Patna High Court
Uma Shankar Prasad Narain Singh vs Mst. Saraswati Devi And Ors. on 6 April, 1960
Equivalent citations: AIR1961PAT68, AIR 1961 PATNA 68
JUDGMENT
1. This appeal by defendant No. 1, is from an ex parte decree, passed by the Court below, against the appellant alone, on the 17th of November, 1952.
(1a) This appeal arises out of a money suit brought by the plaintiffs-respondents for recovery of Rs. 11,500/- including interest, on the basis of Bahi Khata accounts, Exhibits 1 and 1(a), against defendant No. 1 the appellant, and, also against his mother, defendant No. 3, and, his minor brother, defendant No. 2.
2. The plaintiffs' case was this: Bidya Prasad Narayan Singh, father of defendants 1 and 2 and husband of defendant No. 3, used to purchase clothes on credit and also take loans in cash from the plaintiffs from time to time. Bidya Prasad Narayan Singh died on the 8th September, 1944.
3. After making 3.11 account of the transaction between the plaintiffs and Bidya Prasad Narayan Singh between the 5th and 6th September, 1944. Rs. 5,561-13-9 pies was due from Bidya Prasad Narayan Singh. After his death defendant No. 1 took from the plaintiffs on the 8th and 10th September, 1944 a sum of Rs. 200-15-6 pies. Thus, on the 10th of September, 1944, the plaintiffs' dues had amounted to Rs. 7,150. On the 12th of February, 1945, defendant No. 1 verified all the accounts and made an endorsement to that effect upon the statement of accounts shown to him. Defendant No. 1 found that he was liable to the plaintiffs for Rs. 7,150 and be admitted and acknowledged in writing signed by him on the 12th of February, 1945, a liability of Rs. 7,150, Exhibit 1.
4. Thereafter, defendant No. 1 again took Rs. 399-5-6 pies in cash and on the 23rd of August, 1945, he again checked and verified the account. He found that his liability had amounted to Rs. 8,506, and he admitted his liability in writing on the 23rd August, 1945, for the said sum of Rs. 8,506, Exhibit 1(a).
5. The plaintiffs, therefore, claimed Rs. 8,506 as principal and Rs. 2,994 as interest from the 24th of August, 1945 to the 20th of August, 1948. The total claim was thus, Rs. 11,500.
6. All the three defendants had filed separate written statements. The case of defendant No. 1, who is the sole appellant in this appeal, was substantially as follows. In paragraph 13 of his written statement he contended that he had never verifies any accounts and that he was merely informed by the plaintiffs that his father had taken loans from them from time to time, Defendant No. 1 being young and inexperienced at that time, believed the statement of the plaintiffs and made an endorsement that he checked the accounts and found them to be correct.
Under these circumstances, be had made the endorsements relied upon by the plaintiffs. According to this defendant, the endorsement made and signed by him on the 12th of February, 1945, could not be construed as admission or acknowledgment of liability. With respect to the alleged acknowledgment of liability made on the 23rd of August, 1945, the case of defendant No. 1 was the same. He, however, admitted that he had taken Rs. 200-13-6 pies on the 8th and 10th September, 1944. A general defence was also taken that the suit was barred by time,
7. The defendant No. 1, no doubt, filed his written statement, but he did not contest the suit. The court below dismissed the suit as against defendants 2 and 3 and decreed it ex parte as against defendant No. 1. It is from this ex parte decree that the present appeal has been preferred by defendant No. 1 alone.
8. The first question which was pressed by Mr. Balbhadra Prasad Singh, who appeared for the appellant, was that the appellant had no knowledge of the suit, and, therefore, he could not appear at the time when the suit was called on for hearing, and, accordingly, it was urged that the ex parte decree should be set aside and the suit remanded and re-heard in his presence.
9. In order to decide the above question, it is necessary to state a few facts: The suit was instituted on the 31st of August, 1948. Defendant No. 1 appeared and filed his written statement on the 28th of January, 1950. The matter thereafter was brought on the 22nd of August, 1950, to this Court on a civil revisional application by defendant No. 3 against the order of the Court below rejecting her prayer for amendment of her written statement. That civil revision (Civil Revision No. 596 of 1950) was admitted on the 24th of August, 1950, and further proceedings in the suit in the Court below were stayed meanwhile. The Civil Revision was allowed on the 7th of May, 1952 and the papers from this Court were received by the Court below en the 26th of May, 1952.
