1621. If the subject matter of the action is some specific
movable property and is before the Court, The plaintiff may bring an action and
point to the thing claimed, asking for it to be restored to him, since the
defendant has wrongfully dispossessed him thereof. If the subject matter of the
action is not before the Court, but it can be sent for and produced without
expense, it shall be placed before the Court for the purpose of the trial of the
action, the giving of evidence, or swearing the oath. If it cannot be brought
before the Court without expense, the plaintiff shall give a description and
state the value thereof. In actions relating to wrongful appropriation of
property, and in the case of pledges, it is not necessary to state the value.
T Example:- An action may validly be brought in which the plaintiff states that
his emerald ring has been wrongfully appropriated, but fails to state the value,
or even states that he does not know the value thereof.
1622. If the subject matter of the action consists of specific
pieces of property, the nature, sort and qualities of which are different the
one from the other, it is sufficient if the total value of the whole of them is
stated. There is no need to state the value of each of them separately.
1623. If the subject matter of the action is real property, the
name of the town and village or quarter and of the street and the four or three
boundaries thereof, and the names of the persons, if any, to whom such such
boundaries belong, together with the names of their fathers and grandfathers
must be stated when the action is brought and when giving evidence. In the case
of a person who is well known, however, it is sufficient to state his name and
description. There is no need to state the names of his father and grandfather.
Similarly, if the description of the boundaries may be dispensed with owing to
their being so well known, there is no need to state the boundaries wither when
bringing the action or giving evidence in connection therewith. The plaintiff
may also validly bring an action stating that the real property the boundaries
of which are set forth in a document he produces to the Court is his property
owned in absolute ownership.
1624. The fact that the plaintiff correctly states the
boundaries, but incorrectly states the length or area thereof in no way affects
the validity of the action.
1625. In an action for the price of real property, it is not
essential to state the boundaries thereof.
1626. If the subject matter of the action is a debt, the
plaintiff must state the nature, variety, description and amount thereof.
Example:- It must be stated as regards the nature of the debt whether it is of
gold or silver or as regards the variety whether it consists of Ottoman or
English coin and in respect to the description whether it consists of sound or
base coin. The amount must also be stated. If it is stated in general terms,
however, to consist of so many piastres, the action is valid, and the amount in
dispute will be considered with reference to the custom prevailing in the
locality. If there are two types of currency recognised, and the circulation and
standard of one is greater than the other, the amount will be construed with
reference to the inferior currency. Again, if a person brings an action claiming
so many pieces of five, the money is taken to be the black pieces of five, that
is base coin, in circulation at the present time.
1627. If the subject matter of the action is some specific piece
of property, there is no need to state how the ownership thereof was acquired,
but the action may validly be brought by stating that the property in question
is owned in absolute ownership. If it consists of a debt, however, the origin
thereof must be stated, that is to say, whether it is price of something sold,
or rent, or arising from any other reason.
1628. The effect of an admission is that it bears upon the
subject matter of the admission. It does not bear upon the origin thereof and
therefore an admission is not a cause of ownership. Consequently, no person may
bring an action claiming something merely by reason of admission of the
defendant. Examples:-
(1). A brings an action alleging that certain property belongs to him, and that
B has dispossessed him thereof and in addition has admitted that such property
belongs to A. The action will be heard. But if A brings an action alleging that
certain property is his because B, who has taken possession thereof, has
admitted that it belongs to A, the action will not be heard.
(2). A brings an action alleging that B is owing him a certain sum of money on
account of a loan and that B has admitted the debt. The action will be heard.
But if A brings an action alleging that has admitted that he owes A certain sum
of money on account of a loan, and that he consequently claims this sum from
him, the action will not heard.
1629. The subject matter of the action must be capable of proof.
Consequently, no action may validly be brought with regard to anything the
existence of which can be shown to be impossible either by a process of
reasoning or by custom.Example:- A alleges that B is his son, B being
older than A, and the matter of his birth well known. The action will fail.
1630. If the action is proved, judgement must be given against
the defendant in respect to some particular thing. Examples:-
(1). A gives something to B as loan for use. C then comes forward and claims
that he is a relative of A requesting that such thing shall be lent to him. The
action will fail.
