TMI Blog1906 (5) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... action be maintainable. 2. The present suit was brought on 5th September 1901 to recover these amounts. There is no question that they were due. The respondent admitted in his pleading that they were so, and the only defence is that the action was barred by the lapse of time. 3. Motiram died on the 6th October 1898 leaving a will by which the respondent and four other persons were appointed trustees to administer the estate. Three of them, of whom the respondent was one, applied for probate. The application was opposed by the other two and by Kisandas, the natural father of the appellant. Their petition of objections is not in the record, but the reply, signed by the respondent and others is set out, and from it there can be no doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which their Lordships take makes it unnecessary to consider this question, and for the purposes of this case the controversy may be treated as if the sum due to Motiram was a simple debt or series of debts, none of which were incurred before 28th September 1896, since as late as the 24th January 1897 Motiram, as appears by the summary of accounts appended to the judgment of the Civil Judge (the Court of First Instance), had drawn against the respondent for more than the respondent had drawn against him. 8. The last item against the respondent in account between them is dated 12th May 1898, and the indebtedness for principal must therefore have been incurred between 24th January 1897 and 12th May 1898, and the periods of limitation applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his liability to pay his debt to Motirara or his representative, if the balance should be ascertained to be against him. 10. The question is whether this is sufficient by the Indian law to take the case out of the statute. 11. It has been already pointed out that the acknowledgment was made before the statutory period had run out. Thus one requisite of Section 19 is complied with. 'The necessity of signature by the party to be charged is also complied with. The acknowledgment is not addressed to the person entitled, but according to the explanation given in Section 19 this is not necessary. We have therefore the hare question of whether an acknowledgment of liability, if the balance on investigation should turn out to be agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the claimant. It is a case of the third proposition of Lord Justice Mellish, a conditional promise to pay and the condition performed. 14. There was therefore on the 23rd September 1899 a sufficient acknowledgment to give a new period of limitation from the date of the acknowledgment, viz., 28th September 1899, and the present suit having been commenced on 5th September 1901 is within any period of limitation that can be applicable. 15. The acknowledgment, to which attention has been directed, is followed in the same paragraph by the following sentence: The alleged indebtedness does not affect his (the respondent's) right to apply for probate. Stress was laid by the Civil Judge upon the word alleged. He was of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs which in all reason and sound sense places the acknowledgment upon the same footing as an acknowledgment unconditional in the first instance, from which, in English law, a promise to pay has always been inferred. The Indian Limitation Act, Section 19, however, says nothing about a promise to pay and requires only a definite admission of liability, as to which there can be no reason for departing from the English principle that an unqualified admission and an all events executor de son tort, and therefore not entitled to the benefit of the Limitation Act. The respondent has in this suit admitted in the most definite manner that he did so. In spite of this admission each of the three Courts below has held that he did not, and the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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