Sunday, 20 May 2018

SHORT NOTES ON LIMITATION ACT PART 3


S 18. Effect of acknowledgment in writing:-
Acknowledgment means a definite, clear admission of existing liability.

It is not necessary that there should be promise to pay. An acknowledgment does not create any new right of action but only enlarges the time and has the effect of making a new period run from the date of acknowledgment. Under this section, an acknowledgment is not limited in respect of a debt only, it may be in respect of “any property or right” which is the subject matter of the suit. There must be an unqualified,or an admission qualified by a condition which is fulfilled.

Ingredients of S 18 and essentials of a valid acknowledgment:-

To constitute a valid acknowledgment and thus to give a fresh period of limitation under this section,the following conditions must be satisfied.
1) The acknowledgment must have been made before the expiration of the period prescribed.


2) The acknowledgment must have been made by the party against whom the right is then claimed or by any person through whom he derives his title or liability.
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When right in property acquired by Hindu female by compromise decree will not enlarge into full right?

It is an admitted position that on 23.12.1932 a compromise decree was passed in a suit filed by predecessors of the defendants against the predecessors of the plaintiffs. In terms of the compromise decree, the sons of Har Narain who were predecessors-in-interest of the plaintiffs agreed to give limited possessory rights to the predecessor of the defendant, namely, Sheo Lal.
In terms of the compromise, the consent decree was passed holding that "during the lifetime of Sheo Lal, he will not be entitled to sell or mortgage his property in any case", thereby meaning that Sheo Lal merely got restrictive possessory rights in terms of the decree dated 23.12.1932 passed by the District & Sessions Judge, Hissar.
Further, it categorically provided that the suit property was to revert to the predecessors of the plaintiffs in case the widow predeceased Sheo Lal and in case Sheo Lal predeceases the widow, the widow shall be entitled to use the same during her life time. Thereafter, the suit property will revert to the predecessors of the plaintiff. It is thus clear that Sheo Lal was given a limited right in respect of the suit property. Sheo Lal died in the year 1961. Chimmli, wife of Sheo Lal died in 1976.
12. The suit was filed primarily on the ground that neither Sheo Lal nor his widow had any pre-existing right in the suit land since their rights flow from the compromise decree. After the death of Smt. Chimmli, the plaintiffs were entitled to the possession of the land. It is clear that Sheo Lal was granted limited right not in recognition of his pre-existing right. Section 14(1) of the Act does not recognize the pre-existing right of a male Hindu. The suit property never became the self acquired property of Sheo Lal. Even his widow Chimmli did not hold the land in lieu of maintenance which can be enlarged into full ownership by virtue of Section 14(1) of the Act. The estate was conferred on Chimmli by virtue of the decree which created a new right. There were no pre-existing rights of either Sheo Lal or his widow Chimmli. The property in her hands came as a result of she being a successor of Sheo Lal. Smt. Chimmli would not have acquired a better right than Sheo Lal in the suit property. The rights of Sheo Lal as well as Smt. Chimmli flow from the consent decree.
13. In Tulasamma (supra), this Court has held that Hindu women's right to maintenance is the personal obligation so far as the husband is concerned and it is the duty to maintain her even if he has no property. The right to maintenance is a pre-existing right. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. It was further held that the claim for the right to maintenance possessed by a Hindu family is legally a substitute of a share which she would have got in the property of her husband.
14. In the instant case, there is nothing on record to show that the property in the hands of Chimmli came in lieu of maintenance or on account of arrears of maintenance. The property in her hands came as a result of she being a successor of Sheo Lal. Sheo Lal did not possess any property. He had only life interest in the property which did not enlarge into a full right because Section 14(1) does not recognize the pre-existing right of a Hindu male. Smt. Chimmli could not have acquired a better right than her husband had in the property in dispute. Right of Sheo Lal, as also Smt. Chimmli, flows from the decree. Therefore, her right would not mature into full-fledged ownership by virtue of Section 14(1). She has acquired the right by virtue of the compromise decree for the first time. Therefore, Section 14(2) would apply to the instant case.

SUPREME COURT OF INDIA
Basanti Devi (D) by LRS. & Ors Vs. Rati Ram & Ors.
[Civil Appeal No.7919 of 2011]
S.ABDUL NAZEER, J.
DATED: 8 MAY 2018
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SHORT NOTES ON LIMITATION ACT 1963 Part 2


S 15. Exclusion of time in certain other cases:-

The present section says that time is to be excluded in the following circumstances:-

Sub S 1- When a suit or execution proceedings are stayed by injunction or order.

Sub S 2- When notice to government or any other authority is necessary, the period of notice. Where notice is not mandatory, period will not be excluded.

Sub S 4 – In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of decree, the time during which proceeding to set aside sale has been prosecuted shall be excluded.

Sub S 5 -When defendant has been absent from India.
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Saturday, 19 May 2018

SHORT NOTES ON LIMITATION ACT 1963 PART 1


S 2 Definitions:-

f) Easement includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of soil belonging to another or anything growing in or attached to,or subsisting upon the land of another;

h) Good faith- Nothing shall be deemed to be done in good faith which is not done with due care and attention;

m) Tort -It means a civil wrong which is not exclusively the breach of a contract or the breach of a trust;

S 3. Bar of limitation:-
Sub S 1- Every suit instituted,appeal preferred and application made after prescribed period shall be dismissed, although limitation has not been set up as defence.

Sub S 2- For the purposes of this Act:-
a) A suit is instituted
1) when plaint is presented to proper officer;
2) in the case of pauper, when his application for leave to sue as a pauper is made;
b) Any claim by way of a set off,or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted-
1) in the case of set off, on the date as the suit in which set off is pleaded;
2) in the case of counter claim, on the date on which counter claim is made in court;
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