Bijoy Keshub Roy v. Abhoy Churn 
Ghose.W 

aoyearB* appro- (b) In Sarubaikom Jistmal v. Bapu Narhaf Sohoni/ 9 ) 

and air is ne- 

STEM? (l)10W.R.,p.452. 

prevent his (2) 9 W. R., 91. 

neighbour from / 3 x 2 B. H. C. R., ! 

blocking- up the \-/ - _ — - - ' 



(3) 
(4) 



ip7Au£/ F "" (4) 2 B. H. C. R., 334. 



(5) 1B.H.C.R., p. 148. 

(6) 8 B. H. C. R., 69. 

(7) 19 W. R., 194. 

(8) 16 W. R., 199. 



(July 187a) (9) I. L. R., 2 Bom., ( 

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SBC. 26] PAST IV.— ACQUISITION OF OWNERSHIP BY POSSESSION. 217 

the plaintiff and defendant being owners of two adjoining 
houses with a common party wall between them, the 
former placed a window frame in an aperture in an up- 
ward extension of his part of the wall which he had 
erected eight years before suit, and the latter thereupon 
raised the wall on her side so as to cut off the supply of 
light and air which the plaintiff used to receive before, 
and after the placing of the window frame. It was held, 
that there had been no appropriation of the light and 
air by the plaintiff for the statutory period of 20 years 
creating in him a right of easement, and entitling him to 
relief against the inconvenience sustained by him. 

(c) In Provabutty Dabee v. Mohendro Lall Bose,W it Defendant can 
was held, that where a person, who has a right to light from enlarged win- 

A . . „ r . , ** , xl _ dowilhecando 

a certain window, opens a new window, or enlarges the so without ot> 

. Btructing the 

old one, the owner of an adjoining house has a right to old one. 

u ^ 1 xv i i • •* i. a (June 1881 -> 

obstruct the new or enlarged opening, if he can do so 

without obstructing the old ; but if he cannot obstruct the 

new without obstructing the old, he must submit to the 

burden. 

(d) In Mathura Das Nandvalabh v. Bai Amthi/ 2 ) plain- Use of apertures 
tiff and defendant were next door neighbours. The plain- and air when 
tiff's backrooms received light and air through apertures feet, and not " 
ten inches square made in the back wall of the house, sibie, is enjoy. 
Contiguous to this wall was the defendant's ground, upon right." 
which he built a shed, and the roof, which was completed 

in April, 1878, excluded light and air from two of the 
apertures in the plaintiff's house. The plaintiff sued the 
defendant for its removal ; the defendant contended that 
he had permitted the opening, and that the plaintiff had 
not enjoyed light and air as of right. The Lower Appel- 
late Court held that the defendant's tacit acquiescence in 
the apertures, so long as they did not interfere with her, 
would not constitute a right such as would interfere with 
the defendant's ordinary rights of property. It was held 
that the enjoyment by the plaintiff when it is open and 
manifest, not furtive or invisible, and when it is not had 

(1) I. L. E., 7 Calo., 468. | (2) I. L. B., 7 Bom., 522. 
28 

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218 PAET IV. — ACQUISITION OP OWNBB8HIP BT P088E8SION. [SBC. 26 

in suck wise as to involve the admission of any ob- 
structive right in the owner of the servient 'tenement, 
is an enjoyment " as of right" within the meaning of this 
section, 
tha? ?^^2r (®) * n I >ran ji van d afl Haijivandas t?.;Mayaram Samal- 
"uch ^t Ch is < ^ a8 » (1) * fc was ne ^ ^at *° acquire D y prescription a right 
claimed, has to the uninterrupted access of light and air through the 

assumed the ap- r ° ° 

pearanoe of a windows of a dwelling-house, it is sufficient that the build- 

dwelling-house, m ... 

ttoi^hnotoom- ing, in respect of which the right is claimed, has assumed 
asBuch for the the appearance and outward aspect of a dwelling-house 
{Sec^seali 8, for more than twenty years before the time of the com- 
mencement of the suit, though not completed or used as a 
dwelling-house for the full period of twenty years before 
that time. When a dwelling is so far completed as to 
show an intention to use it as a dwelling-house with cer- 
tain windows or openings for light and air, from that time 
it becomes the duty of those who are concerned in pre- 
venting a prescriptive right to the access of light and air 
from arising in respect of such windows to take steps to 
challenge and hinder the acquisition of such right. 
Obstruction of (f) Where two houses are held jointly by several 

light and air v ' J * * 

must be mate- owners deriving their title from a common source, and one 

rial and such ° 

that compensa- of such houses enjoys a continuous, as distinguished from 

tion. would not * J ° 

give adequate an occasional easement over the other, such easement will, 

relief. m 7 

(August 1871.) upon a partition of the premises, pass to the dominant 
tenement, both by implication of law, and under the usual 
general words contained in the deed of partition. When 
the court is asked to interfere by injunction to restrain 
the obstruction of light and air to a dominant tenement, 
the question to be determined is — is the obstruction such 
as seriously to interfere with the comfort or enjoyment of 
the owners of the dominant tenement, # or such as to cause 
a material injury to it — an injury which cannot be com- 
pletely compensated by damages ? The court will in such 
cases interfere, as well by mandatory as by preventive 
injunction, provided that in the circumstances of the 
case there is nothing inequitable in putting in force the 

(1) 1 B. H. C. E., 148. 

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SBC. 26] PABT IV.— ACQUISITION OF OWNERSHIP BY POSSESSION. 219 

former remedy. The court will look not merely to the court wiu look 

use to which rooms in a dwelling-house from which the use to which 

light is obstructed are actually put at the time of the at°the l Sme P ot 

obstruction, but also to the use to which they may be also to aii'rea- 

, - „ , , m .. Ti • • sonable uses for 

put for all reasonable purposes of occupation. It is lm- occupation. 
material whether light is admitted through a window or 
a door. In case of obstruction, the owner of the domi- 
nant tenement is in either case entitled to protection. 
Ratanji Hormasji Bottlewalla v. Edalji Hormasji Bottle- 
waUa.d> 

(g) In Shriniva8 Udpirao v. Reid,W the plaintiff opening a win- 
opened a new window in his house which rendered the prevented bo- 
defendant's house less private than before. It was held the neighbour's 

that the plaintiff should not be debarred from improving vate or affect* 

privacy. 

his own house, though the effect might be, to some ex- 
tent, prejudicial to his neighbour. In Komathi v. Guru- 
nada Pillai/ 3 ) it was held by the Madras High Court, 
that the invasion of privacy by opening windows is not 
treated by the law as a wrong for which any remedy is 
given. The Judgment of the Lord Chancellor in Tap ling BngUsh Law on 
V' Jones/ 4 ) is a clear exposition of the English Law on ° 8U J0C 
the subject of the invasion of privacy by opening windows. 
He observes, " if my adjoining neighbour builds upon his 
land and opens numerous windows, which look over my 
gardens or my pleasure grounds, I do not acquire from 
this act of my neighbour any new or other right than I 
before possessed. I have simply the same right of build- 
ing or raising any erection I please on my own land, 
unless that right has been by some antecedent matter 
either lost or impaired, and I gain no new or enlarged 
right by the act of my neighbour." In Mahomed Abdur Decision of C.H. 
Rahim v. Birjusahu/ 5 ) defendants having opened certain 
windows and erected a verandah in their house which 
commanded a view of the plaintiff's female apartments, 
the plaintiffs sued them to have the windows closed and 

(1) 8 B. H. C. R. f O. C, 181. 1 (3) 3 M. H. C. R., 141. 

(2) 9 B. H. C. R., 266. | (4) 11 H. L., 29a 

V5) 5 B. L. R., 676. 



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220 PART IV. — ACQUISITION OF OWNERSHIP BY P088I88IOH. [SEC. 26 



According to 
the usage of 
Gujurat, open- 
ing new »per- 
tare affecting 
privacy is an 
actionable 
wrong. 



Opening win- 
dow command- 
ing a view of 
plaintiff's open 
court-yard is 
not invasion of 
privacy. 



Where plaintiff 
claimed right of 
way over land 
held by Govern- 
ment as lessee 
of the owner, it 
was held that 
to acquire a 
right of way or 
other easement 
under the 
Indian Act, it is 
not necessary 
that user should 
be known to ser- 
vient owner. 



the verandah removed. It was held, that no such suit 
was maintainable. This was followed in Sheikh Golam 
Ali v. Kazi Mahomed Zahnr Alam/ 1 ) which was a suit 
to close doors recently opened, because they overlooked 
the Zenana of the plaintiff. In Joogol Lai v. Mussnmat 
Jasoda Bebee/ 2 ) a honseowner in a street changed the 
arrangement or construction of the upper part of his 
house so that the alteration gave him a wider range of 
vision than before, but in a manner otherwise consistent 
with his rights of enjoyment. It was held that no legal 
right of suit is given to a neighbour living on the other 
side of the road complaining of loss of privacy. 

(h) In Manishankar Har Govan v. Trikam Narsi,( s > 
it was held that in accordance with the usage of Gujurat, 
a man may not open new doors or windows in his house, 
or make any new apertures or enlarge old ones in a way 
which will enable him to over-look those portions of his 
neighbour's premises which are ordinarily secluded from 
observation, and so intrude upon his privacy. In Kuvarji 
Premchand v. Baijaver/ 4 ) it was held that in Gujurat, a 
householder's right to privacy is not affected by the fact 
that a public road runs between the dominant and the 
servient tenements. Where a window opened by the 
defendant commanded a view not of the plantiff 's private 
apartments, but of an open court yard outside his house, 
it was held that there had been no invasion of the plain- 
tiff's privacy which would entitle him to have the window 
closed according to the customs legally recognised in 
Gujurat. Eeshav Harkha v. Ganpat Hirachand.C 6 ) 

(i) In Arzan v. Rakhal Ghunder Roy Chowdhery/ 6 ) • 
the plaintiff claimed a right of way over a certain land 
held by Government under a lease from its owner, and the 
court of first instance and the Lower Appellate Court, 
though they held that the plaintiff had enjoyed it without 
interruption for upwards of 20 years, rejected the suit on 
the ground that a right of way cannot be enjoyed as of 



(1) 6 B. L. B., App., 76. 

(2) 3 N.-W. P. H. C. B., 311. 

(3) 6. B. H. C. B., A. C, 42. 



(4) 6 B. H. C. E., A. C. 143. 
(6) 8. B. H. C. E., A. C, 87. 
(6) I. L. E., 10 Calc, 214. 



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SEC. 26] PACT IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 221 

right, without the servient owner's knowledge. The im- 
portant question raised in the second appeal was, whether 
the principles which govern the acquisition of a right of 
way in England by prescription apply also to the acquisi- 
tion of such a right under the Indian Limitation Act. A 
Division Bench, (Garth, C. J., and Prinsep, J), holding 
that it is not necessary that the enjoyment of the ease- 
ment should he known to the servient owner, and that in 
this respect there is a difference between the acquisition There is differ- 
of such rights under the Indian Limitation Act, and their acquisition of 
acquisition under the English Prescription Act, observe: derthk?Actand 
"the Act, under which rights of way and other ease- Seh^rescrip!?" 
ments are now generally acquired in India, has nothing 
to do with prescription. It is an " Act for the Limitation 
of Suits and other purposes," and section 26 enables any 
person to acquire a right of way by a 20 years' user 
without reference to any grant, express or implied, from 
the servient owner. 

" So long as the right of way is enjoyed as an easement so yea™* enjoy- 
peaceably and quietly as of right and without interrup- 2f^°eaMment 
tion for 20 years by a person claiming right thereto, make* IiiTri^ht 
his right at the end of that time becomes absolute and 
indefeasible. Nothing is said in the Act as to the know- 
ledge of the servient owner being necessary to the ac- 
quisition of the right, and as the right to be acquired is not 
a prescriptive one, the rule which obtains in England with 
reference to prescriptive rights seems inapplicable here. 

" Of course, rights of way, as well as other easements, when, however, 
may still be claimed in this country by prescription ; (see cSSmefin^thi! 
Bajrup Koer t>. Abul Hossein :)<*> and when they are so caption, ^>m!e£ 
claimed, the principles which apply to their acquisition pi" to* their al<> 
in England will be equally applicable in this country. |^^a would 
But those principles do not necessarily apply to the ac- " vly ' 
quisition of easements under the Limitation Act. 

" And as a proof that this was the view of the Legislature 
of this country, there is no provision in the Indian Limi- 
tation Act corresponding with section 7 of the English 

(1) I. L. R., 6 Calc, 394. 

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222 PART IV. — ACQUISITION OP OWNBE8HIP BY P08SB88ION. [SBC. 26 

Prescription Act, though there is a provision in section 27 

which answers to section 8 of the Prescription Act, and 

which protects under certain conditions the rights of 

reversioners. 

"PeftoeabiyMid "It is probable that the words * peaceably and openly,* 

troduoed "pro? 1 which are not in the English Act, have been introduced 

vent^cauismon into the Indian Act for the very purpose of preventing 

TOntoStedusOT. these rights being acquired by stealth or by a constantly 

contested user, although actual knowledge of the user on 

the part of the servient owner may not be necessary." 

where plaintiff (j) In Achul Mahta v. Rajun Mahta/ 1 ) the plaintiff 

ofway over de- claimed his right of way over a footpath through the 

inTsos 11 !* ev^ defendant's permises alleging that he had been using it 

velrl, H r Jas for 50 or 60 years up to September, 1877, when the 

^^0^^ defendant wrongfully closed it up. The defendant pleaded 

years before * limitation, alleging that the plaintiff had not enjoyed the 

IoiIk Enjoyment easement within two years before the suit. The High 

^sumcTffrant. Court referred the following issues to the Lower Appel- 



V 




*' late Court. " Was the right of way in question peace- 
ably, openly, and as of right, used by the plaintiff or those 
through whom he claims within two years of the institu- 
tion of the suit ? Supposing that it was not so enjoyed, 
and with reference to the alleged antiquity of the right 
and the observations of their Lordships of the Privy 
Council in Maharani Rajrup Koer v. Syed Abdul Hos- 
sain< 2 ) we further direct the following issue. Is there 
evidence of enjoyment on the part of the plaintiff, or 
those through whom he claims, of such a character and 
duration as to justify the presumption of a grant or 
other legal origin of the plaintiff's right, independent 
of the provisions of section 26 of the Limitation Act 
of 1877 ? In Juggessur Singh v. Nund Lall Singh,( 8 > 
it was held that 20 years of peceable and open enjoyment 
without interruption are needed to make a right of user 
absolute, whether it be a right of way or right of water. 
The interruption referred to must have occurred within 

(1) I. L. R., 6 Calc , 812. I (2) L. R., 7 I. A., 240. 
(3) 20 W. K., 283. 



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SBC. 26] PAET IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 223 

the twenty years and must be an obstruction by the act 

of some person other than the claimant. Glover, J., Glover, J., ob- 

observed : " the illustration (6), to section 27 shows the user within 2 

meaning of the law to be that there must be an exercise JowTsnit was 

of the right by actual user within two years next fjSytsfe.) 

before the institution of a suit for recovery. Again, in c. H. followed 

. it in two subee- 

Gopee Chand Setia v. Bhoobun Mohun Sen/ 1 ) which was quent cases. 
a suit to establish a right of way, it was held that it is 
not sufficient for a plaintiff to prove user for 20 years, 
which ended more than two years next before the insti- 
tution of the suit ; he must show exercise of the right by 
actual user within such period of two years. The same 
view was adopted by Mitter, J., in Baboo Luchmee Per- 
shad Narain Singh t;. Tiluckdharee Singh. W Where plain- 
tiff sued to establish his right to use a water-way for the n.-w. p. h. o. 
rain-water of his roof, and it was found that the roof had even for more 
fallen more than two years previous to the suit, and the win not destroy 
Lower Courts therefore dismissed the claim with refer- 
ence to illustration (b) of this section, on the ground of 
non-user for two years preceding the suit, it was held, 
that plaintiff had not lost his right, as mere non-user of 
an easement for a time, if the circumstances of the case 
are not such as to indicate an intentional abandonment of 
the former right, is not, even if such non-user extend 
beyond two years, sufficient to destroy that right (Punj. 
Rec. No. 62 of 1880) .< 8 > The conflict in the above deci- Tho above con- 
sions arose from the difficulty of reconciling the terms of the difficulty of 
illustration (b) with the last clause of the section. In illustration (ft) 

__ with the l&fit 

Koylash Chunder Ghose v. Sonatun Chung Barooie/ 4 ) clause of the 
which was a later case brought to establish right of pas- 
age fpr boats over the defendant's lands when they were 

flooded, the court held that the section, saying not a word Garth, c. J., 

as to any actual user or exercise of the right within two intwoiyearspre- 

years preceding the suit, such user or exercise of the not necessary. 

. , . , /r~, it ™x (April 1881.) 

right is not necessary. (Vide Note T.) 

(k) In Charu Surnokar v. Dokouri Chunder Thakoor/ 6 ) Right to the 

use of path-way 

(1) 23 W. R., 401. I (3) Rivaz'B Limitation Act, pp. 75, 76. SSK l&dcroat- 

(2) 24 W. R., 296. | (4) I. L. R., 7 Calc, 132. ed when both 

(6> I. L. R., 8 Calc, 956. 



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224 PAST IV — ACQUISITION OF OWNERSHIP BT POSSESSION. [SEC 26 



lands belonged 
to one person, 
was held an 
easement of 
necessity. 
Basement may 
also be acquired 
by implied 
grant. 



If easement 
were apparent 
snd continuous, 
there would be 
a presumption 
that it passed 
with defen- 
dant's tene- 
ment. 



Case where dis- 
continuance of 
user of a lane 
held to have the 
effect of pre- 
venting the ac- 
quisition of the 
statutory right. 
(April 1676.) 



plaintiff sued for an injunction to restrain the defendant 
from using a path on the plaintiff's land. It appeared 
that the land held by the plaintiff and defendant had 
originally belonged to one owner, and that the plaintiff 
and the defendant had obtained their respective tenements 
more than 20 years previously. The path had been 
admittedly made by the original owner, but the plaintiff 
contended that, when he purchased the land, he had closed 
the path. This the Munsif disbelieved, and refused the 
injunction. The District Judge, treating the case as if it 
fell under section 26 of the Limitation Act, and' being of 
opinion that the defendant had not proved 20 years 9 
peaceable, open, and uninterrupted exercise of the right 
°f way, gave the plaintiff a decree. It was held that the 
mode of acquiring an easement provided by section 26 of 
the Limitation Act is not the only way in which an ease- 
ment may be acquired, but an easement may also be acquir- 
ed by implied grant. In the present case, the use of the 
path might be absolutely necessary to the enjoyment of 
the defendant's tenement, in which case there would be 
an easement of necessity, or the use of the path, though 
not absolutely necessary to the enjoyment of the defen- 
dant's tenement, might be necessary for its enjoyment in 
the state in which it was at the time of severance, and in 
this case, if the easement were apparent and continuous, 
there would be a presumption that it passed with the 
defendant's tenement. 

(1) Sham Churn Auddy v. Tariney Churn BanerjeeW 
was a suit for a declaration of the plaintiff's right of way 
over a lane leading from a public road to a door in the 
plaintiff's house, which lane the defendant who resided at 
the end of the lane had obstructed so as to prevent access 
to the plaintiff's house; it appeared that the house in 
respect of which the easement was claimed belonged in 
1855 to one HO, during the time of whose occupation 
there was user of the right of way over the lane to the 
door until he had the door bricked up. In April, 1865, 



(1) I. L. R., 1 C&lc, 422 



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8EC. 26] PART IV. — ACQUISITION OF OWNERSHIP BT POSSESSION. 225 

the house was sold by H C, and in Jane, 1867, was con- 
veyed by the purchaser to the plaintiff. From the block- 
ing np of the door until the plaintiff's purchase, no user 
was proved. The suit was brought in June, 1875, about 
a month after the erection by the defendant of the ob- 
struction complained of. It was held that the owner of 
the dominant tenement having, with the intention of pre- 
venting the use of the way, created an obstruction of a 
permanent nature which rendered such use impossible, 
the way could not be said, during the continuance of such 
obstruction to have "been openly enjoyed" within the 
meaning of section 27 of Act IX of 1871, and that, 
accordingly, though there had been no interruption within 
the meaning of that section, a right to the way had not 
been established under the Act. 

(m) In Joy Doorga Dossia t?. Juggernath Roy/ 1 ) plain- a right of way 
tiff claimed a right of way over the defendant's land to ment must not 
drive his cows, alleging that for many years they have to destroy all 
been driven over them. Macpherson, J., observes, " if uses of the ser- 
they, having driven the cattle over the lands generally, — n pr ° 
that is to say, not by any paticular path, but straggling 
promiscuously over the lands, — which is the right claimed Right to drive 
by the plaintiff, be held to give the plaintiff a right in cuously over 
all time to come so to drive his cattle, it would be inter- 
fering with the lands to such an extent as to make it im- 
possible that they should ever be used for any useful 
purpose. But a right of way or other easement must not 
be so large as to extinguish or destroy all the ordinary 
uses of the servient property. (See Zumeer Ali, 1 Weekly 
Reporter, page 230) ; and in my opinion no length of 
time would have given the plaintiff such a right as he 
claims, namely, a straggling right to the promiscuous use 
of the whole property for the purpose of driving his cattle 
over it." In Gooroo Churn Goon t;. Gnnga Gobind Chat- 
ter] ee/ 2 ) it was held that the owner of a piece of land 
between a village and the public road who allows his 
neighbour's cows to pass over it on the way to pasture, 

(1) 15 W. E., 295. | (2) 8 W. E., 269. 

29 

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226 PART IT. — ACQUISITION OF OWNERSHIP BT POSSESSION. [SEC. 26 

does not thereby create a right of easement over the land 
so as to deprive it of all value by rendering its cultivation 
impossible. 
There can t» no (n) In Sreedhur Dey v. Adoyto Kurmokar/ 1 ) def en- 
right to injure dants claimed a prescriptive right of throwing into the 
though such in- plaintiff's tank, the burnt earth of which their crucibles 
warrant of an- were made. It was held that there could be no preecrip- 
(Ju^y 1873.) tive right in such a case, and that if the defendants per- 
sisted in throwing earth into the tank, the plaintiff might 
Throwing cruci- suffer greater injury than he has already sustained. In 
the Municipal Commissioners of the Suburbs of Calcutta 
v. Mahomed Ali,< 2) which was a case dealt with by a Ma- 
gistrate under section 310 of the Criminal Procedure 
Code, (XXV of 1861), it was held that no length of enjoy - 
Public nuisance ment can legalise a public nuisance involving actual 

danger to the health of the community. 
English cases " In Wood v. Sutcliffe, (2 Sim., N. S., 163), the Vice- 

recognising . . , 

rightto polluted Chancellor says : that a manufacturer may acquire a right 

stream, to pour his polluted water into a stream as against all 

new comers, so that those below him coming after he has 

acquired the right may not have the right to complain of 

what he does to the stream. Thus a right to pollute 

water may be acquired by 20 years' user. (See Crossley 

v. Lightonler, L. ft., 3 Eq. 279 ; 2 Ch. App., 478 ; Baxen- 

dale v. McMurray, L. R., 2 Ch. App., 790.) 

and right for A prescription for washing away by means of a stream, 

and other stuff the sand, stones, rubble and other stuff which become dis- 

in working a tin 

mine. lodged or severed in the course of working a tin mine, *and 

using the tin and tin ore, is not unreasonable or indefinite, 
since it is by implication limited to the necessary work- 
9 ing the mine and the quantity of water sent down, and 
though more stuff may come at one time than at another. 
(Carlyon v. Lovering, 1 H. andN. 797, 800.")( 3 > 
Plaintiff should (o) In Radhanath Sugracharji v. Baidonath Seal Ka- 
Rahe right! but birag/ 4 ) plaintiff sued for a declaration of a right of way 
route^ artlcnlar over the land of the defendant. It was held, that plain- 
tiff must prove the particular line over which he claimed 

(1) 20 W. R., 237. I (3) Gale, p. 486. 

(2) 7 B. L. H., 499. | (4<) 8 B. L. fi,, App., 118. 



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8KC. 26] PART IV. — ACQUISITION OF OWNERSHIP BY P086l88iON. 227 

the right, and that mere proof of a right to pass over the 
land without proving the particular route will not entitle 
him to a decree. In Goluck Chunder Chowdbry v. Tari- 
nee Churn Chuckerbutty/ 1 ) the court observe, a right of 
way imports ex vi termini a right of passing in a particular 
line, and not the right to vary it at pleasure. This would 
be an abuse of the right and it might be an inconvenience 
to the owner of the land charged with the easement. 

(p) In Harida8 Nandi v. Jadunath Dutt/ 8 > it was Discontinuance 
held, that a right of way over the land of another must be SeWM*) affect 7 
kept up by constant use and that after . a discontinuance 
of such use for a period of six years no suit can be brought 
to re-establish it. In Krishna Chandra Chuckerbutty 
9. Krishna Chandra Banik/ 3 ) it was held that a finding 
that a right of way had been formerly exercised is not a 
sufficient finding to indicate the length of time for which 
the right had been exercised, and is therefore insufficient 
to prove a right of user. In Beni Madhab Das v. Ramjay Acquiescence in 
Rokh,W A had a right of way over B y s land. He allow- SSEffffiw 
ed B to erect a house on the path-way and enjoy it for 
seven years. He then brought a suit to have the path- 
way re-opened by pulling down B's house. It was held 
that A must be taken to have acquiesced in the interrup- 
tion of his right of way, and his claim was such that a 
court of equity and good conscience would not enforce. 
Acquiescence in the sense of mere submission to the in- Acquiescence to 
terruption of the enjoyment does not destroy or impair an mnstbeattritra- 
easement. To be effectual for that purpose, it must be tention to 
attributable to an intention on the part of the owner to benefit, 
abandon the benefit before enjoyed. . Ponnusawmy Tevar 
v. The Collector of Madura. < 6 > In Kesava Pillai v. Peddu 
Reddy W a tenant by his lessor's permission erected a dam 
upon his holding and thereby obstructed the natural flow 
of the water to other lands of the lessor. It was held, that case where 
the mere permission did not amount to a grant, and Son* to erect a 

. <■• i . , .. •ill dam was held 

that there was no implied grant of the right to rise not to amount to 



i 



1) 4 W. R., 49. 

2) 5 B. L. B., App., 66. 
(3) 3 B. L. B., A. C, 211. 



(4) 1 B. L. R., A. C. 213. 

(5) 5 M. H. C. B., 6. 

(6) 1 M. H. C. R., 258. 



a grant. 



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228 



PABT IV.— ACQUISITION OP OWNKE8HIP BY POSSESSION. [SIC. 26 



A man licensing 
an act in its in- 
ception may 
seek for relief 
if injurious 
consequences 
which he could 
not have con- 
templated, arise 



Eight of 
ment may be 
created by a 
contract. 



Plaintiff enjoy- 
ed a channel on 
defendant's 
land on agree; 
ment for many 
years. 

The agreement 
was held not 
revocable at 
pleasure. 



Distinction be- 
tween a mere 
license and one 
coupled with 
the creation of 
an interest. 



water so as to derogate from the rights of those through 
whose lands the stream would otherwise flow. It was 
further held that the right under the permission might 
be terminated by revocation of the latter, but that such 
revocation would only be permitted on the terms of the 
landlord paying to the tenant the expenses which that 
permission had led him to incur. Even when the dominant 
and servient tenements are the property of different per- 
sons, a man may license an act in its inception and yet be 
entitled to relief when the act is found to have injurious 
consequences which he could not have contemplated at 
the time of the license. 

(q) In Krishna v. Rayappa Shanbhaga/ 1 ) which was 
a suit to establish a right of water and for damages for 
interruption of the same, plaintiff and defendant by agree- 
ment between them, constructed a dam across a main 
channel, and from thence a smaller channel was made 
through the land of the defendant to the plaintiff's land 
by means of which it was agreed that the plaintiff should 
be at liberty to irrigate his fields. This agreement was 
acted upon for a long course of years. It was held that 
the agreement was not a mere parol license revocable at 
the pleasure of the defendant, but an agreement which 
created a right of easement, unlimited in point of time 
to the use of the water by the plaintiff, and imposed upon 
the defendant the corresponding duty of allowing the- 
accustomed supply to flow. A mere license differs in its 
effects from a license coupled with the creation of an 
interest. The former is revocable, but the latter is subject 
to the same incidents, and is as binding and irrevocable 
as any other contract, gift, or grant. The law in this 
country does not require that. any agreement between 
natives, whether in regard to the transfer or creation of 
an interest in land, or otherwise, should be in writing ; 
nor does it distinguish between agreements under seal 
and by parol. The Transfer of Property Act has intro- 
duced some change in this respect. 



(1) 4 M. H. C. R., 08. 



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8KC. 26] PABT IV. — ACQUISITION 0? 0WNEB8HIP BY P088ESSION. 229 

(r) In Madanmahan Sen v. Chandrakumar Mooker- Suit for tres- 

M , „ ,, . ,. *%.,.», P*m andfto res- 

iee W Q, the owner of certain property sold it in lots train the open- 

I j-j« * m. i •'*•* \ * -x- ingofdoorsKto 

to different persons. The plaintiffs purchased a portion a lano over 

*., m. *,,.«•* * . which plaintiff. 

of the property, and obtained from Q a conveyance, in had a right of 

which the southern boundary of the land purchased by (jSy lew.) 

them was stated to be " the land of the said Q, out of 

which he has allowed a passage 6 feet broad running 

almost straight west to east and terminating on another 

passage leading, Ac. ;" the deed continued, " which two 

passages, the said has granted and allowed, and doth 

hereby grant and allow to" the plaintiffs, " their heirs, 

representatives, and assigns, and all the other purchasers 

of the northern portion of the said pieces of land, <fcc., 

together also with the right of the two passages for ingress 

and egress hereinbefore mentioned." In a second deed, 

conveying another parcel of land to the plaintiffs, said, 

with reference to the latter passage, " no one shall be able 

to throw sweepings or filth on the said road, or make it 

unclean ; if any one does at any time act thus, you will 

deal with him according to the laws in force/' The 

defendant had become possessed of part of the northern 

portion of the land sold by G, and he also owned under 

a distinct title a house abutting on the lane in dispute, 

but having no doors opening into it. Shortly before the Shortly before" 

institution of the present suit, the defendant constructed opened three 

doors, and used 

three doors opening on to the lane, two of which were two for cleaning 

privies and one 

used for the purpose of cleaning two privies on the def en- as means of ac- 

. cess to the lane. 

dant's premises, and the third was used by the defen- 
dant and his servants as a means of access to the lane. 
In a suit by plaintiffs, seeking damage for trespass and 
an injunction against the wrongful user of the lane by the 
defendant, and praying that he might be ordered to close 
the three doors, it was held (per Couch, C. J., and Markby 
J.,) overruling the decision of Macpherson, J., that the 
plaintiffs had not such a property in the soil of the lane 
as would entitle them to prevent the defendant from 
making new doors on to the lane and to restrain him from 

(1) 9 B. L. R., 328. 

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280 PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. [sBC 26 

Defendant wm using the doors already made; they had only a right 

using door. of way : bat an injunction was granted restraining the 

ingprivieeorin defendant from using his door- ways for the purpose of 

manner so as to cleaning his privies, or in any other manner so as to 

obstruct the 

plaintiff. obstruct the free use by the plaintiffs of the lane. 

Bight of pa*- (s) In Doorga Churn Dhur v. Kally Coomar Sen/ 1 ) 

the rainy reason it was held that a right of passage for boats in the rainy 

over a channel 

wholly in an- season over a channel, wholly in another man's land, is, 

other's land, is . ' J ^ . ' I 

analogous to an in respect of extent, analogous to an ordinary right of 
of way. way ; and the dominant owner cannot complain of the 

servient owner's narrowing the channel, so long as the 
latter, by so doing, does not prevent the former from pass- 
ing and repassing as conveniently as he has always been 
Passage oyer accustomed to do. A right of passage for boats in the 

another's tank . ° ' ° . 

to be valid, must rainy season over another person s tank must be claimed 

be claimed in a 

particular di- in a particular direction in order to be valid. Garth, C. 
(March 1881.) J., observes, " we believe that the law upon the subject is 
thus correctly laid down in Goddard on Easements." * It 
may be mentioned here, that a right of way along a pri- 
vate road belonging to another person, does not give the 
dominant owner a right, that the road shall, in no respect, 
be altered, or the width decreased ; for his right does not 
entitle him to the use of the whole of the road, unless the 
whole width of the road is necessary for his purpose ; but 
it is merely a right to pass with the convenience to 
which he has been accustomed. The right, therefore, 
merely extends to that portion of the centre of the road 
The obligation which is necessary for the due exercise of the right of 
owner isthathe passage. The only obligation upon the servient owner is, 
raaronabiy 1111 'that he shall not unreasonably contract the width of the 
or^nder*paa£ road, or render the exercise, of the right of passing less 
ing leas easy. eftg y than it was at the time of the grant.' 
To establish * (t) In Koylash Ch under Ghose v. Sonatun Chung 
tuai nser with- Barooie/ 2 * the plaintiffs sued on the 6th of April, 1878, 
previous to suit, to remove obstruction to a right of way for boats in the 
under this sec- rainy season. The defendants admitted the obstruction, 
(April 1881.) but denied the right of way. The plaintiffs proved that the 

(1) I. L. R., 7 Oalc. 146. | (2) I. L. E., 7 Calc, 132. 

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SIC. 26] PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 231 

right was peaceably and openly enjoyed, and actually 
used by tbem claiming title thereto as an easement and 
as of right without interruption from before 1855 down 
to November, 1875, since when, no actual user of the way 
by the plaintiffs had taken place. The Lower Appellate 
Court dismissed the suit on the ground that the plaintiffs 
had made no actual use of the way within two years 
previous to the institution of the suit. It was held, rever- 
sing the decision of the court below, that, notwithstand- 
ing Act XV of 1877, section 26, illustration (o), actual 
user within two years previous to the institution of the 
suit is not necessary in order that the right claimed may 
be acquired under this section. Illustrations in Acts illustrations 
of the Legislature ought never to be allowed to control be* allowed to 
the plain meaning of the section to which they are ap- plain meaning 
pended, especially when the effect would be to curtail a to which they 
right which the section in its ordinary sense would ""^pp 611 
confer. Garth, 0. J., observes : " The 26th section of the 
Limitation Act only renders it necessary, as far as we can 
see, that the enjoyment of the right claimed should have* 
continued till within two years before suit. The section 
says not a word as to any actual user or exercise of the 
right within the two years. It is obvious to us, that the 
enjoyment intended by the section means something very 
different from actual user. In order to establish the 
right, the enjoyment of it must continue for 20 years ; but 
in the case of discontinuous easements, this does not mean 
that actual user is to continue for the whole period of 20 
years. On the contrary, there may be days and weeks and 
months, during which the right may not be exercised at 
all, and yet during all those days and weeks and months, 
the person claiming the right may have been in full 
enjoyment of it. The easement with which we have to 
deal in the present case affords a remarkable illustration 
of this. The right which the plaintiff's claim can 
only be used by them during the two or three months 
of the year when the defendants' land is flooded ; and if 
there were a lack of rain, it is probable, that even for 
20 or 21 months, the right might not be exercised at all ; 



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232 PART IV. — ACQUISITION O* OWNKR8HIP BY POS81S8IOH. [8EC. 26 

and yet, so long as the plaintiffs' right was" not interfered 
with whenever they had occasion to use it, their enjoy- 
ment must, we conceive, be considered as cod tinning 
during all the year round." 

" Unless this were so, a person in the plaintiff's posi- 
tion, who could only use his right during a short period 
of the year, could never gain a prescriptive right at all." 
20 years' user (u) In Parmeshari Pros had Narain Singh v. Mahomed 
right of private Syud, (1 ) the plaintiffs claimed an exclusive right of ferry 
ingtoUa. across a river from .their own ghat on the eastern side to 

( anuary . ^ e gjj a ^ f ^ ne defendant on the western side of the river. 
They claimed not only the right to carry passengers and 
to take tolls from them, but also to exclude the defendant 
from interfering with their profits by exercising a similar 
right of ferry on the western side. It was held, that the 
right of establishing a private ferry and levying tolls is 
recognised in British India, and that 20 years is the 
shortest period within which such a right of ferry can be 
^established by user. 
Eight to the * (v) In* Ramessur Persad Narain Sing v. Koonj 
th^h^an** Behari Pattuk,< 2 > the Privy Council held that the right to 
cowecon?^ water flowing to a man's land through an artificial water- 
SeShbour's 1 * course, constructed on a neighbour's land, must rest on 
<m aome^grant some grant or arrangement, proved, or presumed, from or 
pro'^edTp ^ with the owner of tbe land fr0m which the Water i8 

earned. artificially brought, or on some other legal origin. Such 

a right may be presumed from the time, manner, and 
circumstances under which the easement has been en- 
joyed. 
sirM. B.Smith, (w) There is no doubt that the right to the water of 
to'water 'of* a a river flowing in a natural channel through a man's land, 
a M£mT i chai£ and the right to water flowing to it through an artificial 
man^uSd 1 and water-course constructed on his neighbour's land, do not 
an artificial r ° rest on the same principle. In the former case, each 
not^rert^the successive riparian proprietor, is, primd facie, entitled to 
ground. ^ e un i m p e( j e( j fl ow f the water in its natural course, 
and to its reasonable enjoyment as it passes through his 

(1) I. L. B., 6 Calo., 606. | (2) I. L. E., 4 Calc, 688. 

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8BC. 26] PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 238 

land, as a natural incident to his ownership of it. In the Each successive 
latter, any right to the flow of the water must rest entitled to an- 

, .,, , , impeded flow of 

on some grant or arrangement, either proved or presumed, water in a na- 
from or with the owners of the lands from which the 
water is artificially brought, or on some other legal 
origin. The above distinction seems to be now clearly 
established, for, although it was said by the Court of 
Queen's Bench, in the case of Magor v. Ghadwick, (11, 
A. & £., 571, p. 586), that it was no mis-direction to tell 
the jury 'that the law oi water-courses is the same, 
whether natural or artificial,' it was held in the subsequent 
case of Wood v. Waud, (3 Exch., 748 ; S. C, 18 ; L. J., 
N. S., Exch., 305,) which appears to their Lordships to 
be correctly decided, that this expression is to be con- 
sidered as applicable to the particular case, and that as a 
general proposition it would be too broad. On the other 
hand, it appears to their Lordships that the proposition 
that a right to the use of water flowing through an arti- 
ficial channel cannot be presumed from the time, manner, 
and circumstances of its enjoyment, is equally too broad 
and untenable. 

• It was said by the court, in Wood v. Waud. We entirely 
v concur with Lord Denman, C. J., that the proposition 
that a water-course, of whatever antiquity, and in what- 
ever degree enjoyed by numerous persons, cannot be 
enjoyed so as to confer a right to the use of the water, 
if proved to have been originally artificial, is quite 
indefensible ; but, on the other hand, the general propo- 
sition, that under all circumstances, the right to water- 
courses, arising from enjoyment, is the same, whether 
they be natural or artificial, cannot possibly be sustained. 
The right to artificial water-courses as against the party Right of pro- 
creating them surely must depend upon the character of SiSai water- 
the water-course, whether it be of a permanent or tempo- on its character 

. . and the eircnm- 

rary nature, and upon the circumstances under which stances under 

., / A , i mi. . * wbi0h tt Wa * 

it is created. The enjoyment for 20 years of a stream created, 
diverted or penned up by permanent embankments clearly 
stands upon a different footing from the enjoyment of a 
30 



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234 PABT IV. — ACQUISITION 07 0WKIK8HIP BT P08818SIOH. [SBC, 26 

flow of water originating in the mode of occupation, or 

alteration of a person's property, and presumably of a 

temporary character, and liable to variations.' 

In a case which occurred soon after this decision — 

Greatrex v. Hayward, (8 Exch., 291)— Baron Parke 

shortly states the principle thus. 'The right of the 

party to an artificial water-course, as against the party 

creating it, must depend upon the character of the water* 

* course and the circumstances under which it was created.' 

Long enjoy- (x) In Rajrup Koer v. Abul Hossein/ 1 ) more than 

for to legal ' 20 years, and possibly 50 or 60, before the suit, the plain- 

user to rapport tiffs ancestors and predecessors in estate had constructed 

grant or agree- and used a pain, or artificial water-course, on the defen- 

eaaement inde- dant's land, making conpensation to them. The pain, by a 
pendently of the 1 _ . 

Act. channel at one part of its course contributed to the water in 

a tal y or reservoir, belonging to the defendants ; and by a 
channel at another part, took the water which overflowed 
from the tal, after the defendants had used as much of the 
water therein as they required. Less than 20 years before 
the suit, the defendants, without authority, obstructed the 
flow of water along the pain in several places. The courts 
below differed as to whether some of these obstructions had 
not been made more than two years before the suit, the rest 
having been made within that period. It was held, that 
the provisions of Act IX of 1871, a remedial Act and 
neither prohibitory nor exhaustive, did not exclude, or 
Title may be ac- interfere with the acquirement of rights otherwise than 
tn^ r Act U by B 'a under them. A title might be acquired under that Act 
nT^her^rigift, by a person having no other right at all ; but it did not 
exclude other exclude, or interfere with other titles and modes of acquir- 
ed acquiring ing easements. And section 27, by allowing a user of 
easements* ^q years, if exercised until within two years of suit under 

the conditions prescribed, to give, without more, a title, 
did not prevent proof of an easement founded on another 
title independently of the Act. Such a long enjoyment as 
the plaintiff had proved should be referred to a legal origin, 
and the long user of the pain and of the superfluous 

(1) I. L. R., 6 Calo., 394. 

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4838C. 26] PART IY. — ACQUISITION OF OWNERSHIP BY POSSESSION. 



235 



water of the foZ, afforded evidence, giving rise to a 
presumption that a grant, or an agreement, had been 
made, creating an easement. Although, on the assump- 
tion that some of the obstructions in question had existed 
for more than two years before the suit, the plaintiff 
might not have shown a right under Act IX of 1871, 
section 27, jet he did not require its aid. 

(y) In Ami Jagirdar v. Secretary of State for India/ 1 ) 
the plaintiff claimed a right to the uninterrupted flow of 
water as a hereditary and customary right. The District 
Judge, referring to section 27, dismissed the suit because 
it was a suit to establish a right in the nature of an ease* 
ment, and there had been no user for the two years next 
preceding the suit. A Division Bench, (Kindersley and 
Muttusami Ayyar, J. J.,) reversing the decision in January, 
1880, held that the plaintiff has not claimed any statutory 
right, and that the right claimed may exist independently 
of the provision of section 27, and remanded the suit. In 
this they followed the ruling of the Privy Council in the 
case of Maharani Bajrup Koer v. Syed Abdul Hossein, <*) 
in which their Lordships, reversing the decision of the 
Calcutta High Court, which dismissed the suit on the 
ground that the plaintiff had not come into court within 
two years from the date of infringement of his right, 
observed that Act IX of 1871 contained two sets of provi- 
sions distinct from each other ; one relating to the limi- 
tation of suits, the other enacting' a mode of acquiring 
ownership by possession or enjoyment, and that the object 
of the last mentioned part of the statute, was to make more 
easy the establishment of rights of this description, but 
that the statute was remedial and neither prohibitory nor 
exhaustive. In Kurupam Zamindar v. Merangi Zamin- 
dar,< 3 ) the plaintiff sued to establish his customary right to 
erect a dam across a stream. In the second appeal it was 
contended that if the easement claimed was not by grant, 
it can only be claimed by prescription, and under the 



M. H, 

Suit to recover 
a hereditary 
and customary 
right to flow of 
water, will lie 
within 12 years 
from the date of 
cause of action. 
fJany. 1890) 
District Judge 
rejected the suit 
on the ground 
of non-user 
within two 
years preceding 
the suit. 



