Udhavji Anandji Ladha And Ors. vs Bapudas Ramdas Darbar on 13 April, 1949
7. Now I will briefly refer to the authorities that have been cited at the bar on this point, and considerable reliance is placed upon a decision of a divisional bench of this Court, and Mr. Datar says that that bench has taken a contrary view to the one we are suggesting to be the correct view of the law and that decision is binding on us. Undoubtedly, if a divisional bench decides a question of law, it is binding on subsequent benches unles it is possible to distinguish the decision on the facts of that particular case. I will presently refer to that decision, and in my opinion the part of that decision on which Mr. Datar relies is only, with respect, obiter which it was unnecessary to decide, because the Court could have decided that case on a much narrower and simpler point. This case is reported in Maganlal v. Amichand, 30 Bom. L. R. 738 : (A. I. R. (15) 1928 Bom. 319). In that case the defendant borrowed a certain sum from the father of the plaintiff in 1898. The plaintiff's father died in 1904, leaving him surviving two minors. On 20th October 1914, the defendant passed a khata to the minors; and passed another one on 4th January 1918. Maganlal, one of the two minors, attained majority on 26th July 1916. Another khata was passed on 28th December 1920, and the suit was filed on 22nd December 1923, and the khata which was relied upon as an acknowledgment was the khata of 28th December 1920. Patkar and Baker JJ. held that the acknowledgment was given after the expiration of the period of limitation and that the suit was barred. Now, the reasoning of the learned Judges was that, according to Section 19, the acknowledgment of liability must be made before the expiration of the period prescribed therefor in Schedule 1 and not before the expiration of the period within which the suit must be brought. Therefore, an attempt was made to distinguish between the period of limitation and the right to file a suit, and this distinction was attempted to be pursued by pointing out that under Section 6 a minor is given a right to file a suit but the period of limitation has already expired under Schedule 1, Limitation Act. Now, with very great respect, this distinction is not borne out either by the scheme of the Limitation Act or by the language of Section 6 and Section 19. It is true that Section 6 does speak of a minor instituting a suit but it states that he may institute a suit within 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 not have been stopped. Therefore, the fact that on his death he left minors who were under legal disability had no bearing whatever on the question of limitation. Up to 20th October 1914, in that case the khatas passed were within three years of each other and, therefore, they had started a new period of limitation under Section 19, Limitation Act. Then came the khata which was passed on 4th January 1918, which was after a period of three years, and, therefore, that khata could not be a proper acknowledgment within the meaning of Section 19, it having been given after the expiration of the period of limitation, and, therefore the suit was clearly barred by limitation. The question as to what was the effect of this khata being given after the plaintiff had attained majority did not arise for decision at all, because Section 6 had no application as the cause of action accrued not to a person under disability but it accrued to a person who was under no disability and who could have filed a suit on his own cause of action.