10. Earlier, on the 25th of April, 1952, as no order from this court was received by the Court below till then, it adjourned the suit to the 9th or June, 1952. The Court below, therefore, on the 26th of May, 1952 after the arrival of the record from this court fixed the same date, i.e., the 9th of June, 1952 for fixing a date for hearing. On the 8th of June, 1952, the 18th of July, 1952, was fixed for hearing of the suit. On the 9th of June 1952, defendants 2 and 3 filed a petition for adjournment, and, on the date fixed for hearing, i.e. on the 18th of July, 1952 also, both parties filed petitions for time, Defendant No. 3 also filed requisites for issuing summonses to her witnesses. The suit thereafter was transferred to another Court where it continued to be adjourned from time to time and meanwhile defendant No. 3 took steps in the suit.
on the 13th of November, 1952, defendant No. 3 filed petitions, but they were rejected. The suit was thereafter fixed for ex parte hearing on the 13th of November, 1952, in presence of the pleader guardian ad litem for minor defendant No. 2 an ex parte decree, however, was passed on the 17th of November, 1952.
11. In spite of the fact that the ex parte decree was passed on the 17th of November, 1952, defendant No. 1 made no application for re-hearing of the suit and setting aside the ex parte decree. He, however, filed the present appeal on the 23rd of February, 1953. In ground No. 10 of the memorandum of appeal in this court, the only ground taken by the appellant for setting aside the ex parte decree, is that no notice was given to the appellant or to his pleader alter return of the file from the Hon'ble High Court of the date of hearing but nowhere he has said that he had no knowledge of the date of hearing of the suit at all, in spite of the fact that alter receipt of the record on the 26th of May, 1952, the suit remained pending, as it was adjourned from time to time, for about six months. The appellant, in our opinion, has not been able to establish that actually he had no knowledge of the date of hearing of the suit, after receipt of the record from the High Court. In view of these circumstances, the first contention must be rejected.
12. On merits, the main contention on behalf of the appellant was that the second acknowledgment (Exhibit 1(a)) was no acknowledgment in law within the meaning of Section 19 of the Limitation Act, and, therefore, the plaintiffs' suit should be dismissed in toto.
13. In order to appreciate this question of limitation, it is necessary to state a few further facts: Babu Bidya Prasad Narayan Singh, father of the appellant, as stated earlier, used to purchase clothes on credit and sometimes he also took loans in cash from the plaintiffs from time to time. All these cash borrowings and purchases on Credit are mentioned in the accounts sheets, Exhibits 1 and 1(a), filed by the plaintiffs. The plaintiffs' case was that after the death of the appellant's father on the 8th of September, 1944, the appellant took Rs. 200-15-6 from the plaintiffs on the 8th and 10th of September. 1944, and, thereafter there was an accounting between the plaintiffs and defendant No. 1 on the 12th of February 1945, and the appellant acknowledged the dues up to that date and signed the statement of accounts (Exhibit 1) in his own pen.
(14) This acknowledgment, Exhibit 1, is in the following terms.
"Checked the account and found the amount Rs. 7,150/- to be correct. (Sd.) Uma Shanker Prasad Narayan Singh. Rupees seven thousand one hundred fifty besides interest is due to me. Sd. Uma Shankar Prasad Narayan Singh Dated 12-2-45".
15. There was a further accounting of all the dues up to the 23rd August, 1945, and this accounts sheet, Exhibit 1(a), was also signed and the dues up to the 23rd of August, 1945, acknowledged by defendant No. 1.
16. The acknowledgment, Exhibit 1(a), is in the following terms:
"Rupees eight thousand five hundred six only including interest is due to me up to the date 23-8-45. Sd. Umashankar Pd. Narain Singh, D/-23-8-45 Checked and found it correct. Sd. Uma Shankar Prasad Narain Singh, Dated 23-8-45".
17. The learned Judge of the Court below took the view that the suit was filed within three years from the date of the second acknowledgment, Exhibit 1(a), alleged to have been made on the 23rd of August, 1945, and, therefore, the plaintiffs' claim was not barred by limitation. He further held that the acknowledgments. Exhibits 1 and 1(a) were legal and they saved limitation, and accordingly he decreed the suit ex parts as against defendant No. 1 as he did not contest the suit.
18. The first ground of attack put forward, on behalf of the appellant, against the second acknowledgment, Exhibit 1(a), is that Exhibit 1(a) is no acknowledgment of any liability of the defendant No. 1 to the plaintiffs within the meaning of Section 19 of the Limitation Act so as to save limitation because it speaks of the sums mentioned in Exhibit 1(a) being due from the plaintiffs to the defendant No. 1, and not from the defendant No. 1 to the plaintiffs, and, as such, the Court below is wrong in decreeing the plaintiffs' suit as against the appellant.