M. H. remand- 
ed the suit on 
the ground that 
plaintiff had 
not claimed the 
statutory right. 



The statute is 
remedial and 
neither prohibi- 
tory nor ex- 
haustive. 

Another Madras 



(1) LL.E,5 Mad^ 226. I (2) L. R., 7, 1. A., 24a 
(3) LL.B.,5 Mad., 253. 



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236 PAST IV. — ACQUISITION OP OWNERSHIP BT F088B88ION. [88C. 26 

Limitation Act the suit was barred. The court held that 

there was nothing in this Act XV of 1877 to prevent a 

person from suing to establish his right to an easement 

acquired tinder the law in force prior to that Act, and that 

the provisions of section 4 of the Act apply only to the 

b. h. also beid periods named in the second schedule. The above deci- 

m * sion was followed in Pnnja Kuvarji v. Bai Kuvar.< l > 

Superior rip*- (z) In Subramaniya Ayyar v. Bamachandra Row,W 

tor^ n££tto. the plaintiffs have lands in a village. South-east of 

notaneaeement these lands, and running south, is the stream P, along the 

^£Jringof Act banks of which the plaintiffs' lands lie. At a point on 



the east side of this, another stream (the one in dispute) 
branches off, running west at right angles to the stream P. 
Plaintiffs have lands on the banks of this stream also. 
They are therfore, as regards these two streams, riparian 
proprietors. It is found that the accustomed course of 
things was for the water from the lands of plaintiffs to 
drain into the stream P, and for the stream, about which 
the contention is, to receive such water as might fall into 
it from the stream P, and to flow onward without 
obstruction. Defendants, however, obstructed the flow 
of the stream, and thus forced back the water and 
obstructed the drainage of plaintiffs' lands to the west 
Lower riparian of the stream P. A lower riparian proprietor can only 
Riocking up the justify an act of this kind if he has acquired an ease- 
jufttiify'itoniyif ment to do it. But defendants have not asserted or 
quired an ease- attempted to establish a right of easement to infringe 
Bien upon the plaintiffs' natural right of property by obstruct- 

ing the natural flow of the stream and keeping water 
standing upon plaintiffs' land. Such an act is an inter- 
ference with a right of property which the plaintiffs, 
riparian proprietors, have to the accustomed flow of the 
stream, and is actionable whether special damage has or 
has not accrued, (Wood v. Wand 3 Exoh., 748, 773) because 
the injury to the right imports a damage. The action 
lies equally for continuing as for creating a nuisance, and 
so long as the obstruction is continued, there is a con- 



(1) I. L. R., 6 Bom., 20. | (2) I. L. B., 1 Mad., 885. 



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SEC. 26] PABT IV. — ACQUISITION OF OWNERSHIP BY POSSESSION* 237 

tinual cause of action from day to day. (Battishill v. 
Beid, 18 C. B., 696 L. J., 25 C, page 290.) Ii is part of 
the defendants' case that the flow of the stream is 
obstructed by them. 

(2-a) In Kristna Ayyan v. Vencatachella Mndali.W Government, as 

v 7 JJ propHetor of a 

the plaintiffs, as shareholders in and heads of the villages channel, nave 

• * . j -^ • .i i. -. * . . . • "*** to diBtri- 
of Ariyur and Kuyirikndi, sned for an mi unction directing? bote the water 

* in the channel 

the defendants to close an irrigation channel which was for public bene- 

, . _ _ _ _ _ , , , nt. subject to H- 

opened in loo9 and to remove the sluice. It appeared that a mlted use by 

* rr plaintiffs and 

channel called Kaduvai had, by means of a branch, for very other villages in 

J ''the same posi- 

many years supplied the plaintiffs village with water, tion as piain- 
The village of Partical, of which the 1st defendant was 
Mirasidar, up to the date of the opening of the new chan- 
nel, had received its supply from the Mallattar channel. 
The supply from this was insufficient, and the 2nd defen- 
dant, the Superintending Engineer, (representing Govern- 
ment) designed a new channel from the Kaduvai to sup- 
plement the deficiency of the Mallattar. The water of 
the Kaduvai was diverted into the new channel at a point 
above the point of divergence of the branch channel from 
the Kaduvai to the plaintiffs' village. The relief was 
prayed for in the court of first instance on the ground that 
the supply by the Kaduvai had never been sufficient 
for the wants of the village and that the new channel 
must necessarily cause a still further deficiency. The 
Civil Judge found that the plaintiffs had sustained no loss 
by the opening of the new channel, and dismissed the suit. 
On appeal, it was contended ; first, the plaintiffs had an Plaintiffs claim- 
absolute right to the uninterrupted flow of all the water in rtoht to the flow 
the Kaduvai channel without subtraction or diminution without anv <u« 
by the defendants or by the Government represented by the Government 
2nd defendant, and that any diminution, though not caus- 
ing loss, was an invasion of their rights ; second, that if 
they had not such absolute right, they had a right to a 
supply of water for the necessary purposes of irrigation, 
and otherwise for their village, and that the possibility of 
loss at some future time, arising from a possible wrongful 



(1) 7 M. H. 0. R., 60. 



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238 PART IV.— ACQUISITION OP OWNEE8HIP BY POSSESSION. [sEC. 26 

diminution of the water to their detriment through the 

new slnice and channel, entitled them to the relief claimed* 

it wan held they Upon the first point, it was held that the plaintiffs had not 

had no such ex- K r * 

tensive and ex- the extensive and exclusive right to the water contended 

elusive right as ° 

they contended for by them, but that their right was limited to the bene- 
ficial enjoyment of the water for the irrigation and other 
necessary purposes of their tenancies as heretofore enjoy- 
ed. Also that the Government, as proprietor of the Ka- 
duvai channel and water in it, had, subject to the above 
limited use by the plaintiffs and other villages in the same 
position as the plaintiffs, a right to distribute the water of 
the Kaduvai channel for the benefit of the public. Upon 
the second point, it was held that no ground existed for 
granting an injunction, as no right of the plaintiffs had 
been invaded, no damage had accrued, and no case of pros- 
pective damage had been made out. 

Case where (2-t>) The tank used for the irrigation of the plain- 

plaintifl claim- ,.— ,.,, ,. * . . , . - „. 

ed prescriptive tiffs village was supplied in part by ram water falling on 

right to throw . „ 

back water on the lands of the v ill aee occupied by defendants 9 to 17, 

defendants' or* 

land tin it and the bund of the tank used formerly to throw back 

area of a tank, the water so flowing into the tank on to the lands of 

defendants, where it remained till gradually drawn off 

into the area of the tank. Defendants 9 to 17, through 

it was held the agency of the Government, relieved themselves of 

there was no ob- ., . . . , , . - . , . . — .. 

ject over which this inconvenience by making a work for draining off the 
b^acqolredT water so periodically thrown back upon their land. A 
channel was also constructed for conducting a supply of 
water to the plaintiffs' tank. Plaintiffs, however, claimed 
to have the former state of things restored, on the ground 
that they had a prescriptive right to throw back the 
water on to defendants' lands and to keep it there till 
required for use. It was held that there was no ob- 
ject over which a right could be acquired. Robinson v. 
Ayya Krishnamachariyar.W In Becharam Chowdhry v. 
Puhubnathjha/ 2 ) it was held, that no proprietor can law- 
fully pen back the water of a stream by erecting a bund 

(1) 7 M. H. 0. B., 37. 

(2) 2 B. L. R., App., 63. 



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SIC. 26] PART IT. — ACQUISITION OF OWNERSHIP BY POSSBSSIOH. 239 

upon his own land, so as to inundate the land of his 
neighbour without his license and consent. 

(2-C) In F. H. Holloway v. Mahomad Ali,* 1 ) it was AoMhanrhw 
held that a co-sharer in landed property has no right to the condition of 
do anything which alters the condition of the joint-pro- without tWoon- 

J ft J r sent of bis «~- 

sharero. 
(July 1871.) 



perty without the consent of the other co-sharers. To sharers. 



build a factory on such property, only upon a title derived 
from one co-sharer without the consent of the others, in- 
volves an infringement of the rights of those co-sharers, 
and this infringement involves an injury. 

(2-d) In Bissambur Shaha v. Shib Chunder Shaha/*> s 27 of Act ix 

x ' of 1871, held in- 

it was held that section 27 of Act IX of 1871 does not applicable to a 

. . auft to restrain 

apply to a suit to restrain one co-sharer in a lomt pro- on« co-eharer 

. . . . from appropri- 

perty from appropriating to his own particular use a por- •*>**« Joint- 
tion of such property without the consent of other co- °^n «ae witn- 

* ont other co- 

8harer8. sharere' consent 

(July 1874.) 

(2-6 ) In Mussamut Amjudee Begum v. Syud Ahmed Right of user of 
Ho8sein,< 3 ) it was held that where a right of user of a drain passage Sci- 
or passage is incidental to a house, that right is not affect- house, isnot af- 
ed by the owner of the house letting the house to a tenant, u to a tienant?* 
If the court find the plaintiff to possess a right to the ec * 868# ' 
user, it may be exercised at all times, and by any person 
who may be placed in the shoes of the plaintiffs in regard 
to the property in question. 

(2-f) In Huree Madhub Lahiree v. Hem Chunder Bight to ease- 
Gossamee,( 4 ) it was held that, the rule that the right to ^S^m^tS^ 
easements goes with the property when sold by the owner Se^JSeTor by 
himself, applies also when the property is sold by the (Sept. 1874. 
court in execution of a decree against him. The reason 
for the rule as to easements going with the property is that 
the disposition of the property by the owner is supposed 
to have been made with reference to the best way of sell- 
ing the property, and realizing the full value of it is to 
sell it with such rights as the owner thought should be 
attached to particular parts of it. 

(2-g) In Loseby v. CarrW the drains of certain houses such right to go 

with property, 

(1) 16 W. R., 140. I (3) 6. W. R., 814. SiedatthetinS 

(2) 22 W. R., 286. | (4) 22 W. R., 522. of sale. 

(5) 2 Ind. Law, J. 88a 



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eom 1 *" d h ^ d to adjoining houses having a space between them belonging 
T tS u rSi^* *° * ne P**" 1 ^ • The roof of the defendant's house, built 



240 PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION, [sic. 26 

had not been used up to the date of the conveyance of the 
houses to the plaintiffs. It was held that the right to 
drain into the main drains of defendant's house was not in 
existence at the date, and that, therefore, it did not pass 
to the plaintiffs by the conveyance to him by the original 
proprietor. 
Plaintiff sued (2-h) In Mohanlal Jechand v. Amratlal BechardasW 

to remove de- xm0 **' 

fen iecti * r0 ° f ^ e P*** 11 ^ an< ^ defendant were owners respectively of two 

nifl Ian' 
npel 

»f the 

water of plain- more than 30 years previously, projected over a part of this 
space. The plaintiff built a new story to his house with 
a roof overhanging the roof of the defendant's house, and 
under an alleged custom of the country (Ahmedabad) 
claimed a right to remove a part of the defendant's roof 
which projected over his (plaintiff's) land. He also sued 
to establish his right to an easement as against the defen- 
dant and to compel him to receive upon the roof of his house 
the rain-water which flowed from the newly erected roof 
of the plaintiff. It was held, with regard to the former 
claim, that if the enjoyment by the defendant were con- 
sidered as possession by him of the space occupied by his 
projecting roof, the Limitation Act extinguished the plain- 
tiff's right to sue, and if such enjoyment were to be 
regarded as a mere easement, then the uninterrupted user 
of more than 30 years vested in the defendant a proprie- 
tory right to the same. 

B. H. held right Held further, with regard to the plaintiff's claim to an 

to easement ° r 

coaid only be easement, that the plaintiff could only have acquired such 
by oontract or easement either by contract or prescription, on neither of 

which he relied. No custom can be admitted to Over-ride 

the provisions of the Limitation Act. 
Plaintiff having (2-i) In Punja Kuvarji v. Bai Kuvar,( 2 > in which 

immemorial . . 

oner to drain plaintiffs and defendants were owners of two conturuous 
through defend- buildings, the plaintiff, on the 31st June, 1879, alleging 

ant'a drain, did _ _ . . _ , ' ' o© 

not require the that his rain-water had had egress through the defendants 

aid of this sec- . ° 

tion. dram from time immemorial, sued the defendants to 

(1) I. L. R., 3 Bom., 174. | (2) I. L. R., 6 Bom., 30. 

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8*C. 26] PART IV. — ACQUISITION Of OWNERSHIP BY POSSESSION. 241 
• 

remove the obstruction they placed on the 23rd June, 1 876. 
The defendant pleaded that the plaiutiff not having 
enjoyed his easement within two years of the suit, the 
claim was barred by this section. Melvill, J., observes 
" immemorial user must be referred to a legal origin, i.e., 
either to a lost grant, or to an agreement between the pre- 
decessors in title of the parties." And inasmuch as the 
obstruction constituted a continuing nuisance, the plain- 
tiff's claim was not barred by the Limitation Act, but on 
the contrary was saved by section 23. 

(2-j) In Akilandammal v. S. Yenkatachala Mudali.tt) in suit in ran- 

. . pect of defen- 

plaintiff and defendants, occupants, of neighbouring dant raising hia 

houses, were joint tenants of the party-wall. Defendants shoot r**"- 

.*■ * * water to plain- 

unroofed their house, raised the wall, and placed beams on ***'» adjoining 

r house, it was 

it to rebuild their house. The Lower Appellate Court k«id, every tri- 

fling excess in 

found, that, in consequence of this alteration, the rain the exercise of 
from the defendants' house descended upon plaintiff's would not justi- 

fy pulling down 

verandah and caused damage to plaintiff, and decreed building. 
that defendants should restore the wall to its former 
height, and remove the beams placed on it. It was held 
on special appeal, that taking the finding to be that 
the alteration created, " ttillicidium" where it did not 
exist before, or that it rendered more burdensome an 
existent servitus stillicidti, it would be very dangerous to 
hold that every trifling excess in the exercise of a servitude 
should justify the pulling down of the building creating 
the excess, and that in the present case, the damages should 
be assessed and awarded, and the injunction to remove 
the roof of the house and reduce the wall be made con- 
ditional upon the defendant not removing the cause of 
the nuisance. . In such a case the measure of damages is 
the amount which will induce the defendant to abate the 
nuisance. 

(2-k) In Askar v. Bam Manik Roy,W it was held Mere permia- 
that to constitute a right by prescription, the possession cannot create 
must have been as of right. Mere permissive possession ment. 
cannot be the basis of right of prescription. In Mahomed 



(1) 6 M. H. C. B., 112. | (2) 5 B. L. R., App., 12. 
31 



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242 PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. [SEC. 26 

AH v. Jugal Bam Chandra,* 1 ) it was held that, where a 
Long uninter- claim to a right of way is supported by evidence of user 
raises a pre- only, the court mnst satisfy itself whether or not the 
user was of nser was founded on actual right. The guiding principle 
being, that open user of another's land for the purposes 
Right to foot- of a road or path- way, if continued without interruption 
for a long time and not attributable to permission or suf- 
ferance, induces the presumption that the user was of 
May be ©stab- right. In Shaikh Mahomed Ansur v. Shaikh Sefatool- 
waste-iand. lah,W it was held in July, 1874, that a right of user over 
a path-way may be established notwithstanding that it 
passes over waste-land. A temporary interruption, such 
as during the rainy season, cannot affect a right of user, 
observations of Kemp, J., observes, that if a right of user over a path-way 
m * ' cannot be established where it passes over waste-land, the 

right of user over almost every path- way in the mofusgil 
would be lost, inasmuch as almost every path-way lies 
Such may be over waste-land. In Imambundee Begum v. Sheo Dyal 

created by J 

grant, or by im- Ram,( s > it was held in August, 1870, that a right of way 

memorial cus- . 

tomorbyneces- may be created either by grant, or by immemorial custom 
or by necessity, and it is necessary for a party seeking to 
establish a right of this kind to prove its existence, and 
that it is ancient and has been exercised without inter- 
ruption. No specific time is sufficient to establish a 
right of user. The determination of the existence of the 
right is a question depending on the evidence in each 
Right to drain case, tho right being inferred from the evidence. In 
water ovw an- Poorno Chunder Chatterjee v. Shurut Chunder Bhutta- 
charjee/ 4 ) it was held, that where a party has exercised 
the right of passage of his surplus tank-water over the 
land of another openly and uninterruptedly year by year 
for upwards of 20 years, a presumption arises that he 



other's land. 



Bight to a has obtained the easement as of right. In Mohun Lall 

burial ground. 

v. Sheik Noor Ahmud,( 6 > a piece of land had been used 
from time immemorial by the inhabitants of a mohulla 
for the purpose of burying their dead. It was held that 

(1) 5 B, L. B., App., 84. I (3) 14 W. R., 199. 

(2) 22 W. R., 340. | (4) 24 W. R ., 228. 

(6) 1 N.-W. P. H. C. R., 202. 



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8KC. 26J PART IV. — ACQUISITION OF OWNKESHIP BY POSSESSION. 248 

such use excluded any claim to exclusive possession 
by the Zemindar which interferes with that use. In B. H. 
Narayan Yisaji v. Lakshuman Bapuji,* 1 ) the defendants tenant holding 
entered on land as tenants of a Mirasdar on terms which payment* of one 
they could not prove, but held it at a uniform rent for does not acquire 
three generations and for more than 50 years. It was held righT* ™ 1 * 1 ™ 
that the defendant in the absence of any special agree- 
ment to the contrary had not acquired by prescription a 
rijfht of permanent tenancy. Whatever right of permanent 
tenancy a tenant may, by prescription, acquire as against 
an Inamdar or a Khot, it would be contrary to the custom 
of the con n try and to the nature of miras tenure, to 
hold that he could acquire such a right as against a 
Mirasdar. 

(2-1) In Venkata Reddy v. Lister, W the plaintiffs, suit to restrain 
who were ryots under the Government, brought the suit from diminish- 

,,„,.,.,. »,!*-* ingwateronthe 

to restrain the defendants, the Agents of the Government ground that 
and others from so altering a calingula as to diminish the oeived the water 
quantity of water which the plaintiffs were entitled to 
receive for the irrigation of their lands, and the plaintiffs 
alleged that the supply of water had been materially 
diminished by reason of the acts of the defendants. The 
only ground upon which the plaintiffs' claim was put, 
was that they had received the water for a long time. 
The District Court held that the Government were autho- 
rized to regulate the distribution of water in such cases. 
It was held on regular appeal (per Holloway, J.), that no Hoiioway, J., 
legal right was shown by the plaintiffs which could have right ™hich 
been violated by the defendants, and that if such right violated was 
were established, there was nothing to show that a decree 
for damages wonld not have been the proper remedy 
and (per Innes., J.,) that the evidence did not show any innes, J., held 
diminution of the supply of water below the quantity to supply of water 
which the plaintiffs were entitled. w 

(2-m) In Morgan v. Kirby,< 3 ) plaintiff sought a right Plaintiff claim- 

to the uninterrupted flow of water in a permanent righi to uninter- 
rupted flow of 
water through- 

(1) 10 B. H. 0. R., 824. | (2) 7 M. H. C. R., 342. S^miSHSl 

(3) 2 Ind. Jurist, 818. stream. 



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244 PAET IV. — ACQUISITION OP OWNERSHIP BY POSSESSION. [SEC. 26 

artificial stream and further to the exclusive right to use 

the water throughout the length of the stream ; the plain* 

tiff, William Lee Kirby, was the proprietor of a tea estate 

Plaintiff uking called Dansandle, on the Nilghiri Hills. The facts of the 
a block of Gov- ' ° 

emment land cage were as follow : Mr. H. D. Rae got possession of the 

had opened the 

channel Dansandle estate in the year I860, for the cultivation of 

through Gov- * 

eminent waste- tea, and subsequently received a errant of the Estate from 

land and then ' i * o 

obtained Gov- Government, in the year 1865. Between 60 and 65, 

eminent lease ■ ' " m 

before defen- Mr. Rae opened the channel in dispute which carries 

dant took up a r 

portion of such water from a stream to the Dansandle Estate and passes 
through Government waste-land and the Sholoor Estate. 
The Sholoor Estate came into possession of a certain Mrs. 
Rae, through whom the defendant claims, in or about 
1869, and in 1874 was formally conveyed to her successor 
by a grant. At the time of the first grant 'under which 
the plaintiff claims, the channel ran only through Govern- 
it was held that ment land until it entered his Estate. It was held, that 
continuous the right claimed in a flowing stream running from the 
passes byimpii- lessor's and through the lessee's tenements which existed 
as a flowing stream prior to the lease, and which was made 
expressly for the purpose of the tenement leased, is un- 
doubtedly a continuous easement requiring no express 
lauguage to pass it, but which passes by implication 
of law. 
Observations of " To use the language of Erie J., in Polden v. Bastard 

Erie, J. -o o > 

(L. R., 1 Q. B., 156) which was approved of in Watts v. 

Kelson — * there is a distinction between easements, such 

as a right of way or easements, used f rom time to time, 

and easements of necessity, or continuous easements. 

S^tenemwote 06 ^e case ^cognizes this distinction, and it is clear law 

neoeerity*or f ^ a * u P° n a severance of tenements easements used 

ewn?ent"wiii M °* necessity, or in their nature continuous, will pass 

Son 9 , bu^ease?" *>y implication of law without any words of grant ; but 

SnSftotime'wS ^^h regard to easements, which are used from time to 

pr^ 01 !angaage time only, they do not pass unless the owner by appro- 

t e owner. pria^ language shows an intention that they should 

pass.' The right now claimed, a right in a flowing 

stream running from the lessor's and through the lessee's 



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8RC. 26] TART IT. — ACQUISITION OF OWNERSHIP BT POSSESSION. 245 

tenements, which existed as a flowing stream prior to 
the lease, and which was made expressly for the purposes 
of the tenement leased to Mr. Rae, is undoubtedly a 
continuous easement requiring no express language to 
pass it, but which passes by implication of law. 

"Assuming thus that a right arises to this easement by What is the ex- 
implication of law, what is the extent of it ? passed t 

" It is clear, that Rae, in croiu coupon the waste-land and Plaintiff acquir- 

v i ^ . • , , . • , . edno right to 

cutting a channel through a considerable portion of it, that portion of 

,-,. ,, , ,. -,, , ,., ,. the channel cut 

including that portion of the property which was uiti- in the Govern- 
mately leased to him in 1865, acquired no right in the land land. 
which at, and after, the date of his lease continued to be 
Government waste-land, or to that portion of the channel 
passing through such part of the Government waste-land. 

" If his act was not permitted, it was a trespass. If it if his act was 

....... . #.-.,. unauthorised it 

was permitted there is no room for inferring that it was was trespass, if 

a %• j* -i i . i i it was permitted 

not a mere license to dig a channel to conduct the water it was a mere 
to the ground which the Government had agreed to lease channel to con- 

. i • mi • -i * ,, duct water to 

to him. Ihere is no correspondence forthcoming to land which Gor- 

show precisely which of these legal aspects the Act amed to lease 
bore. But in neither case could Mr. Rae have acquired 
any right to the water flowing in such portion of the 
channel as is within the portion of Government waste 
which he was not authorized to occupy. When, then, the 
Government leased the property, what did Mr. Rae ac- 
quire ? He acquired for the term of the lease the lands By Government 
described in the lease including the area occupied by the acquired land, 
channel and its bed, and a right to the use of the flowing of flowing water 
water within the awambit of the property leased to him. cupied* {Jy 8 the" 
Had there existed at the time of the grant any particular bed? 116 
purpose for which the water had been and was intended 
to be used, that user (had and to be had) might be a test 
of the user granted ? But there was at the date of the 
lease no special purpose to which the water had been 
applied, and from the circumstances a larger right cannot 

be inferred, than -that Mr. Rae was entitled by the grant He was entitle* 
' * , . , *> a reasonable 

to a reasonable use of the water, i.e., to use it and pass nseofthewates. 
it on. 



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246 PARI* IV. — ACQUISITION OF OWNEE8H1P BY POSSESSION. [8KC 26 

Subsequent " The land above and lower down the stream which was 

lease of land afterwards leased by Government to the person whom 

down the defendant now represents was necessarily granted subject 

Jecttothe plain- to this right of plaintiff to the use of the flowing water 

the "use of the in his own ground. This right imports that the flow of 

hisown^iand. the water shall not be interrupted, and defendant is not 

entitled to interrupt it. But he may use it as it flows 

through his grounds. Each is entitled to a reasonable 

use of the flowing water." 

A Jaikar or (2-n) In Parbutty Nath Roy Chowdhry t>. Mudho 

was not an Paroe,< 1) which was a suit governed by Act IX of 1871, 

in section 27 of it was held that a Jaikar was not an easement within the 

but it is an ' meaning of section 27 of Act IX of 1871, but is an interest 

tos^tlonasof in immoveable property within the meaning of schedule 

which by its in- 2, Article 145 of that Act, corresponding to Article 

chSS^ennes 144 of the Act of 1877. Where the defendant had 

(Janwy e i878) been exercising a right of fishing in certain water, 

adversely to the plaintiff, for more than 12 years, it was 

held that a suit by the plaintiff for a declaration 

that he was entitled to the exclusive right of fishing in 

such water, was barred by limitation. A Jaikar is the 

right to take the profit of a river, lake, or other water on 

a particular estate or tract of country. When this case 

was decided by the Lower Appellate Court, the Act of 1877 

o. H. held, that had not been passed. In Juggobundhoo Shaha v. Pro- 

pancy accruing mothonath Roy( 2 ) it was held in January, 1879, that the 

in the case of " " 

land, does not right of occupancy which accrues to tenants who have 

arise in respect ° ,.,,-.-••<-* i-i 

of Jaikar. occupied or cultivated land for 12 years or upwards, does 

(January 1870.) r J 

not arise in respect of the right called Jaikar or fishery. 
That is a right which may be let out by Ijaradars under 
the landlord, and may be enjoyed under them so long as 
their Ijara continues, but is liable to be determined at 
the expiration of the Ijara. 
Prescriptive (2-0) In Chundee Churn Roy v. Shib Chunder Mun- 

right of fishery J 

is an easement dul,W plaintiff claimed a prescriptive right of fishery, and 
claimed, though the District Munsiff finding enjoyment of the right for 

olaimant does ° J J 

net allege en- 

joyment of any ^ ^ g ^^ ^ | (2 ) L L . R., 4 Calc, 767. 

(3) 1. L. R., 5 Calc., M5. 



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81C. 26] PART IV. — ACQUISITION OP OWNIB8HIP BY P088E8SION. 247 

upwards of 20 years gave him a decree. The Lower Ap- dominant tene- 

pellate Court rejected the suit on the ground that it was (April 1880.) 

not a case of an easement as there was admittedly no 

dominant tenement. It was held that a prescriptive right 

of fishery is an * easement* as defined by section 3 of this 

Act, and may be claimed by any oae who can prove a 

' user* of it, — that in to say, that he has of right claimed 

and enjoyed it without interruption for a ''period of 20 

years, although he does not allege, and cannot prove that 

He is, or was, in the possession, enjoyment, or occupation 

of any dominant tenement. White, J, observes : " The Land means 

legal meaning of ' land* is not only dry land, but also land ©d by water. 

covered by water ; and I see no reason for holding that 

the word ' land,' as used in section 3, bears other than the 

legal meaning which ordinarily attaches to the word. 

Taking ' land* to have this meaning, fish may properly be 

said to grow or subsist upon it. 

"Again, section 27 of the Act, which contains a proviso An easement 
applicable to the whole doctrine of tbe acquisition of ease- tion embraces 
ments by possession as laid down in the previous section, Law is called 
expressly mentions water, as well as land, and as the word «iwr«/ that is 
' easement' has the extended meaning given to it by the enjo^ profit in 
interpretation clause, I think that, if there was any doubt * no rt ]BaL 
On the subject, the language of the proviso makes it clear 
that the profit arising from water as well as from land 
was in the contemplation of the Legislature. It would 
be attributing a singular oversight to the Legislature if 
we were to suppose that when dealing with ' profits a f 
prendre,* it intended to omit a right of fishery, which is 
of the most common classes of property enjoyed in this 
presidency." 

" It is true, as the Judge says, that the right claimed by 
the plaintiff is not a right appurtenant, but a right in 
gross; still 'a profit a' prendre', which is the technical 
name of the right claimed by the plaintiff, is a right 
recognized by the law, and may be established by the 
very same sort of evidence as is used to establish either 
* a profits a' prendre* appurtenant, or an easement in the 
ordinary sense of the word." 



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248 PART IV. — ACQUISITION OP OWNER8HIP BY POS8K68ION. [SEC. 26 

To constitute (2-p) Lutchmeeput Singh v. Sadaolla Nushyo/ 1 ) wm 

right of fishery a suit to restrain the defendants from fishing in certain 
tion, userby as- hhils, which admittedly belonged to the plaintiff's zemin- 
bom shouicTbe dari. H» appeared that the plaintiff had let out some of 
{Dec. 1882.) tne hhils to Ijaradars who had sued the defendants for 
the price of fish taken by them from the bhils, and that 
the suit had been dismissed on the ground that the 
defendants, in common with other inhabitants of the vil- 
lages in the zemindari, had acquired a prescriptive right 
to fish in the bhils. The defendants contended that they 
had been in possession of the bhils for more than twelve 
years, and that they had a prescriptive right to fish there- 
in under a custom according to which all the inhabitants 
of the zemindari had the right of fishing. No defined 
and ascertained persons were proved to have been in con- 
tinuous possession of the fishery right in the bhils. It 
was held that the mere fact that the defendants had 
trespassed and had misappropriated fish, did not amount 
to a dispossession of the plaintiff. It was further held 
that no prescriptive right of fishery had been acquired 
under this section of the Limitation Act, and that the 
custom alleged could not, on the ground that it was un- 
reasonable, be treated as valid. 
Fishery rights C2-Q) I n Prosunno Coomar Sircar v. Rara Coomar 
gable rivers, Parooey,(*) Markby, J., observes, that any private right 
from the Grown of fishery in a tidal navigable river, " must be derived 

and established * _ •* • 

by clear evi- from the Crown, if it exists at all, is, I think, a matter 

sumption is which is beyond dispute ; and I think it also beyond dis- 

such right. pute that any such right as this must be established by 

1 very clear evidence indeed, and that the presumption 

would be against any such private right. There is a 

still further doubt whether such a right as this can be 

created." In this case it was held that a mere recital in 

A mere recital quinquennial papers that a person is the owner of Jalkar 

niai paper q that rights in a zemindari, permanently settled with him by 

owner of Jaikar Government, is not sufficient to give to such person a 

right of fishery in a public navigable river; any right 

(1) I. L. R., 9 Calc, 698. | (2) I. L. R., 4 Calo., 53. 

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8EC. 26] PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 249 

granted tinder such word "Jalkar" would be perfectly 
satisfied if construed to apply exclusively to a right to 
fish within enclosed water, such as a jheel. In Baban 
Mayacha v. Nagu Shravucha/ 1 ) rights of the Grown and 
of the public in the waters and the subjacent soil of the 
sea have been discussed. The right of the public to fish Right td fish in 
in the sea, whether it and its subjacent soil be or be not and is not sab- 
vested in the Crown, is common, and is not the subject of PK>pe y ' 



property. That right may, in certain portions of the Local custom 

■ iiit may regulate 



oi th ^ ^ 

sea, be regulated by local custom. Members of the lib- the^right incer- 

i- • • j.i_ • li i i! i • ii. tain portions of 

lie, exercising the common right to fish in the sea, are the sea. one 
bound to exercise that right in a fair and reasonable soastoprevent 
manner, and not so as to impede others from doing the ezercisin^his 
same ; and conduct which prevents another from a fair L^onsSe. 
exercise of his equal right, if injury thereby results to 
him, is actionable. The facts of the case are shortly the The facts of the 

case relating to 

following, — plaintiffs and defendants are fishermen. The stake-fishing, 
plaintiffs affirmed that according to the custom of their 
trade they had been erecting for years their fishing- 
stakes annually opposite to the village of Yarangul, at a 
distance of between two and three miles from the coast, 
those of the defendants being to the north of and about 
600 feet from their own ; that in 1872, the defendants in 
addition to their customary stakes, wrongfully erected 
other stakes to the south, at a distance of only 120 feet 
from the plaintiffs', and that they have thereby wrong- 
fully disturbed the plaintiffs in the enjoyment of their 
right to fish. The defendants denying the alleged custom, 
claimed to be entitled to erect their fishing-stakes and 
nets in any part of the sea ; they further alleged that the 
plaintiffs had no exclusive right to fish in any part of the 
sea. The former suit between the parties had been reject- 
ed on the ground that the courts had no jurisdiction, the 
subject of the suit being situated below low-water-mark, 
and therefore beyond the limits of the court's jurisdic- 
tion. Westropp, C. J., while allowing the trial of the suit observations ef 
on the merits, observes: "The customs of the whale on the principle 

of the recogni- 
tion of custom 

(1) I. L. B., Z Bern., 19. £a ntSSg^ 

32 



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250 PART IT. — ACQUISITION OF OWNERSHIP BY P08SS88ION. [SBC. 26 

fisheries would not afford mnoh or any assistance in satin 
a case as the present, where the mode of fishing and ike 
fish are so different. But €he principle of the recognition 
of custom as regulating sea-fishing is valuable. The 
remarks of Lord Mansfield, quoted by Chambre, J., are 
especially so, and very applicable here. If there be not 
some usage, we are at a loss to conceive how difficulties in 
conducting the system of stake-fishing, which prevail* 
along the Malabar Coast, are not of much more frequent 
occurence than they are, for it is very clear that too great 
proximity of the stakes to each other would be disastrous to 
the trade, costing much money, as those stakes (which are 
often of very considerable length) and the fixing of them do. 
It can scarcely be that the fishermen along the coast 
have not some understanding amongst themselves as to 
what is a fair and proper distance at which the rows of 
stakes should be fixed from each other. The expense and 
trouble of frequently raising the stakes, and refixing them 
elsewhere, whenever any person chooses to lay down a 
new row near existing stakes, would be too intolerable to be 
The Bjstem of long submitted to. The system of stake-fishing along this 
along theMaift. coast is very ancient. In the map of Bombay, attached to 
rwy ancient. Fryer's Travels, published A. D., 1698, fishing-stakes are 
* marked as existing in the same locality in which some 
are still planted. It has not been contended that the 
plaintiff's stakes interfere with navigation, and the 
system is too long established, and permitted as one of 
English Law the most ordinary modes of sea-fishing, to be regarded with 

deems stake* 

Ashing a private the -jealousy with which stake-fishing is viewed by the 

mode of fishing . . _ 

inconsistent English Law, which deems stake-fishing a private mode 

with common ° . . * <■ /TT ,,, 

fishery. of fishing inconsistent with a common fishery. (Mall s 

Sea Shore, pp. 50 — 51, 2nd ed.) Moreover, the stakes are 
alleged to be shifted at particular seasons, and cannot be 
regarded as giving a title to the parts of the soil in 
which they are from time to time planted, as Lord Hale 
seemed to think was the case in England, (de Jure. 
Maris, Harg. Jj. T. Hall's Sea Shore App., pp. 15—16, 2nd 
ed.) from which opinion Mr. Hall expresses his dissent. 
(Hall's sea shore, p. 55, 2nd ed.) 



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|BC. 26] PART IV.— ACQUISITION OP OWNERSHIP BY POSSESSION. 251 

(2-r) In Doe d. Seebristko v. The East India Com- Indian omm on 
pany,^) it would appear that Her Majesty's Privy Council inSS^a^gabii 
were of opinion that the beds of navigable tidal rivers in «»•. *" "* 
British India are vested in the State. In Chnnder 
Jaleah v. Bamchnrn Mookerjee,W it was held in March, 
1871, that the right of fishing in a navigable river does not 
belong to the public, nor is the Government prohibited by 
any law from granting to individuals the exclusive right 
of fishing in such a river. Prescriptive rights are founded 
on the presumption of a grant from long continued, unin- 
terrupted user and enjoyment as of right. In Bagram 
v. the Collector of Bullooa,(*> although the plaintiff estab- 
lished his right to a private fishing in certain tidal and 
navigable rivers, the principles laid down in the above two 
cases were adopted and approved. In Beg v. Kastya 
Rama,(*) the court regarded the sea and its subjacent soil 
within the ordinary territorial limit, at least around Bri- 
tish India, as vested in the Sovereign, but held that the 
use of it for the purposes of navigation and fishing be- 
longed communis juris to her subjects, at least so far as 
it had not been otherwise appropriated by the Sovereign ; 
and West, J., in speaking of the prerogatives of the Crowm overrotten* <rf 
in India, in this respect, said : " The English Law on this prer^tiree of 
subject may be gathered from Blundell v. Catterall, (5 B. ind» hTtnia 
and Aid. 268) ; Beaest t>. Pipon, (1 Knapp, P. C. C. 60) ; re8pect ' 
Malcomson t>. O'Dea, (10 H. L. Ca. 593) ; Sir H. Constable's 
case, (6 Rep., p. 105 b.) ; and Butler's note to Coke on 
Littleton, section 440, in which Lord Hales* Treatises De 
Jure Mauris and de P or tubus Maris are abundantly quoted. 
These authorities support both the ownership by the 
Crown of the soil under the sea, and the proposition that 
the subjects of the Crown ' have also by common right a 
liberty of fishing in the sea, and in its creeks or arms, as 
a public common of piscary.' ' Yet, m some cases the 
King may enjoy a property exclusive of their common of 
piscary. He also may grant it to a subject, and oonse- 

(1) 6 Moore's L A., 26. J (3) 1 Calc, W. R. for to, 248. 

(2) 15 W. R., 212. | (4) 8 B. ft. C. B., Crown cases, 88. 

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252 PART IV — ACQUISITION OF OWNERSHIP BY POSSESSION. [SEC. 26 

quently a subject may be entitled to it by prescription.' 
(Hale de J. M., p. 11.) The Sovereign's rights are as 
great under the Hindu and AJuhammadan systems as 
under the English ; but without a minute examination of 
these, it is sufficient to say that by the acquisition of India 
as a dependency, the Crown of Great Britain necessarily 
became empowered to exercise its prerogatives and enjoy 
its jura regalia in this country, and on its coasts, subject 
always to the Legislative Control of Parliament (Camp- 
bell v. Hall, Cowp. 204.) These are involved in the very 
idea of English Sovereignty. I am not aware that in 
any case they have been so used as to exclude any subject in 
this country from fishing in any part of the sea. No grant 
of a fishery in the present case has been set up either as 
directly proved or as to be inferred from prescriptive 
enjoyment. The complainants and the applicants alike 
must rest on their common right of fishing in the sea ; 
and a permission in favor of one or the other party by the 
villagers of Yerangal, as given without title, could confer 
none upon either." 
Right of fishing (2-8) The law is thus laid down in Hale, de Jure 

in fresh rivers 

of what kind Maris, ch. 1, p. 1 : — " Fresh rivers of what kind soever 

soever do be* 

long to the do of common right belong to the owners of the soil 

owners of the . •■ , 

soil adjacent, adjacent ; so that the owners of the one side have of com- 
mon right the property of the soil, and consequently the 
right of fishing, usque jUum aqua ; and the owners of the 
other side the right of soil or ownership and fishing unto 
the filum aqua on their side ; and, if a man be owner of 
the land on both sides, in common presumption he is 
owner of the whole river, and hath the right of fishing 
according to the extent of his land in length. With this 
agrees the common experience." 

There can be no (2-t) In Pearco t>. Scotcher/ 1 ) Grove, J., observes: 

Sublio right of % ' 
thing in non. " The question is not whether the river Dee at the spot in 

tidal waters, . ^ , . , r 

even where they question is more or less navigable, but whether the spot 

are to some ex- ,,.,., 

tentjiavigabie at which the respondent claims the right to fish is within 
the flow and reflow of the tide." In Murphy v. Ryan (2 

(1) 9 Q. B. D, 162. 



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8BC. 26] PART IV. — ACQUISITION OP OWNERSHIP BY P088I8SIOH. 253 

Ir. C. L. Rep., 143) it was held that the public cannot "NaYigabie"in 
acquire by immemorial usage any right of fishing in a appued*^ a** 
river in which, though it be navigable, the tide does not a^beTon^to 
ebb and flow ; and that the word " navigable," need in a porta^n*? t£2" 
legal sense as applied to a river in which the soil primd flows. 
facie belongs to the^Crown, and the fishing to the public, 
imports that the river is one in which the tide ebbs and 
flows. Willes, J., delivering the opinion of the Judges 
in Maloolmson t>. O'Dea (10. H. L. Cas. 619) says : " The 
soil of all navigable rivers, like the Shannon, so far as 
the tide flows and reflows, is primd facie in the Crown, 
and the right of fishing primd facie in the public." 

(2-U) In Ponnusawmi Tevar v. The Collector of can easements 
Madura, <*> the Collector pleaded that the river Vaigay and againa?GOTern- 
the space occupied by the channel in the suit, being State 5SJ£ by statu- 
property, the Government had full power to regulate the ^ifthesame 
distribution of water from rivers and channels constructed ^»JJ JSt)!* 
or maintained at the public expense. Scotland, C. J., * uatop 
observes : " the arbitrary power claimed for the Govern- 
ment in the 9th para, of the 1st defendant's written state- Bootiend, c. J., 
ment has been rightly held by the Civil Judge not to be bitrary power 
maintainable. However lawful the exercise of such a maintainable. 
power may be in regulating the distribution of water 
amongst ryotwaxy villages held immediately of the Go- 
vernment, or to the lands of proprietors or their tenants, 
whose enjoyment of it is simply permissive, there can be 
no doubt that the right to an easement in the flow of 
water through an artificial water- course is as valid 
against the Government as it is against a private owner 
of land." 

Section 17 of Act XIV of 1859 provided against the it has been a* 
application of that Act to any public property or right, Actaofisnand 

m. -a * t1 . i . x. r it r j i! i87? » tbat ease * 

or to any suit for any public claim, but allowed such menta might be 
suits to be governed by the Law of Limitation in force at against Gorern. 
the time of the passing of that Act. Such provisions are 
not to be found in Acts IX of 1871 and XV of 1877, which, 
however, by Articles 150 and 149, provide for a limitation 



ment. 



(1) 5 M. H. 0. B., p. 6. 



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254 PART IV.— ACQTTI8ITI0N OF OWNEB8HIP BT POSMC88ION. [fllC. 26 

of 60 years for " any suit by or on behalf of the Secretary 
of State for India in Council." From this it would appear 
to have been assumed in these Acts, that easements might 
be acquired against Government by statutory prescription 
in the same way as they are acquired against private in- 
dividuals. In the Indian Easement Act V of 1882, section 
15, para. 2, of explanation 4, expressly provides that when 
the property over which a right is claimed under this 
section belongs to Government, this section shall be read 
as if, for the words " twenty years," the words " sixty 
years" were substituted. 