(2). A appoints B his agent for a certain purpose. C comes forward and alleges
that he is A's neighbour and that he is a more suitable person to be appointed
agent. The action will fail.
The reason for this is that every person may lend his property for use to
whomsoever he pleases as his agent and even though the matters alleged by the
plaintiffs may be true, no judgement can be issued in respect to the
defendant.
SECTION II. THE DEFENCE TO AN ACTION.
1631. A defence consists of making an allegation by the defendant in reply to an action brought
by the plaintiff. Examples:-
(1). A brings an action claiming a certain sum of money from B on account of a
loan. B replies that he has paid A, or that A has released him from the debt, or
that they have come to a settlement, or that the sum in question is not a loan,
but is the price of the property sold to A, or that he made a transfer to A of a
sum of money due to him from C, and that the sum in question was paid by A to
him in respect of such transfer. This is B's defence.
(2). A brings an action against B stating that B became surety for the payment
of a sum of money due to him from C. B replies that C has paid the sum in
question. This is B's defence.
(3). A brings an action against B stating that B is in possession of property
belonging to him. B replies that some time ago C brought an action against him
in respect to some property and that at the trial of the action A gave evidence
in favour of C. This is B's defence.
(4). A brings an action against the heirs to the estate of a deceased person,
claiming a certain sum of money, which the heirs deny. A proves his claim, and
thereupon the heirs allege that the deceased paid the debt in his lifetime. This
is the heirs' defence to the action.
1632. Upon the defendant proving his defence, the action brought
by the plaintiff is dismissed. If he fails to prove his defence, he may call
upon the plaintiff to take the oath. If the plaintiff refuses to take the oath,
the defendant's defence is proved. If the plaintiff takes oath, the action
brought by the plaintiff is maintained.
1633. If any person brings an action against some other person
claiming a certain sum of money from him and the defendant replies by stating
that he has transferred the payment of the debt to some third person and that
both parties agreed to such transfer and proves such statement in the presence
of the person to whom he transferred the debt, the claim of the plaintiff is
rejected and the defendant freed therefrom. If the person to whom the debt has
been transferred is not present, the defendant is considered to have answered
the claim of the plaintiff pending the arrival of such person.
SECTION III. PARTIES TO AN ACTION.
1634. If any person brings an action in respect to any matter, and the defendant admits the claim,
judgement is given on the admission. If he denies the claim, the action is
heard, and evidence may be given. If judgement is not given on the admission of
the defendant, he does not become a party to the action by reason of his
denial.
Example:- A brings an action against B alleging that B sent a
messenger of his to by certain property and claims the price. If B admits the
claim, he is bound to pay and hand over the price of the thing sold. If he
denies, he becomes the defendant to A's claim whose case is then heard and who
may produce evidence. If A brings an action alleging that B's agent for purchase
bought such property, and the defendant admits the claim, B must pay and hand
over the price of the sale. If he denies however he does not become defendant to
A. In that case the plaintiff's action will not be heard.
Tutors, guardians and trustees of the pious foundations are excepted from this
rule. Thus, if any person brings an action stating that the property of an
orphan or of a pious foundation is his, and the tutor or guardian or trustee
admit the claim, the admission is of no effect and no judgement may be issued
based thereon. They may,however, make a valid denial and an action brought by
the plaintiff as a result of such denial, and the plaintiff's evidence, will be
heard. If an action is brought as the result of an admission based upon contract
concluded by a tutor, guardian or trustee of a pious foundation, the action will
be heard.
Example:- A tutor sells property belonging to a minor, having legal
justification for so doing. The purchaser brings an action in connection
therewith. An admission made by tutor is valid.
1635. In an action relating to some specific piece of property,
the person is possession must be made defendant.
Example:- A wrongfully
appropriates B's horse and sells and delivers it to C. B wishes to get his horse
back. He must bring his action against the person in possession of the horse. If
he wishes to recover the value of the horse, however, he must bring his action
against the person who has wrongfully appropriated the horse.