19. The only ground upon which Mr. Balbhadra Prasad Singh challenged the acknowledgments, was the use of the word "to" occurring in the second acknowledgment (Exhibit 1(a)), as well as in the first acknowledgment (Exhibit 1). The argument of Mr. Singh was that the use of the word "to" in the alleged two acknowledgments clearly indicated the meaning thereof and, therefore, the meaning of the acknowledgments, Exhibit 1(a) or of even Exihibit 1, was that the sums mentioned therein by the appellant above his signature were not due to the plaintiffs from the appellant, but from the plaintiffs to the appellant, and, therefore, he submitted, they were no acknowledgments of any liability of the appellant to the plaintiffs on the basis of which the plaintiffs could get over limitation and got a decree against him.
20. In support of his contention as to what are the requirements of an acknowledgment under Section 19 of the Limitation Act, Mr. Singh relied on several decisions, such as, Dharma Vithal v. Govind Sadvalkar, ILR 8 Bom 99, Babu Ramchander v. Firm Seth Kishan Lal Babu Lal, AIR 1939 All 179, Ghulam Murtaza v. Mt. Fasiunnissa Bibi, AIR 1935 All 129 and Venkata Chelamiah Sastri v. Annapoornamma, AIR 1942 Mad 353 (FB).
21. The principles which can be extracted from the above cases may be re-stated thus;
22. In order a written acknowledgment may be of avail to a plaintiff under Section 19 of the Limitation Act, it is necessary that such acknowledgment must have been made before the expiration of the period prescribed for the suit. It is equally necessary that it must be a clear and unambiguous acknowledgment specially admitting liability in respect of the debt sued upon and it must be signed by the party or by his authorised agent.
If an admission amounts to such an acknowledgment, then if it is made before the expiry of the period, it is helpful and the suit can be maintained for the recovery of the earlier debt, the time being extended by the acknowledgment. In such an event there is no question of there being a fresh cause of action or a fresh promise to pay a debt which can he sued upon; on the other hand, if the acknowledgment is made after the period of limitation has expired, then the acknowledgment is of no utility and cannot save limitation.
23. There is no doubt, however, that a receipt containing an acknowledgment of a previous debt may not be a mere acknowledgment, i.e. a bare admission of the existing liability but it may contain words indicating an implied promise to pay the earlier debt. Whether it is a mere acknowledgment or it is more than an acknowledgment and contains an implied promise to pay will, of course, depend on the terms of the particular document.
24. Section 19 of the Limitation Act applies to an acknowledgment of liability in writing and it intends a distinct acknowledgment of an existing liability to serve as a re-creation of it at the time of such acknowledgment without knowledge that the party is admitting something and that in deciding whether the words used constitute an acknowledgment the Court can only have regard to the words used.
25. It is, however, not necessary to deal with the above cases individually, because the principles laid down in these cases have not been, and could not possibly, be challenged. The above cases have no application here, because the only ground on which the alleged acknowledgments, Exhibits 1 and 1(a), were challenged as no acknowledgments within the meaning of Section 19 of the Limitation Act, was the use of the word "to" instead of the word "from" in Exhibit 1(a) as also in Exhibit 1.
26. In this connection Mr. Singh relied on the decision of the Privy Council in Lampson v. City of Quebec, 1921-1 A. C. 294 : (AIR 1920 PC 103) in support of his contention that a deed is to be construed according to the intention of the parties to it, and that if so construed, it was argued, it was obvious that these acknowledgments mean that the sums mentioned therein are due to the appellant from the plaintiffs and not due to the plaintiffs from the appellant. In this very case, however, the above contention raised there was not accepted, and, it was held that "The intention by which the deed is to be construed is that of the parties as revealed by the language they have chosen to use in the deed itself. The circumstance surrounding the making of a deed may, if it be ambiguous, give to its words a special meaning but if the meaning of the deed, reading its words in their ordinary sense, be plain and unambiguous it is not permissible for the parties to it, while it stands unreformed, to come into a court of justices and say: "Our intention was wholly different from that which the language of our deed expresses; disregard what we said, and construe it according to what we meant to say, but did not say'".
This case, in our opinion, has no application to the present case, because, here, there is no case of any ambiguity; in truth, it is a case of the use of a wrong word for the correct word in order to express the intention of the writer.