English case (2-V) In Good Title, Parker v. Baldwin^ 1 ) which was 

hoSing that v ./ \ . ' _ 

pant from the a suit to recover possession of a cottage and a small 

Crown may be . . . 

presumed. piece of land adjoining, it was held that possession of 

Crownland commencing at least 55 years ago by en* 
croachment on the Crown in the time of the lessor pi 
the plaintiffs father, maintained by the father till Jjis 
death, nineteen years ago, and afterwards continue4 for 
two years by his widow, when the defendant obtained 
the possession, would be sufficient evidence for the, Jury 
to presume a grant from the Crown to the lessor's father 
if the Crown were capable of making such a grant, 
A private indi- (2-W) A prescriptive right to have a yearly payment 
yearly payme^ made by Government to a private individual, oannot be 
ment for more acquired by reason of a continued series of voluntary 
does not acquire payments made to him by Government, extending over a 
right against period of more than 30 years. Thus, where Government 
Bombay, nn- paid a yearly sum of Rs. 32-4-6 to a chirda hakdar, by 
Vof lslz. n whom no services in return were rendered from the year 
1818 to 1860, and then discontinued such payment to the 
heir of the last holder, it was held that such yearly pay- 
ments gave the hakdar no prescriptive rights against 
Government. The Collector of Surat v. Daji Jogi.< 2 > 
Where an allowance by Government is neither incidental 
to hereditary office nor a charge upon an immoveable pro- 
perty, and is not supported by a grant from Government, 

(I) 11 East, 488. | (2) 8 B. H. C. R., A. C, 166. 

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SIC. 26] PAET IV.— ACQUISITION OF OWNERSHIP BY POSSESSION. 255 

the enjoyment of it for 30 years does not create a prescrip- 
tive title to its continuance under Regulation V of. 1827, 
section 1, cl. 1. The Government of Bombay v. Gossami 
Shri Girdharlaji.d) 

(2-X) In Desai Kalyanraya v. The Government of Case whew 
Bombay/ 2 ) plaintiffs ancestors had enjoyed an allowance right was aiiow- 

ed against Go- 

dnring four successive generations for a period extending vjnunent in 

over more than a century. The legal presumption in the v e of MfJ llation 

absence of the original grant, is that such grant was 

hereditary. The allowance having been continued by 

the British Government to the plaintiff's grandfather for 

the same reasons for which a village (admitted to be held 

on hereditary tenure) had been continued, and having 

been paid to the plaintiff's grandfather up to his decease, 

and afterwards, as a matter-of-course, to the plaintiff's 

father, it was held that the enjoyment of the plaintiff's 

grandfather and father was proprietary enjoyment, and 

that as this enjoyment had continued uninterruptedly for 

more than 30 years under Regulation Y of 1827, section 1, 

a statutory and indefeasible title to the allowance had 

been acquired. 

(2-y) In the Collector of Kheda v. Hari Shankar ▲ charitable 

. . srrant enjoyed 

Tikam,w a charitable grant in connection with a temple for more than so 

' ° r years was held 

was proved to have been enjoyed by the incumbent, and JJ, SJ^if'S- 
those under whom he held in regular succession for more Be^atioiTvoJ 



than 30 years. It was held that the grantee had acquired ' 
a right of property in it under Regulation V of 1827, 
section 1, by Warden, J., independently of the origin or 
nature of the grant, by Gibbs, J., in the absence of its 
being shown to have been a personal grant, and by the 
conduct of Government in paying it to several generations 
in succession. 



(1) 9 B. H. C. R., 222. 

(2) 5 B. H. C. R., A. C, 

(3) 6 B. H. O. R., A. C, J 



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256 PART IV. — ACQUISITION OF OWNBB8HIP BY POSSESSION. [SBC. 27 

Exclusion in t»- * 27. Provided that, when any land or water 

tot of. rever- * 

SSKinmSS*. upon, over, or from which any easement nas 
been enjoyed or derived has been held under or 
by virtue of any interest for life or any term of 
years exceeding three years from the granting 
thereof, the time of the enjoyment of such ease- 
ment during the continuance of such interest 
or term shall be excluded in the computation 
of the said last-mentioned period of twenty 
years, in case the claim is, within three years 
next after the determination of such interest or 
term, resisted by the person entitled, on such 
determination, to the said land or water. 

Illustration. 
A sues for a declaration that he is entitled to a right of way 
over B*b land. A proves that he has enjoyed the right for 25 

• Section 8 of the Indian Easement Act (V of 1882), repeals in the 
territories of Madras, Coorg and Central Provinces, to which it 
extends, the definition of Easement in the interpretation clause 
and also section 26 and 27 of this Act (XV of 1877) and provides that 
all references in any Act or Regulation to the said two sections, and 
to sections 27 and 28 of Act IX of 1871, shall in such territories be 
read as made to sections 15 and 16 of Act V of 1882. 

Sections 8 and 4 — see under section 8, page 21. 

Section 15— see under section 26, page 218. 

Section 16. Provided that, when any land upon, over, or from which 
any easement has been enjoyed or derived has been held under or 
by virtue of any interest for life or any term of years exceeding 
three years from the granting thereof, the time of the enjoyment 
of such easement during the continuance of such interest or term 
shall be excluded in the computation of the said last-mentioned 
period of 20 years, in case the claim is, within three years next 
after the determination of such interest or term, resisted by the. 
person entitled, on such determination, to the sued land. 
IUuatration, 
A sues for a declaration that he is entitled to a right of way over B'$ land, 
A proves that he has enjoyed the right for twenty-five years ; but B shows 
that daring ten of these years C had a life interest in the land ; that on C'$ 
death, B became entitled to the land j and that within two years after C$ death 
he contested A*$ claim to the right. The suit most be dismissed, as A, with 
reference to the provisions of this section, has only proved enjoyment for 
fifteen years. 



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8«C. 27] PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 257 

years ; but B shows that during ten of these years C, a Hindu widow, 
had a life-interest in the land, that on C's death B became entitled 
to the land, and that within two years after Cs death he contested 
A' s claim to the right. The suit most be dismissed, as A> with 
reference to the provisions of this section, has only proved enjoy- 
ment for fifteen years. 

The corresponding section 28 of Act IX of 1871, ex- Exception of 
pressly exempted from its operation right of easement Sghtand air in 
to the access and use of light and air ; but this section omitted °in XV 
(27) omits the exception and makes its provisions appli- 
cable to all easements which have been enjoyed or derived 
• upon, over or from any land or water. 

(a) "Prescription implies a grant; the user by which a sec. 7 of the 
prescriptive right .is gained is only evidence of a previous an^iii.WiMam 
grant, * and, therefore, in order that such user may dudes the time 
confer an easement, it follows that the owner of the an^iSant/an 
servient tenement must have known that such an ease- or ^lnarrfedf 
ment was being enjoyed, and also have been in a position owner 1 of the 
to interfere with and obstruct its exercise, had he been ment. 

so disposed. Contra non valentem agere non currit pres- 
cription (See Gale on Easements, last edition, page 189.) 
It was presumably upon this principle that by the 7th 
section of the English Act, the II and III, Willam IV, C. 
71, the time during which an infant, an insane person, 
or a married woman is the owner of the servient tenement 
is excluded from the period during which a prescriptive 
right is in course of acquisition. 

(b) " But there seems to be an important difference There seems to 
between the English and the Indian Law in this respect, difference be- 
The English Act II and III, William IV, C. 71, was pass- ush and the 
ed expressly ' for shortening the time of prescription in 

certain cases.' Its object was to remove the difficulties English Act 
which had previously existed of establishing easements ed the period" 
by proof of immemorial user. But the Act did not alter ing the condi- 
in any way the nature of the right to be acquired, and, before the Act 

,, ; \_ ,... ,. , „ for the acquisi- 

therefore, the conditions which were generally necessary tion of preacrip- 
before the Act to the acquisition of prescriptive rights are 
still necessary to their acquisition under the Act, though 
they may be gained by a shorter period of enjoyment. 
33 



tive rights. 



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258 PART TV. — ACQUISITION OP OWNIBSHIP BY POSSESSION. [SBC. 27 

Bat the Indian (c) " But the Act under which rights of way and 
person to ac* other easements are now generally acquired in India has 
way without re- nothing to do with prescription. It is ' an Act for the 
gmn^ express 7 limitation of suits and other purposes/ and section 26 
or imp enables any person to acquire a right of way by a 

20 years' user without reference to any grant, express or 
implied, from the servient owner." Arzan t;. RakhaU 1 ) 
Conditional ex- (d) " But, under section 27, Act XV of 1877 and 
of reversioner of section 16, Act Y of 1882, if the servient heritage has not 
eenrien n- \ )een ^ t ne possession of the full owner, but has been under 
a lease for a term exceeding three years, or has been sub- 
ject to an interest for life, the time during which such lease 
or interest has continued is conditionally excluded from the 
computation of the period, — that is, provided the person 
entitled to the servient heritage on the determination of 
such term or interest resists the claim within three years 
next after such determination. It is only under this pro- 
vision that two periods of valid enjoyment, separated by a 
period of invalid enjoyment, may be tacked together to 
make up the required enjoyment for 20 years. The period 
of continuous enjoyment, partly valid and partly invalid, 
may, in this case, extend back to a time which is more 
than (20 + 2) 22 years before the suit. And here the 
express provision of the law introduces an exception to 
the rule which requires a valid enjoyment for 20 years 
ending within two years next before the institution of the 
suit." (Gale, 184 ; Tudor, 191 ; Goddard, 134, 135.) 

Effect of the ex- (6) "The effect of this provision is not to unite two 
discontinuous periods of valid enjoyment, but to extend the 
period of continuous enjoyment by so long a time as the 
term or life-interest continues, {per Parke, B., in Onley 
v. Gardiner, 4 M. and W., 500.) Where the lessor or 
reversioner of the servient heritage resists the claim 
within the time allowed, the claimant must show 20 
years' valid enjoyment either wholly before the beginning 
of the term or life-interest, if such term or interest sub- 
sisted at the commencement of the two years next before 

(1) I. L. R., 10 Gala, 217. 

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elusion. 



SIC. 28] PART IV. — ACQUISITION Or OWN1B0HIP BT POS8188ION. 259 

the stiit, or partly before and partly after, if such term 
or interest ended more than two years before the suit. 
(See Goddard, 134, 135.) Evidence of user for 15 
years before the commencement of the term or life-estate, 
nser, during the term or life-estate, and user for five years 
after the term or life-estate, continuously down to within 
two years of the suit, would be sufficient to establish the 
right. But non-enjoyment during the term or life-estate 
would prevent the two periods of valid enjoyment from 
being tacked together. The time excluded from the 
computation is excluded for the benefit of the lessor or 
reversioner, and not for the benefit of the claimant. The 
latter must show valid enjoyment for 20 years, 
besides uninterrupted enjoyment during the time which 
has to be excluded." (See Clayton v. Corby, 2 Q. B., 
813; Pye v. Munford, 11 Q. B., 675; Gale, 185. Inter- 
ruption by the termor or life-tenant, or any other person, 
even during the time which has to be excluded from the 
. computation of the prescriptive period, prevents the 
acquisition of the right.) (*) 

28. At the determination of the period here- Extinguish. 

... . mentofrightto 

by limited to any person for instituting a suit property. 
for possession of any property, his right to such 
property shall be extinguished. 

(a) Act XIV of 1859 contained no provision for the The law of ex- 
extinction of right after the Statutory period, and conse- caption was for 
quently up to the introduction of Act IX of 1871, the Sta- troducedbyAct 



IX of 



edbyi 
1871. 



tute of Limitation was supposed to bar the remedy, but 
not extinguish the right. An express law of positive 
prescription was attempted to be introduced by Sir James 
Colvill in 1859, and by Sir James FitzJames Stephen in 
1871 ; but Act XIV of 1859, and Act IX of 1871 were 
passed only after the clauses relating to positive prescrip- 
tion had been expunged from the bills as introduced. 

(b) By Section 29, of Act IX of 1871, it was provided it first applied 

* only to land or 

for the first time that at the expiration of the Statutory hereditary 



office. 



(1) Hitra's Limitation Act, p.p. 429-480. 



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260 PAST IV. — ACQUISITION OF OWNIBSHIP BY POSSESSION. [SSC. 28 

period for a suit for possession of " land or hereditary 
Act xv of 1877 office," the right thereto shall be extinguished. Section 

extended it to ° ° 

any property. 28 of Act XV of 1877, extinguished such right to " any 

property." This section (28) would seem to extend the 

No express pro- doctrine of extinction to property other than land; but 

Yision tor trans* i * * 

■Id ° f I homer° * nere * 8 no express provision for transferring the right 
to the adverse holder. 

inluabttltute (°) Jt was not until the 32nd vear af Hem 7 VI1I > ** 
iame^as under *° rea * ^i 0118 * an< * the 2l8t year of James I, as to per- 
the Indian Act. eonal actions, that the English people obtained Statutes 
which fixed certain periods of limitation " both for the 
time present and for all times to come." The Statute of 
James I, (1623), which applied to actions for ejectment as 
well as to purely personal actions on torts and simple 
contracts, barred the remedy, but did not extinguish the 
right. The subsequent Statute of William IV, (1834), 
extinguished the right as to real property after 20 years' 
adverse possession, but it did not even in that limited 
class of cases expressly transfer the right to the adverse 
holder. The 37 and 38 Vict., c. 57, which came into 
operation. in 1879, reduces tne period of limitation to 12 
years. 
Effectof theiec- " The 34th section (HI and IV, Will. IV, c. 27), extin- 

tion is to exe- . _ . . _ . , . * . , . 

cute a convey- guishes the title of a claimant at the same time as his 

ance to the 

party whose remedy is barred, and he is from that time an entire 

possession is a 

bar. stranger to the estate, and his title to the land cannot by re- 

entry after that time be revested by means of the doctrine 
of remitter. (Brassington v. Llewellyn, 27 L. J., Ex. 297). 
It has been said that the effect of the statute is to 
execute a conveyance to the party whose possession is a 
bar, and that by its own force it not only extinguishes 
the right of the former rightful owner, bat transfers the 
legal fee simple to the party in possession. (Per Lord 
St. Leonards, Scott v. Nixon, 3 Dru. and War. 407 ; and 
see Incorporated Society v. Richards, I Dru. and War., 
289). It is apprehended, however, that it may more 
strictly be said that its operation in giving a title is nega- 
tive ; it extinguishes the right and title of the dispossessed 



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SBC. 28] PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 261 

owner, and leaves the occupant with a title gained by the 
fact of possession, and resting on the infirmity of the 
right of others to eject him. (See Dixon t?. Gayfere, 17 
421).W 



(d) Ganga Gobind Mundul v. The Collector of the Even before Act 

24-Pergnnahs,( 2 > which was a case disposed of with refer- c, held that * 

fence to the Law of Limitation that existed prior to 1859, period not only 

first established the principle, that where a suit for posses- barred, but the 

sion of land is barred by a Statute of Limitation, the right in favor of the 
• . . # possessor. 

is extinct. The principle of this decision has been fre- 
quently applied to cases governed by Act XIV of 1859. 
In this case, P. C, held in March, 1867, that where the 
claim to land in the 24-Pergunahs in possession of another 
is barred by the 12 years' prescription, provided by Beng. 
Reg. Ill of 1793, section 14, his title is extinguished ; and 
although a party to a suit in which the Government claims 
the land, he cannot avail himself of the Government's 
right of prescription of 60 years to resume and assess 
the land, on the footing of the relation of laudlord and 
tenant betw een himself and the Government. In Brinda- 
bun Chunder Roy v. Tarachand Bundopadhya/ 8 ) which 
was a case governed by Act XIV of 1859, Markby, J., 
observes : " It has been laid down by the Privy Council, 
in the case of Gunga Gobind Mundul v. The Collector 
of the 24-Pergunahs (11 Moore's I. A., 345, sec. 360 and 
363) that 'the law has established a limitation of 12 
years; after that time it declares not simply that the 
remedy is barred, but that the title is extinct in favor of 
the possessor.' And in an earlier passage they say, that 
the right to ' sue for dispossession belongs to the owner 
of the lands encroached upon, and if he suffers his right 
to be barred by the Law of Limitation, the practical effect 
is the extinction of his title in favor of the party in posses- 
sion.' It also appears to me to be an accepted doctrine No remitter to a 

i • # -ii i ir» j. right * or which 

in our courts that, if a party who has been 12 years out the party had 

no remedy by 

of possession, and whose suit is therefore barred, should action at all. 



(1) Darby and Bosanquet, pp. 388-389. 

(2) 11 Moore' ■ I. A., 345. | (3) 11 B. L. B., 237. 



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262 PABT IV.— ACQUISITION OP OWNBESHIP BY POSSESSION. [8EC. 28 

again get into possession, he is not (to use an English 
phrase) remitted to his old title; our courts adopting 
as pointed out by Sir Lawrence Peel, in Sibchunder Doss 
v. Sibkissen Bonnerjee (I Boul, Rep. 70, see. 79), the 
English rule that there is no remitter to a right for which 
the party had no remedy by action at all. This decision 
was quoted and approved of by Loch and Mitter, J.J., in 
Raja Baradakant Roy Bahadur v. Prankrishna Paroi, 
(3 B. L. R. A. C, 343) and the principle here laid down 
has been applied exactly in the same way to the English 
Statute of Limitations (see Brassington v. Llewellyn, 27 
L. J., Exch., 297.)" 
Land taken by (e) Where the Government has lost its right to sue, 
by executive it will not be permitted to put itself in possession by an 

power after .. » .. 

right to sue was exertion of executive power. 

covered by the The Government having a claim to land in Bengal 
sessed by suit. (Chittagong) which was not capable of being enforced by 
suit, by reason of the cause of action having arisen pre- 
vious to 1765, (Reg. Ill of 1793, sec. 14) which was at 
that time the utmost period of limitation in Bengal, took 
forcible possession of the land in 1800. The persons dis- 
possessed sued Government in 1804, and recovered the 
land by a decree of the Sudder Dewany Adawlut.W 
Uninterrupted (f) In Sitaram Vasudev v. Khanderav Bal Krishna< 2 > 
morT^than 80 plaintiff sued, in 1873, for his share in certain ancestral 
Ict'ix of°i87i, property in the possession of the defendant, and alleged 
prescriptive ti- that the latter had been united with him in estate. He 
SSi5? v of i8?7i however admitted that he had lived separate from the 
against 7 * plain- defendant for 40 years previously to the institution of the 
Bhare. 11111 * ° r suit, and that he had not during that period received any 
portion of the profits of the ancestral property. The 
defendant pleaded limitation. Both the Lower Courts, 
holding that Act IX of 1871, Art. 127 applied, decreed 
the plaintiff's claim. It was held by the High Court that 
the defendant had acquired, under Regulation V of 1827, 
a prescriptive title by his uninterrupted possession as pro- 
prietor for more than 30 years before Act IX of 1871 came 

(1) SeL Eep., v. 2, p. 166. | (2) I. L. B., 1 Bom., 286. 

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BBC. 28] PAET IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. 263 

into force ; the effect of the Regulation being not only to 
bar the plaintiff's remedy, but to take away his right. 

(g) In Gossain Dass Chunder v. Issur Chunder 12" years contin- 

. nous adverse 

Nath/ 1 ) it was held, that 12 years' possession by a wrong- possession bars 
doer not only extinguishes the title of the rightful owner, tmguishes 
but confers a good title on the wrong-doer. Semble. — 
Such title may be transferred to a third person whilst it 
is in course of acquisition, and before it has been perfected 
by possession. • Where a plaintiff seeks to recover posses- 
sion of property of which he has been dispossessed and 
bases his claim on the ground of purchase, and also 
upon the ground of a 12 years' possessory title, he is 
entitled to succeed if he proves his possession, even if he 
fails to prove his purchase. Following the above decision, 
the Allahabad High Court in Jagrani Bibi v. Ganeshi,* 2 ) 
held in January, 1881, that possession of land by a wrong- 
doer for 12 years not only extinguishes the title of the 
rightful owner of such land, but confers a good title on 

the wrong-doer. It was further held that a suit for the Suit for posse* 
. . , . 8ion °* treM > *« 

possession of trees is a suifc for " land, within the mean- suit for land. 

ing of section 29 of Act IX of 1871, land comprehending 
what it covers and including " immoveable property" as 
recognized and defined in section 2 of Act I of 1868. In 
Keval Kuber v. The Talukdari Settlement Officer/ 3 ) which 
was a suit for the cancelment of the Talukdar's Settle- 
ment Officer's order imposing rent under Bombay Act YI 
of 1862, it was held in March, 1877, that if the grant was 
the grant of an office remunerated by the use of land, the 
right to assess was barred, by the possession of a person 
not claiming under the grantee for a longer period than 
12 years after the right to resume accrued, under Act 
IX of 1871, section 29 and Article 130, schedule 2. In 
Bambhat Agnihotri v. The Collector of Puna,* 4 ) it was 
held that the effect of Act IX of 1871, section 29, how- 
ever, is not merely to bar the remedy, but to extinguish 

(1) I. L. E., 3 Calc, 224. 

(2) I. L. R., 8 AIL, 485. 
(8) I. L. R., 1 Bom., 586. 
(4) I. R. R., 1 Bom., 693. 



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264 PART IV. — ACQUISITION OP OWNBR8HIP BY POSSESSION. [SEC. 28 

the title- of the original proprietor after 12 years of a 
possessioti adverse to him. 
Suit to reoover (h.) Tn Manally C henna Kesavaraya v. Mnngadu Vai- 
ship held barred delinga/ 1 ) plaintiff, the great grandson of the founder of 
Unct under aec- two pagodas, sued for the office of Dharmakarta or for the 
ixof W7i. ° appointment of some person to it. He also prayed for an 
account of the pagoda property from the defendant. The 
facts of the case were as follow. The founder of two 
pagodas died in 1795, leaving six sons, of whom two were 
named and T, respectively. T, the younger, died in 
1834, leaving two sons, of whom one, who died in 1853 
was the father of the plaintiff. The founder's elder son, 
0, died in 1816, leaving two sons, M, who died in 1840, and 
X, who died in 1847, and two daughters, A and the defen- 
dant's mother. The office of Dharmakarta descended from 
the founder to 0. After his death a manager was ap- 
pointed by the Collector, and C's son M was dispossessed 
by his uncle T, and in 1834, M brought a suit in equity 
against T and his sons. Pending the final decree, M was 
appointed by the Supreme Court to act as Dharmakarta. 
A decree was never passed and the suit abated on AT 8 
death in 1840. M was succeeded in the office of Dhar- 
makarta by his brother L, who held it till 1847, when 
he died, leaving it by will to his sister, A, and her husband 
B jointly. B died soon after, and A, in 1872, leaving the 
office by will to her sister's son, the defendant. It was 
held on the first question that the suit was barred by 
Article 123 of Act IX of 1871, inasmuch as the bequest of 
the office was hostile to the rights of the male members of 
the family. It was further held, that the plaintiff was 
precluded from setting up a fresh right as accruing to 
him on the death of A as the only male survivor of the 
founder's family by the provisions of section 29 of the 
Limitation Act IX of 1871. 
Exclusive re- (i) Where the equity of redemption of a certain estate 
oneof themort- became, on the death of the mortgagor, the property of 
fcrmore than two divided branches of a Malabar tarwad, and the rents 



12 years will not 
eiTtingninl 



in the 

(1) I. L. E., 1 Mad., 848. 



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SBC. 28] PART IV. — ACQUISITION OP OWNERSHIP BY POSSESSION. 265 

and profits of the land were collected and enjoyed by the others ri^ht to 
representatives of one branch for 15 years, such represen- actual exclusive 
tatives were held to have acquired thereby no title such property itself 
as would affect the right of the other branch to sue for guish their 
possession. Exclusive receipt of rents may be evidence of 
an exclusive right to redeem the property, and though it 
would be a foundation for holding that the branch col- 
lecting the rent had for 12 years hostilely claimed an 
exclusive right to redeem, the right of the other branch to 
sue for possession would not be affected until the branch 
asserting exclusive title had had possession of the pro- 
perty itself for upwards of 12 years, such as would ex- 
tinguish the right of the other branch under this section. 
Payments of the rents and profits to one branch could 
have no more effect as against the other, than if the rents 
and profits had not been paid at all, but withheld by the 
mortgagee. Chathu v. AkuW 

(j) In Nocoor Chunder Bose v. Kally Coomar Ghose,** £ ■ regards 

ueotrBf law oi li- 

it was first held that under the Limitation Act of 1859, it nutation merely 

1 bare remedy but 

was not only the remedy that was barred after the statu- does not extin- 

^ ^ guian right. 

tory period, but the debt also. Following the above decision 
and also upon a mis-understanding of the observations of 
the Privy Council in the case of Gunga Oovind Mundul,W 
which were only intended to apply to suits for the recovery 
of immoveable property, the court, in Krishna Mohun 
Bose v. Okhilmoni Dossee/ 4 > which was a suit for arrears 
of maintenance, held that the suit having been barred 
under the Act of 1859, the debt as well as the remedy 
was extinguished. When the same question arose in Bam 
Chunder Ghosaul v. Juggutmon Mohiney Dabee/ 6 ) Garth, 
C. J., expressing his doubt of the correctness arrived at in 
the previous case, followed it and held with his colleague 
that the Limitation Act not only barred the remedy, but 
also extinguished the debt. When the same question came 
before the Court in Mohesh Lai v. Bnsunt Kumaree,^ 



(1) I. L. R., 7 Mad., 26. 

(2) I. L. R„ 1 Calc 828. 
(8) 11 Moore's I. A., 846. 

34 



(4) I. L. R., 8 Calc, 331. 

(5) I. L. R., 4 Calc, 283. 

(6) I. L R., 6 Calc, 340. 



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266 PART IV.— ACQUISITION OF OWNERSHIP BY POSSESSION. [8EC. 28 

the court, upon a review of all the previous decisions and 
also upon a review of Valia Tambnratti v. Vira Rayan* 1 ) 
and Madhavan v. Achuda/ 2 ) in which the Madras High 
Court had taken contrary view of the question, held, that 
as regards debts, the Indian Laws of Limitation merely bar 
observations of the remedy, but do not extinguish the right. Garth, C. 
J., observes : " I confess that it has been a great satisfac- 
tion to me to find that, since that judgment was deli- 
vered, not only Mr. Justice Prinsep, but several other 
Judges of this court have arrived at the conclusion that 
our decision was wrong." 

(k) When Garth, C. J., dealt with the question and 
made the above observations, the attention of the court 
does not appear to have been drawn to Nursing Doyal v. 
Hurryhur Saha,( s > in which a Division Bench (Pontifex, 
McDonell, J. J,) had held that the Limitation Acts IX of 
1871, and XV of 1877, merely barred the remedy, but did 
not extinguish the debt. Pontifex, J., observes : " We are 
of opinion that neither the Limitation Act of 1871, nor 
that of 1877 extinguishes a debt. These Acts only bar or 
discharge the remedy. This, we think, is clear from the 
language of the Acts, and particularly from sections 12 
and 29 of the Act of 1871, and sections 11 and 28 of the 
Act of 1877." 
Difference be- (1) " The difference between these Acts and the 
Indian Acta and English Limitation Law is, that in India, limitation need 

the English Li- 

mitation Law. not be set tip as a defence (section 4 of the Act of 1871, 
and section 4 of the Act of 1877), while in England, the 
defendant must expressly claim the operation of the 
statute. Section 60 of the Contract Act, which was 
passed after the Limitation Act of 1871, also shows that 
the debt is not extinguished, but may be insisted on for 
certain purposes ; so likewise if the creditor had a lien 
on the goods of his debtor on a general account, he would 
be entitled to hold the goods for a debt, the recovery of 
which was barred by the Limitation Act. And probably 

(1) I. L. R., 1 Mad., 228. | (2) I. L. R., 1 Mad., 301. 
(3) I. L. R., 6 Calc, 897. 



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BIC. 28] PART IV. — ACQUISITION OF OWNEB8HIP BY POSSESSION. 267 

it would be bold that an executor would be allowed to 
retain out of a legacy a debt owing by the legatee to tbe 
testator, tbougb its recovery was barred by tbe Act." 

(m) In Heera Lall Mookbopadbya v. Dbunput other decisions 
Singh/ 1 ) it was held that according to the principle laid view th£f the 6 

j • ™ i « * a xVtr * i»r, A Statute of Limi- 

down m section 25, clause 3, of Act IX of 1872, an agree- tation does not 

. , . extinguish the 

ment executed by a judgment-debtor promising to pay debt. 

the debt secured by a decree against him was not void for 

want of consideration, even if the decree had been barred. 

In Mullins Beddy/ 2) it was held that debt due on a 

barred decree is sufficient consideration for a promissory 

note granted by the judgment-debtor. In Tillakchand 

Hindumal v. Jitamal Sudaram/ 8 ) it was held by the 

Bombay High Court, .that a decree of 1862 which was 

barred in 1868, afforded a good consideration for the 

razeenamah executed by the judgment-debtor in August, 

1868, transferring to the creditor certain lands for the 

debt. In the Administrator- General v. Hawkins/ 4 ) it The Adminis- 

was held that the Administrator-General of Madras is can pay a barr- 
ed debt, 
authorized to pay a barred debt. Kern an, J., observes : 

" I can have no doubt that an Administrator has equal 
power and privilege of paying and retaining a debt 
though barred by statutes as an executor. An executor 
may be restrained or guided by direction, express or im- 
plied, given by the will, and he must act on all such legal 
directions ; but if he is not so restrained or guided, he 
and an Administrator (after administration) appear to me 
to have the same power and privileges including those of 
retainer, and payments of debts though barred." In Bhala A Hindu wi- 
Nahana v. Parbhu Hari,* 5 ) it was held in June, 1877, that entitled to per- 
a Hindu widow had full power to perform the contract of band's contract 
her husband with the parents of the adopted boy although his death. 
30 years had elapsed from the death of her husband. 
Section 60 of Act IX of 1872, allows a creditor to apply 
payment made by a debtor to the discharge of time barred Payment may 

* be appropriated 

to time barred 
debt under sec- 

(1) I. L. R., 4 Calc, 500. I (3) 10 B. H. C. E., 206. tion 60 of the 

(2) 6 N.-W. P. H. 0., 160. | (4) I. L. E., 1 Mad-, 267. Contract Act. 

(5) I. L. R., 2 Bom., 67. 



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268 



PART IV. — ACQUISITION OF OWNERSHIP BY POSSESSION. [SEC. 28 



Mother merely 
by reason of be* 
•ing Buch and 
natural guar- 
dian of her mi- 
nor eon has no 
authority to ac- 
knowledge 
a debt on be- 
half of the mi- 
nor. 
(June 1886.) 



The acknow- 
ledgment can- 
not be treated 
as a fresh pro- 
mise as there 
was no consi- 
deration for it 
so far as the 
minor was con- 
cerned. 



It does not make 
the mother res- 
ponsible for the 
debt, as such 
was not the in- 
tention of the 
parties. 



Secondary evi- 
dence may be 
given of an ac- 
knowledgment 
lost while in 
court. 



debts when the debtor has omitted to intimate to which 
debt the payment should be applied. Where neither 
party makes any appropriation, section 61 allows the 
payment to be applied in discharge of the debts in order 
of time whether or not they are barred by the Law of 
Limitation. 

(n) In Wajibun v. Kadir BukshjW an acknowledg- 
ment of a debt on behalf of a minor was made by his 
mother and natural guardian, and the plaintiff relied 
npon it. A Division Bench (Ghoee and Porter, J.J.) 
observe, " the mother, in the absence of any special autho- 
rity being proved to exist in her, cannot be regarded as an 
agent on the part of the minor duly authorized in that 
behalf, within the meaning of section 19 of the Limitation 
Law ; and it appears to us that a person, merely by reason 
of her being the mother and natural guardian has no 
authority to make an acknowledgment on behalf of minors, 
so as to give a creditor a fresh start for the period of 
limitation." The claim as against the minor was dismissed 
as barred. 

(O) It was contended that the acknowledgment im- 
plied a fresh promise, and that, therefore, irrespective of 
section 19, the debt was not barred against the minor. 
The court disallowed this contention, observing : " it is 
quite clear that there was no consideration so far as the 
minors were concerned, for this fresh promise on the part 
of the mother, and therefore the said promise by her could 
not be regarded as an act in the interest of the minors, 
such aa would be binding upon them." 

Cp) It was fnrther contended that by reason of her 
acknowledgment, the mother made herself liable to make 
good the debt and that it should be decreed against her. 
The court observed that it was obvious that it was never 
intended that the mother should make herself solely res- 
ponsible for the debt and that it was never the plaintiff's 
case that she made herself so liable. 

(q) An original account book containing an ac- 
knowledgment of a debt had been filed in court, and 
subsequently lost whilst in court. It was held, that 
secondary evidence of such acknowledgment might be 
given, notwithstanding the words of section 19 of the 
Limitation Act. (See note D under Sec. 19, pp. 153-154.) 
(1) I. L. E., 13 Calo., 292. 



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ACT XV OF 1877. 

THE FIRST SCHEDULE. 



Number and 
Year^of Acts, 



Title. 



Extent of Repeal. 



X of 1865 



IX of 1871 



X of 1877 



The Indian Succes- 
sion Act. 



The Indian Limita- 
tion Act 1871. 



The Code of Civil 
Procedure. 



In Section 321, the words 
" within two years after the 
death of the testator, or one 
year after the legacy has 
been paid." 



The whole. 



Section 599, and in Section 
60 1 the words " within thirty 
days from the date of the 



ae 



order, 



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ACT XV OF 1877. 
THE SECOND SCHEDULE. 

(See Section 4.J 
First Division: Suits. 



Description of suit. 



Period of 
limitation. 



Time from which 
period begins to run. 



Word "when" In Act IX of 1871, the words in the 3rd column were : 

column of Act "time when the period begins to run." In Dhonessur 

ed°into ''from Koorer v. Roy Gooder Sahoy/ 1 ) it was argued that the 

Act of 1877. above phrase was somewhat ambiguous. Garth, C. J.» 

observed, that by reading the above phrase as meaning 

time from which period begins to run, we think we 

should be doing no real violence to the language of the 

Act, and that we should be undoubtedly carrying out the 

intention of the Legislature. The alteration in the present 

Act was probably made with reference to the above 

remarks. See V. K. Gugar v. B. D. Barve,W and note A, 

under section 12, p.p. 84-85. 

The word At the head of the first column of this schedule, the 

the first column words are " description of suit.*' With regard to these 

fluitTunder the words, used in the corresponding schedule of Act IX of 

dire Code. 1871, the Bombay High Court in Abba Haji Ishmail v. 

Abba Thara/ 3 ) wherein an attorney, under Rule 149 of the 

Common Law Rules of the Supreme Court of Bombay, 

made an application, that his client should show cause 

why he should not pay the balance of his bill of costs, 

observe : " as the Legislature has used only the word ' suit/ 

and the only suits specially mentioned in the 2nd schedule 

are those under the Civil Procedure Code, it must be taken 

that those only are the suits meant. The court, of course, 

cannot extend the meaning of the word suits, so as to 

include such applications as the present, but must read 

the word in its popular, natural and ordinary sense. 

(1) I. L. E., 2 Calc, 336. | (2) I. L. B., 2. Bom., 673. 
(3) I. L. E., 1 Bom., 253. 



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AST. 1 — 2] THE SECOND SCHEDULE, FIB8T DIVISION — SUITS. 



271 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



When notice of the 
award is delivered 
to the plaintiff. 



Part I. 
1. — To contest an award of Thirty days, 
the Board of Revenue 
under Act No. XXIII 
of 1863 (to provide for 
the adjudication of 
claims to waste-lands.) 

(ft) (No. 1, Act IX.) The suit under this Article should Suit under this 
be instituted, in a court specially constituted under Act brought in a 
XXIII of 1863, by the claimant, or objector, on receipt of constituted uZ 
notice of the Board's adverse award. The Collector of lees, 
notifies such award to the Special Court, and the court 
gives notice to the claimant or objector. This Article 
does not apply to suits by Government to try claims to 
waste-lands where such claims have been admitted by 
Revenue authorities. (See sections 5 and 7 of Act XXIII 
of 1863). 

Cb) In Taranath Dutt v. The Collector of Sylhet/ 1 ) Before Act xv 

V ' J ' of 1877, it was 

it was held that the court cannot extend the period of held that court 

cannot extend 

30 days allowed by section 5, Act XXIII of 1863, for pre- the period of so 
ferring a suit to contest an award by the Board of 
Revenue, and that the filing of a vakalatnamah is not 
an institution of such a suit. Under the provisions of 
the Limitation Act (XV of 1877), the time may be 
extended. 



Part II. 
Ninety days. 



When the act or omis- 
sion takes place. 



2. — For compensation for do- 
ing, or for omitting to 
do, an act alleged to be 
in pursuance of any 
enactment in force for 
the time being in Bri- 
tish India. 

(a) (No. 2, Act IX.) Certain local and special laws lay Certain local 

down different periods of limitation for suits under them laws prescribe 

for compensation, and provide at the same time for service periods. 
(1) 5 W. R., Reference by Waate-land Courts, p. 1. 



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272 THE 8KC0ND SCHEDULE, FIRST DIVISION — SUITS. [ART. 2 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pakt II. 
Ninety days. 

of notice on the defendant, of intended litigation. The 
City of Madras Municipal Act (1 of 1884), section 433, 
provides that no action shall be brought " until the expira- 
tion of one month next after notice in writing has been left 
at the Municipal office, and at the place of abode of such 
person not later than six months from the date of which 
the cause of action arose." This Article applies only to 
suits for compensation, but not to suits for recovery of 
land or establishment of title. 
Suit for money (b) In Ranchhod Varajbhai v. The Municipality of 
m2y a faii under Dakor/ 1 ) plaintiff sued a Municipality, constituted by 
thin e. Bombay Act VI of 1873, for the refund of money illegally 
levied from him as house-tax. It was held that the 
plaintiff was bound to serve a previous notice on the 
Municipality as required by section 86 of that Act, and 
wait till the expiration of at least one month after service 
of notice. Section 86 of the Municipal Act is not confined 
to an action of damages, but is applicable to every claim 
of a pecuniary character arising out of the Acts of Muni- 
cipal bodies or officers. In Mayandi v. McQuhae, Vice- 
President of the Madura Municipality,^ which was a 
suit for money due under a contract, it was held that it 
was not a suit contemplated by section 168 of the Muni- 
In the case of cipal Act, and that suits falling within it are suits in 
cause of action respect of acts and defaults of a different description, 
when damage See section 24 of the Limitation Act which provides, 
that if the act complained of does not give rise to a cause 
of action until some special damage results therefrom, 
the period will be computed from the time when the 
injury results. (Vide notes under section 24.) 
Suit for refund (c) In the Collector of Furreedpore v. Gooroo Dass 
paid twice over. Roy,< 3) it was held in March, 1866, that a suit for refund 

(1) I. L. E., 8 Bom., 421. | (2) I. L. E., 2 Mad., 124. 
(3) 6 W. E., 137. 



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ART. 3] THB 8BCOND SCHKDUUE, PI EST DIVISION — 80IT8. 



273 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



When the disposses- 
sion occurs. 



Part II. 
Ninety days. 

of Income- Tax paid twice over in two different districts 
is barred by limitation if brought after three months from 
the accrual of the cause of action, whether the Collector 
acted legally or illegally in collecting the tax. 

Part III 
3. — Under the Specific Relief Six months. 

Act, 1877, Section 9, 

to recover possession of 

immoveable property. 

(a) (No. 3, Act IX of 1871, sec. 15, Act XIV of section • of the 

x ' x Specific Relief 

1859.) Section 9 of the Specific Relief Act simply repro- Act is intended 

* to restore pos- 

duces sec. 15, Act XIV of 1859, which did not abridge any session without 

. . . , , -,..--, . ,i reference to 

tights possessed by a plaintiff, but was intended to title. 
give him the right if dispossessed otherwise, than by due 
course of law, to have his possession restored, without 
reference to title on which he holds, and that which the 
dispossessor asserts. In cases under that section, a lessor, 
who had dispossessed otherwise, than by due course of law, 
a lessee whose term had expired, would be compelled to 
restore possession to the lessee. The plain object is to object of the 
discourage proceedings calculated to lead to serious courage pro- 
breaches of the peace, and to provide against the person to create 
who has taken the law into his own hands deriving any p«aoe. 
benefit from the process. It was intended to obviate the 
effect of the possible application of English Law to such 
cases. That law, as laid down in Harvey v. Bridges (XIV 
M. and W., 442,) is that the free-holder, if entitled to eject a 
person in possession, may commit an indictable offence in 
doing so, and yet gain all the advantages of a legal posses- 
sion and be perfectly secure against the action of the party 
assaulted. Kunhi Komapen Kurupu v. Chembata Ambu.W 

(b) In Seetul Chunder Bhuttacharjee v. Judoonath 

Bose,< 2 ) the plaintiff claimed to have it declared that carrying away 

the crops is not 
(1) 2 M. H. 0. B., 313. | . (2) 25 W. E., 180. dispossession 

35 



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274 



THE SECOND 8CHIDULI, FIRST DIVI8ION — SUITS. 



[AST. 3 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



when Kaboolut 
wu for pay- 
ment of rent. 



Partial dispos- 
session of a 
ho tine is dispos- 
ition within 
this Article. 



Casual trespass- 
er's possession 
is not posses- 
sion. 



A tenant forci- 
bly disposses- 
sed, might sue 
landlord for 
possession; but 
an agent can- 
not sue the 
owner return- 
ing on his land. 



Decision under 
this Article does 
not give fresh 
starting point 
to suit on title. 



Part III. 
Six months. 

defendant No. 3 was his ryot, on the ground that, by some 
collusion between her and defendant No. 1, the latter was 
set up as a middleman and so prevented him, plaintiff, from 
getting rent direct. The a«t of dispossession was the for- 
cible carrying off of the crops by defendant No. 1. It was 
held, that as the kaboolut, if genuine, was for the payment of 
rent, no dispossession could take place in the carrying off of 
the crops, and that there was consequently no cause of action. 
(C) In Sabapathi Chetti v. Subraya Chetti,W it was held 
that a suit lies under section 9 of the Specific Belief Act, 
when plaintiffs possession of a house, well, Ac., has been 
partially as well as when it has been wholly disturbed. 

(d) In Dadabhai Narsidas v. the Sub-Collector of 
Broach/ 2 ) it has been observed that mere possession as a 
trespasser is not sufficient to entitle a plaintiff to recover 
in a suit brought under section 15 of Act XTV of 1859. 
There must be in the plaintiff juridical, as opposed to 
mere physical possession. 

(e) In Jonardun v. HaradhunW it was held, that a 
landlord ejecting a tenant forcibly, and of his own authority, 
may be sued under this Article, though the dispossession 
may have been after the expiry of the term of the lease. But 
a mere agent who has been put into possession of property 
on his employer's behalf cannot, by denying his employer's 
right to possession, not only hold the property against his 
employer, but turn his employer out under this section, even 
though his employer has committed no breach of the peace 
or committed any act of which the agent could complain 
other than that of returning upon his own property. 
Madhub Chunder Giree v. Sham Chand Giree.<*> 

(f) In a suit for possession of land, where it appeared 
that the plaintiff had forcibly turned out the other party 



(1) I L. R., 8. Mad., 250. 
(2)1 B. H. C. R., A. C., 82. 



(3) 9 W. R., 613. 

(4) I. L. R., 3. Gale, 243. 



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ART. 4 — 5] THB SECOND 80HXDTTU, FIB8T DIVISION—SUITS. 



