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TMI Blog1949 (4) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court holding that there was no subsisting partnership after the death of the plaintiff's father, dismissed the plaintiff's suit. An appeal was preferred to this Court, being First Appeal No. 164 of 1938. This Court took the view that the Court below was in error in not granting the amendment. It took the same view as the trial Court with regard to the original cause of action, pleaded by the defendants. But Divatia J, in delivering the judgment of the Court thought that it was open to the plaintiff at its inception to plead an alternative cause of action which was inconsistent with the first cause of action, and if that were possible, there was no reason why an amendment should not be permitted to plead an inconsistent cause of action at a subsequent stage of the suit. It was then urged upon Divatia J. that the question of limitation would have to be considered. Divatia J. realised the force of that argument, but he ob served that it was not possible for the Court to go into the question of limitation and therefore, as I read the judgment, Divatia J. was under the impression that the trial Court would go into the question as to whether the plaintiff's cause of action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this appeal is the question of limitation. If this is a suit for accounts of a dissolved partnership, the suit would be barred within three years of the death of the plaintiff's father and that would be 30th April 1930. Now, it is important to note in this connection that the plaintiff was born on 13th December 1910 and therefore he attained majority on 13th December 1928. Therefore when the cause of action accrued, the plaintiff was a minor, and under Section 6, Limitation Act he would be entitled to file a suit within three years of his attaining majority. That would be on 13th December 1931. The suit has been field on 27th September 1933. Therefore, prima facie the suit is out of time. Now, in order to save limitation, the plaintiff has relied on various acknowledgments. These are Exs. 58 to 63 and the dates respectively are 7th January 1928, 25th August 1931, 8th December 1931, 8th August 1932, 25th August 1932, and 22nd July 1933. 4. The material acknowledgment which we have to consider is the acknowledgment of 8th December 1931, Ex. 60, because if that is a valid acknowledgment, it is not disputed that the suit filed on 27th September 1933, would be within time. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the provisions contained in Sections 4 to 25. Therefore, it is fallacious to contend that a suit is liable to be dismissed merely by looking at the first schedule and satisfying oneself that the period of limitation therein set out has expired. The scheme of the Limitation Act is to determine the period of limitation not merely by looking at the first schedule but by looking at the first schedule in conjunction with Sections 4 to 25 which also deal with limitations of suits, appeals and applications. Then we come to Section 6 with which we are concerned and that deals with legal disability. That section provides that where a person entitled to institute a suit -- I am dealing with the material part of the section -- is, at the time from which the period of limitation is to be reckoned, a minor, he may institute the suit within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of Schedule 1. Now, this section can only apply to those persons who suffer from a legal disability at the time when they are entitled to institute a suit, and the concession made to them by the Legislature is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idly made provided it is made within the period of limitation prescribed in Schedule 1. Now, I see no warrant to read the section in the manner suggested by Mr. Datar. The section itself does not refer to the schedule and, as I have pointed out, when one turns to Section 3, the period of limitation for suits is not that which is prescribed in Schedule 1, but it is that which is prescribed in Schedule 1 read with Sections 4 to 25, Limitation Act; and, therefore, when we look at Schedule 1 and read it along with Section 6, the period of limitation: prescribed for a suit by a minor is not the period mentioned in Schedule 1, but a special period as mentioned in Section 6 of the Act. Therefore, in the case of a minor it cannot be said that the period prescribed for a suit has expired till the period of limitation laid down in Section 6 has elapsed. Therefore, in this case when the acknowledgment was given on 8th December 1931, the period of limitation within which the plaintiff could have filed the suit had not expired because he had attained majority on 13th December 1928, and he could have filed a suit under Section 6, Limitation Act, till 13th December 1931. 7. Now I will briefly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in Col. 3 of Schedule 1. Therefore, Section 6 really substitutes in the case of a personal disability a different time from which limitation begins to run to the one that is prescribed in Schedule 1. And again, with respect, the learned Judges have not attached any importance to the language of Section 3, Limitation Act to which I have already drawn attention. The fallacy underlying the argument which has been accepted by the Court in that case is that the period of limitation is prescribed under the Limitation Act only under Schedule 1 irrespective of what Sections 4 to 25 might provide. But even though we might consider, again speaking with very great respect, the view of this bench to be erroneous, we would be bound to follow it but for the fact that this case could have been simply decided on the narrow point that the cause of action accrued to the plaintiff's father when the money was lent by him in 1898, and as limitation would have begun to run against him from the date when the loan was made, namely 1898, under Section 9 the running of time could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20th June 1870. The plaintiff's father died in 1875, leaving the plaintiff