Patna High Court
Ram Mangal Prasad Shahi vs Achhaibar Prasad Shahi And Ors. on 16 August, 1954
Equivalent citations: AIR1954PAT575, 1955(3)BLJR105, AIR 1954 PATNA 575
JUDGMENT Sinha, J.
1. Defendant No. 1 is the appellant. The only question raised in this appeal is whether the suit is barred by limitation.
The suit had been brought on the basis of a mortgage bond, dated 17-6-1930, for a sum of Rs. 1500/-, executed by defendant No. 1, the appellant, in favour of one Kishun Prasad Shahi, father of plaintiff No. 1. The suit was filed on 10-11-1944, and the due date for payment of the mortgage money was 30th Baisakh 1358 Fasli, corresponding to 2-6-1931. The suit, which is obviously barred by time, is sought to be saved by an acknowledgment of liability, under Section 19 of the Limitation Act, made in another mortgage pond, executed by defendant No. 1 on 15-11-1932, in favour of the Kapildeo Narayan Shahi. Both the Courts below have held that the suit is not barred.
2. Mr. Prem Lall, learned counsel appearing on behalf of the appellant, has made three points for consideration by this Court:
1. that an acknowledgment to be an effective acknowledgment, under Section 19 of the Limitation Act, must be communicated to the mortgagee, and, unless it is so done, it is not an acknowledgment in law under Section 19;
2. that there is a difference between an acknowledgment of debt and an acknowledgment of liability, and that, in the present case, the acknowledgment was merely of the debt and not of any subsisting liability; and
3. that, even if it be held that the acknowledgment in question was an acknowledgment of liability, the acknowledgment must be limited to the liability to pay Rs. 325/- only, as is specifically mentioned in the said bond of 1932.
The relevant portion of the recital in the mortgage bond dated 15-11-1932 (Exhibit 1), which, according to the plaintiffs, contains an acknowledgment of liability, runs as follows: "Chun man mokir wo Chanderdeo Narain Shahi bhatija haqiqi ne Qita tamasuk makfull markuma mo: 15 June san 1927 isvi ijmalan tahrir wo tamil kardai (sic) banam Babu Kapildeo Narain Shahi U: Baban Shahi sa: Minapur pargana Tirsath jiske hisab aj tarikh imroze asal mai sud dar sud mo: pachis sau untis rupeya hota hai wo min mokir wo Chanderdeo Narain Sahi mazkur ne bamah Asarh san 1334 sal apas men ilahade wo tafrikul tarn wo tafrikul karbar ho gaye rasdi nisf rupeya mazkurebala men mo: barah sao sarhe chausath 1264-8-0 rupeya hota hai wo jumle rasdi mazkur ke mo: ath sao sarhe unchalis 839-8-0 rupeya bahazar kabahat apne tahbil se wo digar eraji farokht kar ke bandobast kia hai ab bakie mo: char sao pachis 425/- rupeya yaftane mazkurebala wo mo: tin sao pachis rupeya 325/- min jumle asal mai sud darsud barue tamasuk makfuli mobaine nishani registry markuma mo: 17 June san 1930 isvi yaftani Babu Kishuna Prasad Shahi sa: Minapur par-gana Tirsath jumla har do mahajanan mo: sat sau pachas 750/- rupeya wajbul dain hai jis ki adaekari siwae likhne tamasuk makfuli ke dusra koi surat najar nahi ata hai.......... wo bhi bakie mo: tin sao pachis 325/- rupeya yatfani Kishun Prasad Shahi mundarje bala ko adae wo bebak kar ke dastawez ke pusht par wasuli likhwa kar sabut adaekari hasil kar ke waste sabut ainde apne pas rakhen......"
3. The substance of the recital is that the executant has to pay Rs. 1264-8-0, half of the amount due under the mortgage bond dated 15-6-1927, as per account made up-to-date, out of which he has arranged a sum of Rs. 839-8-0 from other sources leaving a balance of Rs. 425/-; and he has further to pay Rs. 325/- on account of principal, interest and compound interest in respect of the mortgage bond, dated 17-6-1930, executed in favour of Babu Kishun Prasad Shahi. There is a direction to the mortgagee that, on payment of Rs. 325/- to the said Kishun Prasad Shahi, he should have the payment endorsed on the back of the mortgage bond and should obtain evidence of payment for future use.
4. I shall now consider the points raised 'seriatim'. The relevant portion of Section 19 of the Limitation Act reads as follows:
"(1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) ..........