375 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part III. 
Six months. 

and compelled him to seek his remedy under section 15, 

Act XIV of 1859, it was held that plaintiff was not 

entitled to get a fresh starting point for limitation from the 

date of the decision in that case. Prem Chand Kyhntta 

v. Hnree Doss Kybutta.W In Golam Nabi v. Biswanath Dispossession 

Kar,(*) it was held, that dispossession under a decree pas- cision does not 

irive & fresh 

sed under seotion 15 of Act XIV of 1859, would not give cause of action. 
a fresh cause of action for a suit for possession on title. 



When the wages, hire 
or price of work 
claimed accrue or 
accrues due. 



4,— Under Act No. IX of 1 860 Six months. 
(to provide for the spee- 
dy determination of cer- 
tain disputes between 
workmen engaged in 
Railway and other pub- 
lic works and their em- 
ployers), Section 1. 
(No. 4, Act IX of 1871.) Government may empower 
any Magistrate to decide disputes as to wages or price of 
work, and the Magistrates so empowered have jurisdiction 
only in case the amount in dispute does not exceed the 
sum of Rs. 200. The Magistrate may direct performance 
of work, if complainants elect for work, and award two 
months' imprisonment for disobedience. Sections 1, 2 and 
8, Act IX of 1860. 

5. — Under the Code of Civil Six months. 
Procedure, Chapter 
XXXIX (of summary 
procedure on negotiable 
instruments.) 

(No. 5, Act IX.) Sections 532 to 538 of Act XIV of 1882 This Article re- 
contain the procedure for suits to which this Article applies, summary suits, 

. . , tL . ™ ... * .i • .., ,. » t while Arts. »to 

Articles 69 to 80 provide for the institution of regular so apply to re- 

. . , . * gular suits. 

suits on negotiable instruments within three years from 
the accrual of cause of action. 

(1) 22 W. R„ 259. | (2) 3 B. L. E., App., 86. 



When the instrument 
sued upon becomes 
due and payable. 



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276 



THE SECOND SCHEDULE, FIRST DIVI8ION — SUITS. [ART. 6—7 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



6. — Upon a Statute, Act, Re- 
gulation or Bye-law, for 
a. penalty or forfeiture. 



Pabt IV. 
One year . 



When the penalty or 
forfeiture is incur- 
red. 



Suit for tax un- 
der Municipal 
Act, is not a 
suit for penalty. 



Municipal Bye- 
laws. 



Clause in ft Go- 
vernment lease 
entitling plain- 
tiff to grazing 
fees, was held a 
bye-law. 



(a) (No. 6, Act IX ; section 1, clause 2, Act XIV.) A 
suit for tax under The Towns' Improvement Act is not a 
suit for penalty or forfeiture within the meaning of this 
Article. The President of the Municipal Commission, 
Ghintur v. Srikakulapu Padmarazu.W 

(b) The bye-laws passed by the Municipal Commis- 
sioners of a town under the provisions of the Municipal 
Act have the force of law and may fall under this Article. 

(C) " Held, that a clause in a lease from Government, 
which entitled plaintiffs to certain grazing fees, authoriz- 
ing impounding and the levy of an extra fee in the case 
of cattle grazed without permission, was a bye-law within 
the meaning of this Article : Men Lai v. Mukhta (Punj 
Rec., No. 3 of 1875.)"W 



7. — For the wages of house- 
hold servant, artisan 
or laborer not provided 
for by this schedule, 
No. 4. 



One year 



When the wages ac- 
crue due. 



Teacher of fenc- 
ing is not a ser- 
vant. 



Person entitled 
to sweep and 
supply flowers 
in temple, is not 
a servant with- 
in this Article. 



(No. 7, Act IX; sec. 1, cl. 2, Act XIV.) This Article 
and Articles 4 and 101 provide for suits for wages in three 
special classes of cases. Suits for wages not falling under 
them will generally be governed by Article 102. 

(a) In Pylwan Jarkan Sahib Vasthath v. Jenaka 
Raja Tevar/ 8 ) which was a suit by a teacher of fencing, for 
monthly payment due, it was held that Article 7 of Act 
IX of 1871, did not govern the suit. 

(b) A person whose duties are to sweep and clean a 
temple, provide flowers for daily worship, and garlands for 

(1) I. L. R., 3 Mad., 124. | (2) Bivaz's Limitation Act, p. 86. 
(3) 8 M. H. C. R., 87. 



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ART. 7] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 277 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

the idol, is not a household servant or labourer within the 
meaning of this Article. Bhavath Radan v. Rama/ 1 ) 

(C) In Virasvami Nayak v. Sayambabay Sahiba,W An artist ag- 
the plaintiff, a native artist, agreed to supply pictures to ply pictures is 
the late Rajah of Tanjore, and sued for their value. It 
was held that the price cannot be considered as the wages 
of an artizan within clause 2, section 1 , of Act XIV of 
1859. 

(d) In Andi Konan v. Venkata Subbaiyan,( s > the plain- a person under- 
tiff, in consideration of the possession and use of the land the necessary 
being given him and of one- third of the produce, under- vation in eon- 
took to do all that was necessary for the cultivation of use of land and 
the land. It was held that by this agreement the parties Suce is not P a°~ 
were placed in a very different relationship from that of 
employer and labourer. 

(6) In Nitto Gopal Ghose v. Mackintosh/ 4 ) it was held, One year's rale 

xi \ j. * it l w i j heldto **** a 

that a suit for salary by a mookhtyar employed on a mookhtyar's 
monthly pay is not barred by the limitation of one year but not a facl 

tOTV gnitim. 

prescribed by clause 2, section 1 of Act XIV of 1859. tan's suit for 
But a suit for wages due to a factory gumastah engaged 
on a monthly pay of 10 Rupees, was held to be governed 
by the above clause. Nobin Chunder r. Kenny. (*) 

(f) In Sivarama Pillai v. Turnbull,W it was held that TWsArticie ap. 
clause 2, section I of Act XIV of 1859, applies only to suits suits against 

the employer 

for wages brought by a servant against the person liable and not to a suit 
as the master in whose service he had been employed, ment servant 

. . * who received 

and the section does not apply to a suit brought by one money for die- 

hursement of 

Government servant against another for the recovery of wages. 
a sum of public money received by the defendant as a 
disbursement on account of the wages of plaintiff to whom 
the defendant was legally bound to pay it over. 



(1) I. L. R., 7 Mad., 99. 

(2) 2 M. H. G. R., 6. 

(3) 2 M. H. C. R-, 387. 



(4) 6 W. R. C. R., 11. 

(5) 5 W. R. 8. C, 3. 

(6) 4 M. H. C. R., 43. 



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278 



THl 8BC0ND SCHEDULE, PIE8T DIVISION — SPITS. [ART. 8 — 10 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Date of dismis- 
sal of servant is 
not the starting 
point, but the 
end of the 
month if ap- 
pointed on 
monthly salary. 



Part IV. 
One year. 

(g) In Kalichurn Mitter t>. Mahomed Soleem/ 1 ) it was 
held, that where a servant is appointed on a fixed monthly 
salary, and there is nothing to show that the salary is to 
be paid in advance, the limitation as to each month's salary 
commences from the time at which the salary became due, 
i.e., the end of the month, and not from the date of the 
dismissal of the servant. 



One year 



8. — For the price of food or 
drink sold by the keep- 
er of a hotel, tavern, or 
lodging house. 

(No. 8, Act IX ; sec. 1, cl. 2, Act XIV.) 



When the food or 
drink is delivered. 



9. — For the price of lodging. 



One year 



When the price be- 
comes payable. 

(No. 9, Act IX; sec. 1, cl. 2, Act XIV,) Article 110 
allows 3 years to a suit for arrears of rent. 



10. — To enforce a right of 
pre-emption, whether 
the right is founded 
on law, or general us- 
age, or special con- 
tract. 



One year . . . When the purchaser 
takes, under the 
sale sought to be 
impeached, physi- 
cal possession of the 
whole of the proper- 
ty sold, or, where 
the subject of the 
sale does not admit 
of physical posses- 
sion, when the in- 
strument of sale is 
registered. 

Under xiv of (a) (No. 10. Act IX ; section 1, cl. 1, Act XIV.) 
from the date of The provisions of Act XIV of 1859 declared that in 
possession tm- pre-emption suits, the period of limitation should be 
peached. "^ computed from the time at which the purchaser shall 
have taken possession under the sale impeached. In 
(1) 6 W. B. C. E., 33. 



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ART. 10] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 279 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

Ganeshee Lall v. Toola Ram (H. C. R., N.-W. P., 1868, Possession was 

p. 367) the term possession was construed to mean such to mean tangi- 

possession as the nature of the things sold admitted of, possession. 

and that it did not necessarily mean tangible or visible required actual 

possession 

possession. The language of Article 10, of Act IX of 1871, 
differed from the former one in declaring that the period 
began to run when the purchaser took actual possession 
under the sale. As to what was meant by actual pos- 
session, the Full Bench of the Allahabad High Court 
held in August, 1876, that full effect would be given to 
the term, if it was held that where the nature of the 
subject of sale admitted of visible and tangible possession, * 
limitation would run from the time that such possession * 
was taken, but that when the nature of the subject of the when subject 
sale did not admit of tangible possession, limitation ran admit°of tangi- 
from the date when the subject of sale was completely time P was W he?i 
conveyed to and vested in the purchaser. Jageshar Singh thaT^t^com- 
v. Jawahir Singh. G) The above decision was followed in ?ey^ y to°and 
Bijai Ram v. Kallu,< 2 ) in which conditional vendee had pu^haser. ' e 
obtained such complete possession that entitled him to 
secure mutation of name in the Revenue registry. With 
reference to the above observations, the Legislature would 
appear to have altered in the Act of 1877, the time from 
which limitation should be counted in pre-emption suits. 

(b) In Lachmi Narain Lai t?. Sheoambar Lal,< 8 > the A. h. 
mortgagee in possession became vendee, by a deed dated mortgag^be- 
October, 1873, by which Rs. 200 were to be paid in cash to obtains V phy5i! 
the vendor, and Rs. 98 to go in redemption of the mortgage. oniy P wh^saie 
The vendor sued to recover the purchase money and p i e te on pay- 
obtained a decree in March, 1877. The plaintiffs sued to chase moneyT 
obtain possession by a right of pre-emption within one 
year from the date of payment of purchase money by the 

(1) I. L. R., 1 AH., 311. | (2) I. L. R., 1 Ail., 682. 
(8) I. L. R., 2 All., 409. 



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280 THB SECOND SCHBDULB, FIRST DIVISION — SUIT8. [ART. 10 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

mortgagee. It was held that the mortgagee becoming 
vendee, obtained physical possession under the sale, not 
from the date of the sale deed, bnt when the contract of 
sale became completed on payment of the purchase money. 
A. H. held that (c) In Gulab Singh v. Amar Singh, d> the defendant 

pre-emption . 

suit should be mortgaged his share in a zemindari, on the 19th Decem- 
a year from the ber, 1876, providing in the deed, that he should hold 
mortgage deed possession and pay annually the interest to the mortgagee, 
the Mortgagee who, in default, was empowered to sue for possession. 
d^fcSKTf^pa^ Plaintiff by the terms of the W*jib-nl-arz contended that 
S^and not r " he was entitled to have had an offer of the share made to 
regStr^wasia- him before it was mortgaged. The suit was brought on 
(March 1879 ) tne ^ fc k February, 1878, and cause of action was said to 
have arisen on the 19th May, 1877, when the registry was 
altered to the mortgagee's name. It was held that 
whether the mortgagee held actual or constructive pos- 
session, the plaintiff was in either case bound to have 
brought his suit within a year from the date of the mort- 
gage deed and not from the date that registry was altered. 
A.H. held suit (d) In Jaikaran Rai v. Ganga Dhari Rai, W a condi- 
broSght^ithin tional sale was made on the 3rd December, 1873, there 
dauTof physical was no transfer of possession, the conditional vendee took 
enSr^roperty. proceedings to foroclose, and the year of grace expired on 
the 23rd July, 1877; he then sued for possession and 
obtained a decree on the 19th December, 1878 ; the 
plaintiff, on the 15th January, 1879, sued to enforce his 
right of pre-emption based on an agreement entered in 
the administrative paper : some of the property was still 
in the possession of a mortgagee, whose mortgage was of 
prior date to the conditional sale : it was held that time 
will run from the date that the purchaser takes physical 
possession of the whole of the property sold. In Mullick 
Abdool Guffoor v. Muleka/ 8 ) it has been observed that 

(1) I. L. B., 2 AU., 287. | (2) I. L. R., 3 All., 176. 
(3) I. L. R., 10 Calc, 1112. 



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AST. 10] THE 8KCOND SCHEDULE, FIRST DIVISION — SUITS. 



281 



Description of Bait. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pabt IV. 
One year 

taking visible and tangible possession of property, or 
materially enjoying the rents and profits thereof, is taking 
physical possession, and what is usually called possession 
in this country is not only actual or khas possession, but 
includes the receipt of the rents and profits. 

(f) In Unkar Das v. Narain,^) which is a Full Bench 
decision, plaintiff, a co-sharer in an undivided village, sued 
on the 9th August, 1880, another co-sharer, and his vendee 
of the undivided share under a deed executed and regis* 
tered on the 2nd July, 1879. According to the zemindari 
tenure, in this case, proprietors used to divide the balance 
of the profits every year. It was held that an undivided 
share of the village is not susceptible of physical posses- 
sion, and that time begins to run from the date of the regis- 
tration of the sale deed. Straight, J., observes, " on the 
one hand, the object of the Legislature has been to 
shorten the periods of limitation, its purpose on the other 
has been to encourage registration, and it was probably 
under the influence of both these considerations that the 
word ' physical' and the alternative provision in Article 
10 were introduced.' ' This was followed in Bholi t?. Imam 
Ali.< 2 > 

(g) Nath Prasad v. Ram Paltan Ram,< 3 ) Full Bench, 
was a suit by a pre- emptor to enforce his right against the 
vendor and vendee under a registered deed of conditional 
sale relating to a fractional share of an undivided mahal. 
It was held, that the sale referred to in this Article must 
be an absolute one operating either by physical possession, 
or, where it is not susceptible, by the creation of a title 
under a registered deed, and that the suit was governed 
by Article 120. The Court observe : " The alternative 



Taking tangible 
possession or 
enjoying rent 
is taking physi- 
cal possession. 



In oase of sale 
of an undivided 
share of a vil- 
lage not suscep- 
tible of physical 
possession, time 
runs from the 
registration of 
sale deed. 
(July 1881.) 



Observations of 
Straight, J. 



Pre-emption 
suit in respect 
of conditional 
sale of suoh 
property is not 
governed by 
this Article. 
(January 1882.) 



Article 1*0 ap- 
plies. 



(1) I. L. B., 4 All., 24. | (2) I. L. B., 4 All., 179. 
(3) I. L. B., 4 All., 218. 

36 



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282 THl 8BCOND SCHEDULE, WEST DIVISION — 801TS. [ART. 10 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

observations of date mentioned in the third column of Article 10, cannot, 
alternative date in our judgment, be applied to a transaction of con- 
column 'which ditional sale which has about it all the characteristics of 
misapply to"a a mortgage, and further requires the intervention of the 
wwch^hasau 6 machinery of foreclosure before the vendee can acquire 
iJticofV2ort. a proprietary title. We think that the sale referred to 
g * ge# in Article 10 must be an absolute one having immediate 

effect and operation, in those cases where the interest 
passed is capable of physical possession, by physical pos- 
session, and where it is not, by the creation of a title 
under an instrument duly registered. We are aware 
that, in removing conditional sales from the category of 
Article 10, that failing any special provision to govern 
them, we relegate them to Article 120. We fully realize 
the anomalies that must thus necessarily arise, by giving 
the pre-emptor objecting to a conditional sale that has be- 
come absolute, a limitation of six years ; and in those cases 
where the Wajib-uUarz creates a right of p re-mortgage, 
two causes of action with a similar period in respect of 
Legislature ap- each. But it appears to us that the Legislature over- 
overlooked looked this form of contract, when providing for the 
emption in res- exercise of the right of pre-emption, and has consequently 
tionaisaieof an left cases of the kind mentioned in the order of reference 
of a mahai ; unprovided for." Following the above decision, it was 
held in Rasik Lai v. Gajraj Singh/ 1 ) that, where the mort- 
Caose of action gagee by conditional sale is not in possession under the 
emption^ac? 1 ^ mortgage, and after foreclosure has to sue for possession, 
mortgage ob- the right to sue to enforce a right of pre-emption accrues 
possession; when he obtains a decree for possession, and the suit is 
Case where governed by Article 120. In Ashik Ali v. Mathura 
p^vided'Sr Kandu,W the Wajib-uharz of a village provided that the 

emption inres- right of pre-emption should accrue " not only in respect 
peot of condi- 
tional sales, 



(1) I. L. R., 4 All., 414. | (2) I. L. R., 5 AIL, 187. 



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ART. 10] THB SECOND 8CHKDULI, FIRST DIVISION — SUITS. 



283 



Description of suits 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

of absolute sales, but also in regard to conditional sales, mortgages, and 
mortgages, and " thika leases." The suit having been 
laid to enforce the right of pre-emption in respect of a 
mortgage by conditional sale of a fractional share of an 
undivided mahal, it was held that the right accrued on 
the sale becoming absolute, and that the suit is governed Article iso wm 
by Article 120. In Udit Singh *. Padarath Singh,") » 5ff VpSI 1 * 
mortgagee under a deed of mortgage by conditional sale oondJUonShrent 
obtained a final order for foreclosure under Regulation tained decree 
XVII of 1806, in December, 1875. He then sued to have 2SS2f £nd 
the conditional sale declared absolute and for possession & 8 sion! lim pos * 
of the mortgaged property, and obtained a decree for the heKPto' acme 
relief sought for in April, 1881. It was held that the d Xe bedaieof 
pre-emptor's full right to impeach the sale had not 
accrued until the mortgagee had obtained the decree of 
April, 1881, declaring the conditional sale absolute and 
giving him possession, and that Article 120 was applicable 
to thiscase. 

(h) In Prag Chaubey v. Bhajan Chaudhri/*) plaintiff Though condi- 
sued on the 23rd March, 1880, to enforce his right of pre- held possession 
emption against the defendant, who had obtained a mort- 
gage by way of conditional sale in 1866, and obtained pos- 
session in January, 1867. In 1877, the defendant ap- 
plied for foreclosure under Regulation XVII of 1806, and 
the year of grace expired in July, 1878. In November, 
1878, he sued to have the conditional sale declared abso- 
lute, obtained a decree, and in execution thereof took 
formal possession of the property on the 30th April, 1879. 
It was held, that the period of limitation ran from the 
30th April, 1879, the day that the conditional vendee ob- 
tained possession in execution of his decree. 

(1) The court granting a decree to the plaintiff in a Decreet 
x ' o o r final not when 

affirmed by the 
(1) I. L. R., 8 All., 54. | (2) I. L. R., 4 All. 291. 



such, 
rone from date 
of possesion 
under decree 
declaring the 
sale absolute. 



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284 



THE 8EC0HD SCHRDUM, FIR8T DIVISION — SUITS. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

Lower App«i. pre-emption suit, is competent to grant the decree subject 
on the expiry of to the payment of the purchase-money within a fixed time, 

thetime7or2nd , ..*./ _ _ _/ ... x J . .,.,.,,, 

appeal or when and if the decree- holder fails to comply with it, he loses 
dispoeedof. the benefit of the decree. When a direction contained in 
a decree refers to the time at which the decree should be- 
come final, it does not become final on being affirmed by 
the Lower Appellate Court, but on the expiry of the period 
of Special Appeal or when such an appeal is instituted 
when the appeal is disposed of. Shaikh Ewaz v. Mokuua 
Bibi/ 1 ) If the time prescribed for an appeal from a 
decree for pre-emption expires on a day when the court 
is closed, the decree does not become final before the day 
the court re-opens. Ram Sahai v. GayaJ*) 



If on the teat 
4aj the court is 
closed, decree 
does not become 



court reopens. 



One year 



The date of the order. 



11. — By a person against 

whom an order is pass- 
ed under Section* 

280, 281, 282 or 335 

of the Code of Civil 

Procedure, to establish 

his right to, or to the 

present possession of, 

the property comprised 

in the order. 

orders under (a) Section 246 of Act Vm of 1859, which related to 
209 of Act vm investigation into claims and objections to the sale of 
final and can- property attached in execution of a decree, and section 
regular °«uJ to 269, which provided for investigation into the claims of 
within one year persons other than defendants who may assert a right to 
the property sold in auction and obstruct delivery thereof 



Thi Following are the Sections 
of the C. P. C. of 1877, and 1^82. 



\ 



•280. If upon the said investi 
gation the oourt is satisfied that, 



for the reason stated in the claim or 
(1) I. L. R., 1 All. 132. 



Sections 246 and 269, of the C. P. C. 
of 1859. 

246. In the event of any claim being pre- 
ferred to, or objection offered against the sale 
of lands or any other immoveable or moveable 

| (2) I. L. R.. 7 All., 107. 



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AST. 11] THB MCOND SCHBDOLB, FIRST DIVISION — SUITS. 



285 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

to the purchaser, and of persons who may have been dispos- 
sessed by the purchaser, distinctly contained a special 
limitation clause to the effect that the order shall not be 
Subject to appeal, but that the party dissatisfied with the 
order may bring a regular suit within one year from the 
date of the order. 



objection, such property was not, 
when attached, in the possession of 
the judgment-debtor or of some per- 
son in trust for him, or in the occu- 
pancy of a tenant or other person 
paying rent to him, or that, being 
in the possession or the judgment- 
debtor at such time, it was so in his 
possession, not on his own account 
or as his own property, but on ac- 
oonnt of or in trust for some other 
person, or partly on his own account 
and partly on account of some other 
person, the court shall pass an order 
for releasing the property, wholly or 
to such extent as it thinks fit, from 
attachment. 

281. If the court is satisfied that 
the property was, at the time it was 
attached, in possession of the judg- 
ment-debtor as his own property 
and not on account of any other per- 
son, or was in the possession of 
some other person in trust for him, 
or in the occupancy of a tenant or 
other person paying rent to him, 
the the court shall disallow the 
claim. 

282. If the court is satisfied that 
the property is subject to a mortgage 
or lien in favour of some person not 
in possession, and thinks fit to con- 
tinue the attachment, it may do so, 
subject to such mortgage or lien. 

283. The party against whom an 
order under section 280, 281 or 282 
is passed, may institute a suit to es- 
tablish the right which he claims to 
the property in dispute, but, subject 



property which may have been attached in 
execution of a decree or under any order for 
attachment passed before judgment, as not 
liable to be sold in execution of a decree against 
the defendant, the court shall, subject to the 
proviso contained in the next succeeding sec- 
tion, proceed to investigate the same with the 
like powers as if the claimant had been ori- 
ginally made a defendant to the suit, and also 
with such powers as regards the summoning 
of the original defendant as are contained in 
section 220. And if it shall appear to the 
satisfaction of the court that the land or other 
immoveable or moveable property was not in 
the possession of the party against whom exe- 
cution is sought, or of some other person in 
trust for him, or in the occupancy of ryots or 
cultivators or other persons paying rent to 
him at the time when the property was attach- 
ed, or that, being in the possession of the 
party himself at such time, it was so in his 
possession not on his own account or as his 
own property, but on account of or in trust 
for some other person, the court shall pass an 
order for releasing the said property from at- 
tachment. But if it shall appear to the satis- 
faction of the court that the land or other 
immoveable or moveable property was in pos- 
session of the party against whom execution 
is sought, as his own property, and not on 
account of any other person, or was in the pos- 
session of some other person in trust for 
him, or in the occupancy of ryots or cultiva- 
tors or other persons paying rent to him at 
the time when the property was attached, the 
court shall disallow the claim. The order 
which may be passed by the court under this 
section shall not be subject to appeal, but the 
party against whom the order may be given 
shall be at liberty to bring a suit to estab- 
lish his right [at any time within one year 



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286 



THE SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Limitation Act 
of 1871 repealed 
the limitation 
clauses in the 
two sections 
and enacted 
Article 16. 



B. H. consider- 
ed Article 16 of 
Act DC of 1871 a 
substitute for 
the repealed 
clauses of limi- 
tation in sec- 
tion 846 of Act 
Vm of I860 
while C.H. held 
it was not. 



M. H.andA.H. 
held an order 
under section 



Part IV. 
One year. 

(b) The Limitation Act IX of 1871, which came into 
force on the 1st July, 1871, repealed the Limitation Clause 
contained in the said two sections 246 and 269 of Act 
VIII of 1859, and withont alluding to any of the sections 
of the Procedure Code, enacted Article 15 as follows : " To 
alter or set aside a decision, or order of a Civil Court in any 
proceeding other than a suit." The object of the Legisla- 
ture, was, no doubt, to remove from the Civil Procedure 
Code the provisions regarding limitations and embody 
them in the Limitation Act. Article 15 of Act IX of 1871, 
was considered by the Bombay High Court to be a substi- 
tute for the Repealed Limitation clause of sections 246 and 
269 of Act VIII of 1859, while the Calcutta High Court was 
of opinion, that it was not a reenactment of the Repealed 
Clauses, and that the parties affected by the order might 
bring regular suits within the ordinary period allowed for 
such suits by the statute. The Madras High Court held, 
that although section 246 was repealed, an order passed 



to the result of such suit, if any, the 
order shall be conclusive. 

335. If the purchaser of any such 
property is resisted or obstructed by 
any person other than the judg- 
ment-debtor claiming in good faith 
a right to the present possession 
thereof, or if, in delivering posses- 
sion thereof, any suoh person is dis- 
possessed, the court, on the com- 
plaint of the purchaser or the person 
so dispossessed, shall inquire into 
the matter of the resistance, obstruc- 
tion or dispossession, as the case 
may be, and pass suoh order thereon 
as it thinks fit. 

The party against whom such 
order is passed may institute a suit to 
establish the right which he claims 
to the present possession of the pro- 
perty j but, subject to the result of 
suoh suit, if any, the order shall be 
final. 



from the date of the order]. 

269. If it shall appear that the resistance 
or obstruction to the delivery of possession 
was occasioned by any person other than the 
defendant claiming a right to the possession 
of the property sold as proprietor, mortgagee, 
lessee, or under any other title, or if in the 
delivery of possession to the purchaser any 
such person claiming as aforesaid, shall be 
dispossessed, the court, on the complaint of 
the purchaser, or of suoh person claiming as 
aforesaid, [if made within one month from the 
date of such resistance or obstruction or of 
suoh dispossession as the case may be], shall 
enquire into the matter of the complaint and 
pass suoh order as may be proper in the cir- 
cumstances of the case. The order shall not 
be subjeot to appeal, but the party against 
whom it is given shall be at liberty to bring 
a suit to establish his right at any time with- 
in one year from the date thereof. 

In the above sections the words bracketed 
were repealed by Aot IX of 1871} schedule 1. 



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ART. 11] THE SECOND SCHEDULE, tflBST DIVISION — SUITS. 287 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

under it disallowing an objector's claim amounted to a ms operated a* 

summary declaration, and that such declaration was equi- tion until set 

valent to a final adjudication against his right unless he though y tne* 

brought a regular suit to supersede the order within one was repealed, 
year. The Allahabad High Court was of the same opinion. 

(C) The Indian Limitation Act of 1877 came into force Limitation Act 

in October, 1877, along with the Civil Procedure Code duoed Article is 

of 1877, and the latter substituted sections 281 and enacted Article 

W £q QMot cases 

335 for sections 246 and 269 of Act VIII of 1859. The of orders which 

fell under sec- 

Limitation Act of 1877, by Article 13, not only repro- turns 846 and ae» 

J J r of Act vni of 

duced Article 15 of its predecessor, but also newly enacted is». 

Article 11 to meet the cases of orders passed in a suit, but 

not open to appeal. But the Article says nothing about 

the corresponding sections of the Code of 1859. The 

Madras High Court, in Yenkatachala v. Appathorai^ 1 ) 

held in July, 1884, that an order passed under section 269 m. h. held an 

of Act VI II of 1859, cancelling delivery of possession to a tion mq of Act 

decree- holder as auction purchaser, was an order in a suit cancelling deli- 

and did not fall within Article 13, and that the repeal of skm to auction 

section 269 by the amended Code did not deprive the not fail within 

order of the character which attached to it when it was 

made, and that it was an order which was final unless and 

until it was set aside by a suit brought within a year. 

The High Court further held that such final order is a such final order 

bar to a suit after time, and estops the party in a suit after time 

against him from asserting his right though one year had heid g by*o. 1> H? 

not elapsed. The Madras High Court, agreed with the would not an- 

Calcutta High Court in the opinion, that Article 11 of Act passed ft nnder r 

, XV of 1877 did not apply to an order passed under the 

former Codes, and that a suit for possession brought after 

an order passed under section 246 of the old Code was not 

a suit to set aside an order in a proceeding other than a 

(1) I. L. R., 8 Mad., 134. 



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286 



THS SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Limitation Act 
of 1871 repealed 
the limitation 
clauses in the 
two flections 
and enacted 
Article 15. 



B. H. consider- 
ed Article 15 of 
Act DC of 1871 a 
substitute for 
the repealed 
claoses of limi- 
tation in sec- 
tion 246 of Act 
VIII of 1869 
while O.H. held 
it was not. 



M. H.andA.H. 
held an order 
under section 



Part IV. 
One year. 

(b) The Limitation Act IX of 1871, which came into 
force on the 1st July, 1871, repealed the Limitation Clause 
contained in the said two sections 246 and 269 of Act 
VIII of 1859, and without alluding to any of the sections 
of the Procedure Code, enacted Article 15 as follows : " To 
alter or set aside a decision, or order of a Civil Court in any 
proceeding other than a suit." The object of the Legisla- 
ture, was, no doubt, to remove from the Civil Procedure 
Code the provisions regarding limitations and embody 
them in the Limitation Act. Article 15 of Act IX of 1871, 
was considered by the Bombay High Court to be a substi- 
tute for the Repealed Limitation clause of sections 246 and 
269 of Act VIII of 1859, while the Calcutta High Court was 
of opinion, that it was not a reenactment of the Repealed 
Clauses, and that the parties affected by the order might 
bring regular suits within the ordinary period allowed for 
such suits by the statute. The Madras High Court held, 
that although section 246 was repealed, an order passed 



to the result of such suit, if any, the 
order shall be conclusive. 

386. If the purchaser of any suoh 
property is resisted or obstructed by 
any person other than the judg- 
ment-debtor claiming in good faith 
a right to the present possession 
thereof, or if, in delivering posses- 
sion thereof, any such person is dis- 
possessed, the court, on the com- 
plaint of the purchaser or the person 
so dispossessed, shall inquire into 
the matter of the resistance, obstruc- 
tion or dispossession, as the case 
may be, and pass such order thereon 
as it thinks fit. 

The party against whom such 
order is passed may institute a suit to 
establish the right which he claims 
to the present possession of the pro- 
perty ; but, subject to the result of 
such suit, if any, the order shall be 
final. 



from the date of the order]. 

269. If it shall appear that the resistance 
or obstruction to the delivery of possession 
was occasioned by any person other than the 
defendant claiming a right to the possession 
of the property sold as proprietor, mortgagee, 
lessee, or under any other title, or if in the 
delivery of possession to the purchaser any 
such person claiming as aforesaid, shall be 
dispossessed, the court, on the complaint of 
the purchaser, or of such person claiming as 
aforesaid, [if made within one month from the 
date of such resistance or obstruction or of 
such dispossession as the oase may be], shall 
enquire into the matter of the complaint and 
pass suoh order as may be proper in the cir- 
cumstances of the case. The order shall not 
be subject to appeal, but the party against 
whom it is given shall be at liberty to bring 
a suit to establish his right at any time with- 
in one year from the date thereof. 

In the above sections the words bracketed 
were repealed by Act IX of 1871, schedule 1. 



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ART. 11] TBI 8HCOND SCHEDULE, tfiRST DIVISION — SUITS. 287 



Description of suit. 



Period of Time from which period 

limitation. | begins to run. 



Part IV. 
One year. 

under it disallowing an objector's claim amounted to a 246 operated a» 
summary declaration, and that such declaration was equi- tion until set 
valent to a final adjudication against his right unless he thonghthe 8 
brought a regular suit to supersede the order within one was repealed, 
year. The Allahabad High Court was of the same opinion. 

(C) The Indian Limitation Act of 1877 came into force Limitation Act 
in October, 1877, along with the Civil Procedure Code duoed Article is 

of 1871*8 13 and 

of 1877, and the latter substituted sections 281 and enacted Article 
335 for sections 246 and 269 of Act VIII of 1859. The of JSdSSJ'which 

fell under sec- 

Limitatiou Act of 1877, by Article 13, not only i-epro- tumswandae* 

J * of Act vm of 

duced Article 15 of its predecessor, but also newly enacted i860. 

Article 11 to meet the cases of orders passed in a suit, but 

not open to appeal.' But the Article says nothing about 

the corresponding sections of the Code of 1859. The 

Madras High Court, in Yenkatachala v. Appathorai^ 1 ) 

held in July, 1884, that an order passed under section 269 m. h. held an 

of Act VIII of 1859, cancelling delivery of possession to a tion mq of Act 

, , . . * . iT j • ., Vm of 1859 

decree- holder as auction purchaser, was an order in a suit cancelling deli- 

v e ry of DOBses* 

and did not fall within Article 13, and that the repeal of sion to auction 
section 269 by the amended Code did not deprive the not fail within 
order of the character which attached to it when it was 
made, and that it was an order which was final unless and 
until it was set aside by a suit brought within a year. 
The High Court further held that such final order is a such Anal order 
bar to a suit after time, and estops the party in a suit after time 
against him from asserting his right though one year had he°d g by a o. 1 H? 
not elapsed. The Madras High Court, agreed with the would not ap- 
Calcutta High Court in the opinion, that Article 11 of Act passed under 
, XV of 1877 did not apply to an order passed under the 
former Codes, and that a suit for possession brought after 
an order passed under section 246 of the old Code was not 
a suit to set aside an order in a proceeding other than a 

(1) I. L. R., 8 Mad., 134. 



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288 THE SECOND SCHEDULE, FIRST DIVISION — SUIT8. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pakt IV. 
One year. 

suit falling under Article 15 of the Limitation Act of 1871. 
a.h. also bald The Allahabad High Court have also held, that in the 
IbwiSteijT a^ event of no regular suit being brought by the party against 
■Irt'as^bj 1 * whom an order was passed under section 246 of Act V1U 
■ mt * of 1859, the matter in dispute must be held to have been 

finally disposed of by the finding and order under that 
section, and to be absolutely a res judicata. All the deci- 
sions bearing upon this point have been noted below, 
c. H. bald that (d) In Koylash Chunder Paul Chowdhry v. Preonath 
S£SSnu fl who Boy Chowdhry,* 1 ) the plaintiff, whose claim to attached 
£nder"sMtta property was rejected under section 246 of Act VIII of 
SV^JFism, 1859, sued in May, 1876, to establish his right. The Lower 
Seriod^iSi- Court rejected the suit as barred by Article 15 of Act EX 
AJt°tt U cS d i87i. of 1871. It was held that Article 15 was not a re-enact- 
MkL a oTtha ment of tne repealed portion of section 246 of the C. P. 
order unneoea- c - of ls ^ and fchat the guit ^ fop a declaration of title 

in which setting aside an order within the meaning of 

Article 15 was not necessary. The above decision was 

In one oaee followed in Raj Ch under Chatterjee v. Modhoosoodun 

S^barred h by Mookerjee,* 1 ) in which a mortgagee in execution of whose 

TO A aiiowed decree a third party's claim to mortgaged property was 

SS?^ of ST allowed in July, 1877, sued on the 29th March, 1879, to 

Act * establish his right to the property. It was held that 

although the period of limitation for the suit under Act 

XV of 1877 was one year, which had expired on the date 

of the suit, as the Act did not come into force until 1st 

in another case October, 1877, the plaintiff was entitled to the benefit of 

•iiowed'ordif the last para, of section 2 of Act XV of 1877, as Act IX 

ArSoieTi did of 1871 allowed him a longer period of limitation. In 

c?p!1). of i860. Luchmi Narain Singh v. Assrup Koer,W plaintiff's claim 

to certain property was rejected under section 246 of Act 

VIII of 1859, on the 6th September, 1873. She brought 

(1) I. L. E., 4 Calo , 610. | (2) I. L. R., 8 Calo., 395. 
(3) I. L. R., 9 Calo., 43. 



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ART. 11] THE SECOND SCHEDULE, FIB8T DIVISION — SUITS. 289 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

a suit on the 10th January, 1878. It was held that the 

suit was not barred nnder this Article, which refers only to 

the sections of Act X of 1877, corresponding to section 246 

of Act VIII of 1859, and that the suit was not one to set 

aside a summary order within Article 15, schedule 2, of 

Act IX of 1871. In Gopal Ghunder Mitter v. Mohesh o. h. adhered 

Ghunder Boral,< l > the plaintiff, whose claim was rejected cisiona even af- 

under section 246 of Act VIII of 1859, on the 7th Septem- referreTuothose 

ber, 1876, instituted the suit to establish his right and for 

possession in October, 1879, after Act XV of 1877 came 

into force. The Lower Courts rejected the suit as barred. 

It was held that the suit was not governed by this Article, 

but by the general limitation of 12 years. In this case, 

the Calcutta High Court adhered to their own decisions, 

although they were referred to the decisions of the Bom- b. h. held Art. 

bay High Court holding that the period of limitation in ib7°i^ t^bV fub! 

all such cases was one year, and that Article 15, schedule J^i^wo^of 

2 of Act IX of 1871 waa substituted for the limitation ,ection UA ' 

provided for by the twelve repealed words in section 246 of 

Act VIII of 1859. Krishnaji Vithal v. Bhaskar Rang- 

nath.( f ) Venkapat7.Chenbasapa.< 3 ) Jettiv. Sayad Husein.W 

(e) The Calcutta High Court followed their own Nevertheless 
decision in Bessessur Bhugut v. Murli Sahu,< 6 > in which their 'own deci- 
plaintiff, whose claim was rejected in August, 1877, under this article in. 
section 246 of Act VIII of 1859, sued to establish his title ^distinctly re- 
in June, 1878. The defendant died, and the court directed tfon 283 ofThe 
the issue of a summons on the defendant named by the not to section 
plaintiff ; but the plaintiff failing to pay batta, the suit of isso. 
was dismissed in March, 1879. In March, 1880, plaintiff ( ™ y 1888,) 
brought a second suit. It was held that the suit was 
maintainable and that the order of August, 1877 not 

(1) I. L. R., 9 Calc, 230. I (8) I. L. R., 4 Bom., 21. 

(2) I. L. R., 4 Bom., 611. | (4) I. L. R., 4, Bom., 23. 

(5) I. L. R., 9 Calc, 163. 

37 



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290 THE SECOND SCHEDULE, PIKST DIVISION — SUIT8. (/ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pakt IV. 
One year. 

being made under section 283 of Act X of 1877, to which 
the article distinctly refers, the suit was governed not 
by this Article, but by Article 120. The above decisions 
were followed in Gend I&ll Tewari t>. Denonath Ram 
Tewari.d) 
M. H.andA..H. (f) Venkatachela v. Appathorai,W was brought for 

held such final N ' rr ^* 

orders to bar possession of property. The plaintiff, as decree-holder 
year and estop and auction purchaser, had obtained possession through 

unsuccessful r * ~ 

claimant from court, but the delivery of possession wus cancelled in 

asserting his " r 

right as defen- August, 1877, under section 269 of Act VIII of 1859. 

dant. ° ' 

The suit was not brought until 1883. The High Court 
expressing their concurrence in the opinion of the Cal- 
cutta High Court, in Koylash Chunder Paul Chowdhry 
v. Preonath Roy Chowdhry/ 3 ) that a suit for possession 
after an order under section 246 of the old Code was not 
a suit to set aside an order in a proceeding other than 
a suit falling under Article 15 of the Limitation Act of 
1871, and also agreeing with the ruling in Gopal Chunder 
Mitter v. Mohesh Chunder Boral,<*> that Article 11 of the 
Limitation Act of 1877 did not apply to an order passed 
under the former Codes, held that the auction purchaser s 
suit was barred, as. the repeal of section 269 of Act VIII 
of 1859, on the 1st October, 1877, by the Act of 1877, did 
not deprive the order of the 10th August, 1877 of the 
effect it possessed when passed. In Bodri Prasad v. 
Muhammad Yusuf/ 6 ) it was held that an order passed 
under section 246 of Act VIII of 1859 is binding on all 
Jbhe persons who were parties to it, and is conclusive 
unless overruled in a regular suit within one year. 
m. h. andB.H. (g) In Krishna Rau v. Lakshmana Shanbhogue,* 6 ) 
losing claim nn- plaintiff, in execution of his money decree, attached his 

der section 246 

u** JEUi w L L - E " u Cal0 " 678 I W L K E " 9 Cal °" 28o: 

from assertbg (2; I. L. R., 8 Mad., 134. | (5) I. L. E., 1 All., 881. 

(3) 1. L. E., 4 Calo., 610. | (6) I. L. R., 4 Mad., 302. 



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ART. 11] THE SECOND SCHEDULE, FIB8T DIVISION — SUITS. 



291 



Description of suit. 



Period of 
limitation. 



Time from which 
period begins to run. 



Part IV. 
One year. 

debtor's interest in certain immoveable property held by 
the undivided family of which he was a member. The 
defendant,* the father of the debtor, in August, 1 875, ob- 
jected to the attachment and prayed for release. On the 
19th August, 1875, the claim was disallowed, and in Sep- 
tember, 1875, the debtor died, and the plaintiff purchased 
his interest in auction sale in November, 1875, and insti- 
tuted this suit to obtain possession of the debtor's share 
in June, 1876. - The Lower Court being of opinion that the 
defendant's right to sue within one year not having been 
lost on the date of the suit, he could take objection to the 
sale in this suit. It was held, that the defendant was 
estopped from setting up the title he alleged in the claim 
case. The court observe, that although the terms of sec- 
tion 246 of Act VIII of 1859, corresponding to section 283 
of Act X of 1877, are not so express, yet their effect is the 
same, and that the order was, and was intended to be, a 
summary declaration of a want of title in the objector, 
which declaration would amount to a final decision of the 
question between the parties, if the party aggrieved did 
not take the course indicated by the institution of a suit 
to supersede it. This was followed in Velayuthan v. 
LaksmanaJ 1 ) In Krishnaji Vithal v. Bhaskar Rang- 
nath,(*> it was held that an order under section 246 is a 
final bar to the plaintiffs' right unless it was set aside 
by a regular suit within one year. 

(h.) In Bukshi Bam Pergash Lai v. Sheo Pergash Te- 
wari,< s > the plaintiff instituted a suit upon a mortgage deed 
and obtained a decree, directing the sale of the mortgaged 
property. Subsequent to that decree,* defendants Nos. 5 
and 6, in collusion with defendants Nos. 1 to 4, caused 
the mortgaged property to be sold, and at such sale, defen- 
(1) I. L. E., 8 Mad., 506. | (2) I. L. R., 4 Bom., 611. 
(8) I. L. R., 12 Calc, 453. 



it in a suit by 
auction pur- 
chaser for pos- 
session though 
brought within 
one year of the 
order. 



Decree holder 
as auction pur- 
chaser, sued for 
possession his 
deceased debt- 
or's father 
whose claim had 
been disallow- 
ed. 



