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TMI Blog1937 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 1926, his adult heirs are said to have executed the hand-note on which the present suit is based and the minors joined in the execution of the same through their brother. The present suit was instituted for recovery of the sum due on this hand-note with interest on 21st December 1933. 2. The defences to the suit, so far as they have been stated to us, were first, that the promissory note was a result of misrepresentation that a sum of about Rupees 7,500 was due from the Haji whereas as a matter of fact that Haji did not borrow that sum. On this point the finding of the Court below is that there was no misrepresentation and the money was due. The second defence taken was the defence of limitation and the third defence which concerns the two minor defendants 6 and 7 was that the hand-note was not binding on them seeing that it was executed by their brother who was not a guardian under the Mahomedan law as governing the Sunni Muhammadans. A question was also raised by way of defence that the payment of Rs. 100 on 12th Bhadra 1336 B.S. corresponding to 28th August 1929 was never made. This question is one of fact with reference to the plea of limitation and was raised also i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l statement of the law in Sir Dinshaw Mulla's Principles of Mahomedan law, Edn. 10, p. 226. In Article 262 the learned author states the legal guardians of the property of a minor: The following persons are entitled in the order mentioned below to be guardians of the property of a minor: (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father. 4. These are the four guardians who are legal guardians under the Mahomedan law. No other relation is entitled to the guardianship of the property of a minor as of right-not even the mother, brother, or uncle. In the present case it was a brother of the minor sisters who was acting with reference to the hand-note in question. He could not impose by any act of his any obligation on his sisters. The question as to the position of an unauthorized guardian who may be a de facto guardian was the subject of consideration by their Lordships of the Judicial Committee of the Privy Council in Imambandi v. Haji Mutsaddi AIR 1918 P C 11. Mr. Ameer Ali who delivered the judgment of the Judicial Committee made the following observations in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id on behalf of the respondent that a suit was imminent and that the brother who was a de facto guardian was really acting for the benefit of the minor sisters. We are not impressed by this argument and no case in support hereof has been shown. All that appears is that the brother undertook the liability on behalf of his sisters when there was no such emergent circumstance which would justify him in executing the hand-note on their behalf seven days after their father's death. We are, therefore, of opinion that these minors should not be saddled with liability on the basis of this hand-note and that the suit so far as the minors are concerned must be dismissed as against them. 8. It remains to consider the question of limitation so far as the other defendants are concerned. The question really turns on an interpretation of Section 20, Limitation Act, as also on the determination of the question of fact as to whether the payment of Rs. 100 on 28th August 1929 which is relied on for the purpose of saving limitation was really made. We have got the endorsement on the hand-note signed by all the other defendants to the effect that the sum of Rs. 100 was paid on the 12th of Bhadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effective for the purpose of saving limitation must be one which must be acknowledged either on the date of payment or, at any rate, before the expiry of the period of limitation. It becomes necessary, therefore, to consider whether this contention is supported by the proper interpretation of Section 20, Lim. Act, as amended by Act 1 of 1927. The section after the amendment stands thus: Where interest on a debt or legacy is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or legacy, or by his agent duly authorized in this behalf, or where part of the principal of a debt is before the expiration of the prescribed period paid by the debtor or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. 10. Then follows the proviso which is important for our present purpose: Provided that save in the case of a payment of interest made before the 1st day of January 1928, an acknowledgment of the payment appears in the hand-writing of, or in a writing signed by the person making the payment. 11. It is contended that the acknowledgment of this payment mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case in Allahabad in Lal Singh v. Gulab Rai AIR1933All363 , where Iqbal Ahmad, J. sitting singly came to the same conclusion. We do not see any reason why we should dissent from these decisions as these decisions are in consonance with the clear language of the statute and the proper mode of interpreting the same. There is, therefore, no substance in this contention and we think that the plea of limitation must be overruled. It remains now to consider the question about the hand-note having been executed by misrepresentation. Although this point was indicated in the opening we do not think that Mr. Gupta made any serious attempt to displace the finding of the Subordinate Judge in this behalf. There is abundant evidence on the record which goes to show that the debt was actually contracted by the Haji and although Mr. Gupta drew our attention to some of the items in the account he did not pursue and develop the point which he stated at the outset with regard to the point of misrepresentation. We do not think that any case has been made out for displacing the finding of the lower Court in this behalf. 15. Another point has been made with reference to the purdanashin ladies, name ..... X X X X Extracts X X X X X X X X Extracts X X X X
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