Explanation (I): For the purposes of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set off, or is 'addressed to a person other than the person entitled to the property or right'......"
5. The important words in explanation (1) which have been underlined by me (here in ' ') clearly in express terms show that the acknowledgment of liability, though not addressed to the creditor, may be a sufficient acknowledgment. In the present case, the acknowledgment contained in the recital in the mortgage bond executed by defendant No. 1 in favour of a third person, though not addressed or communicated to the creditor, is a sufficient acknowledgment under Section 19 of the Limitation Act so as to save the limitation, Mr. Prem Lall, however, has referred to the Privy Council case of -- 'Mylapore lyaswamy Vyapoory Moodliar v. Yeo Kay', 14 Cal 801 (PC) (A). In this case, their Lordships nowhere referred to the explanation to Section 19 of the Act which explanation was added to the section in. 1871. Their Lordships had only quoted the section without the explanation and, upon an interpretation of the section alone, held that, in that case, as the acknowledgment of liability was not made to the plaintiff or to anyone through whom he claimed, the said acknowledgment did not give a fiesh start to the period of limitation prescribed by the statute. It is apparent that explanation (1) to Section 19 of the Limitation Act was overlooked.
This case was, however, followed in the Calcutta High Court by two eminent Judges of that Court, namely, Maclean, C. J. and Mookerjee, J., in the case of -- 'Imam Ali v. Baijnath Ram Sahu', 33 Cal 613 (B). The judgment was given by Mookerjee, J. Their Lordships held that an acknowledgment under Section 19 to be effective must be an admission of liability made to the plaintiff or to a person through whom the plaintiff claimed, and it was observed:
"The view we take is based upon a construction of Section 19 and of the explanation attached to it, as interpreted by the Judicial Committee in the case of -- '14 Cal 801 (PC) (A)'."
It was contended before their Lordships that explanation (1) to Section 19 had been overlooked by their Lordships of the Judicial Committee, and they answered that criticism thus:
"We do not think that there is any foundation for this suggestion as three of the members of the Judicial Committee (Lord Hobhouse, Sir Barnes Peacock and Sir Richard Couch), who heard this case, were Judges of considerable experience of Indian Courts and quite familiar with the provisions of Indian Codes."
I must respectfully differ from their Lordships as it is plain that explanation (1) to the section was not brought to the notice of their Lordships of the Judicial Committee. Having made the Privy Council decision as the basis of their judgment, their Lordships further said that the explanation did not use the expression "shall be sufficient" but only said that "it may be sufficient." True it is that the explanation uses the expression "may be sufficient", but that language has been used, in my opinion, because that expression qualifies a number of contingencies contemplated in the explanation; and, simply because the word "may" has been used, it does not show that an acknowledgment addressed to strangers cannot be a sufficient acknowledgment so as to extend the limitation under Section 19. It is not easy to find out the reason why an acknowledgment under Section 19 should at all be addressed or communicated to the creditor concerned.
The whole purpose of this section appears to be that, if there is an acknowledgment of liability before the suit to enforce that liability is barred, there will be a fresh start of limitation, and it does not matter whether the acknowledgment of liability is not addressed or communicated to the plaintiff or to one through whom he claims. It should be enough if there has been an acknowledgment of a liability within the meaning of Section 19 of the Limitation Act.
The question was considered in a later decision of the Privy Council itself in -- 'Maniram v. Seth Rupchand', 33 Cal 1047 (PC) (C), and their Lordships said as follows:
"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."
It was held in the case of -- 'Hiralal Ichhalal v. Desai Narsilal Chaturbhujdas', 40 Ind App 68 (PC) (D) by their Lordships of the Judicial Committee that, on an acknowledgment, though not addressed to the mortgagors, the suit for redemption based on the mortgage was saved from the bar of limitation. To the like effect is the decision of this Court in -- 'Jagernath Gir v. Rajman Gir', AIR 1919 Pat 244 (E) by Jwala Prasad, J., who relying upon the cases of --'Dur Gopal Singh v. Kasheeram Pandey', 3 Suth WR 3 (F) and -- 'Genda Mal v. Ilahi Buksh', 1 Ind Gas 510 (All) (G), held that an acknowledgment by the mortgagee of the mortgage right in a deed of assignment executed by him in favour of a third person was sufficient to save the claim of the mortgagor from limitation in a suit for redemption.