The defendant 
was held estop- 
ped from assert- 
ing his title, 
though one year 
had not elaps- 
ed from order. 



B. »H. held an 
order under sec- 
tion 246 a final 
bar, unless set 
aside by suit 
within one 
year. 

0. H. held this 
Article to bar 
plaintiff's suit, 
after release of 

gropertv. only 
> have his right 
to attach declar- 
ed, but not to 
bar other relief 
as against suc- 
cessful claim- 
ants. 



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292 THE BBCOND SCHEDULE, PIEST DIVISION SUIT8 [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

dants Nos. 1 to 4 became the purchasers. The plaintiff 
. in execution of his decree then attempted to have the pro- 
Attachment of perty sold, but the defendants Nos. 1 to 4 intervened, and 
perty was re^ an order was passed on the 28th January, 1882, in the 
claim ot defen- execution proceedings releasing the property from attach - 
purchasers. ment. The plaintiff brought the suit to have his mort- 
gage lien and his right to sell declared, alleging that the 
Plaintiff sued to title set up by the third parties was a fraudulent one, and 
that his lien had been collusively created. It was contended that the 
prior to the de- suit was barred. It was held that the right that was in 
chase and he litigation in the proceeding under section 280 was a right 
it. to attach and sell the property in dispute in execution of 

the decree which the plaintiff had obtained against the 
defendants Nos. 5 and 6, and that so far as that right was 
concerned, the present suit was barred, but that as regards 
the other right upon which the plaintiff had brought this 
Suit to declare suit, viz., that he held a mortgage prior in date to the 
was of aprlor purchase of the defendants Nos. 1 to 4, and that the pur- 

date was not 

barred. chase of the defendants Nos. 1 to 4 was not real, the suit 

was not barred by this Article. 

c. h. held un. (i) In Umesh Chunder Roy v. Raj Bulla bh Sen,< !) 

claimant need decree-holder for arrears of rent attached a tenure be- 

Sr satisfied the longing to the debtor, who, pending the attachment, sold 

which property it to A in March, 1869. A *t claim under sec. 246 of Act 

and is not estop- VIII of 1859 was rejected on the ground that alienation 

in* his claim, was invalid. In 1877, the decree-holder's heirs obtained 

another decree for rent against the same defendant and 

attached the same tenure. A's claim under section 278 

of the Civil Procedure Code was rejected in May, 1879. 

A sued on the 6th of May, 1879, to have his right estab- 

- lished. The Lower Court rejected the suit on the ground 

that it, ought to have been brought within one year from 

(1) I. L. E., 8 dale, 279. 



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ART. 11] THE 8KC0ND SCHEDULE, FIRST DIVISION — SUITS. 293 



Description of suits. 



Period of 
limitation. 



Time from which period 
begins to ran. 



one 



Part IV. 
One year. 

March, 1869. It appeared that after the dismissal of 
the claim the property was not sold, because the judgment 
debtor paid off the amount of the decree. The Court c. h. Court ob- 

served that 

held that on the virtual withdrawal of the attachment on order that 

_,.. , . • , t«i claimant's par- 

payment of the judgment debt, the purchaser s right chase was in- 
stood good, and that the order that the sale was invalid meant it was so 
only meant that it was invalid as against the judgment- ment creditor 
creditor and purchaser in the execution case. an. urc 

(j) In Jeoni v. Bhagwan Sahai,* 1 ) B caused a certain A. h. held that 
dwelling-house to be attached in execution of a decree claimant was 
held by him agafhst M as the property of M. J prefer- asserting hu 
red a claim to the property, which was disallowed by year, even if 
an order made under section 246 of Act VIII of 1859. satisfied within 
Two days after the date of such order, M satisfied B'$ 
decree. More than a year after the date of such order, / 
sued B and Af to establish her proprietary right to the 
dwelling-house, alleging that If had fraudulently mortgag- 
ed it to J?. It was held, following the Full Bench ruling in 
Badri Prasad v. Muhammad Yusuf,<*) that J having 
failed to prove her right within the time allowed by law, 
was precluded from asserting it oy the order made under 
section 246 of Act VIII of 1859, aiufthat whether or not 
the decree was satisfied after, the order was made, the 
effect of the order was the same. 

(k) In Gend Lall Tewari v. Denonath Ram Tewari,< s ) o. h. held that 
the plaintiffs, after attachment, but before sale, purchased claimant is not 
from the judgment-debtor, with the permission of the asserting his 
court, the land attached. Previous to the sale certain purchaser from 
persons had claimed the land as having been sold to them court's permis. 
by the debtor's father, and this claim was disallowed in tacnment, but 
November, 1876. In 1881, the plaintiffs alleging that omm ®° 
9 they had been dispossessed by certain persons, amongst 

1 All., 541. I (2) I. L. ] 
(3) I. L. R., 11 Calc, 678. 



(1) I. L. B., 1 All., 541. I (2) I. L. R> 1 All., 381. 
' I. L. R., 11 r ' -— 



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294 THE SECOND 8CHEDULE, FIR8T DIVISION — SUITS. [ART. 11 



Description of suit. . 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

whom were the claimants in the execution proceedings, 
brought a suit to recover possession of this land against 
these persons ; this suit was decided against the plain- 
tiffs in the Lower Appellate Court on the ground that 
they had failed to prove that they had been in possession 
of the land twelve years before suit. On Appeal to the 
High Court, the plaintiffs, appellants, contended that the 
claim of the defendants in the execution proceedings 
having been rejected, and they not having brought a 
regular suit within one year from the order of rejection 
to establish their right to possession, the defendants were 
prevented by that order from contending that the plain- 
tiffs had not been in possession at the time of that order. 
Held, the order It was held that the* order did not operate as an estoppel 
as an estoppel against the defendants ; and even if it could so operate, 
fondants who it would not do so until the time had run out within 

lost their claim. 

which they could have brought a suit to establish their 

right to possession, and that such time had not expired. 

B. h. held that The Bombay High Court, in Krishnaji Vithal v. Bhaskar 

order excluded . 

the claimant Rangnath,^) in accordance with Settiappan v. Sarat 

from any other 

remedy than Singh/ 2 ) decided that the effect of the last clause of 

the one provid- . • 

ed for him by section 246 of the Code of 1859, was to exclude a party to 
section 246. , . 7 . , 

an investigation under that section from any other 

remedy than the one thereby provided for him. With 

c. H. observed reference to this point, the Calcutta High Court Division 

ing in the order Bench (Garth, C. J., and Beverley J.,) observe u apart 

©ouid create from this question of limitation, there is nothing as far 

an£ theycanl as we can see in the order itself which could create any 

tag thfiAhe " estoppel of the kind. 

put* upon°sec- " There are certainly some authorities in this as well 

the 1 courts has as the other High Courts, which seem to favor such a 

tive^iniustice view of the section, but I cannot help thinking that' 

and tended to 

(1) I. L. R., 4 Bom., 611 | (2) 3 M. H. C. B., 220. 



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ART. 11] THE 8BC0ND SCHEDULE, FIRST DIVISION — 8UIT8. 295 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

this subject has not been sufficiently considered, and that defeat the inton- 

x . .., . , A , *. tionofthoLe- 

m any question which may arise under the corresponding gisiature. 
sections of the present Act (278 to 288) which are some- 
what differently worded from section 246 of the old Act, 
it may be well to consider what the words ' suit to estab- 
lish the right to the property' really mean. I cannot 
help thinking that the construction which has sometimes 
been put upon section 246 of the old Code may not only 
have been productive of injustice, but may have tended 
to defeat the intention which the Legislature had in 
passing the section." 

(1) In Shiboo Narain Sing v. Mudden Ally,M it was Unsuccessful 

. * claimant in exe- 

held that a person whose goods are illegally sold under cution case can 
an execution, does not lose his right to them although year for Roods 

. seised or their 

he may have claimed them unsuccessfully in the exe- value. 
eution proceedings. He may follow them into the hands 
of the purchaser or of any other person, and sue* for 
them or their value without reference to anything which 
has taken place in the execution proceedings, except 
that he must bring his suit within one year from the time 
when the adverse order in the execution proceedings was 
made. 

(m) In Sivarama v. Subramanya,W certain land was M. h. held 
mortgaged to A with possession to secure the repayment gee's suit after 
of a loan of Bs. 2,000 and interest. It was stipulated in dism£sai of 

claim for a por- 

the deed that the interest on the debt should be paid out tion of sale pro- 
ceeds of mort- 
of the profits, and the balance paid to the mortgagors. By gaged property, 

i_ xi j -x j xi. x not a™** 1 by 

an agreement subsequently made, it was arranged that this Article. 
the mortgagors should remain in possession and pay rent 
to A. A obtained a decree for Rs, 2,000 and arrears of 
rent and costs, and for the sale of the land, in satisfaction 
of the amount decreed. The land was sold for Bs. 2,855, 

. (1) I. L. R., 7 Calc, 608. | (2) I. L. R., 9 Mad, 67. 

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296 



THK SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Auction pur- 
chaser's suit 
brought after 
one year from 
order passed in 
favor of a clai- 
mant was held 
barred. 
(April 1886.) 



Time of the pen- 
dency of the 
first suit reject- 
ed for non-pro- 
duction of a 
registered sale 
certificate was 
not deducted in 
computing pe- 
riod for the 
second suit. 



Order contem- 
plated by sec- 
tion 281 of 



Part IV. 
One year. 

in March, 1881. In May, 1881, B, a puisnejnortgagee, 
applied to the court for payment to him of Rs. 500 of this 
sum, alleging that A was entitled only to Rs. 2,000 and 
Rs. 280 costs,- but not to arrears of rent in preference to 
his claim as second mortgagee. The claim of B was 
rejected on the 27th May, 1881, and the whole amount 
paid out to A. In February, 1882, B (who had filed a 
suit on the 23rd March, 1881,) obtained a decree upon his 
mortgage. On the 23rd May, 1884, B sued to recover 
Rs. 510 paid to A on account of rent on the 27th May, 
1881. The Lower. Courts dismissed the suit on the 
grounds — (1) that A was entitled to treat the arrears of 
rent as interest ; (2) that the suit was barred by limita- 
tion. It was held on second appeal, that B was entitled 
to recover the sum claimed. 

(n) In Bai Jamna v. Bai Ichha/ 1 ) defendant's claim to 
property purchased by the plaintiff's husband in Novem- 
ber, 1871, was allowed under section 269 of Act VIII of 
1859, in November, 1872. Plaintiff's regular suit, brought 
•in March, 1873, was rejected on the ground that she bad 
not obtained a registered certificate. This decree was con- 
firmed in November, 1879, by the High Court ; the plain- 
tiff, in July, 1873, obtained a second certificate and regis- 
tered it, and on the strength of which she brought a second 
suit in April, 1880. It was held that the suit was barred, 
and that the plaintiff should have instituted his suit 
within one year from November, 1872. It was further 
held that the time that the first suit was pending cannot 
be deducted under section 14 of the Act, as the plaintiff's 
inability to produce a registered certificate at the institu- 
tion of the suit was owing entirely to her own laches. 

(O) In Chandra Bhusan Gangapaidhya v. Ram Kanth 

(1) I. L. E., 10 Bom., 604. 



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AfiT. 1 1] THX 8IC0ND SCHEDULE, WEST D1VI8I0N — BDIT8. 



297 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pabt IV. 
One year. 

BanerjijW plaintiff purchased on the 11th June, 1878, 
the share of one Bajcoomar in execution of a decree 
against him. The defendant purchased the share in 
August, 1880, at a sale in execution of another decree 
against Bajcoomar. When the share was attached in 
execution of the latter decree, the plaintiff put in a claim, 
which was rejected on the 25th January, 1880, on the 
ground that the sale was not likely to affect his interest, 
the boundaries of the attached property differing from 
those mentioned in the claimant's Kobala. The present 
suit for possession was brought on the 28th of April, 
1882. The District Judge rejected the suit as barred by 
this section. It was held, that the order contemplated 
by Beet ion 281 of the Code of Civil Procedure is an order 
made after investigation into the facts of the case, and 
it is only when the order is made after such investigation 
that the limitation of one year is applicable to a subse- 
quent suit under section 283 of the Civil Procedure Code. 
In Bhikha v. Sakarlal,< s > a purchaser of immoveable pro- 
perty having been obstructed by defendant, applied under 
section 268 of Act VIII of 1859, for the removal of the 
obstruction, but subsequently withdrew his application. 
The court endorsed upon the application that no investi- 
gation was made. In a suit brought by him for posses- 
sion, it was held that one year's limitation did not 
apply to his case. In Sah Mukhun Lall Panday v. Sah 
Koondun Lall/ 8 ) a claimant who put in his claim applied 
for suspension of sale to enable him to produce his con- 
veyance after having it registered. The court refused 
his application, and more than a year from the date of 
refusal claimant sued to establish bis right. It was held 
that the suit was not barred under section 246 of Act VIII 



(1) I. L. R., 12 Calc., 108. 

(3) 15 B. 

38 



(2) I. L. R., 5 Bom., 440. 
R., 228. 



theO.P.C.and 

by section 886, 
corresponding 
to section 260 of 
Act vm of 
I860, is not one 
made without 
investigation. 



Application 
made under sec- 
tion 868 of Act 
Vm of 1869 was 
withdrawn. 



Refusal to post- 
pone sale to en- 
able claimant to 
have convey- 
ance registered. 



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298 THE 8BCOND 8CHEDUI.K, FIRST DIVISION* — SUITS. [AKT. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

Property re. of 1859, and that a mere refusal to postpone sale was an 
wli^nt^n}*!^ order under section 247. In Jaggabandhu Bose v. Srimati 
vestigation. Saclivi Bibi ;<*> property attached was, on the claim of 
a third party, released by the court without proceeding 
under the provisions of section 246, Act VIII of 1859. 
The attaching creditor, more than a year afterwards, sued 
for a declaration that the property belonged to the judg- 
ment-debtor. It was held that the suit was not barred. 

Applies to a (p) Venkatachala v. Appathorai,< f ) was a suit brought 

claim was°M>- by a purchaser in auction, who was decree-holder, to 

▼estimation! ° establish his right to the land, on the 22nd February, 

1883, or one year after 10th August, 1877, on which 

date delivery of possession to him was cancelled by 

an order passed under section 269 of Act VIII of 1859. 

It was held, that the suit was barred as it was not brought 

section 269 of within one year as provided for by section 269 of Act VIII 

corresponds to of 1859, and the repeal of that section by Act IX of 1871 

the new Code, did not deprive the order of the character which attached 

to it when it was made, and that the order was one passed 

in a suit, and does not fall within Article 13. 

This does not (q) In Ayyasami v. Samiya/ 3 ) plaintiff having been 

party whose J dispossessed in November, 1880, of a certain land in exe- 

jected under cution of a decree, applied under section 332 of the Civil 

c. p. c. ' Procedure Code for possession, which was disallowed on 

the 14th February, 1882. On the 6th March, 1883, he 

brought a regular suit for possession. It was held, that 

the suit was not barred by this Article, inasmuch as it 

does not refer to section 332. It was further held, that 

Article 13 does not apply, as it refers to decisions or 

orders passed in a proceeding other than a suit, and as an 

Order in an execution proceeding is an order in a suit. 

(1) 8 B. L. E., App., 89. | (2) I. L. R, 8 Mad., 134. 
(3) I. L. R., 8 Mad., 82. 



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ART. 11] THE SECOND SCHJCDULK, FIRST DIVISION S01T8. 299 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

(r) In Nitta Kolita v. Bishnnram Kolita,W certain 
lands were attached nnder a decree against the ancestor 
of the plaintiffs, bnt on the intervention of the defendant, 
nnder section 246, Act VIII of 1859, they were released to 
him. It was held that the order was between the decree- 
holder and the defendant, bnt not between the plaintiffs order to be af - 
and defendant, such as to make it necessary for the former jSLr'a rule™* 
to sue for declaration of title within one year. In Durga- Lade between 
ram Roy v. Raja Narsing Deb,< 2 > on attachment of certain two part ^ 
property, plaintiff and defendants preferred their respec- 
tive claims thereto. The plaintiff's claim was disallowed, An order allow. 
but the defendant's claim was allowed. The plaintiff, after one of two rival 
the lapse of a year from the date of the order disallowing not bind the 
his claim, sued to recover possession of the said property, year's role. 
The defence was that the suit was barred by lapse of time 
under clause 5, section I, Act XIV of 1859, and section 246, 
Act VIII of 1859. Jackson, J. observes : " in this case, observations of 
although, no doubt, an order was made setting aside the 
present plaintiff's claim, yet the court did not go on to 
sell the property. I think, therefore, that there was no 
binding order in force between the present plaintiff as 
claimant, and the execution-creditor, and also there was 
no order which in any respect finally decided any question 
of right between the present plaintiff and the present 
defendant." 

(8) In Imbichi Roya t>. Eakunnat Upakki,( 3 ) it was Even judg- 
ment debtor 
held that when the judgment-debtor is not made a party who was not 

to a proceeding under section 246 of Act VIII of 1859, he the proceedings 

_ _, ,. -i. ., ,. , , , i_t i nnder section 

is not bound by the law of limitation to sue to establish 246 is not affect- 
his right to the property within one year from an order ye*& limit*? 6 
under that section releasing it from attachment. 

(1) 2 B. L. B., App., 49. | (2) 2 B. L. B., A C, 254. 
(8) I. L. B., 1 Mad., 391. 



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800 



THE SECOND 8CHEDULE, FIRST DIVISION SUITS. [ART. 11 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Parties are not 
bound to resort 
to section 280, 
181, 282, or 836 
of the C. P. C. 



Claimant may 
sue for compen- 
sation for da- 
mage to and 
for loss of use 
of ox or boat 
attached. 



Part IV. 
One year. 

(t) Plaintiff's tenant having been ejected from certain 
immoveable property of the plaintiff under an auction sale 
in execution against a third party, the plaintiff made no 
application to the court under sections 246 or 269 of Act 
VIII of 1859, to prevent or set aside the sale. It was held 
that he was not bound to do so, but that he was entitled 
to file a regular suit within 12 years. Lalchand Ambai- 
das v. Sakharam Valad Chandrabhai.t 1 ) In Protab Chun- 
der Chowdhry v. Brojolal ShahaW it was held, a person 
dispossessed of property in execution of a decree against 
another person and claiming to be entitled to possession, 
is not bound to proceed under section 269 of Act VIII of 
1859. A person dispossessed of property by a purchaser 
in execution of a decree without resorting to summary 
remedy filed a regular suit for possession. It was held 
he had 12 years from the date of dispossession. Jadoonath 
Chowdhry v. Radhomonee Dassee.< s> 

(U) Besides the recovery of the article such as an 
ox, or boat, wrongly seized in execution that may be sought 
to be recovered, the owner may seek compensation for 
damage to it or for his loss of the use of it, and for such a 
suit Article 29 prescribes a term of one year. But again, 
the recovery of the specific article may be impossible or 
undesirable, and then the owner may seek compensation 
for the thing itself and for the damage he has sustained. 
To such a suit it cannot be doubted that Article 29 
would apply : as the double claim of compensation con- 
sists of elements of identical character, these, though 
capable of separate existence, blend by contract in their 
subject into one. Jagjivan Javherdas v. Gulam Jilani 
Chaudhri.W 



(1) 5 Bom.,H. C. E., A. C, 139. I 

(2) B. L. R., Sap. Vol., 638. | 



(3) Id. 643. 

(4) I. L. B., 8 Bom., 17. 



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ART. 11] THK SKCOND SCHEDULE, FIRST DIVISION 8UITB. 30l 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

(V) In Settiappan v. Sarat SinghO) plaintiff's claim Unsuccessful 
under section 246 of Act VIII of 1859, for a certain pro- notwaluiiisaie 
perty attached in execution of a decree, was rejected in then*rae*w\thln 
July, 1868, and his regular suit to set aside the sale tiedatoof sale! 
was brought after sixteen months from that date, but 
within one year from the date of confirmation of the 
court sale. The question for decision was, whether a 
party to an investigation under section 246 of the Code 
is competent to maintain a suit to set aside the sale that 
may ultimately be made by the court, or is limited to his 
remedy by a regular suit to establish his right, and so to 
set aside the order made against him in the proceeding, 
under section 246 of the Code. It was held that the effect 
.of the last sentence of section 246, Act VIII of 1859, is to 
exclude a party to an investigation under that section 
from any other remedy than that expressly provided for 
him by that section, viz., a regular suit to be brought 
within one year from the date of the order made against 
him ; and that such party cannot wait till the sale of the 
attached property has taken place and been confirmed, and 
then bring his suit within one year from the last date. 

(w) This article provides for institution of regular sale subsequent 
suits within one year from the date of the order passed one's claim will 
under section 281 of the Code of Civil Procedure, while fresh starting* 
the following article provides for institution of suits to though suit is 
set aside a sale within one year from the confirmation of year of sale, if it 
sale. Sale of attached property subsequent to the dismis- one year of the 
sal of one's claim will not give him a fresh starting point, claim, it win be 
If the suit is brought within one year from the confirma- 
tion of sale under Article 12, it will be barred under 
Article 11 if it is not brought within one year from the 
dismissal of the claim. 

(1) 8 M. H. 0. R., 220. 



barred. 



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302 



THK 8KCOND 8CHKDULH, WKST DIVISION SUITS. [AKT. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



12. — To set aside any of the 
following sales : — 

(a) sale in execution of a 
decree of u Civil Court ; 

(b) sale in pursuance of a 
decree or order of a 
Collector or other officer 
of revenue; 

(c) sale for arrears of Go- 
vernment revenue, or 
for any demand recove- 
rable as such arrears ; 

(d) sale of a patni taluq 
sold for current arrears 
of rent. 

Explanation. — In this clause 
' patni' includes any in- 
termediate tenure sale- 
able for current arrears 
of rent. 



Part IV. 
One year . 



When the sale is con- 
firmed, or would 
otherwise have be- 
come final and con- 
clusive had no such 
suit been brought. 



This Article ap- 
plies only when 
sale to be set 
aside is one of 
the kinds there- 
in mentioned. 



Suit to recover 
what was taken 
in exoess of 
what was sold 
is not a suit to 
set aside sale. 
(May 1876.) 



(a) (No. 14, Act IX, sec. 1, clause 3, Act XIV.) This 
Article does not apply where the suit is not sub- 
stantially a suit to set aside a sale of one of the kinds 
mentioned in the Article. The confirmation of a sale 
under the Civil Procedure Code binds the parties to the 
suit and the purchaser, and no regular suit lies to set 
aside such a sale on the ground of irregularity in publish- 
ing or conducting the sale. Sec. 312. For demands re- 
coverable as arrears of revenue see Act VII of 1868, B. 
C, and section 5 of Act XI of 1859. 

(b) It is not incumbent on a person seeking not to 
interfere with the sale in execution of a decree of the 
right, title, and interest of the judgment-debtor but to 
recover what has been taken in exoess under colour of sale, 
to sue within the period of limitation prescribed by law 
for a suit to set aside the sale. The mere circumstance 
that there is a specification of the subject of the sale at 



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AltT. 12] THB 8KC0ND SCHKDtJLK, KlKST DJVJ810N — 8UIT8. 303 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Pakt IV. 
One year. 

the time of sale is of no force. It is not the property 
specified, but the right of the judgment-debtor therein, 
that is offered for sale and conveyed. Mnsammat Shara- 
fat-un-nissa v. Lachmi Narainl*) 

(0) A suit brought to set aside a sale based on alle- Suit to set aside 
gations of irregularities in publishing or conducting the iarity°fau7un-" 
sale will be barred if more than a year has elapsed since 

the confirmation of the sale. Ram Sarup v. Roghoonun- 
dan (1 Weekly Notes, 52) 

(d) " There is nothing in the provision of this Article This Article 

to indicate that it applies only to parties to suits. Where cate that it »p- 

a sale has been made of the right, title, and interest of a parties to suite. 

party to the suit, it has been held that a stranger to the stranger held 

... - , , . . . * . not bound to sue 

suit is not bound to sue within one year for the recovery within one year 
of property which the purchaser may claim to have rteht, title, Ac, 
acquired under the sale. This is not because the stranger not convey the 
was not a party to the suit, but because the court did not 
profess to sell his interest in the property." " Where, 
however, the property itself has been sold and the sale But when pro- 
purports to pass the property absolutely, and would sold, aaH^can 
pass it unless set aside, it can only be set aside with- within one 
in one year from the date of confirmation." Suryanna 
v. Durgi.W In Nilakandan v. Thandamma< 8 ) A sought a third party's 
to redeem certain land demised by him on Kanam in land •oiofln'e* 
1850 to the predecessor of B ; (7, who was in possession decreewa* held 
of the land was made a defendant. A proved his title to this Article. * 
the land and possession up to 1850. pleaded title to the 
land and denied that B had ever been in possession. Both 
pleas were found to be false. It was found, however, that 
had been in possession from 1869 to 1885, and that in 
1876 the land had been sold in execution of a decree 
against (to which A was not a party) and purchased by 

(1) 7 N..W. P. H. C. R., 288. | (2) I. L. R., 7 Mad., 261. 

(3) I. L. R., 9 Mad., 460. 



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304 



THB 8KCOND 8CHBDUIiB, P1R8T DIVISION — 8UITS. [ART. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Suit to cancel 
court sale made 
as property of 
another person 
does not fall un- 
der this Article. 



Suit to recover 
plaintiff's share 
from purchaser 
who took pos- 
session under 
court sale of 
plaintiff's co- 
sharer's inter- 
est is not affect- 
ed by one year's 
rule. 
(August 1875.) 



Suit for pro- 
property set- 
ting aside sale 
certificate 
which wrongly 
included it, is 
not affected by 
this Article. 



Part IV. 
One year. 

D who resold to in 1879. The Lower Court held that 
(7'« possession must be taken to have been derived from 
B till the contrary was proved ; but that the suit was 
barred by Article 12 of schedule 2 of the Indian Limitation 
Act 1877, because it had not been brought within one 
year from the date of the sale in 1876. It was held that 
the suit was not barred by limitation and that the case 
should be decided on the principle laid down in Ven- 
kata Narasiah v. Subbamma* 1 ) and Sadagopa v. Jamuua 
Bhai(*) which were not overruled by the decision in Su- 
ryanna v. Durgi.W 

(e) In Nathu v. Badri Das,< 4) the plaintiff alleging 
that certain immoveable property belonging to him had 
been sold in execution of a decree against some other 
person as the property of that person, sued the purchaser 
to have the sale set aside and to recover possession of the 
property. It was held that the plaintiff had 12 years. 
In Nito Kallee Debee v. Kripanath Roy(*) it was held that 
a third party is not bound to go and urge his claim 
to a property advertised for sale in execution, or to sue 
within one year from the date of delivery to the auction- 
purchaser. 

(f ) In Tonoo Ram Gossain v. Mohessur Gossain* 6 ) the 
rights and interests of plaintiff's co-sharer having been 
sold under a decree, the purchaser possessed himself of 
plaintiff '8 share as well as of his own. It was held that 
in a suit to recover possession, plaintiff was not bound to 
bring his action within one year from the date of dispos- 
session ; but had a right to the limitation of twelve years. 

(g) In Baboo Pertab Chunder v. Baboo Brojo Lall/ 7 > 



(1) I. L. E., 4 Mad., 178. 

(2) I. L. R., 6 Mad., 54. 
(8) I. L. R., 7 Mad., 258. 



(7) 7 W. R., 253, P. B. 



(4) I. L. R., 5 All., 614. 

(5) 8 W. R., 358. 

(6) 24 W. R., 302. 



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ABT. 12] THB 8BC0ND SCHEDULE, F1B8T DIVISION — SUITS. 



305 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

plaintiff was dispossessed under a certificate of sale which 
was not conformable to or warranted by the sale itself, 
and made no complaint to the court which was executing 
the decree. It was held that he is entitled to bring his suit 
for confirmation of his title and to be restored to the pos- 
session of the property from which he was ousted at any 
time within twelve years from the time of his disposses- 
sion. 

(h.) In Sadagopa v. Jamuna Bhai.W which was a suit Suit to oanooi 
to set aside auction sale effected by a court which had court having 

. no jurisdiction 

not jurisdiction, it was held that this Article does not is not affected 

, . ,. , , , . .«. by this Article. 

apply to a case m which the plaintiff was not a party to 
and not bound by the sale sought to be set aside. 

(i) P, obtained an ex-parte decree against M in April, Defendant's 
1874, and on the 18th August, 1875, the High Court dis- court sale and 

recover pro- 

missed the appeal on the ground that the decree was not perty on rever- 

sal of decree 

appealable. On the 27th November, 1878, the Privy Conn- held barred 

rr J though brought 

cil remanded the appeal. On the 1st March, 1880, the within a year of 

_, , ., \ * . . , , -r , reversal, as re- 

High Court modified the original decree. In the mean- versai does not 

° B give a fresh 

time the property of M was sold in 1874-75, and 1876, starting point, 
in execution of the decree. In February, 1881, or within • 
one year from the date of reversal of the decree, M sued 
for cancellation of sale and possession ; it was held that 
both under Article 14 of Act IX of 1871 and 12 of Act XV . 
of 1877, the suit was barred. Parshadi Lai v. Muham- 
mad Zain-ul-Abdin.W 

(j) In Jan Ali v. Jan Ali Chowdhry,( 8 > it was held Subsequent re- 
that a bond fide sale under a decree is binding not with- decree in exe- 
standing the decree may be set aside upon review, and property was 
that a sale by the Sheriff in case of fier% facias to a botid render sale in- 

* valid as asainst 

fide purchaser under a decree is not affected by the rever- purchaser. 

J (June 1868.) 

(1) I. L. R., 5 Mad., 64. | (2) I. L. E., 5 All., 573. 
(8) 10 W. R., 164. 

39 



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306 



THJC SECOND SCHEDULE, PI EST DIVISION SUITS. [ART. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Reversal of exe- 
cution does not 
restore the 
Sheriff to the 
term but to the 
monies by 
which he came 
by act of law. 



O. H. 

Suit to set aside 
sale in execu- 
tion of a decree 
which was since 
held in appeal 
as barred, falls 
under this Arti- 
cle. 
(January 1886.) 



Part IV. 
One year. 

sal of the decree. Peacock, C. J., observes : " The other 
case to which reference is made by Mr. Justice Norman 
is that of Goody ere v. Tnoe, Coke's Reports of the times 
of James 1st, page 246. The court there held that 
' there was a difference between the sale and delivery upon 
an elegit to the party himself and a sale to a stranger 
upon a fieri facias', for the fieri facias gives authority to 
the Sheriff to sell and to bring the money into court ; 
wherefore, when he sells a term to a stranger although the 
execution be reversed, yet he shall not by virtue thereof, 
be restored to the term, but to the monies, because he 
came duly thereto by act in law. But the sale and deli- 
very of the lease to the party himself upon an elegit, is no 
sale by force of the writ, which being reversed, the party 
shall be restored to the term itself/ We think that the 
distinction is founded upon reason and good sense, and 
that our decision must be in accordance with these autho- 
rities. It is therefore necessary to decide whether the 
purchaser under the execution was a bond fide purchaser, 
or whether as alleged in the plaint, he was in collusion 
with the ijaradar, the plaintiff, in the Revenue suit." 

(k) In Mahomed Hossein v. Purundur Mahto,< 1 ) 
judgment-debtor on the 15th June, 1878, filed a petition 
objecting to the executiou of the decree against him on 
the ground that the decree was barred. Ou the 18th 
November, 1878, that objection was overruled and certain 
of his property sold. On the 13th January, 1880, the 
High Court, on the debtor's appeal, set aside the Lower 
Court's order and held the decree as barred. Pending 
these proceedings, the judgment-debtor also, on the 17th 
December, 1878, applied under section 311 of Civil Pro- 
cedure Code (Act XIV of 1882) to set aside the sale on the 

(1) I. L. R., 11 Calc, 287. 



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ART. 12] THB SECOND 8CHEDULB, FIB8T DIVISION — SUITS. 



807 



Description of suit 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

ground of material irregularity, but that application was 
rejected on the 17th May, 1879, and the sale was con- 
firmed on the 21st May, 1879. On the 2nd April, 1880, 
the judgment-debtor applied to set aside the sale on the 
ground that the decree in execution of which it had taken 
place, had been held to be barred, and though an order 
setting aside the sale was made by the original court, it 
was subsequently set aside by the High Court on the 
13th April, 1881, as having been made without jurisdic- 
tion. The judgment-debtor brought the present suit on 
the 4th January, 1882, upon the same grounds to set 
aside the sale and recover possession. It was held that 
the suit under this Article was barred. 

If in an application for execution the court erroneously 
holds that the application is not barred and orders a sale, 
the order, though erroneous and liable to be set aside in 
the way prescribed by the Procedure Law, is not a nullity, 
but remains in full force until set aside, and a sale held 
in pursuance of such order, is, until set aside, a valid 
sale and a suit to set aside such a sale is governed by 
this Article, clause A. 

The word " disallowed" in section 312 of Civil Pro- 
cedure Code has no reference to an order passed on an 
appeal, but refers to the disallowance of the objection by 
the court before which the proceedings under section 311 
are taken. 

(1) Tn Minakumari Bibee v. Jagat Sattani Bibee/ 1 ) a 
creditor obtained a decree against his debtor, and applied 
for and obtained an order for execution. This application 
was unsuccessfully opposed by the judgment-debtor on 
the ground that execution was barred by limitation. 
Certain properties of the judgment-debtor were attached 

(1) I. L. B., 10 Calc, 220. 



Sale held under 
an erroneous 
order is not a 
nullity until set 
aside by suit. 



° Disallowed" 
has no reference 
to an order on 
appeal. 



O. H. 
But when exe- 
cution is set 
aside on the 
ground that it 
was barred, de- 
fendant can sue 
to have the sale 
set aside. Exe- 
cution creditor 



purchaser. 
(Sept. 1883.) 



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308 THE SECOND SCHEDULE, P1E8T DIVISION— SUITS. [ABT. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

and sold in execution of this decree, the judgment-credi- 
tor himself becoming the purchaser. 

In due course, the sale was confirmed and a certificate 
granted to the purchaser. Subsequently to this, the order 
granting execution oame up before the High Court on 
appeal, and that court decided that execution was barred. 
The person who had been the judgment-debtor then 
brought a regular suit against the purchaser to recover 
it cannot be the properties sold in execution. In this case, Garth, C. J., 

said that sale r r > > » 

is made to a observes : it cannot be said that the sale was made to a 

bond Jlde pur- 
chaser for value bond fide purchaser for value without notice, because the 

without notice- J r ' 

when the pur- execution creditor himself was the purchaser. It was held 

chaser is the 

creditor him- that the judgment-debtor was entitled to have the sale 
set aside, as otherwise the appeal to the High Court, 
though successful, would virtually be infructuous. 
o. h. (m) A sale in execution took place under an order 

set aside on obtained, notwithstanding a consent on the part of the 

Sound. 6 decree- holder's pleader to a petition by the judgment- 

debtor for a postponement. The petition was by mistake 
presented to and filed by the judgment-debtor in the 
wrong court. The court Jihat executed tbe decree having 
been ignorant of the order of postponement proceeded 
to sell the property and the decree-holder allowed the 
sale to proceed, and himself became the purchaser and 
was put in possession. The judgment-debtor sued to have 

Decree-holder the sale set aside. It was held that the judgment-debtor 

was directed to . . 

reconvey on was entitled to a decree m tins suit to have the property 

payment of the 

debt by the reconveyed to him on his paying to the decree-holder 

judgement J r J ° 

debtor. within a time to be fixed the amount due under the 

decree. Gangapershad Sahu v. Gopal Singh. (*) 

o ,. f* ?• ^ (n) Z and his three minor sons were joint owners of 

Suit to set aside x ' m J 

the** and that a v ^ a g e which Z hypothecated by deed of simple 

the decree and .,. _ _ _ _ , _ . _„ 

the proceedings (I) I- L. R., 11 Calc, 136. 



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ART. 12] THE SECOND SCHEDULE, PIR8T DIVISION — SUITS. 509 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year 

mortgage to /. Subsequently Z executed another deed thereon were 
of mortgage to J, part of the consideration whereof not governed by 
was the cancellation of the former bond which was paid (May im.i 
off and extinguished accordingly. J, however, fraudu- 
lently caused it to appear from the novating document 
that the former mortgage was still alive, aud, after 
the death of Z, put the bond in suit against Z's widow, 
who, being ignorant of the fraud, confessed judgment as 
guardian of her minor sons. The entire rights and 
iuterests of Z's heirs were sold in execution of the decree 
so obtained by J. Subsequently the fraud was discovered, 
and Z y 8 sons brought a suit to set aside the execution sale, 
and to recover possession of the property first mortgaged. 
In regard to three- fourths of this property, they prayed 
that possession might be awarded to them by establish- 
ment of their right and share by amendment of the reve- 
nue papers. In regard to the remaining one-fourth, they 
prayed for possession by right of iuheritance to Z, by 
cancelment of the execution-sale and of the fraudulent 
decree. They further alleged that they had first become 
aware of the fraud upon the day when they obtained 
from the Registration office a copy of the novating instru- 
ment in which the fraudulent entries were contained. It 
was held that the Law of Limitation applicable to the case 
was not that contained in Article 12, nor in Article 144, 
but that contained in Article 95 of schedule 2, of the Limi- 
tation Act, inasmuch as fraud vitiates all things and 
prevents the application of any other law of limitation 
than that specially provided for relief from its conse- 
quences. Natha Sing v. Jodha Singh. <*> 

(O) DwarkanathBhooyav. Rajah Ajoodhyaram Khan, Fraud would 
was regular appeal, 257 of 1872, decided on the 22nd of affected \P° n 

fraudulent sale 
to the benefit of 
(1) I. L. R., 6 All., 406. section 18. 



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310 THE 8ECOND SCHEDULE, P1R8T D1VJ810N — SUITS. [AKT. 12 



Description of suit. 



Period of 
limitation. 



Time from- which period 
begins to ran. 



Part IV. 
One year. 

December, 1873. In this case, which also proceeded 
upon the fraudulent sale to McArthur, it was held by 
Markby and Birch, J. J., that where the allegations in a 
plaint sufficiently stated that the plaintiffs being entitled 
to property and being in enjoyment thereof, were ousted 
therefrom under color of a fictitious revenue sale in pur- 
suance of fraudulent contract, the fraud being go contrived 
as to make plaintiffs believe that they had no right of 
action at all, and the allegations were proved, the fraud 
would entitle the plaintiffs to claim the benefit of section 
9 of Act XIV of 1859 corresponding to section 18 of tha 
Act of 1877.(D 
if setting aside (p) After the death of the widow of K, the plaintiff 
was only oolia- sued as the heir of K, to recover certain immoveable 
main object of property alleged to have been granted to the widow for life 
necessary that by K, for her maintenance. It appeared that in execution 

the suit should i,«i ( . i !•,•«•• 

nave been filed of a decree obtained against the plaintiff in a previous 
from sale. suit, in which, upon the widow's death, he was sued as 

representing the estate of the widow, the property in 
question was sold, notwithstanding objection taken by 
the present plaintiff that the property was that of K. 
The plaintiff's suit was filed more than a year after 
the execution sale, and it was objected that it was there- 
fore barred under this Article. It was held, that it was 
not necessary that the suit should have been filed within 
one year from tlie date of the execution sale because the 
setting aside the execution sale was oaly collateral to the 
main object of the suit, and the present plaintiff was not 
a party in her own character to the suit in execution of 
the decree in which the property was sold. Kali Mohun 
Chuckerbutty v. Anandamoni Dabee.W 

(1) I. L. R., 2 Calc, 8. 

(2) 9 Calc, L. R., 18. 



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ART. 12] THfc o. 

" n SCHE DPLB, FIRST DIVISION— Bum, • 3^ 



Description of sait. 



* ** of Time from which period 



t% ™r r begins to run 

Part IV 



One year. 

(q) In Suryanna v. Durgt,* 1 ) the land of D was impro- Suit to se*. 
perly sold in execution of a decree of a Civil Court ^"brought 
obtained against S for arrears of revenue by the assignee confirmation 
of the revenue of the lands of D and 8. The suit was 
brought by D to recover her land from the purchaser at 
the court sale. It was held that the suit, not having 
been brought within one year from the date of the con- 
firmation of the sale was barred by this Article. 

(r) In Trimbak Bawa v. Narayan Bawa,< 2) plaintiff's Son's suit to 
father's right to a third share of the management of cer- pie manage. 
tain lands granted to his father for the maintenance of one year after 
the worship of a God of a temple was declared by a decree father's right, 
in a suit against the plaintiff's uncle and the uncle's son. ground that sale 
The decree directed the plaintiff's father to pay their costs, the son's right. 
for which the plaintiff's father's one-third share was sold 
in auction in January, 1870, and the purchaser resold it to 
another son of the plaintiff's uncle in May, 1870. The 
plaintiff filed this suit in August, 1879, against both the 
fcons of his uncle, who claimed the exclusive management, 
to recover his share of the management. It was not dis- 
puted that the trust reposed in the judgment- debtor 
could not be attached and sold in execution of a decree 
against him. Sargent, C. J., being of opinion that where the Observations of 
founder of an endowment vested in a certain family the 
management of his endowment, each member of such 
family succeeds to the management, performam doni, held 
that on plaintiff's father's death, the plaintiff's right to 
succeed to the management in this case was quite unaffect- 
ed by any proceedings in execution against his father 
during his lifetime. 

(s) The sale of tarwad property in execution of a Clause (a) inap- 
decree passed against a Karnavan, in a suit brought Sior* members" 

suit to cancel 
court sale made 
(1) I. L. R., 7 Mad., 258. | (2) I. L. R., 7 Bom., 188. 



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Time from which period 
begins to rim. 



.rfS. [ART. 12 
812 THE SECOND SCHEDULE, FIRST D IVISION 

i of 
limitation. 
Description of suit. 

Part IV. 
One year. 

against him without alleging in the plaint that he was 

^ personally, sued as such and that tie debt was binding on the tarwad 

1 is not binding on the members of the tarwad. Therefore 

this Article cannot apply to a suit brought by the junior 

members of the tarwad to recover the land sold. Haji 

v Atharaman < 1 > 
Suit by vendee (t) In Venkata Narasiah v Subbamma, W plaintiff 

of an auction . •.*••,. i o»/\ i i » 

purchaser's sued to eject the defendant in 1879, and recover lands 
held by defen- which he had purchased from a widow whose deceased hus- 

dant as auction 

purchaser does band had acquired it at a court sale. The defendant 

not fall under 

this Article. pleaded limitation on the ground that her deceased hue- 
(Sept. 1881.) 

band had purchased the same lands at a court sale in 

1876.. The Lower Courts held that the suit was barred 

under this Article as it was substantially brought to set 

aside the court sale. It was held by the High Court that 

as the plaintiff's vendor was not a party to the decree or 

the execution proceedings under which the defendant's 

husband purchased the property, it was not necessary for 

the plaintiff in this suit to set aside the sale, and that it is 

not enough that the party in possession is a purchaser at 

Plaintiff is not a court sale, but it must also appear that the plaintiff is 

aside court sale, bound to set aside that sale before he could recover. 

Suit by auction (ll) In Mahomed Sayad Phaki v Navroji Balabhai, <# 

SSher for pro- on the 17th November, 1877, a certain piece of land des- 

cert(nca\eoT for cribed in the proclamation of sale as " Survey No. 294, 

chase money'" Pot No. 3, measuring 24J gunthas," the boundaries of 

enWre^property which were also set forth, was sold by auction in execution 

to Mm. glven of a decree obtained by the 1st defendant against defen- 

p dants Nos. 2, 3 and 4, and purchased by the plaintiff. 