27. On behalf of the plaintiffs-respondents, however, in reply strong reliance was placed on a Full Bench decision of the Allahabad High Court in Munshi Lal v. Hira Lal, AIR 1947 All 74 (FB) in which it was held that "...... a document said to constitute an acknowledgment has to be construed in the context in which it is given and that, where its language is not clear in itself, the context may be examined to see what is it to which the words refer. That is not to say that any equivocation in an acknowledgment can be cured by ascertaining what the probable intention of the acknowledger was. That is a quite different thing. But where, after examining in the light of the context what it was that the persons giving the acknowledgment was actually referring to, the conclusion follows that it is an unequivocal acknowledgment of a right, then that acknowledgment is sufficient to satisfy Section 19 Limitation Act".
We express our cardinal assent to the principles laid down in the above cases cited at the Bar, but, in our opinion, the case relied upon by the respondents is more to the point.
28. In the instant case, it is nobody's case, nor has the appellant alleged in his written statement, or, anywhere even in his memorandum of appeal to this Court, that any sum was due to him from the plaintiffs. If there was anything due to the appellant from the plaintiffs, how there can, and why there should, be an acknowledgment of any sum payable from, the plaintiffs to the appellant by the appellant? It is obvious that the word "to" is a mistake, for the word "from". There is no evidence that defendant No. 1 was very well educated in English, and, therefore, the use of the word "to" for the word, "from" is an obvious mistake. This choice of inappropriate word will not, and does not, change the intention of defendant No. 1 which was to acknowledge his liability to the plaintiffs.
29.: On behalf of the. plaintiffs two witnesses were examined. One of whom was one of the plaintiffs, namely, plaintiff No. 8 (P. W. 1). No witness was examined on behalf of the defendants. The evidence on behalf of the plaintiffs was, therefore, one-sided and the plaintiffs proved the accounts sheets, Exhibits 1 and 1(a), and the several borrowings by the appellant's father and thereafter by the appellant. P. W. 1 in his evidence in this connection stated that "On 23-8-45 the defendant no. 1 again checked and verified the accounts and transactions that took place after the first checking when a total sum of Rs. 8,506/- was found due to us and in token thereof he signed the hisab acknowledging the correctness of the dues. This is that acknowledgment in his writing which I identify. The body of the Hisab on which, the said acknowledgment appears is written per pen of the same, Munshi, Hisab of 23-8-45 containing- the acknowledgment is proved and marked Ext. 1(a)".
On reading the uncontroverted evidence of P.W. 1, coupled with: the facts and circumstances of the case there is no doubt" that the word "to" has been used by mistake and that what the appellant actually meant was that, the sum mentioned above his signature was due from him to the plaintiffs. In this view, therefore, the contention of Mr. Singh based on the mere use of the word "to" in the second acknowledgment, Exhibit 1(a), as well as in the first acknowledgment. Exhibit 1, is devoid of merit, and, accordingly, it is overruled.
30. It may be noted that, except laying overemphasis, on the word "to" occurring in Exhibits 1 and 1(a), Mr. Singh, did not challenge these acknowledgments, on any other ground whatsoever.
31. It was then argued by Mr. Singh that the appellant was liable only to the extent of one-third because he along with his mother and minor brother constituted a joint family. Unfortunately, there is no evidence whatsoever to the effect that the appellant was the karta of the family; on the other hand, there is the evidence of P.W. 1 that in May 1945, the appellant separated from defendants 2 and 3. On this evidence, therefore, it is clear that the Court below has rightly held that defendant No. 1 alone is liable for the money which he acknowledged subsequently on the 23rd August, 1945.
32. On behalf of the plaintiffs-respondents, however, it was argued that the Court below has wrongly taken the view that the plaintiffs' claim acknowledged under the first acknowledgment (Exhibit 1) on the 12th of February 1945, was barred by limitation. It was urged that the second acknowledgment being on the 23rd of August, 1945, that is, within three years from the date of the first acknowledgment, the plaintiffs were entitled to a decree in respect of all the items which were saved by the first acknowledgment and which were borrowed by the father of the appellant or by the appellant himself within three years from before the 12th of February, 1945.
We think the contention of the learned counsel for the plaintiffs-respondents is well founded and must prevail. The liability of the appellant, however, will not be personal as far as the loans contracted by his father are concerned. He will be liable only to the extent of the assets of his father in his hands, but he would be personally liable for the loans contracted by him. The question as to whether the appellant inherited any assets of life father, and, if so, what they were will be considered if and when raised in the execution proceeding.
33. The result, therefore, is that the decree of the Court below passed against the appellant is affirmed subject to this modification only that the plaintiffs shall be entitled to all the dues which are within three years from before the 12th of February, 1945, the date of the first acknowledgment, Exhibit 1. Subject to this modification, and, the nature of liability of the appellant, the appeal is, therefore, dismissed; but in. the circumstances of the case there will be no order as to costs.