a minor and therefore the suit would have been barred on 20th June 1876, but the defendants made acknowledgments of their liability in 1876 and 1877 and the suit was filed in 1887. The plaintiff attained majority in 1885 and what the Court held was that as acknowledgments were given when the plaintiff was a minor, and entirely new period of limitation started from the date of the acknowledgment and the plaintiff was entitled to avail himself of the provisions of Section 6, Limitation Act as he was a minor when this new period of limitation started and he was entitled to file a suit three years after he attained majority. It is perfectly true that an acknowledgment under Section 19, Limitation Act does start a fresh period of limitation; but this is a fresh period of limitation in relation to the period which is already running which has not expired and before the expiration of which the acknowledgment is given. But this fresh period of limitation does not mean that by reason of it the plaintiff becomes entitled to file a suit and that any cause of action accrues to him. The cause of action is already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is disability as minor has ceased. In our opinion this case also has not been correctly decided. With respect to the learned Judge, he also has not attached the same importance to the provisions of Section 9, Limitation Act as he should have done. 9. Now in deciding Maganlal v. Amichand, (30 Bom. L. R. 733: A. I. R. (15) 1928 Bom. 319) the learned Judges thought that they were following an earlier decision of this Court reported in Bai Hemkore v. Masamalli, 26 Bom. 782: (4 Bom. L. R. 608). That was a judgment of Sir Lawrence Jenkins, C.J., and it really turned on the construction of Section 5, Limitation Act which corresponds now to Section 4. In that case an acknowledgment was passed after the period of limitation had expired, but it was passed on a date when the Court being closed the plaintiff could not file the suit and under Section 4 a right was given to him to file the suit on the next day when the Court re-opened. The argument that was submitted to the bench there was that inasmuch as under Section 4, Limitation Act the plaintiff had a right to institute the suit, the cause of action was still subsisting when the acknowledgment was given, and therefore, it was contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a period for a suit can be prescribed by a section of the Act as well as by an article of the schedule. 11. Then in Seshayya v. Subbadu, 54 Mad. 445 : (A.I.R. (17) 1930 Mad. 991) the High Court there took the same view with regard to an acknowledgment made during the extended period given by Section 31 of the Act. Then again in Sambayya v. Subbayya I.L.R. (1938) Mad. 439 : (A.I.R. (25) 1938 Mad. 19), certain time had to be excluded which had been taken up in prosecuting proceedings in a wrong Court, and the Madras High Court held that the word prescribed in Section 19, Limitation Act was not limited to the period mentioned in the first schedule of the Act, in computing the period prescribed, the period which a party is entitled to exclude under any law for the time being in force should be taken into account. Therefore, the period a party is entitled to exclude is to be added to the period prescribed in the first schedule, and if an acknowledgment is made within that period, the acknowledgment would be a valid acknowledgment under Section 18. 12. The Lahore High Court in Kishan Singh v. Sardar Ali, A. I. R. (24) 1937 Lah. 16.2 : (164 I. C. 650) has gone further than the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge was in error in passing a decree not only against defendant 1, but also against defendants 2 and 8 to the extent of assets of the joint family come to their hands. Defendants 1, 2 and 3 constituted a joint and undivided Hindu family during all material times. There is nothing in Hindu law to prevent a member of a joint family becoming a partner with a stranger. Whether a karta becomes a partner in his own right and incurs liabilities only personally or whether a joint family becomes a partner is always a question of fact and must be decided on the circumstances of each case. Now, in this particular case the learned Judge has drawn attention to the evidence on record which clearly goes to show that the partner of the plaintiff's father was not defendant 1, but the joint family of which he was the karta. The name of the joint family firm was Anandji Shekhi Ladha and the joint family firm did business similar to the partnership business, and defendant 1, in his evidence stated that after the death of the plaintiff's father his family owned a factory, namely, the Laxmi Cotton Ginning and Pressing Factory, which was the factory worked by the partnership in suit. Then the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it thought was the proper rate of interest which a partner should pay when he uses the moneys belonging to the other partner. It is not as if the Legislature arbitrarily fixed the rate of interest at 6 per cent. from 1932 and, therefore, we again see no reason why we should interfere with the rate of interest fixed by the learned Judge. 17. The final contention of Mr. Datar is that although his client might be liable to pay interest from the date of dissolution up to the date of the filing of the suit, he should not be made to pay any interest from the date of the filing of the suit till the amount was ascertained by the decree in suit as to what he was liable to pay. The argument of Mr. Datar is that in a suit for accounts no interest is payable till accounts are taken and amount ascertained. As a general principle this contention is unexceptionable, but in this particular case it has been found as a fact that the defendants had the use of partner, ship moneys and assets and therefore it is impossible to contend that although they should pay interest for these moneys and interest from the date of the dissolution of the partnership till the date of the filing of the suit they sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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