The boundaries, as stated, really included another piece 

of land, Survey No. 294, Pot No. 4, which comprised 3 

(1) 1. L. R., 7 Mad., 612. | (2) I. L. R., 4 Mad., 178. 
(3) I. L. R., 10. Bom., 214, 



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AKT, 12] THE 8KC0WD SCHBDOLH, F11WT DIVISION SUITS. ' 313 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part .IV. 
One year. 

acres 2\ gunthas. This latter piece of land was put up 

for sale on the following day and was purchased by . 

defendant No. 5. On 28th November, 1877, the plaintiff 

applied to the court to have the sale set aside and his 

money returned unless he was put in possession of all 

the land included in the boundaries mentioned in the 

proclamation ; but his application was refused, and the 

sale was confirmed on 20th July, 1878. The plaintiff on 

the 3rd July, 1881, brought tbe present suit, praying that 

he might be put into possession of the land as described 

in the certificate of sale, which was identical with the 

proclamations, and included Pot No. 4, or that the 1st 

defendant might be ordered to pay him the amount of 

his purchase-money with interest. Both the Lower 

Courts rejected the claim as barred. It was held that the 

suit regarded as one to set aside the sale, was barred by 

clause A of this Article. It was further held that the Suit regarded 

suit regarded as one for compensation was not barred, as aside sale was 

3 years had not elapsed since the confirmation of the sale this Article. 7 

when the suit was brought; Article 36 applying only to suit regarded m 

suits for compensation for tortuous acts independent sationwas held 

of contract ; but that the claim for compensation was years had not 

not maintainable, as the property offered for sale was confirmation of 

sufficiently identified by the description as " Survey it does not com© 

No. 294, Pot No. 3, containing 24f gnnthas," and the se. 

statement of boundaries, so far as it was inaccurate, 

might be properly regarded as falsa demonstration 

(V) Iu Abul Munsoor v Abdool Hamid/ 1 ) M sold to 8 Plaintiffs suit 

for possession 

her rights under a decree for mesne profits which she had of property 

. purchased by 

obtained against A and two other persons, and £ there- his 2 joint debt- 

i -i • ore fcnrou s ft »n- 

upon proceeded to execute the decree against As property ? other in execu. 

and that property was sold in execution of the decree ob- stance of the 

* *■ " assignee of the 



(1) I. L. E. 2, Calc, 98. 
40 



decree benami 



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314 



THE SECOND SCHEDULE, FIRST DIVISION — 8UIT8. [ART. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to rim. 



for them, is a 
suit to set aside 
sale and fall* 
under this Arti- 
cle. 
(August 1876.) 



Decree though 
voidable, sale 
under it is bind- 
ing. 



Suit to set aside 
fraudulent deed 
under color of 
which a sale 
was made was 
held net affect- 
ed by one year's 
rule. 



Suit was not to 
set aside sale 
for irregularity 
or for any other 
matter refer- 
ring to sale. 



Suit to set aside 
Revenue sale 
should be 
brought within 
one year from 
the time it be- 
comes conclu- 
sive. 



Part IV. 
One year. 

tained by 8, and was purchased by B : but in a snit 
brought by A for a declaration that 8 was not the real 
purchaser, the court found that 8 had in fact purchased 
the decree benami for A'* two joint-debtors, and that con- 
sequently he had no right to execute it against the pro- 
perty of A. In a suit brought by A against B in 1874, for 
the purpose of recovering the property, it was held, that 
the purchase of the benefit of the decree by A's joint 
debtors, although it had the legal effect of satisfying the 
judgment-debt did not affect the decree itself. The 
decree was not void, but only voidable and the sale under 
it binding on A. The suit, therefore, was in effect, a suit 
to set aside a sale under a decree within the meaning of 
clause 14 of schedule 2 of Act IX of 1871, and in as 
mnch as it was not brought within one year from the date 
of the sale, was barred. 

(w) In Baboo Kishen Bullub Mahatab v Roghoonun- 
dun ThakoorW the suit was to set aside a fraudulent 
sale which was followed by a collusive decree, and a sale 
in execution of the property purporting to be conveyed by 
the fraudulent deed of sale. The court, therefore, held 
that the one year's rule did not apply. The suit was not 
one to set aside a sale in execution either on the ground 
of irregularity or other matters referring to the sale 
itself, but to get rid of the document which alone made 
the sale valid as having been a fraudulent and collusive 
transaction. If the plaintiff proved his allegations of 
fraud, the sale in execution might stand as a sale of the 
rights and interests conveyed, which would in fact be nil. 

(X) In Karuppa v. Vasudeva,( 2 > the plaintiff's lands 
were sold for arrears of Revenue and bought in for Govern- 
ment in October, 1876, and sold again by Government* in 

(1) 6 W. R„ 305 | (2) I. L. R.,6 Mad., 148. 



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ART. 12] THE SECOND SCHEDULR, FIRST DIVISION — SUITS. 315 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

September, 1879. No sale certificate had been obtained 
after the sale in 1876, under Madras Act II of 1864, 
section 38. It was held that the revenue sale of 1876, was 
completed at the latest at the end of one month after the Sale completed 
sale, and that non-compliance with sections 36 or 38 of the the end of one 
Madras Act did not affect the validity of the purchase, sale, 
there being no provision to that effect. In Raj Chandra c. H. also held 
Chuckerbutty v. Kinoo Khan/ 1 ) it was held that a suit 
to set aside a sale for Government Revenue must be 
brought within one year from the date when the sale be- 
comes final and cod elusive. 

(y) In Baskarasami v. Sivasami/ 2) plaintiff sues the Suit brought by 

a lcosoo or ton* 

defendants represented by the agent of the Court of ant of the ae- 
Wards, to recover a certain village with three years' pro- cover a village 
fits. By an agreement of July, 1868, the defendant's of rent due by 
. father, in consideration of the plaintiff's promise to re- that notice wm 
nounce his claim to the zemindari, gave him the village upon Mm, was 
in question and agreed to have the kist fixed on it. In 
1869, the plaintiff, in consideration that a low kist was 
fixed, agreed that the village should not be registered in 
his name and separated from the zemindari. In 1871, 
plaintiff repudiating the agreements sued the defendant's 
father to recover the zemindari and his claim was even- 
tually rejected by the Privy Council. In 1875, while the 
litigation was pending, the plaintiff, on the 7th of May, 
was called upon by the Revenue authorities to pay the 
arrears of rent due on the village, and as the arrears were 
not paid, the village was sold and the Collector, as the 
agent of the Court of Wards, purchased it on behalf of the 
defendants. The plaintiff brought this suit in 1883 to 
recover the village, alleging that the sale was illegal as 
the notice was not duly served upon him. It was held 



(1) I. L. R., 8 Oalc, 329. | (2) I. L. B., 8 Mad , 196. 



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816 THE 8BCOND SCHEDULE, FIB8T D1VJ8I0N — SUITS. [ART. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
One year. 

that the sale was binding on him and that the suit was 

barred bj limitation. 

This Article In Venkatapathi v. Subramanya/ 1 ) plaintiff sought in 

to** sSt to wt April, 1883, to set aside the sale of certain land sold in 

lent Revenue October, 1881, for arrears of Revenue under Act II of 1864, 

arrears of Reve- (Madras) on the ground of fraud and to recover posses- 

nm ' sion of land from the purchaser who was alleged to be a 

party to the fraud. The Lower Court rejected the suit as 

barred by this Article. It was held that the suit was 

governed by Article 95, and that this Article (12) which 

prescribes a period of one year for suits to set aside sales 

for arrears of Revenue is intended to protect bond fide 

purchasers only. 

c. h. (z) Section 33 of Act IX of 1859, provides : " no sale 

pUkintiff"to set for arrears of Revenue or other demands realizable in the 

anide Revenue . _> .. , . , 

sale as made same manner as arrears of Revenue are realizable, made 
of Revenue were after the passing of this Act, shall be annulled by a Court 
held cancellable of Justice, except upon the ground of its having been 
without juris- made contrary to the provisions of this Act and then 
(Sept. 1868.) only on proof that the plaintiff has sustained substantial 
injury by reason of the irregularity complained of." In 
Byjnath Sahoo v. Lalla Seetul Pershad/ 2) a Butwara was 
decreed by the Civil Court which made provision in its 
decree for the payment of the expenses of partition by 
certain co-sharers indicated. On proceedings taken be- 
fore the Collector in pursuance of the decree, he called 
upon certain co-sharers (not being those who were by the 
Civil Court ordered to pay the expenses) to pay the ex- 
penses, (Ameen's fees) remaining due ; and on failure by 
such co-sharers to comply with this direction, the Collec- 
tor put up their share for sale as for an arrear of Govern- 
ment Revenue. The co-sharers whose share was sold with- 

(1) I. L. R., 9 Mad., 457. | (2) 10 W. R., F. B., 66. 



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ART. 12] THK 8BC0NU SCBKDULK, FIRST D1V18I0N 8UITS. 817 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

out making an appeal to the Commissioner of Revenue 

under section 33, Act XI of 1859, brought a suit to set 

aside the sale and to recover the property, alleging that 

there was nothing due which was recoverable as an arrear 

of Government Revenue, and that the provisions of the 

Act did not apply to the case. It was held that the suit Sale when no 

would lie and that where there is no evidence of any vemment Re- 

j. n . t_ • j x «v • • venue are due 

arrears of Government revenue being due, the provisions cannot be said 
of Act IX of 1859, do not apply as the sale cannot be said place under the 
to have taken place under the provisions of that Act. 
Following the above decison, it was held in Sreemant Lall 
Ghose v. Shama Soonduree Dossee/ 1 ) that the sale of an 
. estate for arrears of Revenue, where no such arrears exist, 
is null and void, even though it is regularly conducted 
and the purchase is made bond fide and that a decree such sale being 
obtained for possession by the original owner is sufficient decree for pos- 
without a special declaration that the sale is annulled, annulling sale 
This was followed in M angina Khatook v. The Collector 
of Jessore.W The same view was adopted in Baboo Hur 
Gopal Doss v. Ram Gopal Sahee,W in which the court Before Ameen's 
oBserve, that before the remuneration of an Ameen em- can be leived 
ployed to effect a Butwarrah, can be levied from the vemment 

, . . , m should sanction 

parties concerned in the same manner as an arrear of it. 
revenue, it must be nanctioned by the Board and Govern- 
ment, and the periods and proportions in which it is to 
be levied must be determined by the Board. 

(2-a) In Nawab Sidhee Nazir Alikhan v. Ojoodhi- Mortgagor's 
yaram Khan/ 4 ) the mortgagee in possession, and another tion many years 
having sought to deprive the mortgagor of his title to property for ar- 
redeem by means of a secret purchase of the mortgaged nue held not af- 

. fected by one 

estate between them including the fraudulent device of a year's rule as 

the sale was a 
device to effect 

(1) 12 W. R„ 276. I (3) 13 W. R., 381. a fraud * 

(2) 12 W. R., 311, | (4) 5 W. R. P. C, 83. 



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318 



THK 8KCOND 8CHKDULI, FIRST DIVI8ION 8U1T8. [AKT. 12 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



▲ co-sharer ag- 
grieved by 
Revenue sale 
fraudulently 
brought about 
by another co- 
sharer might 
sue for re-con- 
veyance of pro- 
perty, though 
one year allow- 
ed by Art. 14 of 
Act IX of 71 had 
elapsed. 



Order men- 
tioned in clause 
( b) was held to 
mean an order 
of the nature of 
a decree or one 
made in judi- 
cial capacity. 



Part IV. 
One year. 

sale by auction for arrears of Revenue, such arrears being 
designedly incurred by the mortgagee in possession, it 
was held that a suit for redemption and for possession 
instituted many years after the sale for arreai-s was not 
barred by section 24 of Act I of 1845. If a mortgagee 
in possession fraudulently allows the Government Revenue 
to fall into arrears with a view to the land being put u p 
to sale and his buying it in for himself, and he does, in 
fact, become the purchaser of it at the Government sale 
for arrears, such a purchase will not defeat the equity of 
redemption. 

(2-b) In Bhoobun Chunder Sen v. Soonder Surma Mo- 
zoomdar/ 1 ) one of several co-sharers had fraudulently con- 
trived to have an estate brought to sale for arrears of 
Revenue under Act XI of 1859, and purchased it in the 
Ben ami of his son. The plaintiffs as co -sharers sued to 
set aside the auction sale on the ground of fraud. It was 
held that the plaintiff could maintain the suit to have the 
property reconveyed though the period limited by Article 
14 of the second schedule to Act IX of 1871, for a suit to 
set aside the sale had expired. Although there was a 
prayer for reversal of the auction sale, the court refused 
to se t aside the sale, but gave the plaintiffs the relief 
which they sought by restoring them to the same position 
as they were before the sale. This ruling has been refer- 
red to in Amirunessa Khatoon v . The Secretary of State for 
India in Council. W 

( 2-C ) The order of a Collector or other Officer of reve- 
nue as the word is used in the latter portion of clause 3, 
of section 1, of Act XIV of 1859, means an order of the 
nature of a decree, or made by the Collector, or other 
Revenue officer in his Judicial capacity. Where a piece 

(1) I. L. R., 3 Calc, 800. | (2) I. L. R., 10 Calc, 63. 



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ART. 13] THB 8KC0ND SCHEDULE, FIB8T DIVISION — SUITS. 



319 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

of land embraced within the operation of the Revenue 
Survey, and subjected to a defined assessment, was put 
up for sale by the Collector in consequence of the occu- 
pant refusing to pay a fine to be allowed to continue in 
occupation of it, and was purchased by one of the defen- 
dants, and the occupant, asserting that he had been 
wrongly dispossessed, sued to set aside the sale, and to be 
declared entitled to recover the land and retain possession 
of it, on condition of paying the assessment as settled 
upon it by the Revenue officers, but delayed bringing his 
suit until June, 1869, the sale having taken place in 
January, 1867, it was held that, though more than one 
year had elapsed from the date of the sale, the suit was 
not barred under the provisions of clause 3, section 1 of 
Act XIV of 1859. Sakharam Vithal Adhikari v. The 
Collector of Ratnagiri.* 1 ) 



13. — To alter or set aside a 
decision or order of a 
Civil Court in any pro- 
ceeding other than a 
suit. 



One year 



(a) 



Construction 
of the Article by 
0. H. 



The date of the final 
decision or order in 
the case by a Court 
competent to deter- 
mine it finally. 

No. 15, Act IX ; Sec. 1, CI. 5, Act. XIV.) This 
Article is only a reproduction of the corresponding Arti- 
cle 5 of Act IX of 1871, which contained no provisions 
similar to those of Article 11 of the later Act (XV of 1877) 
consequently until the introduction of Act XV of 1877, 
question very frequently arose whether orders which were 
affected by the special limitation of one year provided for 
by the last 12 words of section 246 and last clause of sec- 
tion 269 of Act VII of 1859, fell within Article 15. The 
Calcutta High Court held that Article 15 was not a re- 
enactment of the repealed portion of section 246 of C. P. C. 

(1) 8 B. H. G. R. A. C, 219. 



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320 THE SECOND 8CHKDULI, FIRST DIVISION 8UITS. [ABT. 13 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

of 1859, aud that unsuccessful claimant might bring 

regular suits within the ordinary period allowed for this 

suit, (Koylash Chunder Paul Chowdhiy v. Preonath 

Roy Chowdhry),* 1 ) while the Bombay High Court held 

otherwise. (Krishnaji Vithal v. Bhaskar Rangnath.)(*) 

Construction of The Madras and the Allahabad High Co arts, while 

agreeing with the Calcutta High Court in thinking that 

a suit for possession brought after an order passed under 

section 246 of Act VIII of 1859, was not a suit to set aside 

an order within the meaning of this Article, were, of 

opinion, that the repeal of the section of the old Code did 

not deprive that order of the character which attached to 

it when made (Venkatachala v. Appathorai)< 3 ) (Badri 

Prasad t?. Muhammad Yusuf ),(*) or in other words, that the 

order operated as final adjudication upon the right of the 

parties to it until it was set aside by a regular suit. 

To decide that a (b) In Lak Narain Singh v. Ranee Myna Kooer/ 5 ) 

in this Article! plaintiff sought to establish his title and recover posses- 

whether the sion of certain land as to which a summary decision had 

summary deci- 
sion oouid be set been given in favor of the defendant under Act XIX of 
up as bar to the 
suit. 1841, which was enacted for the protection of moveable 

and immoveable property against wrongful possession in 
cases of successions. Section 17 of the Act provides, that 
" nothing contained in the Act shall be an impediment to 
the bringing of a regular suit." Peacock, C. J., observes ; 
" if the summary order made under this Act is to be no 
impediment to bringing a regular suit, there is no neces- 
sity for setting aside that order. Then the question is 
within what time is the regular suit to be brought to try 
the title to land and to be put into possession of it ? That 
summary order cannot be pleaded or set up as a bar to the 

(1) I. L. R., 4. Calc, 610. I (3) I. L. R., 8 Mad., 134. 

(2) I. L. R., 4 Bom., 611. | (4) I. L. R., 1 All , 381. 

(5) 7 W. R., 199. 



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ART. 13] THB SECOND 8CHBDULH, PIR8T DIVISION — SUITS. 



321 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

maintenance of the suit to try the title and to be pnt into 
possession under that title. 

(C) Second clause of section 9 of the Specific Belief Decision under 

section 9 of the 

Act of 1877, provides that " nothing in this section shall specific Relief 

, . . i , . i i . . i * Acfc » 1877 » *■ no 

bar any person from suing to establish his title to such bar to suit on 

property and to recover possession thereof." A decision 

passed under this section is no bar to the maintenance 

of a suit on title and the plaintiff need not seek for the 

cancellation of the order. 

(d) A Hindu family being heavily oppressed with Suit for pro- 
debts, ancestral and otherwise, the two elder brothers guardian under 
of the family, for themselves, and as guardians of their section is, is not 
minor brother, under Act XL of 1858, applied to and aside an order 
obtained from the District Judge an order under sec- SfofAct ixof 

* 1871 

tion 18 of the Act, for the sale of several portions of 
the ancestral estate, and sold the same under registered 
deeds signed by the Judge. Within twelve years after the 
registration, the adopted son of the minor brother brought 
several suits against the purchasers to set aside the sales 
and recover back his share of the property alleging that 
the two elder brothers had made the sale fraudulently 
and illegally to satisfy personal debts of their own. It 
was held that a suit of this nature is not a suit to set 
aside an order of a Civil Court under Article 15, schedule 
2, Act IX of 1871. Sikher Chund t>. Dulputty Singh.O) 

(e) In Kallee Prosunno Mookerjee v. Sreenutty Toy- An order under 
lash Moonee Debia,( s > plaintiff and defendant applied to i860 granting 
the Judge for a certificate under Act XXVII of 1860, one of two rival 
each asserting right under separate wills said to have been not beset aside 
left by the deceased. The Judge granted certificate to {Je for property! 
the defendant. The plaintiff after one year from the 

order brought a regular suit for possession of the property 



(1) I. L. R., 5 Calc, 363. | 
41 



(2) 8 W. R., 126. 



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322 THE SECOND 8CHEDULE, FIR8T DIVI8ION — SUITS. [ART. 13 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

under the will. Lock, J., observes " in a case under Act 
XXYII of 1860, the Judge has to try summarily the 
right of the parties to hold a certificate. Under that 
certificate, the party is enabled to collect debts due to the 
estate of the deceased, and his receipts fdr money re- 
covered while he holds the certificate are a complete 
if the party fail- protection to the debtors. If the party who fails to get 
ncate seeks to the certificate seeks to set the order aside, he must bring 
der, he must his suit within one year from the date of that order, and 
year. the effect of the decree in his favor would be to make the 

previous holder of the certificate accountable to him for 
monies collected ; but if the party do not care to disturb 
that order, a suit brought by him to obtain possession of 
the property of the deceased upon proof of his title, is not 
barred because it is not brought within one year from 
the date of the order." In Bai Kashi v. Bai Jamna/ 1 ) 
plaintiff applied in 1877, for a certificate of heirship to 
one T, her husband's uncle, who had died in 1 876. The 
defendant opposed the application, and alleged that T 
had left a will in her favour. On the 28th July, 1877, the 
District Judge made an order rejecting the plaintiff's 
application and granting a certificate to the defendant. 
In 1879, the plaintiff brought the present suit, claim- 
ing to be entitled to the property left by T. It was 
contended (inter alia) for the defendant that the plain- 
tiff's suit was barred, she having failed to apply to set 
aside the order granting the certificate to defendant within 
one year from the date of that order. The court of first 
instance overruled the objection, and awarded plaintiff 
most of her claim. But the Lower Appellate Court re- 
versed the Lower Court's decree, holding the suit barred. 
It was held, restoring the decree of the court of first 

(1) I. L. R., 10 Bom., 440. 



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ART. 13] THB 8EC0ND SCHEDULE, PiBBT DIVISION — SUITS. 323 

Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

instance, that the plaintiff's snit was not barred. A 
certificate of heirship confers only the right of manage- 
ment of the property of the deceased, and is intended to 
give security to third persons in dealing with the person 
who claims to" be the heir. Where the right of the person 
to whom the certificate is granted to be the heir of the 
deceased, is in controversy, there is no necessity to have 
the order granting him the certificate set aside, and the 
question whether the snit to determine the right claimed 
is in time, is to be determined by the sections of the 
limitation Act relating to suits for the possession of 
property. 

(f ) In Gogaram v. Kartick Chnnder Singh/ 1 ) Peacock, suit for refund 
C. J., observed in April, 1868, that a suit to recover distributed un- 
money which has been erroneously paid to a rival of o. p. c. ism 
decree-holder under section 270 of Act VIII of 1859, ed°Ma?u5X 
would lie, and that the suit was to recover the money t?n* e a»ioe the 
from the defendant by setting aside the order of the <>*&*<* *«*«>• 
Judge. In Wooma Moyee Burmonya v. Ram Buksh 
Chettangee/*) it was held in June, 1871, that a suit will 
lie by a prior attaching creditor to compel a decree-holder 
whose attachment is subsequent in date, to refund 
money obtained by him under an order of the Judge of a 
Subordinate Court in contravention of the provisions of 
section 270, Code of Civil Procedure, but it must be a 
suit to set aside the Judge's order. 

Section 295, clause 5, to proviso C, expressly enacts "if 
all or any of such assets be paid to a person not entitled to 
receive the same, any person so entitled may sue such 
person to compel him to refund the assets." This clause 
does not provide that the order shall be final as sections 
283, 332, and 335 do. 

(1) 9 W. R., 614. | (2) 16 W. R., 11. 



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324 THE SECOND SCHEDULE, FIRST DIVISION — 8U1T8. [ART. 13 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

Salt to set aside In execution of a decree against six persons, the plain- 
bution made by tifFs had certain property brought to sale, the proceeds 
ing for payment of which were brought into o+urt. The defendants, who 
money and for held five separate decrees against some of the persons 
held barred by against whom the plaintiffs' decree was obtained, applied 
to have the amount in court rateably, distributed, and in 
accordance with an order of the court, dated 13th Sep- 
tember, 1880, this was done, the proceeds being distribut- 
ed in proportion to the amounts of the decrees. In a 
suit brought on 24th August, 1883, against the defen- 
dants on the allegation that the plaintiffs were entitled 
to the whole of the proceeds, or in the alternative for 
distribution on a different principle, it was held the suit 
was one to set aside the order, and not having been brought 
within one year from the date of the order, was barred by 
limitation under Article 13, schedule 2 of Act XV of 1877. 
Gowri Prosad Kundu v. Bam Ratan Sircar/ 1 ) This case 
was distinguished from Ram Kishan t>. Bhawani Das, (> > 
in which the order having been passed without jurisdic- 
tion was a nullity. ( Vide Note I, under Article 62). 
Neither this Ar- (g) In Kristodass Kundoo v. Ramkant Raj Chowdry,( s > 
M apply to an a portion of certain land which was under mortgage was 
Sr^Conector iS sold for arrears of revenue which the mortgagors neglec- 
an order fm* ted to pay. The defendants having held money decrees 
diction? against the mortgagors, attached the surplus sale proceeds 

which remained in the Collector's Office. The mortga- 
gee's application of May, 1876, for the release of the 
surplus sale proceeds was rejected by the Judge on the 
ground that he had no jurisdiction to determine the 
priority of claims to money in deposit in the Collector's 
Court. The mortgagee's application of May, 1876, to the 
Collector was rejected and an order was passed to the 

(1) IL.R., 13 Calc, 159. | (2) I. L. E., 1 All., 338. 
(3) I. L. R. 6 Calc, 142. 



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ABT. 13] THE SBCOND 8CHKDULB, FIKST D1VI810N 8U1T8. 325 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

effect that the money could not be paid to any person 
other than the mortgagors. The mortgagee sued the 
mortgagors in January, 1877, for money by a declaration 
of his lien, and obtained a decree, declaring that the pro- 
perties do stand subject to the lien. The plaintiff in this 
case as assignee of the decree, proceeded to attach the 
surplus sale proceeds, and the defendant opposed it. The 
Judge, in August, 1877, declined to take any action for 
the reasons recorded in the order of May, 1876. The 
plaintiff brought this suit to set aside that order. It was 
contended that the suit was barred under Article 15 or 16 
of Act IX of 1871, because it was not instituted within 
one year from the date of the order of the Judge or 
Collector. Prinsep, J., observes : " we have, however, no 
doubt that these articles do not apply, inasmuch as in 
neither case was there any order passed adverse to the 
mortgagee's right after any adjudication thereof. The 
orders passed simply amounted to a declaration, that 
neither the Judge, nor the Collector, considered that he 
had jurisdiction to act as desired. The general Law of 
Limitation for suits to establish a right would, therefore, 
apply to the present suit." Mussamut Moomeedunnissa v. Order refusing 
Mahomed Ali/ 1 ) was a suit to establish a right to a share application an. 
in property in respect of which the Judge who received 1841. 
an application under Act XIX of 1841, an Act for the 
protection of moveable and immoveable property against 
wrongful possession in cases of successions refused to 
entertain it and referred the plaintiff to a regular suit 
without even citing the defendant. It was held that the 
suit may be brought within 12 years from the date of 
cause of action, and not within one year from the date of 
disallowance of the said application. 

(1) 1 W. R., 4Q 



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326 



THK SECOND SCHEDULE, F1R8T DIVI810N — BUIT8. [AKT. 13 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Bait praying to 
set aside an 
order passed 
without juris- 
diction is not 
governed by 
this Article. 



Observations 
of Spankie, J. 



Part IV. 
One year. 

(h) In Bam Kishen v. Bhawani Das,* 1 ) certain pro- 
perty was attached by two decree-holders and sold at the 
instance of the creditor who had a charge thereon and 
sale proceeds were paid to him. The money decree-holdet 
claimed preference as first attaching creditor, which was 
allowed by the Lower Court, but reversed in appeal, where- 
upon he was paid the money which the other decree-holder 
was directed to refund. He then brought a regular suit 
to establish his prior right to the money and for the 
cancelment of the Judge's order, alleging that the same 
was made without jurisdiction. It was contended that 
the suit was barred. Spankie, J., observes : " I was dis- 
posed to consider that clause 15 might apply. But on 
fuller consideration, I do not think it is applicable. A 
suit under this clause is brought to alter or set aside 
a decison or order of the Civil Court in any proceeding 
other than a suit where the court was competent to de- 
termine it finally. The court therefore must have juris- 
diction, which the Judge had not when he reversed the 
Munsif 's order giving the sale-proceeds to the plaintiff. 
The order therefore is of itself a nullity and could have 
no effect. But even if the Judge had had jurisdiction, I 
am doubtful whether the clause would have applied as 
the plaintiff asks for something more than the reversal, 
or, as he calls it, the nullification of the order." In Debi 
Prasad v. Jafar AH/ 2 ) plaintiff's suit in the Revenue 
Court for a declaration that he was not liable to pay rent 
to the defendant was decided against him in 1865, and he 
continued payment of rent up to August, 1877, when he 
brought a suit in the Civil Court to have his proprietary 
title declared and the decree of the Revenue Court null 
It was held that Articles- 14 and 15 of Act IX 



and void. 



(1) I. L. R., 1 All., 883. | (2) I. L. R., 8 Bom., 40. 



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ART. 13] . THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 327 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

of 1871 were not applicable, as there was no decree or 
order which the plaintiff was bound to have set aside 
within one year. 

(i) In Mussamut Aleo-Unissa t;. Buldeo Narain To Mt Mide a 
Singh,(D it was held by Peacock, C. J., that the final J^J ^^ 
decision, award, or order comtem plated by clause 5, sec. 1, J^ t£j Jth e 
Act XIV of 1859, is a final decision of the court which has a^E* 886 * ° n 
competent jurisdiction to determine the case finally, and ** eb * 1867# * 
not the order of a court superior to such court dismiss- 
ing an appeal from the decision of such court for want of 
jurisdiction. 

(j) In Iyyasami t?. Samiya,< 2 ) an application was Suit by ^ xm . 
made under section 322 of the Code of Civil Procedure SSSSm^under 
for possession of property and rejected and the applicant Se^cf p^c. °L 
brought a suit to recover the property more than one year S&^rSSe?* 7 
subsequent to the order rejecting the application. It was Jai^to^sue 5 *!© 
held that the suit was not barred either by Article 11 Jan<Uie<L 0rder 
or Article 13 of schedule 2 of the Indian Limitation Act, 
1877. The court observe, " the provisions of Article 11 
in the second schedule to the Limitation Act do not apply 
in terms to a suit brought to test an order made under 
section 332 of the Civil Procedure Code, and we are not 
warranted in applying that Article to any suits other than 
those to which express reference is made in the Article. 
It is possible and was probable that mention of section 
332 of the Code of Civil Procedure was omitted by over- 
sight from this clause. Nor, in our judgment, is this 
suit governed by the provisions of Article 13, for that 
applies to decisions or orders passed in a proceeding other An ordep m wak 
than a suit, whereas an order in an execution proceeding J^SS^,^ 
is an order in a suit. It may also be questioned whether J^a 1 *^ wT*' 
this suit can be properly described as a suit to set aside S^dln? Se&r' 



than a suit. 



(1) 7 W. R , 161. | (2) I. L. R., 8 Mad., 82. 



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328 



THE SECOND 8CHIDULB, FIR8T DIVISION — BUTTS. [ART. 14 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

an order, for it is a suit to establish the right of the plain- 
tiff. The order under section 332 simply decided the 
question of possession, and is by the terms of that section 
made dependent on the result of the suit to establish the 
right. It is, therefore, unnecessary for the plaintiff to 
sne to have it cancelled." 
Does not affect (k) Where the plantiff was, by an order of the Civil 
ra not party Court in execution of a decree to which he was no party, 
proceedings. ° n ejected from the possession of a muttah, and he brought 
a suit more than three years afterwards to eject the legal 
representative of the person who was so put in possession, 
it was held that the suit was not barred under clause 
5, section I, Act XIV of 1859, as that clause is only 
applicable to orders which the Civil Courts are empowered 
to pass deciding matters of dispute properly raised for 
hearing and determination by a summary proceeding 
between the parties disputing. Appundy Ibram Sahib 
v. Mrs Maria Seth Sam/ 1 ) 

One year 



The date of 
or order. 



the Act 



14. — To set aside any act or 
order of an officer of 
Government in his 
official capacity, not 
herein otherwise ex- 
pressly provided for. 

Suits falling (a) (No 16, Act IX) ; Act XIV of 1859 contained no 

ole had e years express provision for a suit to set aside an official act, 
of 1869, sec. i, and consequently in Kebul Bam v. The Government/ 2 ) 
which was a suit to set aside an order of the Commis- 
sioner of Chotanagpore, directing the plaintiff to pay 
Government Revenue at a certain rate, it was held that 
the suit fell under clause 16, section 1, Act XIV of 1859 
which allowed six years for suits not expressly provided 
for. 

(1) 4 M. H. C E., 297. | (2) 6 W R., 47. 



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AET. 15 16] THE SKCOND SCHKDULB, FIRST DIVISION — SUITS. 



829 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



(b) 



Part IV. 
One year. 

Luchmon Sahai Chowdhry t?. Kanchun Ojhain,* 1 ) 



Bait for title 

was brought by a purchaser of certain land, praying to lector's refusal 

set aside an order passed by Revenue authorities under plaintiff's name 

Bengal Act VII of 1876, to register his name as pro- affected by this 

prietor and also for a declaration of right and title to, and 

confirmation of possession in property. It was held that 

this Article had no application, because it was simply a 

Buit for declaration of plaintiff's title and the prayer for 

the reversal of the order was a mere surplusage. It has 

been further held that a Civil Court has no power to set 

aside an order passed under the Land Registration Act, 

VII of 1876, B. C 

15. — Against Government to 
set aside any attach- 
ment, lease or transfer 
of immoveable pro- 
perty by the revenue 
authorities for arrears 
of Government reve- 
nue. 

(a) (No 17, Act IX ; sec. 1, clause 4, Act XIV.) Clause 
4, section 1 



One year 



When the attach- 
ment, lease or 
transfer is made. 



Buit to set aside 
of Act XIV of 1859, has been split into ure under Regu" 

Articles 15 and 16 in this schedule. In Chittro Narain 



v. The Assistant Commissioner of the Southal Pergun- 
nahs,( 2 > it was held that the power vested in the authorities 
by Regulation XXIX of 1814 to transfer the tenure of a 
Ghatwal who becomes a defaulter, is not put an end to by 
the money being offered before the tenure is actually 
made over to another person, and that the snit comes 
within clause 4, section 1, Act XIV of 1859. 



1814, was held to 
fall under cl.jL 
sec. 1, Act XTv 
of 1868. 



16. — Against Government to 
recover money paid 
under protest in satis- 

(1) I. L. E., 10 Calc, 525. 
42 



One year 



|When the 
is made. 



payment 



(2) 14 W. R., 203. 



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330 



THE 8EC0ND SCHEDULE, FIRST DIVISION — SUITS. [ART. 16 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



faction of a claim 
made by the revenue 
authorities on account 
of arrears of revenue 
or on account of de- 
mands recoverable as 
such arrears. 



Part IV. 
One year. 



Dom not apply 
to a suit for 
money paid on 
account of ad- 
mitted liability. 



Suit brought 
frithin 12 years 
to declare a rent 
free land which 
the Collector as- 
sessed, held not 
barred and one 
year's rent only 
was held re- 
coverable. 



What will 
amount to pay- 
ment "under 
protest." 



(a) (No. 18, Act IX ; sec. 1, cl. 4, Act XIV.) In Shadee 
Lai v. Musumat Bhawanee/ 1 * it was held that clause 4 of 
Section 1 of Act XIV of 1859 (which corresponds with 
this Article) was not applicable, where the Revenue for 
recovery of portion of which the suit was brought was a 
payment made to the Government on account of a clear 
and admitted liability, the object being to save the estate 
from sale. 

(b) Where a person claiming to hold land free of 
Government assessment was compelled by the Collector to 
pay the same and he afterwards brought a suit to establish 
his right, it was held that the cause of action first arose 
when the right was actually interfered with by the Col- 
lector compelling payment of the rent, and that as the suit 
was brought within twelve years from that date, it was 
not barred, and although he has paid the assessment for 
several years under protest, one year's arrears alone were 
recoverable under Act XIV of 1859, section 1, clause 4. 
Bhujang Mahadev v. The Collector of Belgaum.W 

(C) In Kebul Ram v. The Government/ 3 ) Seton- 
Karr, J., observes, an appeal to the higher authority, set 
over the authority which disallows any request, is a native's 
way of protesting. It is his mode of attempting to vindi- 
cate hie rights, and what he does when the attempt has 
failed, may be said, looking to native modes of thought 
and action, to be done under " protest." A law, it seems 
to me, should be interpreted according to the feelings and 

(1) 2 N.-W. P. H. C. R., 52. | (2) 11 B. H. C. R., 1. 
(8) 5 W. R.. 47. 



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ART. 1 7] THK 88COND 8CHBDPL1, FIRST DIVISION*— SUITS. 



081 



Period of 
limitation. 



Description of suit. 



Time from which period 
begins to ran. 



Pakt IV. 
Ope year. 

habits of those for whom it is meant, and this remark 
particularly applies to inhabitants of non-Regulation 
Provinces, who are admittedly accustomed to a more 
patriarchal kind of rule than the residents of more civi- 
lised tracts. The plaintiff had stated his objections in Payment after 
vain to both Collector and Commissioner, and I should appeal make* 
not expect any further or more formal protest on his part. unde? a protest." 
(d) In Krishnamma v. Achayya,* 1 ) plaintiff sued in Suit to recover 
1877 for a piece of ground said to have formed a part of plaintiff? hold- 
his holding. The defendant contended that the land was included by de- 
not included in the plaintiff's uncle's puttab, but was fleer as poram- 
classed as poramboke at the time of demarcation in 1860, fail under this 
and was assigned to him by the Collector in 1875. The 
District Judge treating the suit as one brought to set aside 
the official act of the demarcation officer, rejected the suit 
as barred by this Article. It was held that the suit was 
not necessarily to set aside an official act, but one to recover 
immoveable property, and that the plaintiff has only to 
show that he has had possession within 12 years prior to 
the suit. It is observed that it was not shown that 
the demarcation interfered with plaintiff's possession so 
as to give rise to a cause of action in 1860. 

17. — Against Government for One year 
compensation for land 
acquired for public 
purposes. 

(ft) (No. 19, Act IX.) James Hills v. The Magistrate of suit after one 
Nuddea,< 2 > was a suit for compensation for certain lands Su/'to Parlous 
taken by the Magistrate for roads. 



The date of determin- 
ing the amount of 
the compensation. 



year, thou, 
due to vai 

The plaintiff had vejSmentindi- 

applied for compensation in the usual course, but, after tiff's appiica- * 
various delays on the part of Government, had been re- as barred, 
fused compensation and referred to the Civil Court after 



(1) I. L. B., 2 Mad., 306. 



,(fc) 11 W. R., 1. 



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332 



THE 8EC0ND SCHEDULE, FIRST DIVISION — SUITS. [ART. 18 — 19 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

the period of limitation had expired. It was held — ( 1 ), that 
the plaintiff was not entitled to any consideration for his 
delay in instituting a suit, which was the remedy prescri- 
bed by law ; and that the mere fact of Government receiv- 
ing Revenue for the estate in which the lands are situated 
did not prevent the law of limitation operating in its 
favor, as it would in the case of any private individual in 
adverse possession; (2), that plaintiffs cause of action 
arose from the time when he was dispossessed, and not 
from the date when his application for compensation was 
rejected ; and (3), that a letter from the Commissioner 
of Revenue, expressing his willingness to recommend to 
Government to pay for the land, was not an acknowledg- 
ment in writing within section 4, Act XIV of 1859. 



The date of the refu- 
sal to complete. 



18. — Like suit for compen- One year 
sation when the ac- 
quisition is not com- 
pleted. 

when acquisi- (a) (No. 20, Act IX.) Under section 54 of Act X 
pieted Collector of 1870, the Government are not bound to complete the 
mine the acquisition of any land except in the case provided for by 

section 44, which relates to lands rendered permanently 
unfit to be used. Clause 2, section 54, provides that when 
the Government declines to complete the acquisition, the 
Collector is bound to determine the amount of compensa- 
tion due for the damage, if any, done to the land by the 
clearing, digging, or marking it out, and to pay such 
amount to the person injured. 

When the imprison- 
ment ends. * • 



pensstion for 
damage if any. 



19. — Compensation for false I One year 
imprisonment. | 

(a) (No. 21, Act IX), 



what conBti- W ^o. zi, Act UL). See Note J, under section 23, 

priaonment. page 203. " To constitute the injury of false imprison- 
ment, there are two points requisite : 1. The detention of 



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AST. 20] THX SECOND SCHEDULK, FIEST DIVISION — SUITS. 



333 



Description of suit. 



Period of 
limitation. 



Time from which 
period begins to run. 



Part IV. 
One year. 

the person ; and 2, The unlawfulness of such detention. 
Now every confinement of the person is an imprisonment, 
whether it be in a common prison or in a private house, or 
in the stocks, or even by forcibly detaining one in the 
street ; (2 Inst. 589). Unlawful, or false imprisonment con- 
sists in such confinement or detention without sufficient 
authority ; which authority may arise either from some 
process from the courts of justice, or from some warrant 
from a legal officer having power to commit under his 
hand and seal, and expressing the cause of such commit- 
ment ; or from some other special cause warranted for the 
necessity of the thing, — such as the arresting of the felon 
by a private person without warrant, or the imprisonment 
of mariners for the public service. (*) The Indian Statute 
does not provide against execution even of Civil processes 
on Sundays. This Article only applies to suits for com- 
pensation and not for the removal of the injury. 

(b) In Bheema Charlu v. Danti Murti/ 2 ) it was held when a wrong- 
that where a wrong person is arrested and imprisoned rested under de- 
under a decree to which he was no party, the person moving the 
setting the court in motion is not liable for such arrest bie if he did not 
and imprisonment if he did not obtain the process fraudu- fraudulently, 
lently or improperly. 

20. — By executors, adminis- 
trators or representa- 
tives under Act No. 
XII of 1855 f to enable 
the executors, adminis- 
trators or representa- 
tives to sue and be sued 
for certain wrongs J 

(a) (No. 12, Act IX.) This Article applies to suits by Act xn of 1866 
executors, Ac., while Article 33 applies to suits against tors of adeceas- 

ed person to 
1) Stephen's Commentaries, Vol. Ill, p. 607. | (2) 8 M. H. C. R., 38. 



One year 



The date of the death 
of the person 
wronged. 



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334 THI SECOND SCHEDULE, FIRST DIVISION— SUITS [ART. 20 

I 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

sue and be sned them. Section 1 of Act XII of 1855, enables executors, 
administrators or representatives of any deceased person 
to sue " for any wrong committed in the lifetime of such 
person, which has occasioned pecuniary laws to his estate, 
for which wrong an action might have been maintained 
by such person," and be sned for any wrong committed by 
him in his lifetime for which he would have been subject 
to an action. In both cases, the act provides that " such 
wrong 8 hall have been committed within one year before 
his death." 
Act xn of 1866 (b) Sreemutty Chundermonee Dassee v. Santo Moo- 
to^ng^wEich nee Dassee/ 1 ) was a suit to recover the value of an 
to tb^represen- elephant wrongly sold by the defendant's husband since 
SS&V&L deceased. It was held that Act XII of 1855 does not 
apply to wrongs which do not survive to the represen- 
tatives of a deceased person. The heir of a deceased 
husband is liable to make good the wrong committed by 
the husband. The plaintiff's right of suit does not 
abate by the death of the husband, but survives against 
it applies to his heir. In Nujuf Ali v. Patterson/ 2 ) it was held that 
which did not Act XII of 1855 applies to suits for wrongs, which 

survive to or . x , . . . . _. , ^. 

against exeou- according to the law then in force did not survive to or 

tors, Ac. . , . . 

against executors, administrators or representatives. A 
suit for recovery of moneys due by an agent of the Official 
Assignee of an insolvent debtor's estate, and for delivery 
of certain papers and documents belonging to such insol- 
vent's estate, will lie against the legal representative of 
such agent after his decease and the right of action will 
not expire on his death. 
Rights of action (c) Sec. 268, Act X of 1865. All demands whatso- 
and against exe- ever and all rights to prosecute or defend any action or 
a deceased per- special proceeding, existing in favour of or against a per- 



son. 