Even the Calcutta High Court in -- 'Brojo Nath Saha v. Gaya Sundari Dassya', 6 Cal LJ 141 (H) placed no reliance upon, the cases of -- '33 Cal 613--also reported in 10 Cal WN 551 (B)' and -- '14 Cal 801 (PC) (A)', and it was held in that case, relying upon the case of -- '33 Cal 1047 (C)', that, though the acknowledgment was not addressed to the person entitled, according to the explanation given in Section 19, this was not necessary. Their Lordships also followed the case of -- 'Sukhamoni v. Ishan Chunder', 25 Cal 844 (I). To the same effect is the judgment of the Allahabad High Court in -- 'Raghubar Dayal v. Banwari LaP, AIR 1933 All 352 (J). I would, therefore, hold that the first point of Mr. Lall is without substance and that the acknowledgment mentioned in the mortgage bond of a third person about the liability of defendant No. 1 in respect of the mortgage bond in suit was an acknowledgment made under Section 19 of the Limitation Act, and it gave a fresh start of limitation as all the requirements of the section were complied with.
6. There is no doubt that Section 19 speaks of acknowledgment of liability, in other words, acknowledgment of a debt which still remains to be paid and has not been paid off. If there is a mere acknowledgment of debt without more, that acknowledgment may not be enough, if that acknowledgment does not show that the debt is still payable. If the debtor admits that there was a certain debt in favour of the plaintiff, that cannot possibly be construed as an acknowledgment of liability under Section 19. The admission amounted only to the fact that there was once a debt and not to any liability under that debt. I would, therefore, accept the argument of Mr. Lall that there is a difference between a mere acknowledgment of debt and an acknowledgment of liability. In the present case, however, it is quite clear from the recital in the deed of 1932, already quoted, that the debtor, defendant No. 1, In unequivocal terms said that certain money was payable towards the mortgage bond in suit (1930). Whether the money due under the bond was Rs. 325/- or more is a different matter, but he did say in the aforesaid bond that the money under the bond in suit was payable by him. In my judgment, therefore, the present acknowledgment, as contained in the recital mentioned above, was an acknowledgment not of mere debt but it was an acknowledgment of liability under the mortgage bond in suit.
7. Mr. Prem Lall has referred to the case of -- 'Chhaterdhari Mahto v. Nasib Sinah', AIR 1924 Pat 306 (K). The facts of that case were different and upon the facts of that particular case, their Lordships, disposing of the point raised --before them, observed as follows:
"It is true that the explicit reference is to the sataua zarpeshgi lease. But paragraph 6 of the written statement in the present suit shows that it included the bond now in suit. This statement was made before the expiration of the period prescribed for the suit. It was signed by the party to be charged. There is then an acknowledgment of the debt; but is it a sufficient acknowledgment of liability? An acknowledgment that a debt was due, without more, will be held to imply a promise to pay:........ On the other hand, the statement that there was a debt but it has been discharged, is not. sufficient.........."
7. On a consideration of the facts, their Lordships held that, in that case, the inference was that the liability under the mortgage bond in suit did no longer exist. In that view of the matter, their Lordships further held that the bar of limitation was not saved by any acknowledgment under Section 19 of the Limitation Act. That case, therefore, can be no guidance for the decision of the case in hand. In my opinion, the, acknowledgment, in the present case is an acknowledgment in writing by the debtor and is not merely an acknowledgment of a debt but an acknowledgment of liability, and it satisfies the conditions laid down in Section 19.
8. The only other question that remains is whether the liability should be limited to a sum of Rs. 325/- only as mentioned in the acknowledgment.
9. Upon a proper construction of the recital in the document already quoted, it means that Rs. 325/- on the basis of the mortgage bond in suit is due on account. After the figure '325/-', the word used is 'minjumle'. The question is whether it was meant to indicate that the liability under the mortgage bond of 1930 was limited to Rs. 325/- or whether it indicated that out of the principal and interest and compound interest only a sum of Rs. 325/- had to be paid to Babu Kishun Prasad Shahi, father of plaintiff No. 1. The word 'minjumle' is defined in the Persian English Dictionary of Steingass to mean, "among; among all; in all; from among; totalling; upon the whole".
