N.C. Rajagopalachariar vs Bhashyachariar and Others

Phillips, J.—The plaintiff brings this suit as a reversioner to recover properties which were in the possession of the widow of the last male

holder. He brought the suit on the 7th of September and alleged in his plaint that the widow had died on the 28th of September, 1906, thus

bringing his suit within time. The defendants in their written statement pleaded as follows: "" The plaintiff should prove that the said Seshammal died

on 28th September, 1906, and these defendants do not admit that date as the date of her death."" Later on in the written statement they say: ""The

plaintiff''s suit is barred by limitation also."" The 5th defendant in a separate written statement also took the plea that the suit was barred by

limitation. Issues were accordingly framed the 6tk issue being ""whether the suit is barred by limitation?"" and subsequently an additional issue was

framed ""When did the widow Seshammal die?"" The District Judge has found that Seshammal did not die on the date alleged by the plaintiff and

that consequently the suit was barred by limitation and new in Second Appeal it is urged that this finding, although a finding of fact, cannot be

accepted, because there was an admission in the defendant''s pleadings of the allegations by the plaintiff. The provision of the CPC relating to this

is Order 8, Rule 5, which states that ""Every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not

admitted in the pleading of the defendants, shall be taken to be admitted except as against a person under disability"". In the present case the

defendants distinctly stated that they did not admit the plaintiff''s allegation as to the date of Seshammal''s death. It is argued that inasmuch as they

did not make a counter-allegation as to what that date exactly was, it must be deemed to be an admission within the meaning of Rule 5 and reliance

is placed on several English cases, i.e., Thorp v. Holdsworth (1868) 3 Ch. D. 637, Tildesley v. Harper (1871) 7 Ch. 403 and Rutter v. Tregent

(1879) 12 Ch. 758. These eases, however, appear to me to be based not on the corresponding provision to Rule 5 but to the provision

corresponding to Rule 4 of Order 8 which says that ""Where a defendant denies an allegation of fact in the plaint he must not do so evasively."" In

these cases there were several circumstances set out in the plaint as constituting the details of certain transactions and instead of denying these

several circumstances specifically, the defendants denied them as a whole and as pointed out in one of the judgments such denial would be

perfectly justified, provided any one of these circumstances was not strictly accurate, but that did not amount to a denial of each and every one of

those allegations. In the present ease there is no question of evasive denial, for here there is only one fact alleged and that has been stated to be not

admitted. Whether the defendants actually know the date of Seshammal''s death or not at the time they made this pleading does not seem to be

material.

It was understood by all the parties that this plea of limitation was taken and that the ground of the plea was that the suit was not brought within

twelve years of Seshammal''s death. There is no question of the plaintiff being taken by surprise and consequently, there being no admission as to

the date, the finding of the District Judge must be accepted. In that view this Second Appeal fails and is dismissed with costs, two sets.