(1) 1 W. B., 261. r| (2) 2 ff.-W. P. a. C. E.. 103. 



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ART. 21] TH1 8BCOND 8CHBDTJLE, FIRST DIVISION— SUITS. 



335 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

eon at the time of his decease, survive to and against his 
executors and administrators ; except causes of action for 
defamation, assault as defined in the Indian Penal Code, 
or other personal injuries not causing the death of the 
party ; and except also cases where, after the death of the 
party, the relief sought could not be enjoyed, or granting 
it, would be nugatory. A sues for a divorce. A dies. 
The cause of action does not survive to his representative. 
(See the corresponding section 89 of Act V of 1881). 



The date of the death 
of the person killed. 



21. — By executors, adminis- One year 
trators or representa- 
tives under Act No. 
XIII of 1855 (to pro- 
vide compensation to 
families for loss occa- 
sioned by the death of 
a person caused by 
actionable wrong.) 

(a) (No. 13, Act IX.) Act XIII of 1855, provides com- a suit is now 

'.,'.,. ' _ . ,, , ,. maintainable 

pensation to families for loss occasioned by the death of against a per. 
..,, «••■<■ -rm 8on wno °y * *• 

a person by actionable wrong. Section 1 runs thus : When- wrongful act 

ever the death of a person shall be caused by wrongful act, fault caused the 

, , . ,. ,,, . , ,*»,., death of an- 

neglect or default, and the act, neglect or default is such as other person, 
would (if death had not ensued) have entitled the party 
injured to maintain an action and recover damages in 
respect thereof, the party who would have been liable if 
death had not ensued, shall be liable to an action or suit 
for damages, notwithstanding the death of the person 
injured, and although the death shall have been caused 
under such circumstances as amount in law to felony or 
other crime. And it is enacted further, that every such 
action or suit shall be for the benefit of the wife, husband, 
parent and child, if any, of the person whose death shall 
have been so caused, and shall be brought by and in the 



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336 



THE SECOND SCHEDULE, FIE8T DIVISION — 8UIT8. [ART. 22 — 23 



Description of Bait. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

name of the executor, administrator, or representative 
of the person deceased ; and in every such action the 
court may give such damages as it may think propor- 
tioned to the loss resulting from such death to the parties 
respectively, for whom and for whose benefit such action 
shall be brought, and the amount so recovered, after 
deducting all costs and expenses, including the costs not 
recovered from the defendant, shall be divided .amongst 
the before-mentioned parties, or any of them, in such 
shares as the court by its judgment or decree shall 
direct. In any such suit, the executor, <fcc., may insert a 
claim for, and recover any pecuniary loss to the estate 
of the deceased occasioned by such wrongful act, neglect 
or default. 



22. — For compensation for 
any other injury to the 
person 



One year 



When the injury 
committed. 



is 



This Article re- 
lates to injuries 
affecting a 
man's limbs, 
Ac. 



Intention on the 
part of the 
wrong-doer is 
not necessary. 



(a) (No. 22, Act IX ; sec 1, clause 2, Act XIV.) This 
Article relates to immediate or consequential injuries 
affecting a man's limbs or body or health. Articles 23, 
24 and 25 separately provide for injuries to personal 
liberty and to reputation. Bodily injury, though the 
consequence of a lawful act or a mere mischance may be 
a tort, and the existence of an evil intention in the mind 
of the wrong-doer is not essential. So much so, that even 
a lunatic will be civilly answerable for his torts, though 
wholly incapable of design. W 



23. — For compensation for a 
malacious prosecution. 



When com- 
plaint is the 
only act done, 
the date of the 



One year ... When the plaintiff is 
acquitted, or the pro- 
secution is otherwise 
terminated. 

(a) (No. 23, Act IX.) In Mndvirapa Kulkarni v. 
Fakirapa Kenardi,<*> A on the 26fch of July, 1878, com- 
(1) Collet on Torts, para. 31. | (2) I. L. R., 7 Bom., 427. 



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ART. 23] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 337 



Description of suit 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

plained to the Magistrate that B committed theft of his complaint is 
grain. The Magistrate, of his own motion, attached the wrong, 
grain on the 10th of August, 1878, pending inquiry into 
the complaint, then proceeded with the inquiry and dis- 
missed the complaint, hut continued the attachment 
pending the decision of the Civil Court to which he 
referred the parties. A, in 1879, brought a suit against 
B to establish his title to the grain, which was finally 
rejected on the 21st of June, 1880, and B recovered his 
grain on the 30th of September, 1880, but in a damaged 
condition. B, on the 13th of November, 1881, sued A 
for damages for wrongful detention of his grain, and 
its consequent deterioration in quality and value. It 
was held that the date of the complaint was the date of 
the wrong, and limitation ran from that date, or, at the 
latest, from the date of the attachment, and that B y s suit 
was therefore barred, whether the period applicable was 
one year under Article 23, or two years under Article 36 of 
schedule 2 of Act XV of 1877. West, J., observes: "in in the case of a 
the case of a prosecution the conduct of the prosecutor is Sn^runs'from 
looked on as a continuous act prolonged until the close of case, 
the case, and limitation is to be computed from that point 
(Act XV of 1877, sch. 2, Art. 23) ; but when the com- 
plaint made is the only act done, the date of the complaint 
is that of the wrong — see Huree Narain Mytee v. Ojoo- 
dhya Ram Sein (10 Cal. W. R., 308). And the Limitation 
Act does not prescribe or allow, (see Goma Mahad Patil v. Act does not ai- 
Gokaldas Khimji ; I. L. Rq 2 Bom. 74) any deduction on on* acoount°of 
account of irregular proceedings of a Magistrate not moved ceeaung? ot°k 
by the defendant in the suit." ^*^ 8 

(b) In Bhyrub Chunder v. Mohendro Chuckerbutty/ 1 ) Cause of action 

it has been observed that if a complaint came before a crue until pro- 
secution ends 
,.. „- w -r*,,« in plaintiff's 

(1) 13 W. R., 118. favour. 

43 

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338 



THE SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 24 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

criminal tribunal competent to determine the matter npon 
its merits, then, no doubt, a cause of action would not 
accrue to the plaintiff until those merits had been de- 
termined by that tribunal in his favour. A suit cannot be 
brought for a malicious prosecution, when the prosecution 
end 8 in a conviction. Quaere. — When a complaint is drop- 
ped by the prosecutor while in the hands of the police, does 
the cause of action to the party charged in a suit for da- 
mages accrue at the time when the information was first 
laid. In Obedul Hossein v. Goluck Chunder/ 1 ) it was held 
that for a suit for damages for malicious prosecution, time 
runs from the date of the final discharge of the plaintiff 
preferred; from custody and not from the date on which the charge 
was preferred. This case was distinguished from Hari- 
narayan Maiti v. Ajodhya Bam Shi/ 2 ) in which plaintiff's 
house was searched and his business interrupted, and he in 
various ways injured upon a certain untrue and malicious 
statement made by the defendant before the Magistrate 
on the 23rd January, 1866. Plaintiff sued for damages 
in March, 1867. As there was nothing to show that any 
of the resulting damages which would constitute a cause 
of action occurred within 12 months previous to the suit, 
the plaintiff's claim was held barred. ' 



Time held to 
ran from final 
discharge of 
plaintiff and 
not from the 
date that cl 
was 



24 For compensation 

libel. 



for I One year 



When the libel is pub- 
lished. 



Libel denned. (a) (No. 24, Act IX ; sec. 1, cl. 2, Act XIV.) A libel 
" may be defined to be some writing, picture, or the 
like, containing malicious and defamatory matter (besides 
defamatory libels, there are those of a blasphemous, sedi- 
tious, or immoral kind, as to which vide post, Vol. IV, p. 
344.)"< 8) 

(1) 8 W. E., 443. | (2) 1 Beng., S. N., 17. 

(3) Stephen's Commentaries, Vol. Ill, p. 503. 



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AST. 25] THE SBCOND SCHEDULE, FIKST DIVISION — SDIT8. 



839 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

(b) In Robert and Charriol v. Lombard* 1 ) it was held 
that limitation rang from the time when the libel is 
published, and not when the plaintiff becomes aware of it. 

(0) " In an action for libel brought in 1848, the 
statute was pleaded to the first count, which complained 
of a libel printed and published in the Weekly Despatch, ^tive^teVea 
to wit, on the 19th September, 1830, and it was held that * UmifcBtion - 
the plea was negatived by proof of the sale of one copy 
just before the action commenced."* 2 ) 



Time runs from 
the date of pub- 
lication. 



Sale of one copy 
of the libel with- 
in one year of 



25. — For compensation 
slander. 



for One year . . . When the words are 
spoken, or, if the 
words are not ac- 
tionable in them- 
selves when the spe- 
cial damage com- 
plained of results. 

(a) (No. 25, Act IX; sec 1, clause 2, Act XIV.) Words of aland- 
x ' v ' er which are in 

" The principal cases in which words will be considered themselves ac- 

. tionable. 

defamatory, so as to amount to the legal injury of 

which we now speak, are as follows : viz., where a man 
utters anything of another (which may either endanger 
him in law, by impeaching him of some punishable crime, — 
as to say that he hath poisoned another, or is perjured ; 
or which may exclude him from society, — as to charge 
him with having an infectious disorder tending so to 
exclude him ; or which may impair or hurt his trade or 
livelihood, — as to call a tradesman a bankrupt, a physi- 
cian a quack, or a lawyer a knave ;) or which may dis- 
parage him in an office of public trust, — as to say of a 
Magistrate that he is partial and corrupt."( 3 > 

(b) " If I say of a Commission Agent, that he is an Words which 

. , , , i .,, .are not action- 

unprmcipled man, and borrows money without repaying able in them- 

(1) 1 Ind. Jnr., N. S. 192. | (2) Darby and Boaanquet, p. 29. ^Sts!** 111 ** 8 "" 
(3) Stephen's Commentaries, Vol. Ill, p. 499. 



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340 



THE SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 26 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

it, this is not in itself actionable ; bnt if I say this to a 
person who was going to deal with him, and he forbear 
to do so in consequence of its being said, — here, there 
being special damage, an action will lie against me. So 
if I impute heresy or adultery to another, if he can show 
that he was thereby exposed to some temporal damage, he 
may sue me in a court of common law and recover damages 
for such injury ; and the case is the same if I impute 
nnchastity to a woman, and she can shew that she has 
thereby lost a marriage or some pecuniary advantage. 
Slander of title. And in like manner, if I slander another man's title, by 
spreading (not in the bond fide assertion of my own title) 
such injurious reports (as, if true, would deprive him of 
his estate — as to call the issue in tail, or one who hath 
land by descent, a bastard, — it is actionable, provided any 
special damage accrues to the proprietor thereby ; as if he 
loses an opportunity of selling the land.") (*) 
in such cases (o) Cases of slander actionable when the special 
rrom^the tSSe damage complained of results, come under section 24- 
mage^Sfts?** The plaintiff it is apprehended cannot recover subsequent 
damages by series of subsequent actions. See Land v. 
Walker in (Note D, under section 24, p. 208.) 



One year 



When the loss occurs. 



26. — For compensation for 
loss of service occa- 
sioned by the seduction 
of the plaintiff's ser- 
vant or daughter. 

(a) (No. 27, Act IX.) A parent is enabled to claim 
redress for a battery, or other ill usage inflicted on his 
child or even for the seduction of his daughter. Where a 
parent is plaintiff in a case of seduction, the courts inclin- 
ed to relieve him, as much as possible, from any difficulty 
connected with proof of the loss of service ; considering 
(1) Stephen's Commentaries, Vol. Ill, pp. 500-501. 



Action under 
this Article is 
brought to re- 
pair the out- 
rage done to pa- 
rental feeling. 
A master may 
sue for debauch- 
ing his servant. 



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ART. 26] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 341 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

the action as brought in substance to repair the outrage 
done to parental feeling, — and it has been held, therefore, 
in such an action the mere residence of the child with 
him, at the time, affords sufficient proof that the relation 
of master and servant existed between them. No action 
for seduction can in any case be maintained by the 
daughter herself. (*) A master standing in loco parentis 
may, according to English Law, maintain an action for 
debauching his servant. 

(b) In Ram Lai v. Tula Ram,< 2 ) A Hindu father sued a. h. 
for compensation for the loss of his daughter's services in suit for compen- 
consequence of her abduction by the defendant, and for ioss°of his abt 
the costs incurred by him in prosecuting the defendant. tor's service, 
The daughter was a married woman, deserted by her hus- taiSaWe. mam * 
band and at the time of her abduction, she was living < AugU8t 1881,) 
with her father attending to his household affairs and 
rendering him services. Stuart, C. J., was of opinion that 
the suit was maintainable under the circumstances, 
while Oldfield, J., held otherwise. Stuart, C. J., ob- observations of 
serves : " now it appears to me that it would be a fcua^t, * ' 
very unsatisfactory state of the law in this country if 
such conduct against the peace and honor of respectable 
families were allowed to pass without a remedy, and I 
think we must for that remedy hold that the suit at the 
instance of the father was properly and validly entertain- 
ed by the Lower Courts." Oldfield, J., while holding that observations of 
the father can recover the costs of prosecuting the defen- e * 
dant, observes : " the claim, however, in respect of the loss 
of the daughter's services stands on quite a different foot- 
ing. It has evidently been brought with reference to the 
law of England as to an action for seduction, where the 
basis of the action is founded, not upon the wrongful act 

(1) Stephen's Commentaries, Vol. Ill, p. 567. 

(2) I. L. R., 4 All., 97. 



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342 



THE 8BC0ND 8CHKDULK, FIRST DIVISION — SUIT8. [ART. 27 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

of the defendant in the seduction, but upon the loss of 
service of the daughter, in which service the parent is 
supposed by a fiction to have a legal right or interest. 
It would be very undesirable to introduce a fiction of this 
kind into the law of this country." Hindu women's 
" position is not one of servitude from which any contract 
of service can be implied." 



One year 



The date 
breach. 



of the 



Inveigling or 
hiring another's 
servant is an in- 
jury to master. 



27. — For compensation for 
inducing a person to 
break a contract with 
the plaintiff. 

(a) (No. 28, Act IX.) The inveigling or hiring an- 
other's servant which induces a breach of contract is an 
injury to the master and his action for compensation comes 
under this Article. 
Defendant per- (b) In Bowen v. HalU 1 ) it was held that an action 

suading third ... _ 

person to break J ic8 against a third person who maliciously induces 

contract is an ,,,. * i , 

actionable act another to break his contract of exclusive personal service 

if injury ensues 

from it. with an employer, which thereby would naturally cause, 

and did in fact cause, an injury to such employer, al- 
though the relation of master and servant may not strictly 
exist between the employer and employed. Brett, L. J., 
observes : " the act complained of in such a case as Lum- 
ley v. Gye (2 B. and B. 216 ; 22, L. J., Q. B. 463), and 
which is complained of in the present case, is therefore, 
because malicious, wrongful. That act is a persuasion 
by the defendant of a third person to break a contract 
existing between such third person and the plaintiff. It 
cannot be maintained that it is not a natural and pro- 
bable consequence of that act of persuasion that the third 
person will break his contract. It is not only the natural 
and probable consequence, but by the terms of the pro- 

(1) L. E., Q. B. 6, p. 833. 



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ART. 28] THB SECOND 8CHKDULK, FIRST MVI8ION SOITS. 



343 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year 

position which involves the success of the persuasion, it 
is the actual consequence." 

(c) In Meer Mahomed Kazem v. Forbes^ 1 ) it was inducing ryota 

... to break oon- 

held that a suit by an indigo planter against an instigator tract with 
brought under section 3, Act X of 1836, is governed by tivate indigo, 
the six years' limitation provided by clause 16, section 1, 
Act XIV of 1859. In this case it was alleged that at the 
instigation of the defendant, the plaintiffs ryots refused 
to grow the indigo for which they had contracted. 

28. — For compensation for One year . . . The date of the dis- 
an illegal, irregular or tress, 

excessive distress. 

(No. 29, Act IX.) Section 140 of the Bengal Tenancy 
Act VIII of 1865, provides for suits for compensation for 
wrongful distraint. This Act repeals Act VIII of 1869, 
B. C. which by sections 97 to 100 specially provided for 
distraint of crops and suits in respect of such distraint. 

(a) In Ladji Naik v. Musabi,< s ) the Collector, under the Suit for money 
Vatandor's Act 3 of 1874, ordered that a contribution of what***? 8 
should be paid by the holders of a part of the Shetsandi apneai does not 
Vatan towards the annual emolument of the office holder. Article, bnt 
The defaulter's property was sold in May, 1881, as for an 
arrear of land revenue, and part of the sale proceeds was 
paid to the office holder. On the defaulter's appeal in the 
meantime, the Revenue Commissioner reduced the amount 
of contribution in December, 1881. The defaulter in 
April, 1884, sued to recover from the office holder the 
difference between what he had received under the Col- 
lectors order and what he ought to have received according 
to the Revenue Commissioner's order. It was held that 
the suit was governed by Article 62 and not by 28 or 29. 

(1) 8 W. R., 267. 

(2) I. L. E., 10 Bom., 665. 



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344 THE SECOND SCHEDULE, PIBST DIVISION — 8UIT8. [ART. 29 — 31 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year . 



The date 
zure. 



of the sei- 



Limitation com- 
mences from 
the date of 
seizure and not 
from the date of 
release of pro- 
perty. 



29. — For compensation for 
wrongful seizure of 
moveable property un- 
der legal process. 

(a) (No 30, Act IX.) In Ram Singh Mohapattur v. 
Bhottro Manjee Sonthal/ 1 ) plaintiff's bullocks having been 
seized in execution of a decree obtained by defendant 
against third parties, plaintiff put in a claim and the 
bullocks were released on 15th January, 1874. On 15th 
January, 1875, plaintiff instituted an action for damages 
caused by the detention of the bullocks. It was held 
that the case fell under Act IX of 1871, schedule 2, 
Article 30, and that the suit was barred by limitation. 
Suit for money (K) Jairjivan Javherdas v. Gulam Jilani Chandri /*> 

wrongly taken **" ^ J ' 

under a decree was a suit brought to recover money wrongfully drawn in 
this Article. 1875 by the defendant from the Government Treasury in 
execution of a decree he had obtained against the plain- 
tiff's father. The defendant in 1867, attached the allow- 
ance annually payable to the plaintiff's family, and the 
plaintiff having become entitled to the allowance from 
the death of his father in 1869, sued to recover what the 
defendant had drawn since. It was held that compen- 
sation for the money wrongly seized and for the loss of 
gain or interest upon it may blend in a single claim for 
compensation, and that in either case the limitation is 



one year. 



30. — Against a carrier for 
compensation for los- 
ing or injuring goods. 

31. — Against a carrier for Do. 
compensation for delay 
in delivering goods. 

(a) (Nos. 36 and 37, Act IX.) 



Part V. 
Two years... 



To suit for 
value of goods 
lost by Railway 



(1) 24 W. R., 298. | 



When the loss or in- 
jury occurs. 

When the goods 
ought to be deliver- 
ed. 

In Mohan Sing Chawan 
(2) I. L. R., 8, Bom., 17. 



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ART. 31] THJ6 SECOND SCHEDULE, FIRST D1VI8I0N — SUITS. 845 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

v. Henry Conder.W 563 bags of grain were made over to Company time 

* rL runs from the 

the defendants at Cawnpnr and Nagpur, for carriage to date of an. 

*~ nounoement of 

Sholapnr. All that was proved was, that the defendants such loss, 
delivered to the plaintiff, the owner of the grain, 512 
bags only, having previously obtained from his agent 
receipts for the full number as arrived at Sholapnr. In 
a suit by the plaintiff to recover the price of the bags not 
delivered, brought after more than two, but within three 
years of the time when the rest of the goods were deli- 
vered, the defendants claimed that the suit was barred by 
the provisions of this Article, as not having been brought 
within two years of the time when the loss occurred. It 
was held, that mere non-delivery of the bags was no proof 
of their loss, the onus of proving which as an affirmative 
fact lay on the defendants before they could claim the 
benefit of the special limitation of two years provided in 
this Article, and that the suit, therefore, was in time. 

(b) In Hassaji v. The East India Railway Company/ 2 ) Suit by ©on- 
it was held that for a suit against a Railway Company by pensation for 

xi_ . * j , x x 1*1 non-delivery 

the consignee of goods (not sent on sample or for approval) against Rail- 

. . . - i i • j i .i-,.. wy Company 

for compensation for non- delivery, the period of hmita- does not fan no- 
tion is not two years under this Article, but three years 
under Article 115. 

(C) In the British India Steam Navigation Company suit against 
v. Hajee Mahomed Esack <fc Company/ 3 ) plaintiff claimed Son^omplSy" 
Rs. 6,304, compensation for value of goods short delivered. go r ods short de- 
It was held that the Steam Navigation Company, though fail under this 
they are not common carriers for the purposes of Indian 
Carriers' Act, the operation of which is restricted to Inland 
Carriers, are nevertheless common Carriers, so long as the 
goods remained in their hands and undelivered, and that the 

(1) I. L. R., 7 Bom., 478. | (2) I L. R., 6 Mad., 388. 
(3) I. L. R., 3 Mad., 107. 

44 



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346 THK SECOND SCHEDULE, FIK8T DIVISION — SUITS. [aBT. 31 



Description of Bait. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part IV. 
One year. 

suit was not governed by this Article, but by Article 115. 
Observation* of The court observe : " looking to the terms of clause 30 
tide so. * and the place in which it is found in the schedule, we 

understand it to apply to suits for compensation for 
loss of damage to goods arising from malfeasance, mis- 
feasance or non-feasance independent of contract. There 
may no doubt be reasons for prescribing a short period 
of limitation for suits against carriers, but the principle 
has not apparently been adopted. On the other hand, a 
shorter period of limitation has been in the earlier Limi- 
tation Acts provided for suits for tort than for suits for 
breach of contract." The above decision was followed in 
Bolt for com- Kslu Ram Maigraj v. The Madras Railway Company, W 
the ▼sloe of in which the plaintiff claimed compensation for the value 

rli damaged . . 

^ the oompa- of goods consigned by him in September, 1877, and which 

and destroyed he alleged were, owing to the Company's . negligence and 
order. want of proper care, damaged by rain and were afterwards 

destroyed by order of a Magistrate. As this suit was not 
founded upon a contract, the court held that this Article 
applied. It was further held that when two Railway 
Companies interchange traffic, goods, and passengers with 
through tickets, rates and invoices, payment being made 
at either end and profits shared by mileage, the receiving 
Company, by granting a receipt-note for goods to be 
carried over and delivered at a station of the delivering 
Company's line, does not thereby contract with the con- 
signor of the goods as the agent of the delivering Com- 
8oit for and va- pany. In Dan Mull v. British India Steam Navigation 
when the com- Company/ 2 ) plaintiff claimed damages for the defendant's 
SeSrer. failure to deliver to him at Rangoon, a bale of piece goods 

shipped under a bill of lading, dated 3rd December, 1881. 
The defendant Company denied the receipt of the bale 

(1) I. L. R., 3 Mad,, 240. \ (2) I. L. R., 12 Calc, 477. 

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ART. 32] THE 8BC0ND 80HEDUL16, FIB8T DIVISION 8UIT8. 



347 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part IV. 
One year. 

and endeavoured to prove that what was shipped was a 

bale of gunnies, and pleaded that the suit was barred by 

this Article. It was held, that in this case it was not open 

to the defendants, after havfng denied receipt of the 

goods, to set up, or for the court, after finding that the 

goods had been shipped, but not delivered, to assume 

without evidence, that the goods were lost in order to 

bring the case within Article 30, schedule 2, of the Limitation of 

Limitation Act of 1877. Garth, C. J., was of opinion that would ^ ply 

where a plaintiff sues for breach of contract and proves sues tor breach 

his case, the three years' limitation would be applicable, though defend- 

although the defendants were to prove that the breach breach occured 

occurred in consequence of some wrongful act of theirs, of wrongTaTact 

to which the shorter limitation would apply. % tm9 

32. — Against one who, having Two years . . . 
a right to use property 
for specific purposes, 
pervertsit toother pur- 
poses. 

(a) (No. 38, Act IX.) In Kedarnath Nag v. Khettur- This Article 

doee not apply 
paul Sritirutno/ 1 ) the defendant took certain land from to suit to com. 

. pel defendant 

the plaintiff under a registered lease, which contained a to Ail a tank or 

clause prohibiting the defendant from digging a tank on eation. 
the land without the plaintiff's permission. The defen- 
dant having, nevertheless, constructed a tank without 
such permission, the plaintiff brought a suit to compel 
him to fill up the tank, or, in case he should fail to do so, 
for compensation. It was held that the period of limita- 
tion applicable to such a suit was Article 120 of schedule 
2 of the Limitation Act. 

(b) Gangadhar v. Zahurriya,W was a suit brought by Applies to a 
the plaintiffs, who were admittedly Zemindars of the land, tenant from 
against the defendants, who were occupancy-tenants of the ab^Uwdwto a 

(1) I. L. R., 6 Calc, 3* | (2) I. L. R., 8 All., 446. gr0ve * 



When the perversion 
first becomes 
known to the per- 
son injured thereby. 



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348 



THJfi SECOND 8CH1DULB, FIRST D1V1810N SUITS. [AST. 33 35 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



33.- 



Pakt V. 
Two years. 

land, seeking to restrain the defendants from converting 
arable land into a grove or wood. It was held that 
Article 32 applied to this case, and that limitation began 
to run from the date when the perversion first became 
known to the plaintiff. In Raj Bahadur v. Birmha 
Singh/ 1 ) a landlord's suit to demolish a well constructed 
by a tenant was held cognizable by a Civil Court. In 
Amrit Lai v. Balbir,W it was held that a decision of a 
Revenue Court disallowing an application to eject a 
tenant, because he has built on his land, does not, under 
section 13 of the Civil Procedure Code, bar a suit in the 
Civil Court to have the building demolished. 



-Under Act No. XII of 
1855 (to enable execu- 
tors, administrators or 
representatives to sue 
and, be sued for certain 
wrongs) against an exe- 
cutor, administrator or 
other representative. 

(No. 39, Act IX.) 

34. — For the recovery of a 
wife. 

35. — For the restitution of 
conjugal rights. 



Two years .. 



When £he wrong com- 
plained of is done. 



See Notes under Article, 20. 
Two years . . 



When possession is 
demanded and re- 
fused. 
Do. When restitution is 

demanded and is re- 
fused by the hus- 
band or wife, being 
of full age and 
sound mind. 
suits for resti- (a) (Nos. 41 and 42, Act IX.) Held, by a Full 

tution of conju- x ' ' ' —* j 

Ki righto may Bench, that, in a suit between Mahomedans, when a hus- 
brought . 

within two band claims as against his wife restitution of conjugal 

years of any de- . . , ' 

mand and refu- rights, and, as against the person detaining her, recovery 
(1) I. L. R., 8 All., 86. | (2) I. L. K., 6 All., 68. 



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ART. 36] THK 8KC0ND 8CHBDULB, FIB8T DIVISION — SUITS. 



349 



Description of Bait. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part V. 
Two years. 

of his wife, each suit being instituted more than two neoessariiy 

from first de» 

years after a demand and refusal (a) of restitution of con- mand and refu- 
jugal rights and (b) of possession of his wife, the relation 
of husband and wife still subsisting, the suit is not bar- 
red, (a) H8 against the wife under Article 42, schedule 2, 
Act IX of 1871, (Article 35 of this schedule) by reason 
of section 23 of that Act ; but is barced, (6) against the 
other defendant under Article 41, (34 of this Act). In 
the case of the other defendant, however, it is open to the 
husband to make a demand of possession of his wife, and, 
if it be not complied with, to institute a fresh suit, and 
enforce his right, notwithstanding the dismissal of the 
former suit. Ghizni v. Mussammat Mehran. (Punj. 
Rec. No. 60 of 1879). d> . 

(b) When a third person detains the wife, a suit for See sections 259 

... •• i. . i , ., mm* 260 of the 

recovery of the wife lies against such person and the Civil Procedure 
decree is executed under the provisions of section 259 of 
the Code of Civil Procedure. A decree in a suit for 
restitution of conjugal rights is executed under section 
260 of the Code: 

(C) The Indian Divorce Act (IV of 1869) relates to This Article in- 
persons professing the Christian religion. It also applies suits for restitn- 
to marriages contracted under Act III of 1872. Unrea- righuumTerS© 
sonable delay in presenting or prosecuting a petition for Act. y0r °° 
dissolution of marriage is, under the Divorce Act, a 
ground for disallowing the petition. 



Two years . . . 



36. — For compensation for any 
malfeasance, misfeas- 
ance or nonfeasance in- 
dependent of contract 
and not herein special- 
ly provided for. 

(No. 40, Act IX.) The words torts is a term 
(1) Rival's Limitation Act, p. 102. 



When the malfeas- 
ance, misfeasance 



(a) 



or nonfeasance 
takes place. 



Explanation of 
terms malfeas- 
ance, miaf eas- 



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350 



THE SECOND 8CHEDULE, FIK8T DIVISION 80 ITS. [ART. 36 



Description of soit. 



Period of 
limitation. 



Time from which period 
begins to run. 



anoe, nonfee*- 



Suit for com- 
pensation for 
crops wrongful- 
ly removed held 
to fall under 
this Article ; 
standing crops 
are immoveable 
property. 



But suit for 
standing crops 
carried away 
under an eject- 
ment decree 
subsequently 
reversed beld to 
fall not under 
this Article. 



Carrying away 
crops preceded 
by trespass on 
land may fall 
under Article 
39. 



PABT V. 

Two years. 

used to signify such wrongs as are in their nature dis- 
tinguishable from breaches of contract ; — and these torts 
are often considered as of three kinds, viz, nonfeasance, 
or the omission of some act which a man is by law bound 
to do ; misfeasance, being the improper performance of 
some lawful act ; or malfeasance, being the commission 
of some act which is in itself unlawful. 0) 

(b) In Pandah Gazi v. Jennuddi, (S ) plaintiff sued in 
December, 1877, for compensation for crops wrongfully 
removed by the defendants in December, 1875. The 
Lower Court rejected the suit as barred by Article 26 of 
Act IX of 1871. It was held that standing crops are not 
moveable property and that the suit was governed by this 
Article and that it was not barred. 

(0) The Shurnomoyee v. Pattarri Sirkar,< S) the defen- 
dant obtained a decree in a suit brought against the plaintiff 
for arrears of rent and for ejectment, in execution of which 
he evicted the plaintiff from his holding, and, after getting 
possession thereof, carried away certain crops which were 
then standing on the land. The plaintiff appealed from 
the decree obtained by the defendant, and on appeal it 
was set aside, on the plaintiff depositing the rent due, 
and the plaintiff recovered possession of his tenure. It 
was held that such a suit was a suit " for profits of im- 
moveable property belonging to the plaintiff wrongfully 
received by the defendant" within the meaning of Act 
IX of 1871, section 109, and not a suit for " compensation 
for any wrong, malfeasance, nonfeasance or misfeasance 
independent of contract" within the meaning of Article 
40 of the same Act. 

(d) In Narasimmacharya v. Ragnpathyacharya,* 4 ) 
plaintiff sued on the 9th of February, 1880, for compen- 

(1) Stephen's Commentaries, p. 485. | (3) I. L. R., 4 C&lc, 625. 



(2) I. L. E., 4, Cale. 665. 



(4) I. L. R., 6 Mad., 176. 



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ART. 36] THE 6BC0ND SCHEDULE, FIRST DIVISION — SUITS. 351 



Description of Bait. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part V. 
Two years. 

satiou for loss of crops caused by the defendant's taking 
possession of his well in January, 1877. The District 
Judge on appeal dismissed the suit on the ground that 
time began to run against the plaintiff from January, 
1877, and that the claim was barred by section 36, 37, 
39 or 40 of schedule 2 of the Limitation Act, 1877. It 
was held that the plaintiff was entitled to sue for compen- 
sation for the trespass within three years from the date 
on which the defendants' possession ceased, and that the 
defendants were liable for any loss suffered within three 
years preceding the date of the suit. It has been observed 
that the'seizure of the well is a continuing trespass and 
that the limitation for suits for compensation in such a 
case is three years. " Justice Field, however, in an un- 
reported case held, that as snch carrying away is prece- 
ded by a trespass on immoveable property, it may be 
treated as matter in aggravation of the trespass and as 
such governed by Article 39,"< 1 ) Form No. 71, for plaints 
for trespass on land appended to the Civil Procedure 
Code is worded as follows : " entered upon certain land of 
the plaintiff and depastured the same with cattle, trod 
down the grass, cut the timber, and otherwise injured 
the same." 

(6) On the 26th July, 1878, defendant complained to To *mt for da- 
the Magistrate that plaintiff committed theft of his grain. wronfffui°deten- 
The Magistrate, of his own motion, attached the grain on by Maristrate 
the 10th of Angust, 1878, pending inquiry into the com- complaint, run* 
plaint, then proceeded with the inquiry and dismissed complaint or at- 
the complaint, but continued the attachment pending the 
decision of the Civil Court to which he referred the 
parties. Defendant, in 1 879, brought a suit against plain- 
tiff to establish his title to the grain, which was finally 

(1) Mitra's Limitation Act, p. 564. 



tachment. 



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352 



THE 8KC0ND 8CHEDULE, FIRST DIV18I0N — 8U1T8. [ART. 57 38 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part V. 
Two years. 

rejected on the 21st June, 1880, and plaintiff' recovered bis 
grain on the 30th of September, 1880, bat in a damaged 
condition. Plaintiff, on the 13th November, 1881, sued 
the defendant for damages for wrongful detention of his 
grain and its consequent deterioration in quality and 
value. It was held that the date of the complaint was 
the date of the wrong, and limitation ran from that date 
or at the latest from the date of the attachment, and that 
the plaintiff's suit was therefore barred, whether the 
period applicable was one year under Article 23 or two 
years under Article 36 of schedule 2 of Act XV of 1877. 
Mudvirapa Kulkarni v. Fakirapa Kenardi.W 
Part VI. I 
Three years .|The date of the ob- 
struction. 



87. — For compensation for ob- 
structing a way or a 
water-course. 

38. — For compensation for di- 
verting a water-course. 



Do. . . . The date of the diver- 

sion. 

(a) (Nos. 31 and 32, Act IX.) These two Articles only 
provide for obstructing a way or water-course, and no 
special provision has been made for obstruction of the 
right to light or air. Article 36 will apply to suits for 
compensation in such cases. 

whei* obetmc- (*b) In Rajrup Koer v. Abul Hos8ein,( 2 ) defendants 
tion is con- 
tinuous, oaaae obstructed the flow of water along an artificial water- 
held to accrued* course which the plaintiff's ancestor constructed on their 

dU in ditm un- _ . 

der Article 31 of land, making compensation to them. It was held that 
ActDC of 1871. , , . * . . 

such obstructions being continuous acts as to which the 

cause of action accrued de die in diem, Act IX of 1871, 
schedule 2, Part V, clause 31, fixing two years from the 
date of the obstruction as the period of limitation for 
obstructing a water-course, did not preclude a suit com- 
plaining of obstructions, though made more than two 
(1) I. L. B:, 7 Bom., 427. | (2) I. L. B., 6 Calc, 394. 



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▲KT. 39] THK 8KCOHD 8CHED0LB, fIBST DIVISION— 601TB. 



358 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

years preceding the date of the commencement of the 
suit. 

(o) I» Sri Vi8wambhara v. Sri Saradhi Charana,* 1 ) 
it was held, that an obstruction to a right to water would 
be a continuing injury giving rise to a fresh cause of 
action as fresh damage results from it. In Ponnusawmi 
Tewar v. The Collector of Madura, W it was held that 
the diversion of water was a continuing injury down to 
the institution of the suit. 

(d) Iu Oodoyes8uree v. Huro Kishore Dntt,W plain- 
tiff sued for recovery of possession of land and for opening 
a water-course through it, alleged to have been stopped 
by the defendant It was held that the plaintiff's title to 
the land being established, his suit ought not to be 
dismissed on a mere inference of his assent to the defen- 
dant's acts, and that the suit was for an interest in 
immoveable property, and therefore subject to the limi- 
tation prescribed by clause 12, section 1, Act XIV of 
1859. 

(e) " An obstruction to the migration of fish to and 
fro in plaintiff 8 jalkar is not an obstruction to a water- 
course. See Moharanee Surnomoyee v. Degumbary, 2 
Shome 93."(*> 



Fresh damage 
resulting from 
continuing ob- 
struction gives 
a fresh cause of 
action. 



These two Arti- 
cles apply only 
to suits for da* 
mages and not 
for the removal 
of obstruction 
by injunction. 



Obstruction to 
migration of 
fish is not ob- 
struction to a 
water-course* 



The date of the tres- 
pass. 



39. — For compensation for Three years 
trespass upon immove 
able property. 
(a) (No. 43, Act IX.) Every entry upon another's what is tres- 

. . , . , . . ,, . pass upon im- 

lands (unless by the owner s leave, or in some very parti- moveable pro- 
cular cases), is an injury or wrong, for satisfaction of 
which an action will lie to recover such damages as a 
jury may think proper to assess ; and this injury is called 
trespass quare clausum fregid. (Stephen's Commentaries, 

(1) 3 M. fl. C. E., 111. I (3) 4 W. E., 107. 

(2) 6 M. H. C. R., 6. | (4) Mitra's Limitation Act, p. 564. 

45 



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354 



THE 8ICOND SCHEDULE, FIR8T DIVISION — SUITS. [AST. 40 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

Vol. Ill, page 523.) A man is answerable not only for 
his own trespass, but for that of his cattle also : for if by 
his negligent keeping, they stray upon the land of another 
(and much more if he permits or drives them on), and 
they there tread down his neighbour's herbage, or spoil 
his corn or his trees, this is a trespass for which the 
owner must answer in damages. (Stephen's Commen- 
taries, Vol. Ill, page 525.) 

(b) In Nara8imma v. Ragupathy,* 1 * plaintiff sued on 
9th February, 1880, for compensation for loss of crops 
caused by the defendant's taking possession of his well in 
January, 1877. The District Judge on appeal dismissed 
the suit on the ground that time began to run against 
the plaintiff from January, 1877, and that the claim was 
barred by Articles 36, 37, 39 or 40. It was held that the 
seizure of » well seizure of a well was a trespass on immoveable property, 
and contEmed that it continued to be a trespass until the possession of 
the trespasser came to an end, that the limitation for suits 
for compensation is three years, and that for any damage 
which accrued within three years before the date of the 
suit, the defendant would be liable. 



Suit for dam- 
age from seisure 
of a well fall* 
under (hit Arti- 
cle. 



as each till tres- 
passer's posses- 
sion came to an 
end. 



Three years. 



The date of the 
fringement. 



m- 



40. — For compensation for. in- 
fringing copyright or 
any other exclusive pri- 
vilege. 

This Article is a reproduction of Article 11 of Act IX of 
1871, with the alteration of the word "damage" into 
" compensation.' ' 

(a) In Kinmond v. Jackson/ 2 ) plaintiff sued for an 
injunction to restrain the defendant from infringing an 
invention of the plaintiff for the rolling of tea leaf, and 
also for an account of the profits made by the defendant 
or for damages. On the defendant's objection that the 
(1) 1. L. R., 6 Mad., 176. | (2) I. L. R., 3 Calc, 17. 



Suit for dam- 
ages for, or for 
an account 
of profits ob- 
tained by in- 
fringement of 
exclusive privi- 
lege held to fall 
under Artiole 
11 of Act IX of 
1871. 



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ART. 41] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 855 



Description of emit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

plaintiff was not entitled both to damages and account, the 
plaintiff elected to have an account of the profits. The 
question was, for how many years before suit the account 
is to be taken. The plaintiff contended that his claim 
was governed by Article 118 of Act IX of 1871, corres- 
ponding to 120 of the Act of 1859. Section 16 of the 
Indian Copyright Act XX of 1847, provided that "all 
actions, suits, bills, indictments, informations, for any 
offence against the Act, shall be brought, sued, and com* 
menced within 12 calendar months next after such offence 
committed." This section was repealed by the Indian 
Limitation Act IX of 1871 to the extent of the words 
" actions, suits, and bills," and the limitation prescribed 
by that section for "actions, suits, and bills" was re- 
enacted by Article 11. It is observed that the words of 
Act IX of 1871, ought to be read as meaning generally, 
every Civil Suit seeking a remedy for infringement. Sec- 
tion 22 of the Patent Act XV of 1859, provides for an 
action for infringement of any exclusive privilege granted 
under the Act. The term " an action" used in the section 
includes every form of suit whether for damages or for an 
account of profits* This Article embraces any suit or 
action brought under section 22 of Act XY of 1859, and it 
would appear that there was no intention of drawing any 
distinction between a suit framed as one for damages and 
one for an account, which is only a mode of ascertaining 
the amount of damages. In this case it was held that the 
plaintiff was entitled to an account for the profits of one 
year only from the date of the filing of the plaint. 

41. — To restrain waste. Three years..! When the waste be- 

I gins. 
Illustrations M & N under section 54 of Act I of 1877, 
give instances of suits to restrain waste by Hindu Widows 
and undivided co-parceners. 



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356 



TH8 SECOND 8CHIDULI, FIE8T D1YI8IOM — SU1T8. [ABT. 42—48 



Description of rail. 



Period of 
limitation. 



Time from which period 
begins to mn. 



Part VI. 
Three years. 



When the injunction 
ceases. 



for injury 
canted to move- 
able property 
while under at- 
tachment held 
to fall under 
thii Article. 



42. — For compensation for in- 
jury caused by an in- 
junction wrongfully 
obtained. 

(a) (No. 86, Act IX.) Section 497 of the Civil Pro- 
cedure Code of 1882, provides for the award of compen- 
sation to defendant for issue of an ad interim injunction 
obtained on insufficient grounds and bars any suit for 
compensation in respect of the issue of such injunction. 
Suit for damage (J)) "Plaintiffs sued to recover damages for injury 
caused to certain moveable property while under attach- 
ment. After defendant had attached the property, plain- 
tiffs, on July 3rd, 1878, obtained an order removing the 
attachment under section 280 of the Civil Procedure 
Code. Defendant then brought a suit under section 283 
to maintain the attachment ; whereupon, on the 26th July, 
the court issued an injunction maintaining the attach- 
ment till the Civil Suit was decided. That suit was 
decided against defendant on the 13th November, 1878, 
and on the 25th August, 1879, plaintiff brought the pre- 
sent suit. Held, that Article 42 of this schedule and not 
Article 29 was the provision applicable to the suit, which 
was accordingly within limitation. Haji Pir Muhammad 
v. Thakur Dase, (Punj. Rec., No. 40 of 1881.)"U> 

43.— Under the Indian Sue- Three years. . The date of the pay- 
cession Act 1865, sec. ment or distribu- 
320 or 821 or under the tion. 
Probate and Adminis- 
tration Act, 1881, sec. 
139 or 140, to compel a 
refund by person to 
whom an executor or 
administrator has paid 
a legacy or distributed 
assets. 

As amended by Act V of 1881, section 156. 

(1) Biraz's Limitation Act XV of 1677, p. 104. 



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ART. 44] THE BKCOND SCHKDOLK, FIRST DIVISION — SUITS. 