1636. If a person brings an action claiming that he is entitled
to property which has been purchased, it must be ascertained whether the
purchaser has taken delivery of such property. If so, the defendant at the trial
of the action and hearing of the evidence will be the purchaser only. There is
no need for the vendor to be present. If the purchaser has not yet taken
delivery of the property from the vendor, both the purchaser of the property,
and the vendor as the person in possession of the property, must be present at
the trial of the action.
1637. In actions relating to a thing deposited for safe keeping
brought against the person with whom it has been deposited, or to a thing lent
against the person borrowing it, or a thing hired against the person hiring it,
or a pledge against the pledgee, both parties must be present. But if property
deposited for safe keeping, or lent, or hired, or pledged has been wrongfully
appropriated, the person in possession of such property may bring the action
against the person wrongfully appropriating and there is no need for the
presence of the owner. If such persons are not present, the owner alone may not
bring the action.
1638. A person to whom property has been entrusted for safe
keeping may not be made defendant in an action against the purchaser.
Example:- A brings an action against B alleging that he is in possession of a
house which he brought from C for a certain sum of money, claiming that the
house be handed over to him. B replies that C handed the house over to him for
safe keeping. The plaintiff's claim fails and B is not obliged to prove that C
in fact handed the house over to him for safe keeping. If A admits that C handed
the house to B for safe keeping, but adds that thereafter C sold it to him and
made him his agent to receive it from C, and A proves the sale and his
appointment as agent, he is entitled to take the house from the person to whom
it has been entrusted for safe keeping.
1639. A person to whom a thing has been entrusted for safe
keeping cannot be made defendant in an action brought by the creditor of the
person depositing the thing for safe keeping with him. Consequently, if a
creditor proves before a person to whom property has been entrusted for safe
keeping that a debt is owing to him by the person depositing such property, he
cannot satisfy his debt from such property but, as is set forth in Article 799,
a person who is entitled to maintenance from some absent person may bring an
action claiming that the sum necessary for his maintenance shall be paid to him
from money deposited by the absent person for safe keeping.
1640. A creditor may not bring an action against a person in debt to the person
owing him money. Consequently, if any person proves before a person in debt to a
deceased person that he has a claim against such deceased person, he may not
obtain payment from the debtor.
1641. A vendor may not bring an action against a person who
purchased something which he has sold to some other person. . Example:- A
sells property to B. B takes delivery thereof and sells it to C. A may not bring
an action against C alleging that B has bought the property from him and has
taken delivery thereof without paying the price and that he claims the price
from C, or that he claims the thing sold in order to exercise a right of
retention over such thing until he has received payment of the price
1642. In the case of a deceased person, one of the heirs alone
may become plaintiff, or act as defendant, in actions brought of behalf of or
against such deceased person. In the case of an action brought to recover some
specific piece of property from the estate, however, the heir in whose
possession the property is, must be made defendant. The action may not be
brought against an heir who is not in possession of such property.
Examples:-
(1). One of the heirs alone may bring an action to recover a debt owing to the
deceased. After proving his claim judgement is given for all the heirs for the
total amount of the claim. The heir acting as plaintiff can obtain his own part
alone. He cannot obtain the shares of the other heirs.
(2). A person brings an action to recover a debt owing by the estate of a
deceased person. He may bring the action in the presence of one of the heirs
only, and this, whether such heir is in possession of property belonging to the
estate or not. If the heir in question admits the debt in an action brought in
this way, and this admission in no way binds the other heirs. If he does not
admit the debt, and the plaintiff proves his case in his presence alone,
judgement shall be given against the whole of the heirs. Upon the plaintiff
proceeding to collect the amount of the debt from the estate, the other heirs
may not call upon him to prove the debt again in their presence. They have the
right, however, of defending the action brought by the plaintiff.
(3). If a person brings an action to recover a horse in the possession of one of
the heirs only, prior to partition of the estate, and which he claims he
deposited with the deceased for safe keeping, the heir in possession of the
horse may be made defendant. No action will be heard against any other of the
heirs. If the person in possession admits the claim, judgement should be given
in accordance with such admission, which does not effect the other heirs. His
admission is effective in respect to the amount of his own share only and the
judgement shall state that his share is the horse belongs to the plaintiff
proves his case, Judgement shall be given against the whole of the heirs. (See
Art. 78).