857 



Description of suit. 



Period«of 
limitation. 



Time from which period 
begins to run. 



44. — By a ward who has at- 
tained majority, to set 
aside a sale by his 
guardian. 



Part VI. 
Three years. 



When the ward at- 
tains majority. 



This Article is new. Canse of action does not accrue to 
the minor daring his minority, because an alienation of a 
ward's property by the guardian or manager is not void 
ab initio, but voidable by the ward on attaining majority. 

(a) In Prosonna Nath Roy Chowdry, v. Afzolonnessa 
Begum, (1 > a Hindu died in 1844, leaving a widow and a 
minor son. In 1847, the widow granted to the defendant 
a Mourasi Izara of certain property, but it did not appear 
whether she so acted as guardian or mother of the minor 
son. The minor son died in 1855 before attaining ma- 
jority, and under an Anumathi patro executed by*the 
deceased father before his death, the plaintiff was adopted 
in 1858. The widow died in 1861. The plaintiff brought 
the suit in 1873, to set aside the alienation made by the 
widow in 1847. It was held that if the alienation was 
made by the widow as guardian of the minor son, the suit 
was not barrel, it having been brought within three years 
after the plaintiff attained his majority ; and that if it 
were made by her as a Hind a widow the suit was still 
not barred, the cause of action not arising until her death 
when the plaintiff was minor. 

(b) In Ramansar Pandey v. Baghubar Jati,W plain- 
tiff sued to set aside a mortgage by conditional sale, of 
certain immoveable property belonging to him made on 
his behalf by his mother during his minority in October, 
1865, and for possession of. the property. The plaintiff 
attained his majority in November, 1878. It was held 
that the suit was governed by Article 142 and not by 44 
or 91. 

(1) I. L. »., 4 Calc, 528. | (2) I. L. B., 6 AH., 496. 



Suit filed in 
1878 by a son 
adopted in 1868 
after natural 
son's death 
while a minor, 
to cancel alien- 
ation made by 
widowed 
mother in 1847, 
held not barred. 



Suit for proper- 
ty sold by plain- 
tiffs guardian is 
not governed by 
this Article. 



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858 



TH« SECOND SCHEDULE, PIEST DIVI8I0N 8UIT8. [ART. 45 





• 


Period of 


Time from which period 




Description of suit. 


limitation. 


begins to ran. 






Paet VI. 




45.- 


—To contest an award un- 


Three years.. 


The date of the final 




der any of the follow- 




award or order in 




ing Regulations of the 




the case. 




Bengal Code : — 
VII of 1822, 














IX of 1825, and 








IX of 1838. 







(a) (No. 44, Act IX ; sec. 1, cl. 6, Act XIV.) The 
Regulations referred to in this and the following Article 
relate to the settlement of lands, Ac., and empower the 
Revenue authorities to take judicial cognizance of certain 
claims and disputes respecting lands, Ac. 

(b) Before Act XIV of 1859, Act XIII of 1848 con- 
tained special limitation, and it was held in Pnreeag 
Singh v. Shib Ram Chunder Mundul/ 1 ) that the limita- 
tion did not apply to a suit brought by an auction 
purchaser to set aside an award made by the survey 
authorities. 

A person (o) In Mohima Chunder Chuckerbutty v. Raj Coomar 

bound or not by Chuckerbutty/ 2 ) Peacock, C. J., observes, " the plaintiff is 
sue to rectify it not entitled to ask to have the thakbust maps rectified in 
three yean af- a suit commenced more than three years after the date of 
the award, whether he is legally bound by the award or 
not. If the award was a nullity, and the map was recti- 
fied by virtue of that award, plaintiff cannot ask us to 
rectify an award which he says was a nullity. The 
award was de facto, made under Regulation IX of 1825, 
and a suit to contest an award or a map made under it is 
barred unless brought within three years." In Rajah 
Saheb Perhlad v. Rajendro Kishore Singh,W the Privy 
Council observe : " they are not prepared to say that the 
thakbust proceeding of the 11th of February, 1848, may 
not be an award under Regulation IX of 1825 within the 
meaning of the Act." 

(1) 3 W. R., 166. | (2) 10 W. R., 22. | (3) 12 W. R. P. C, 18. 



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ART. 45] THB SECOND SCHEDULE, FIRST DIVISION SUITS. 359 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

(d) Where a Collector, acting in exercise of his Collector's ad- 
powers under section 20 of Regulation YII of 1822, has der afctkm ^of 
adjudicated upon a claim to proprietary rights of land in of *882 upon a 
a Khana Khali estate, such adjudication is, as between prietary lights 
the parties contesting between themselves before the award within 
Collector, an award by the Collector within the meaning i, of Actxrvof 
of Act XIII of 1848, or Act XIV of 1859, section 1, 44 of Act ixo? 
clause 6, (re-enacted in this Article and the corresponding 

one of Act IX of 1871) and becomes conclusive between 
such parties, unless mthin the period of three years pre- 
scribed by the above enactments, a suit is instituted in 
the Civil Courts in order to contest the justice of such 
award or to recover any property comprised therein. But But a CoUect- 

_ . or*s declaration 

a declaration by the Collector, proprto motu that a farmer proprio mot* 
is proprietor, and an order, that he be so registered, or an proprietor and 
order declining to investigate a claim is not an award, tered is not an 
which, unless contested, becomes final. Lutf Ali v. Khush- 
wakt Rai (Punj. Rec. 41 of 1881.) 0) 

(e) The finding of a Survey Deputy Collector, that a An award snp- 
party has been in possession of a certain land for more tion between 
than a year, where the fact is not disputed is not a sum. ciaion after in. 
mary award under Regulation YII of 1822. An award points at issue. 
supposes a contention between parties, and.a decision after 

proper investigation into the points at issue. The adjudi- 
cation by Revenue authorities of the boundaries of two 
districts is not an effectual settlement of the question of . 
jurisdiction which must be tried by the Civil Court itself 
under section 14 of the Code of Civil Procedure. Radha 
Pershad Singh v. Ram Jeewun Singh. ( 2 > In Hur Lai 
Roy v. Sooruj Narain Roy.O It was held that a co-pro- 
prietor of a joint undivided estate is bound by a survey 
award and compromise to which the other joint pro- 

(1) Rivaz's Limitation Act, p. 107. | (2) 11 W. R., 389. 

(3) 3 W. R., 7. 



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360 THE 8ECOND SCHEDULE, FIH8T DIVISION — SXIiT8. [ART. 45 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

prietors were parties, where notice of the survey-proceed- 
ings was served on the proprietors jointly and not on 
him individually. 
Settlement (f) In Bhaoni v. Maharaj Singh/ 1 ) a Hindu died in 

posaiontheevi- 1860, leaving two, widows, a mother and a son, by a 
by hi* assistant, woman married by Gandharf form of marriage. When 
under Kerala- the senior widow who held the registry of a village died 
in 1871, the Settlement Officer, on the claims of the junior 
widow, mother and son, held on the evidence recorded by 
the assistant Settlement Officer that the claimants held 
joint possession of the right and directed that the name 
of each be registered for one-third. In 1673, the mother 
died and her registry was transferred to the son's name.. 
In 1879, the juuior widow sued the son for possession for 
the one-third given him by the Settlement Officer and for 
the mother's one-third, alleging that he was not the legiti- 
mate son of her husband. It was held that the suit was 
not barred by limitation as the proceeding of the Settle- 
ment Officer was not an award under Regulation VII of 
1822, and decreed the plaintiff's claim with costs. 
This Article is (g) At the framing of a record of rights, a dispute 
toa decision of arose between the appellant and the respondent as to 
Settlement ° whose name should be recorded in respect of certain land, 
Act xix of 1873. of which both parties claimed to be in proprietary pos- 
session. On the 8th June, 1876, the Settlement Officer 
ordered that the respondent's name should be entered in 
respect of such land. The dispute was subsequently re- 
opened, and on the 3rd Jane, 1879, the then Settlement 
Officer ordered that the record of rights should be amended 
and the appellant's name should be recorded in respect 
of the land. Thereupon the respondent brought the 
present suit against the appellant for possession of such 

(1) I. L. R., 3 All., 738. 



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AST. 46] THB SXCOMD 6CHBDULJ, FIRST DIVISION — SUITS. 



361 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part VL 
Three years 

land, asking that the order of 8th June, 1876, might be 
affirmed, and that of the 3rd June, 1879, cancelled. The 
suit was instituted on the 28th July, 1879. The Lower 
Courts gave respondent a decree, holding that the order 
of 8th June, 1876, not having been set aside by a suit for 
that purpose within three years, had finally settled the 
dispute between the parties. Held, by the High Court, 
that the decision of the Settlement Officer on a question 
of title such as was raised in this suit, was not final, nor 
was there any limitation in Act XV of 1877 for a suit to 
contest orders such as that of the 8th June, 1876, made 
under Act XIX of 1873. Ibrahim AH v. Hadi Ali.W 

Three years 



The date of the final 
award or order in 
the case. 



46. — By a party bound by 
such award to recover 
any property compris- 
ed therein. 

(a) (No. 45, Act IX ; sec. 1, clause 6, Act XIV.) In Purchaser at 

Pureeag Singh v. Shib Ham Chunder Mundul/ 2 ) it was not being legal 
held that a suit to set aside an award made by the Survey of any of the 
authorities is not barred by Act XIII of 1848, when the award* is not* 
plaintiff was no party to that award but is an auction- award. y 
purchaser at a sale for arrears of Government Revenue 
subsequent to the award. 

Ob) In Mohima Chunder Chuckerbutty c. Raj Coomar Suit by person 
Chuckerbutty/ 3 ) it was held that a suit to recover any for confirmation 
property comprised in an award must be brought within suit for pro- 
three years from the date of the award ; but a suit by a y " 
person in possession to have his title confirmed is not a 
suit to recover property. Peacock, C. J., observes: "We 
think that a person who remains in possession for three 
years and upwards after the making of a revenue award 
is not barred by clause 6 from maintaining a suit to con- 



(1) 1 Weekly Notes, 19. | 

(3) 10 W. R M 

46 



(2) 8W. R., 165. 



22. 



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362 THI 8ECOSD SCHEDULE, FIEST DIT18ICWI — BUTTS. [AST. 46 



Descr i p ti on of suit. 



Mod of 
limitation. 



Time froB which period 
i to J 



PabtVL 
Three years. 

firm his title. Such an award could not by virtue of 
section 22 of the Act be executed by turning him out of 
possession." The award and the map do not determine 
the title of the parties, nor are they evidence of title. 

Plaintiff ditpos- (c) In Mozuffur Ali v. Grish Chunder Doss,* 1 ) it was 

•ward, ening held that where a plaintiff sued not only for the cancel- 

h* 'twere "* ment of a survey award, but also to be restored to 

jm *** possession of land from which he had been subsequently 

dispossessed, his suit was held not to be barred because 

not brought within three years of the award, the latter 

claim being a different cause of action, to be governed by 

the limitation of 12 years in clause 12, section 1, Act XTV 

of 1859. 

But » rait for (d) Where a Settlement Officer by a certain proceed- 

SroagS* three ing, recognized the plaintiffs' right to the property in suit, 

award without and declaring them not to be clearly shown to be out of 

•eMta? sSeeT^ possession of it, ordered their names to be recorded in the 

JJ beU bar * proprietary register, and the plaintiffs subsequently 

brought a suit for establishment and declaration of right 

to partition and possession of the property, it was held, that 

the proceeding of the Settlement Officer was undoubtedly 

an award under Regulation VII of 1822, and that as the 

plaintiffs sued for possession and did not allege that they 

had been dispossessed since the award, thus raising the 

presumption that they were not in possession at the time, 

and as their suit was in substance and effect, a suit to 

recover property comprised in an award, it was barred by 

limitation not having been instituted within three years. 

Onneshee Lall v. Mussumat Tekum Kooer.W 

Limitation does (q) In Kristo Chunder Sundyal v. Kashee Kishore 

as long as plain- Roy Chowdhry,( 8 > Markby, J., observes : "Moreover, I 

tiff's claim i* J j> j> > > 

recognised by _ _ 

temporary act- (1) 10 W. R., 71. | (2) 5 N.-W. P. H. C. B., 78. 

tton » nt - (3) 17 W. B., 146. 



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AKT. 46] THE 8IC0ND SCHEDULE, FIRST DIVISION — SUITS. 363 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

think, there is authority, which we ought not now to 
dispute, for holding that this right is not barred by lapse 
of time so long as it is formally and distinctly recognized 
by the Revenue authorities when making the temporary 
settlements. No doubt such temporary settlements inter- 
fere in some measure with the full enjoyments of the 
Zemindar's rights, but both here and in the courts of the 
North- Western Provinces : (See Thomson, ubi supra), it 
has been held that the period of limitation which bars 
the claim to a settlement does not begin to run so long 
as the proprietary right of the Zemindar is recognised, 
and no permanent settlement is made with any other 
person, and it seems to me sufficient in this case to say 
that we ought to follow the rule which has been so long 
acted on." The payment of malikana is not the only Mode of reoog- 
method in which a proprietary right can be recognized, ?f the malik? 
But the keeping of the malikana in deposit, as in this 
case, for the benefit of the recorded proprietors gene- 
rally, is a sufficient recognition of a sharer's proprietary 
right. 

(f) Zemindari rights are not extinguished, but are Possession be- 
only in abeyance during periods of temporary settlement ; from the date of 

. - permanent set- 

and possession under a permanent settlement is adverse tiement. 

from the date on which the permanent settlement is 

made. Where malikana is in deposit with the Collector proprietor fail- 

m j . « . ■ i_ ing to claim for 

on behalf of proprietors who have refused settlement, the is years maii- 

, ., . .-ii. .. .* ., , , kana in deposit, 

proprietors lose their right to recover it if tney do not loses right. 
claim it for more than twelve years. Kristo Chunder 
Sandel Chowdhry v. Shama Soonduree Debia Chowdh- 
rain/ 1 ). 

(*) Clause 6, section 1, Act XIV of 1859, provides settlement of 

. , • , * j j j.t_ the estate will 

that possessory titles by virtue of awards under the not give the per- 

r * son obtaining 

the settlement 
(1) 22 W. E., 620. 



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364 THB SECOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 445 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

the right lost by Regulations there mentioned, shall become final unless 

limitation. ° 

questioned within three years. But that will not enable 
a person to come in within three years after the date of 
such award and recover possession of lands in respect of 
which his suit has been barred by the other provisions of 
the law of limitation. Beer Chunder Joobraj v. Ram 
Gutty Dutt.M Parties claiming as heirs of property sold 
without their consent, held by the purchaser in adverse 
possession, are bound to appear and press their title 
within the period prescribed by law : the mere fact that 
by some proceedings of the Settlement Officers they 
obtained a settlement of the estate, cannot give them a 
right which they bave lost by limitation. Moula Buksh 
Khan v. Koshoram Pandey.< 8) 

Coiiectortaking (h) But that, in any event, inasmuch as in the year 
party whose 1886, the Collector refused to recognise B*8 right to the 

claim he recoff- , .. _ - . 

nisedwiiibead- mahkana and adverse possession, so far as possession 
whose claim he could be taken of such an interest in immoveable property, 
was then taken by A, or in other words, by E, because it 
must be taken that the Collector since that date had been 
holding for A, whose right he had then recognised, after 
refusing to recognise the right claimed by B, the present 
suit having been instituted in 1880, was equally barred 
whichever of the above Articles was held to apply. 
Gopi Nath Chobey v. Bhugwat Pershad.( 3 > 
Adult co-shar- (j.) Where one co-sharer managed the property, and in 

er's possession -i»i»»#i* 

after temporary the absence or during the minority of the other co-sharer, 

settlement in . 

his name during obtained from the Collector a temporary settlement in his 

minority of the * * 

other co-sharer, own name of chur lands, accreting to the parent estate, it 
is not adverse ,° r 

to the latter. was held that the latter was entitled to participate in the 
temporary settlement, and that the possession of the 

(1) 8W.R., 209. | (2) 10 W. R., 249. 

(3) I. L. R., 10 Calc., 697. 



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ART. 47] THB SECOND SCHEDULE, FIRST DIVISION — SUITS. 



865 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

former tinder that settlement was not adverse to the 
latter. Bissessuree Dossee v. Kalee Koomar Roy/ 1 ) 

(j) Where an award hy a Survey Depnty Collector, 
confirmed hy the Superintendent of Survey, is appealed 
successively to the Commissioner and the Board of Reve- 
nue, both of whom declined to go into the merits of the 
case, a suit to contest the justice of the award and obtain 
a declaration of title may be brought within three years, 
(clause 6, section 1, Act XIV of 1859), from the date, not 
of the Deputy Collector's award, but of the order of the 
Board of Revenue. The fact that the Board summarily 
dismissed the appeal without entering into the merits of 
the case, does not make it the less a final order. Kishen 
Chunder Dass v. Mahomed AfzuL< 2 > 

(k) Where a survey award relates to lands belonging 
to parties whose rights and interests are distinct and 
separate, and one of the parties appeals against the 
award, limitation runs against the other party, not from 
the date of such appeal, but from the date of the survey 
award. Toolsee Ram Doss v. Mahomed Afzul.G) 



Limitation runs 
from the date 
of the final or- 
der in appeal 
though it was 
dismissed with- 
out investiga- 
tion into the 
merits. 



Where one of 
two parties 
whose interests 
are distinct ap- 
peals, limitation 
runs against the 
other from the 
date of the 
award. 



47. — By any person bound 
by an order respecting 
the possession of pro- 
perty made under the 
Code of Criminal Pro- 
cedure, Chapter XL, 
or the Bombay M&m- 
latd&rs' Courts Act, or 
by any one claiming 
under such person, to 
recover the property 
comprised in such or- 
der. 



Three years.. 



The date of the final 
order in the case. 



(1) 18 W. R., 198. I (2) 10 W. R., 51. 

(3) 10 W. R., 48. 



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366 THl SICOND 8CH2DULI, FIB8T DIVISION — 8UIT8. [ART. 47 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



it conclusive. 



Part VI. 
Three years. 

(a) (No. 46, Act IX ; section 1, clause 7, Act XIV.) 
Section 3 of Act X of 1882, expressly enacts that refer- 
ences in former Acts to the old Code shall be read as 
applying to the corresponding parts of the new Code and 
consequently orders passed under chapter 12 of the Crimi- 
nal Procedure Code of 1882 are governed by this Article. 
Magistrate's (ft) In Lillu Bin Baghushet v. Annaji Parashram/ 1 ) 

possession un- it was held, a Mamlatdar's finding as to the point of 

oer section MO ... ,.. , , 

of Act x of 1873 actual possession is not conclusive m any subsequent suit, 
as the Bombay Act V of 1864 contains express provi- 
sion to that effect. But a Magistrate's finding is conclu- 
sive as to possession under section 530 of Act X of 1872. 
Possession actually taken by a person having a right to 
it, is not the less effective, as perfecting his title by reason 
of an irregularity in taking it. Subsequent ouster will 
give rise to a new cause of action. West, J., observes, *• the 
general principle is that, a man who acquires possession 
is remitted, as it is said, — that is, he may rely for the 
support of his possession on any still subsisting title 
vested in him, and for which a legal remedy is still open 
to him (Coke Lit., 349-a.) Brassington v. Llewellyn, 
(27 L. J. Ex. 297.) Of two persons entering simultane- 
ously, the English Law assigns possession to him that has 
the right, by a rule identical in substance with that of 
the Hindu Law on the same subject, (Perkin's Prof. Bk. 
213, Narada 1 ; 4 ; 12, 13.) Consistently with this, a per- 
son having a right to possession may enter peaceably, and 
may then maintain the possession thus acquired. Taylor 
v. Cole, (1 S. L. C, 6th ed., 115, so also Brinsmead v. Har- 
rison, L. R. 7, C. P., 547. Ez-parte Drake, L. R., W. N. 
for 1877, p. 119.) This, as Lord Kenyon said, * will not 
break in upon any rule of law respecting the mode of 

(1) I. L. R., 5 Bom., 887. 

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ART. 47] THE 8EC0ND SCHEDULE, WEST DIVISION — SUITS. 367 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

obtaining the possession of lands.' (See 3 T. R., at 
p. 295.) If there is a breach of the peace in attempting 
to take possession, that affords a ground for a criminal 
prosecution, and, if the attempt is successful, for a sum- 
mary suit also for a restoration to possession under 
section 9 of the Specific Belief Act I of 1877— Dadabhai 
Narsidas t;. The Sub-Collector of Broach, (7 Bom., H. C. 
Rep. 82, A. C J. ;) but an unlawful act in entering, does 
not make the owner a trespasser ab initio, (1 Hilliard on 
Torts, p. 600. See 1 and '2 Vic, C. 74, section 6. That 
a landlord entering by force is answerable for an injury 
to the tenant's property. See Beddall v. Maitland, L. R., 
W. N. for 1881, p. 43 ;) the law will still annex the right 
to the possession." 

(C) Certain chur lands which had been submerged This article can 
having reformed, were claimed by a number of parties, tween parties 
In a proceeding under section 318 of Act XXV of 1861, Zonh^beni 
the Magistrate, in January, 1871 , directed possession to the Magistrate. 
be given to certain persons known as the Roys, In 1872, apply in favour 
the present defendants instituted a suit against the Roys parties who 
to set aside the order of the Magistrate, and on the 16th oSstsby suit 
December, 1873, obtained a decree in the High Court, wbosTposses- 

i>inTi was so 

under which possession was given on the 10th July, 1874. oonflrmed. 
In 1874, more than three years after the Magistrate's 
order, the plaintiffs instituted two suits against the Roys, 
and the defendants, for possession of the lands, made over 
to the latter under the decree of 1873. It was held that 
these suits were not barred by limitation under Article 46, 
schedule 2 of the Limitation Act IX of 1871. That 
Article can only apply between the parties whose posses- 
sion has been confirmed by the Magistrate, and each one 
of the parties to that proceeding who claimed against 
them. It does not apply in favour of one of the parties 
who has subsequently succeeded by regular suit in 



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368 THE 8IC0HD 8CHCDULI, FIR8T DIYI8I0H — 6UIT8. [AST. 47 



Description of fait. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

ousting the parties put in possession by the Magistrate. 

Aukhil Chnnder Ghowdhiy «. Mirza Delewar HosseinJ 1 ) 

Verbal order is (<J.) A verbal order alleged to have been passed by 

not one falling 

within this the Magistrate is not an order within the meaning of this 

Article. ,-*«- , , ^ r** /w» w«* 

clause ; (Mahomed v. (xunga, 2 Agra, 26. )W 
b. h. held that (6) In Bhaguji v. Aniaba and others/ 3 ) plaintiff sued, 
order under in 1876, to establish his right to and recover a fourth 
of°i8M, y does not share of certain property alleged to be ancestral He 
tionsuit. * stated his cause of action to have accrued on the 17th 
May, 1871, on which day he had been dispossessed by an 
order by the Mamlatdar, made under Bombay Act Y of 
J 864. The District Judge held, that the suit was barred 
by Article 46 of Act IX 1871, schedule 2. It was held 
that the Mamlatdar's order does not interfere with a 
partition suit such as this, which is not a suit to recover 
property within the meaning of this Article. This deci- 
sion was followed in Shivaram v. Narayan and others.^) 
A Mamltadar's order is not conclusive evidence of posses- 
sion and dispossession ; Basapa v. Lakshmapa.(*> 
Magistrate's (f) Chapter XXI of Act XXV of 1861 corresponds to 

and ptSngE Chapter XII of Act X of 1882. 

Migrate pro- In Ak Jlanda mma l v. Periasami Pillai,(*> the plaintiff's 
Civif Court de- deceased husband and the defendant were sons of brothers, 
does not faifun- The former died in 1871, and a dispute arose between the 
plaintiff and defendant as to the property in question. 
The Joint Magistrate, hearing of this dispute, held an 
inquiry under the provisions of chapter 22 of Act XXV 
of 1861, and finding himself unable to decide which party 
was in actual possession of the property, placed them in 
charge of the Sub-Magistrate under an order of 27th May, 
1871. It was held that this was not an order respecting 



g 



6 Calo. L. R., 93. I (4) I. L. R., 5 Bom., 27. 

Mitra's Limitation Act, p. 669. (5) I. L. R., 1 Bom., 624. 

(3) L L. R., 6 Bom., 25. | (6) I. L. R., 1 Mad. 309. 



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ART. 48] THB SBCOND SCHIDULI, FIRST DIVISION — SUITS. 



369 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Warning a 
party not to go 



Part VI. 
Three years. 

"the possession of property," but an attachment proceeding 
recorded, because the Magistrate was unable to determine 
which party was in possession. In Durga v. Mangal/ 1 ) 
a Magistrate, in the matter of a dispute as to a bathing near a .^ajni 
place, bound the parties to recognizance and directed the tochment under 
Tahsildar to warn them not to go near it till Civil Court had 
settled the quarrel. It was held that the order to the 
Tahsildar was not an attachment contemplated by the 
Criminal Procedure Code. 

(g) In Kangali Churn Sha v. Zomur Budonissa Limitation runs 
Khatoonf*) the plaintiff, as purchaser in auction held in theMagiatrate's 
1871, sued for possession on the 1st March, 1879. In from that "of 
1875, the defendant, who claimed possession, was directed refusing to refer 
by the Magistrate on the 30th June, 1875, to be retained the High Court. 
in possession, and the plaintiff's petition to the Sessions 
Judge to Jiave the matter referred for the orders of the 
High Court was rejected on the 5th April, 1876. It was 
held that the suit must be brought within 3 years from the 
date of the Magistrate's order and not from the date of the This Article re- 
order of the Sessions Court. It was further held that this able as'roii'as 
Article refers to immoveable as well as moveable property, property. 



When the person hav- 
ing the right to the 
possession . of the 
property first learns 
in whose possession 
it is. 



48. — For specific moveable Three years, 
property lost, or ac- 
quired by theft, or 
dishonest misappropri- 
ation or conversion, or 
for compensation for 
wrongfully taking or 
detaining the same. 

(a) (Nos. 47 and 48, of Act IX; sec. 1, cl. 2, Act XIV.) standing crops 

In Pandah Gazi v. Gennuddi, (3 > it was held, that standing property, but 

crops are not moveable property, but immoveable property may n be U treat2 

within the meaning of the Limitation Act. 

(1) 7 N.-W. P. H. C. R., 35. | (2) I. L. E., 6 Cal., 709. 
(3) I. L. R., 4 Calc, 665. 



as moveable. 
(July 1878.) 



47 



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370 



THB SECOND SCHEDULE, MB8T DIVISION — 8UIM. [ABT. 49 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



8 aits for money 
entrusted to the 
defendant and 
misappropri- 
ated by him, fall 
under this Ar- 
ticle. 



Bait for pro- 
ceeds in the de- 
fendant's hands 
as agent of his 
deceased prin- 
cipal, against 
whom a decree 
had been made 
for conversion 
of goods, falls 
neither under 
this Article nor 
Article 60; bat 
under Article 
118. 



Part VI. 
Three years. 

(b) In Rameshar Chaubey v. Matabhikh,* 1 ) plaintiff 
sued the defendant for a certain sum of money, on the 
ground that he had given it to him to deliver to his 
family, and that the defendant had not done so, and that 
when the fact became known to him and he demanded the 
money, the defendant denied having received it. It was 
held that the suit was governed by this Article, and that the 
time from which the limitation began to run was when 
plaintiff first learned that defendant had retained the 
money. 

(C) The defendant, as an agent, sold goods entrusted 
to him by his principal, who died after a decree had been ob- 
tained against him for their conversion ; and, as agent for 
the representative of the deceased, retained the proceeds 
which the decree-holder had an equitable right to follow 
in the agent's hands. It was held that neither Article 
48 of schedule 2 of Act IX of 1871, fixing the limitation 
of three years to suits for moveable property acquired by 
dishonest misappropriation or conversion, nor Article 60 
of the same schedule, fixing the limitation of three years 
to suits for money payable by the defendant to the plain- 
tiff and to suits for money received to the plaintiff's use 
were applicable to this suit ; but that, as a suit for which 
no period of limitation was provided elsewhere, it fell 
within Article 118 of the same schedule, fixing for such 
suits the limitation of six years. Gurudas Pyne v. Ram 
Narain Sahu.W 



49. — For other specific move- 
able property, or for 
compensation for 
wrongfully taking or 
injuring or wrongfully 
detaining the same. 

(1) I. L. E., 5 All., 341. 



Three years. 



When the property is 
wrongfully taken or 
injured, or when 
the detainer's pos- 
session becomes un- 
lawful. 

(2) I. L. R., 10 Calc, 860. 



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ART. 49] THE SECOND SCHEDULE, PIEST DIVISION — SUITS. 371 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



Part VI. 
Three years. 

(a) In Mudvirapa Kulkarni v. Fakirapa Kenardi.W This Article is 

... intended toap- 

West, J., observes, that this Article is intended to apply to ply. to cases of 

cases of detinue. Articles 123, 126 and 127, allowing 

a period of 12 years, apply to certain suits in respect of Articles 123. 

moveable or immoveable property. Article 133 pre- and lie'. 

scribes a period of 12 years for suits for the recovery 

of moveable property sold by a trustee, depository or 

pawnee. Article 145 allows a period of thirty years for 

the recovery of moveable property from the depository 

or pawnee himself. 

(b) A testator bequeathed certain specific moveable Suit for sped- 
property to A, B applied for and obtained a certificate property be- 
under Act XXVII of 1860, on behalf of the testator's plaintiff's ven- 
widow and took possession of the property bequeathed. District judge 
A appealed, and the case was remanded for re-trial. On surrender by 
the 27th of March, 1873, the District Judge cancelled the had obtained a 
former order and granted a certificate to A, and on the under this Arti- 
19th August, 1873, B was directed to deliver up the 

property to -4, or his vendee 0, who had purchased it 
from 4. On the 22nd of March, 1878, instituted a 
suit to recover the property. It was held that the suit 
was barred under this Article. Issur Chunder Doss v. 
Juggut Chunder Shaha.< 2 ) 

(c) In Dhondiba Krishnaji Patel v. Bamchandra suit for move- 
Bhagvat,< 8 > A entered into an agreement with B for the In 1* decree for 
purchase of moveable and immoveable property and made S^ceoFan ag- 
a deposit. B } however, conveyed the property in question them^nd^some 
to and put him in possession. A brought a suit for withFarSm/if" 
specific performance against B and and obtained a threejeara 
decree and a conveyance executed by the court upon 

B declining to obey the decree. The physical possession 
of the properties not having passed to -4, he brought 

(1) I. L. R., 7 Bom., 427. | (2) I. L. R., 9 Calc, 79. 
(3) I. L. R., 5 Bom., 554. 



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372 



THE SKCOND SCHEDULE, FIRST DIVISION — SUITS. [ART. 50 — 51 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part VI. 
Three years. 

this suit within three years from the date of the said 
decree to recover from C the properties in question. 
For the defendant, it was contended that the starting 
point of limitation, being the original cause of action, 
namely, the breach of contract, the suit as to moveable 
property is barred, though that as to immoveable property 
is not, being within 12 years from the date of the breach 
of coutract. It was held that according to section 85 of 
the Indian Contract Act the ownership in moveable 
property not passing before that in immoveable property 
passes, and as the right to possession of the immoveable 
property accrued at the earliest on the date of the final 
decree for specific performance, the starting point of 
limitation under Article 49, schedule 2, of Act XV of 
1877, was the date of the said decree. 



Three years.. 



When the hire be- 
comes payable. 



50. — For the hire of animals, 
vehicles, boats or 
household furniture. 

(No. 49, Act IX ; sec. 1, cl. 8, Act XIV.) This Article 
refers to the hire of certain things for use while Article 
56 refers to the price of work done by plaintiff. 



51.- 



Balance. 



When the goods ought 
to be delivered. 



" Money" in- 
cludes any cur- 
rency usually 
employed in 
selling and buy* 
ing as the 
equivalent of 
money. 



For the balance of money Three years . . 
advanced in payment 
of goods to be delivered. 

(a) (No. 50, Act IX.) Balance is that which expresses 
the difference between the debtor and creditor sides 
of an account ; also used commercially to express the 
difference between the value of the exports from and im- 
ports into a country. — Wharton. 

(b) Money means, (1) coin ; stamped metal ; pieces of 
metal, usually gold, silver, or copper stamped by public 
authority, and used as the medium of commerce. (2) Hence, 
any currency usually and lawfully employed in buying" 
and selling as the equivalent of money, as bank-notes and 



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ART. 51] THE SECOND SCHEDULE, FIRST DIVISION — SUITS. 373 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part VI. 
Three years. 

the like. — Webster, "Money" is the name given to the 
commodity adopted to serve as the merchandise bennale, 
or universal equivalent of all other commodities, and for 
which individuals readily exchange their surplus pro- 
ducts or services. — Brande. Even provincial notes if re- 
ceived as money, are money, but stocks are not money. 
(Rosco's Digest, 543.) 

(c) On reference by the Board of Revenue, N.-W. Money also in- 

eludes any pa- 

P.W Stuart, C. J., observes : " There was a good deal of per, obligation 

' ' ° or security 

discussion at the hearing as to what " money" legally cerfca b * ly i *J n " 
meant, that is, what is included in the word, and it cash, 
seemed to be thought that in law, money only meant coin 
in gold, silver, or copper. That, however, is not the legal 
meaning of the term ; it means and includes not only coin, 
but also bank-notes, Government promissory notes, bank 
deposits, and otherwise and generally any paper obliga- 
tion or security that is immediately and certainly con- 
vertible into cash, so that nothing can interfere with or 
prevent such conversion." These observations were made 
with reference to the word, " Money" used in clause 6, 
Article 12, schedule 2 of The Indian Stamp Act I of 
1879. 

(d) Boiddonath Shah v. Lalunnissa Bibee,< 2 ) was a Time for" deii- 
suit for balance of account consisting of monies advanced was 'no fixed 
in payment for goods to be subsequently supplied, and it would be a rea- 
was governed by limitation prescribed by clause 9, section after the ad- 
1, Act XIV of 1859. The cause of action accrued at the 

time that the goods ought to have been delivered. Pea- 
cock, C. J., observes : " If there was no usage and no time 
fixed, then we think that the time for the delivery of 
the goods would be a reasonable time after the advance 
of the money, having reference to all the circumstances." 

(1) I. L. E., 3 All., 793. | (2) 7 W. R., 164. 

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374 THB SECOND SCHEDULE, FIRST DIVI8ION SU1T8. [ABT. 52 53 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



52 



Part VI. 
Three years.. 



The date of the deli- 
very of the goods. 



For the price of goods 
sold and delivered, 
where no fixed period 
of credit is agreed 
upon. 

As to goods (a) (No. 51, Act IX.) In Satcowree Singh v. Kristo 

tSftfti^on Bangal,W it was held, that where a tradesman sup- 
credit, do fixed plies goods from time to time on credit to a customer 

period of credit * o 

being agreed who makes payments from time to time on account, no 
runs from the fixed period of credit being agreed upon, the cause of 
Sem was su? a ** 01 * for purposes of limitation must be taken to arise 
on tiie date when each item claimed was supplied, and that 
where the parties intend that all goods delivered within 
a fixed period are not to be paid for until the end of such 
period of credit, limitation runs not from the time of 
the purchase or delivery, but from the expiration of credit. 
As to what constitutes delivery, see sections 90 to 92 of 
the Contract Act 



plied. 
(May 1869.) 



53. — For the price of goods 
sold and delivered to 
be paid for after the 
expiry of a fixed period 
of credit. 



Three years 



When the period of 
credit expires. 



Bait for value 
of wood claim- 
able under con- 
tract after its 
completion falls 
under this 
Article. 



(a) (No. 52, Act IX.) See Notes to Article 52. In 
Pragi Lai v. Maxwell, W plaintiff brought the suit on the 
10th of October, 1882, to recover the balance due to him 
from the defendants for firewood supplied by the former, 
the bill for the said balance having been presented by the 
plaintiff to the defendants on the 11th of November, 1879. 
The defendants pleaded the bar against a portion of the 
claim of the plaintiff on the ground that the value of fire- 
wood became due on the several dates on which the fire- 
wood was supplied and that therefore Article 52 applied. 
It was held that the plaintiff's claim was not barred 
as Article 53 and not 52 applied inasmuch as the con- 
tract specified that the price of wood was claimable after 
the completion of the contract. 

(1) 11 W. R., 529. | (2) I. L. R., 7 All., 284. 



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ABT. 54 — 56] THE SECOND SCHKDULK, tlBST D1VI8ION — SUITS. 



375 



Description of suit. 



Period of 
limitation. 



Time from which 
period begins to run. 



When the period of 
the proposed bill 
elapses. 



Part VI. 
54. — For the price of goods Three years 
sold and delivered to 
be paid for by a bill 
of exchange, no such 
bill being given. 

(a) (No. 53, Act IX.) " When the contract was for six in an action for 

months' credit, the payment then to be made by a bill at at two or three 

two or three months, at the purchasers option, it was held chasers' option" 

that an action for the price would not lie at the expiration was for six 

months, and that the time began to ran from the time rans from 

,,,.,, . ,, ., eighth or nineth 

^of the eight or nine months ; it was unneces- month. 
Le which. It was intimated that the only 
-.Id lie till then was an action for breach of 
c giving the bill. (Helps v. Winterbottom, 




*♦. 



, 431.)(D 



Three years . 



The date of the sale. 



Three years 



When the work is 
done. 



55, the price of trees 

growing crops sold 

>y the plaintiff to the 

defendant where no 

fixed period of credit 

is agreed upon. 

(No. 54, Act IX.) 

56. — For the price of work 
done by the plaintiff 
for the defendant at 
his request, where no 
time has been fixed for 
payment. 

(a) (No. 55, Act IX.) " A suit for the price of work completion of 
done by an Attorney or Vakeel is specially provided for. action. 
(See Article 84, and W. R. Gap No. 18.) Where a duty re- 
quires continuation of services, the completion of the duty 
is the cause of action. (Angell, 148.) The work must 
have been done at the request of the defendant."* 2 ) 
(1) Darby and Bosanquet, p. 19. | (2) Mitra's Limitation Act, p. 572. 



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376 



THB SECOND 8CHEDULB, FIRST DIVISION SUITS. [ART. 57 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to run. 



57. — For money payable for 
money lent. 



Part VI. 
Three years. 



When the 
made. 



loan 



is 



(a) (No. 56, Act IX ; section 1, clause 9, Act XIV.) 
In Rameshwar Mandal v. Ram Chand Roy,W plaintiff 



Observations of 
Garth, C. J., as 
to verbal agree- 
ment of loan. 



Articles 67 and 
60 apply only to 
suits for a loan 
repayable at 

once or on de- sued for a loan which the defendant was said to have 

mand. 

Suit for money agreed verbally to repay at the end of a year with interest. 

lent on debtor's ^ J r J J 

verbal agree- The Small Cause Judge was of opinion that it was not 

ment to repay . 

at the end of a the intention of the Legislature m cases of money lent 

year, falls under . 

Article 116. unsecured by any instrument, that any specified date for 
payment would save limitation, and that limitation there- 
fore should run from the date of the loan. Garth, C. J., 
being of opinion that Articles 57 and 59 would apply 
only to suits for a loan repayable at once or on demand, 
held, that the suit was governed by Article 115, which 
virtually provides for the case of all contracts which are 
not in writing, registered, and not otherwise specifically 
provided for. With reference to the contract in the case, 
Garth, C. J., observes "this being the contract, it is 
clear that the plaintiffs would have no right of suit until 
the expiration of the year ; and therefore it would seem 
obviously unjust and contrary to the meaning of the 
Limitation Act, that limitation should run, not from the 
time when the plaintiff's right of action accrued, but 
from the time when the advance was made, which was 
the consideration for the defendants' promise. Suppose 
that by a contract of this nature, instead of the money 
being repayable at the end of one year, it were repayable 
at the end of four years. It is clear, that if the Munsiff 
were right in his construction of Article 57, the plaintiff, 
however honest and bond fide his bargain may have 
been, would never have a right to enforce it, because by 
the time when his right to sue accrued it would be 
barred by limitation. In England, by the Statute of 
Frauds, a contract which is not to be performed within 
(1) I. L. R., 10 Calc, 1088. 



ute of 
Is requires 
•a-act 
a not to 
rmed 



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ART. 58 — 59] THE 8IC0ND 80HBDULI, FIRST DIVI8I0N — SUITS. 377 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part VI. 
Three years. 

three years from the making thereof, must necessarily 
he in writing. Bat here, we have no Statute of Frauds ; 
and in commercial affairs, people are at liberty to make 
any verbal contracts they please. And it seems to me 
that it could never have been the intention of the Legis- 
lature to prohibit verbal contracts by means of an Act 
which was passed for a totally different purpose, and 
which merely professes to regulate the time within which 
different suits are to be brought." This Article was held 
not to apply to a verbal contract by which a debtor 
promised to pay the whole sum due on default of three 
successive instalments : Kylash Chunderdass v. Roy- 
konto.W (Vide Note A under Article 75.) 



within 8 yean 
to be in writing. 

In India, people 
are at liberty to 
make any ver- 
bal contract 
which the Legis- 
lature could not 
have intended 
to prohibit. 



When the cheque is 
paid. 



58. — Like suit when the lend- Three years, 
er has given a cheque 
for the money. 

(ft) (No. 57, Act IX.) A cheque is a bill of exchange in case of loan 
generally drawn on a banker and payable on demand. If cheque, cause of 
a loan is made by means of a cheque given by the lender, J^^i^the** 
cause of action does not arise against the debtor till the cheque is 
cheque is cashed, even if the debtor makes use of the 
cheque and receives credit for it from his own banker 
before the cheque is actually paid. (Garden v. Bruce, L. 
R 3., C. P. 300 ; Banning 25.) 



oashed. 



59. — For money lent under an Three years, 
agreement that it shall 
be payable on demand. 

(ft) (No. 58, Act IX.) The corresponding Article of 
Act IX of 1871, provided that limitation should run 
when the demand was made. Before the passing of the 
Act of 1871, the law of the country was that, in a suit for 
money lent upon an agreement that it shall be repayable 
on demand, the Statute should run from the date of 
the loan. See Eathamu Kala Subbammah v. Ragiah,W 
Hempammal v. Hanuman.< 8 > 

G. R., 293. 



When the loan is 
made. 



(1) L L. R., 3 Gale., 619 | 
(8) 2 M. H. 

48 



(2) 1 M. H. 
C. R., 472. 



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378 THK SECOND 8CHBDDLE, FIS8T DIVISION — SUITS. [aBT. 59 



Description of suit. 



Period of 
limitation. 



Time from which period 
begins to ran. 



Part VI. 
Three years. 

English law (b) If a bill or note be made payable on demand, the 

payable on do- Statute runs from tbe date of making or accepting, be- 
cause the bill or note is payable immediately, and no 
demand is necessary. Christie v. Fonsick (1 Sel. N. P., 
399), and Rumball v. Ball (10 Mod.,138). And the same 
rule applies to any promise to pay on demand. Collins 
v. Banning (12 Mod., 444). Nor will it make any differ- 
ence in this respect that the debt is to be repaid with 
simple, or even with compound interest. Norton v. Ellam 
(2 M. and W., 461) and Jackson v. Ogg (1 Johns, 397).<*> 
Suit on a pro- (c) In Sanjivi 17. Errapa,(*) it was held that a suit 
payable at any brought in March, 1881, upon a promissory note dated the 
years upon de- 12th of September, 1875, payable at