1643. If an action is brought claiming some specific piece of
property owned by several joint owners, the ownership arising out of some cause
other than inheritance, one of the joint owners may not be made defendant in
respect to the share of the other.
Example:- A brings an action claiming as
his a house which has been purchased jointly by several persons, and proves his
case in the presence of one of the joint purchasers only. If judgement is given
in his favour, the judgement relates to such joint owner's share only and does
not extend to the others.
1644. In an action brought in respect to places affecting the
public interest, such as the public highway, where one member of the public only
is plaintiff, the action shall be heard and judgement given against the
defendant.
1645. In an action relating to things the benefit of which is jointly owned by two
villages, as in the case of a river or grazing ground, the inhabitants of which
are indeterminate in number, the presence of a certain number of them is
sufficient. If they are determinate in number, however, it is not enough for
some of them to be present, but the whole of them must be present either
personally, or through their representative.
1646. The inhabitants of a village which are more than a hundred
in number are considered to be indeterminate in number.
SECTION IV. ESTOPPEL.
1647. A statement contradicting a statement previously made with regard to the
same matter invalidates an action for ownership.
Examples:-
(1). If a person arranges to purchase a piece of property, but before completing
the purchase brings an action claiming that such property is his own absolutely,
such action will not be heard.
(2). If a person states that he has no right to any particular thing, but,
nevertheless, brings an action claiming that such property is his own
absolutely, such action will not be heard.
(3). A brings an action against B asserting that he gave a certain amount of
money to B to hand to C. A further states that B retained the money instead of
giving it to C as directed, and that he instructed B to fetch the money and pay
it over to C. The plaintiff establishes his case by evidence. If the defendant
denies such statements but later, while admitting having received the sum of
money for delivery to C, states that he has in fact delivered it to C, and seeks
to bring an action in rebuttal of the plaintiff's claim, such action cannot be
heard.
(4). A brings an action alleging that a certain shop in the possession of B is
his property. B admits that the shop was formerly A's property, but asserts that
A sold it to him on a certain date. A completely denies this statement, stating
that they had never concluded a contract of sale and purchase. If B, the person
in the possession of the shop, proves his case, the plaintiff cannot later be
heard to say that he did in fact sell the shop to B, but the sale was a sale
subject to redemption, or subject to a condition making the contract
voidable.
1648. If a person admits that certain property belongs to
another, he may not later bring an action claiming that such property is his,
nor may he bring an action on behalf of any other person, such as his agent or
guardian.
1649. If a person releases another from all actions, he may not
later bring an action against such person claiming from him property which he
asserts to be his own. This, however, will not prevent him from bringing an
action on behalf of another person, in the capacity of such person's agent or
guardian.
1650. A person who has brought an action claiming property on
behalf of another person may not later bring an action claiming such property as
his own. But after bringing an action on his own behalf he may bring an action
on behalf of some other person in the capacity of such person's agent, the
reason being that an advocate sometimes claims property in his own name, but a
person who is himself a party to an action does not assert that the property
belongs to another.
1651. One claim cannot be paid separately by two persons.
Similarly, a claim arising from a single cause cannot be demanded from two
persons.
1652. Estoppel operates to prevent two persons claiming the same
thing, as in the case of an agent and the person appointing him and an heir and
the person from whom he inherits, if estoppel would operate to invalidate a
claim in an action by one person. Thus, if in an action an agent introduces a
claim in conflict with an action previously instituted by his principal, such
claim is invalid.
1653. If one of the parties admits the claim, the estoppel ceases
to be operative.
Example:- A brings an action claiming that he has lent a
certain sum of money to B. A later brings an action asserting that the sum of
money was by way of guarantee. The defendant admits this, whereupon the estoppel
ceases to be operative.
1654. If the Court finds a statement to be false, the estoppel
ceases to be operative.
Example:- A brings an action claiming certain
property in the possession of B. The defendant disputes the claim, alleging that
the property belongs to C from whom he bought it. If the plaintiff proves his
case, he gets judgement. The person against whom judgement is given has a right
of recourse against the vendor for the price of the property, because B was
estopped from having recourse against the vendor by reason of his admission that
such property belonged to the vendor. The estoppel ceases to be operative, since
the judgement of the Court has disregarded the admission.
1655. If the matter is subject to doubt, and the plaintiff can
offer a satisfactory explanation, the estoppel is removed.
Example:-
(1). A hires a house, and later brings an action against the lessor asserting
that his father bought the house from him when he was a child, adding that at
the time he hired the housed he was not aware of the facts of the case. If A can
produce documentary evidence of the title the case will be heard.
(2). A hires a house and later brings an action against the lessor claiming that
he had ascertained that such house had devolved upon him some time previously by
way of inheritance from his father. The case will be heard.
1656. The commencement of the division of an estate is an admission that the
property divided has been held in common. Consequently, a plaintiff is estopped
from bringing an action after the division of the property, alleging that the
property divided belongs to him.
Example:- A, an heir, brings an action
after the division of the estate asserting that he bought one of the things
divided from the deceased person, or that the deceased person while in good
health bestowed such thing upon him by way of gift and gave delivery thereof.
Such action will not be heard. But if A asserts that the deceased person gave
him the property in question while he was an infant and that at the time of the
division of the property he was unaware of such fact, this is regarded as a
valid excuse and the case will be heard.
1657. If it is possible to reconcile two apparently contradictory
statements, and if the plaintiff does in fact explain away any apparent
contradiction, there can be no estoppel.
Example:-
(1). A admits that he is the lessee of a house. Later, he brings an action
alleging that he is the owner of the house. The case will not be heard. But if
explains away the contradiction by stating that he bought the house from the
owner after he had hired such house, the case will be heard.
(2). A brings an action claiming the return of a sum of money advanced by way of
loan. The defendant by his reply states that he has received nothing from him,
or that the two parties had no business transaction together of any sort, or
that he does not know the plaintiff. A proves his case. If the defendant later
brings an action against A asserting that he has repaid the sum in question, or
that A released him from repayment thereof, the defendant is estopped from
bringing such action by reason of the contradiction. But if, upon the case being
brought by A, the defendant replies that he owes nothing and when the plaintiff
proves his case admits owing the sum, but asserts that he has since repaid it,
or has been released from repayment thereof by the plaintiff, and proves his
case, there is no estoppel.
(3). A brings an action against B alleging that he has deposited something with
B for safe keeping and claiming the return thereof. The defendant replies
denying the allegation and stating that no such thing was ever deposited with
him for safe keeping. A proves his case by evidence and the defendant then seeks
to defeat A by alleging that he has returned the thing to A and given delivery
thereof. B is estopped from making such defence. If the thing entrusted to B for
safe keeping is in the possession of B, the plaintiff takes the thing itself. If
it is no longer in existence, however, B must pay A the price thereof. But if A
brings an action and B replies alleging that no such thing belonging to the
plaintiff has ever been deposited with him for safe keeping, and A then proves
his case by evidence, and B admits that A deposited the thing with him for safe
keeping, but that he has returned such thing to A and given A delivery thereof,
B is not estopped.
1658. A person who admits being a party to an unconditional and perfectly valid
contract, his admission being reduced to writing, is estopped from alleging
later that the contract was entered into subject to a condition as to
redemption, or is voidable. (See Art. 100).
Examples:-
(1). A sells and delivers his house owned in absolute ownership to B for an
agreed price. A then goes into Court and makes an admission to the effect that
he has sold his house to B, the boundaries whereof are as stated, such sale
being unconditional and perfectly valid, for a certain sum of money. If a later,
after his admission has been reduced to writing, brings an action stating that
the sale was subject to a condition as to redemption, or that it was made
subject to a condition rendering it voidable, such action will not be heard.
(2). If A settles an action which he has brought against B, and makes an
admission in Court that the settlement has been validly made, and after such
admission has been reduced to writing brings an action alleging that the
settlement was made subject to a condition making it voidable, such action will
not be heard.
1659. If A in the presence of B sells property held in absolute ownership,
which he asserts is his own, to C, and gives delivery thereof to him, and B
later brings an action alleging that such property is his or that he has a share
therein, although he was present when the sale took place and kept silence
without any valid excuse for so doing, it must be ascertained whether B is a
relative of the vendor, or his or her husband or wife. If so, the action will
not be heard in any case. If he is a stranger, the fact that he was present at
the time the sale was concluded, does not of itself prevent the hearing of the
action. On the other hand, if, in addition to being present when the sale took
place, he keeps silence without any valid excuse for so doing while the
purchaser deals with the property as though it were his own, such as by erecting
buildings or pulling them down, or planting trees thereon, and then brings an
action claiming that such property is his own, or that he has a share therein,
such action will not heard.
CHAPTER II. LIMITATION.
1660. Actions relating to a debt, a
property deposited for safe-keeping, or real property held in absolute
ownership, or inheritance, or actions not relating to the fundamental
constitution of a pious foundation, such as actions relating to real property
dedicated to pious purposes leased for a single or double rent, or to pious
foundations with a condition as to the appointment of a trustee, or the revenue
of a pious foundation, or actions not relating to the public, shall not be heard
after the expiration of a period of fifteen years since action was last taken in
connection therewith.
1661. Actions brought by a trustee of a pious foundation relating
to the fundamental constitution thereof or by persons maintained by such
foundation may be heard upto a period of thirty-six years. They shall not be
heard in any event, however, after the period of thirty-six years has
expired.
Example:- A has held a piece of real property in absolute
ownership for a period of thirty-six years. The trustee of a pious foundation
thereupon brings an action claiming that the piece of real property in question
is part of the land belonging to his pious foundation. The action will not be
heard.
1662. Actions relating to a private road, to a right of flow and
to a right of taking water, when relating to real property held in absolute
ownership, shall not be heard after the expiration of a period of fifteen years.
If they relate to real property which has been dedicated to pious purposes,
however, the trustees thereof is entitled to bring an action relating thereto up
to a period of thirty-six years. Actions relating to the government land and
actions relating to private roads, to a right of flow and to a right of taking
water, if they concern government land, shall not be heard after the expiration
of a period of ten years since action was last taken in connection therewith.
1663. Limitation which is effective in this connection, that is
to say, which prevents an action being heard, relates only to a period of time
which has been allowed to elapse without any excuse. The effluxion of time which
has occurred by reason of some lawful excuse,such as cases where the plaintiff
is a minor,or a lunatic,or an imbecile,and that whether he has a guardian or
not,or where the plaintiff has gone to some other country for the period of a
journey, or where the plaintiff has gone to some other country for a period of a
journey, or where the plaintiff has been in fear of the power of his opponent,
is disregarded. Consequently, limitation begins to run from the time of the
cessation or removal of the excuse.
Examples:-
(1) No attention is paid to time which has elapsed while a person was a minor.
The period of limitation only begins as from the time he reaches the age of
puberty.
(2) A has an action against B, a person in authority of whom he stands in fear.
If time has elapsed by reason of A's not being able to bring an action against B
while in authority, this fact shall not prevent an action being brought. the
period of limitation only begins to run from the date of the cessation of the
power of B.
1664.The period of a journey is three days at a moderate speed,
that is a distance of eighteen hours.
1665.If one of two persons living in places which are separated
from each other by the period of a journey, meets the other person in one of
such places once during a certain number of years, so that an action pending
between them can be brought to trial, but neither of them takes any steps in the
matter, no action may be brought by one against the other in respect to any
matter which arose before the period of limitation began to run.
1666. If any person brings an action in Court against any other
person in respect to some particular matter once in a certain number of years,
without the case being finally decided, and in this way fifteen years pass by,
the hearing of the action is not barred. But any claim made out of Court does
not cause the period of limitation to cease to run. Consequently, if any person
makes a claim in respect to any particular matter elsewhere than in Court, and
in this way the period of limitation elapses, the hearing of an action by the
plaintiff is barred.
1667. The period of limitation begins to run as from the date at
which the plaintiff had the right to bring an action in respect to the subject
matter of his claim. Consequently, in an action in respect to a debt repayable
at some future definite date, the period of limitation only begins to run as
from the date on which the debt fell due for payment, since the plaintiff has no
right to bring an action in respect to the debt before the due date has arrived.
Examples:-
(1). A brings an action against B claiming from him the price of a thing sold to
him fifteen years ago, subject to a period of three years for payment of the
price. The action may be heard, since only twelve years have passed since the
date of payment arrived.
(2). An action is brought in regard to property dedicated to pious purposes
limited to children from generation to generation. The period for limitation is
respect to an action brought by children of the second generation begins to run
as from the date of the extinction of the children of the first generation,
since the children of the second generation have no right to bring an action
while the children of the first generation are alive.
(3). In actions relating to a marriage portion payable at a future date, the
period of limitation begins to run from the date of the divorce or death of one
of the spouses, since a marriage portion payable at a future date only falls due
for payment on divorce or death.
1668. Limitation in respect to a person who is bankrupt only
begins to run as from the date of the cessation of the bankruptcy.
Example:- A brings an action against B, who has been insolvent for fifteen
years, and who recently has come into funds, in respect to a debt owing for a
period of fifteen years, having refrained from bringing the action previously
owing to B's being bankrupt. The action will be heard.
1669. If any person as mentioned above fails to bring an action
without any excuse, such action is barred by effluxion of time and will not be
heard during his lifetime, nor, on his death, will an action by his heirs be
heard.
1670. If a person entitled to bring an action fails during a
certain period to do so and on his death his heir likewise fails to do so for a
certain period and the total of both periods amounts to the period of
limitation, such action will not be heard.
1671. A vendor and purchaser, a person making and a person
receiving a gift are like a person leaving property and a person inheriting
property.
Examples :-
(1). A owns a piece of land for a period of fifteen years. B who owns a house
abutting on to A's land takes no action during this period, and thereafter sells
the house to a third person. The purchaser then brings an action against A
alleging that A's land comprises a private road leading to his house. The action
will not be heard.
(2). The vendor remains silent for a period and the purchaser similarly remains
silent for a period, if the total amount of both periods amounts to the period
of limitation, an action brought by the purchaser will not be heard.
1672. If some of a number of heirs in an action brought in
respect to property of the deceased in the possession of some third person are
barred owing to the period of limitation having elapsed, and others, by reason
of some valid excuse, such as that they are minors, are not, and such action is
successful, judgement shall be given in their favour for their share of the
property, but such judgement shall be given in their share of the property, but
such judgement shall not include the others.
1673. If any person admits that he has taken certain real
property on hire, he may not claim to have become the owner of such property by
reason of a period of more than fifteen years having elapsed. But if denies that
he has taken it on hire and the owner states that the real property in question
belongs to him absolutely, that he gave it on hire to him a certain number of
years ago, and that he has always received the rent, the question will be
examined as to whether the lease is generally known among the people, and if so,
the action will be heard, but not otherwise.
1674. A right is not destroyed by the effluxion of time.
Consequently, if the defendant explicitly admits and confesses in Court in a
case in which the period of limitation has elapsed that the plaintiff is
entitled to bring his action, the limitation is of no effect and the judgement
will be given in accordance with the admission of the defendant. If the
defendant, however, makes no admission in Court and the plaintiff alleges that
he made the admission else where, the plaintiff will fail both on the original
action and on the admission. But if the admission which is the subject of the
action was reduced to writing at some previous date in a document known to
contain the seal or handwriting of the defendant, and the period between the
date on which such document was drawn up and the date of bringing the action is
less than the period of limitation, an action on the admission will be
heard.
1675. No period of limitation applies to actions concerning
places appropriated to the use of the public such as the public highway, rivers
and pasturing grounds.
Example :- A has appropriated and held a pasture
ground belonging to a particular village for a period of fifty years without his
right thereto being disputed. Thereafter the inhabitants of the village bring an
action against A in respect to the pasture ground. The action will be heard.