In the context in which the word 'minjumle' has been used, however, in my opinion, it suggests that the executant wanted to convey the idea that a sum of Rs. 325/- should be paid on account of principal, interest and compound interest, and that there was no idea of mentioning the fact that only a sum of Rs. 325/- was due under the mortgage bond mentioned therein. The executant has referred in the earlier part of the recital quoted above to the payment which should be made towards the mortgage bond dated 15-6-1927. The executant, in respect to that bond, has stated quite clearly that, on account being taken up to date, the dues under the bond, with principal and interest, and compound interest came to Rs. 2,529/- and, as the executant had separated from his nephew, he was liable to pay only half of the amount, namely. Rs. 1,264-8-0. The recital in respect of this amount is worded differently from the one in question in the present case about the sum of Rs. 325/-.
No indication is given that any account was made and on such account having been taken a certain sum was due. The recital, in my opinion, refers to the proposed payment of Rs. 325/- on the basis of the mortgage bond in suit only. The contention of Mr. Prem Lal is that the sum of Rs. 325/- mentioned in the recital represents the total amount due on the basis of the bond in suit. This construction is not correct.
Emphasis was laid by him on the word 'min-jumle'. A word may have different meanings, but it is the context in which it is used which alone can show what meaning should be given to a particular word.
Mr. Prem Lall has placed before me the case of -- 'Mathura Prasad Singh v. Mahendra Singh', AIR 1953 Pat 358 (L). Relying upon a Division Bench authority of this Court in -- 'Jamuna Prasad Singh v. Mit Lal Raut', S. A. No. 2032 of 1946, D/- 8-2-1949 (Pat) (M) decided by Manohar Lall and Mahabir Prasad JJ., it was held in that case that the word 'minjumla' does not always mean 'out of' and that in the context it meant 'over and above'. That case, therefore, does not support Mr. Lall.
Even conceding, however, for the sake of argument, that a sum of Rs. 325/- was mentioned as being the total dues upon the mortgage bond in suit, I would consider the effect of such an acknowledgment whether the liability should be limited to the payment of Rs. 325/- only or whether it should extend to all liabilities under the bond in suit which may be due on accounting.
The first part of Section 19 lays down that, if before the expiration of the period prescribed for a suit or application in respect of 'any' property or right, an acknowledgment of liability in respect of such 'property' or 'right' has been made in writing signed by the party against whom such 'property' or 'right' is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
I have underlined (here in ' ') the important words which are "property or right". Acknowledgment, therefore, is needed only in respect of property or right. In the present case, the mortgagee's right to recover his mortgage money on the basis of the mortgage bond of 1930 is in question. If the mortgagor has acknowledged that right of the mortgagee, in my opinion, the limitation would run from the date of such acknowledgment. It does not matter whether the whole of the amount due is not admitted by the mortgagor. What is due upon the mortgage bond when the suit is brought is a matter of calculation and accounts.
By the acknowledgment, the mortgagor has admitted the liability in respect of the mortgage bond in question and that is sufficient under the section to give a fresh start of limitation to the suit upon the mortgage bond.
10. Before I consider the cases cited by Mr. Prem Lall, I would like to make clear the distinction between an acknowledgment of liability, under Section 19 of the Limitation Act, and a promise to pay a barred debt under Section 25(3) of the Indian Contract Act. Section 19 of the Limitation Act lays down that a fresh period of limitation shall be counted for a suit or application in respect of any property or right where the acknowledg-
ment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability. It speaks of the extension, of time for a suit in respect of any property or right; it has no reference to the actual amount of liability in respect of right or property. All that is needed under this section is that an acknowledgment of liability in respect of property or right has been made before the expiration of the period of limitation prescribed for a suit or application in respect of such property or right coupled with the other formal requirements as signing in writing by such party against whom the property or right is claimed or by some person through whom he derives title or liability.
When we turn to Section 25(3) of the Contract Act, the position is different. Relevant part of Section 25(3) would read as follows:
"An agreement made without consideration is void unless--
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."
11. The emphasis is on the promise to pay in writing wholly or in part of a debt which has become barred by time; in other words, even when the suit is barred in respect of a debt, the debtor may make a promise in writing signed by him or by his agent generally or specially authorised to pay wholly or in part a particular debt. This section, therefore, contemplates a fresh promise to pay either wholly or in part a barred debt. If he makes a promise to pay only a part of the barred debt, it is obvious that the whole debt cannot be enforced against the debtor. Section 19 of the Limitation Act deals with acknowledgments of liability of right or property before the right to sue in respect thereof is barred. No question, therefore, arises therein of promise to pay either the whole or any part of the debt.
Section 25(3) of the Contract Act comes into play after the debt has become barred and there is a fresh promise to pay by the debtor which could be in respect of either the whole of the debt or a part of it. Confusion is bound to arise if the difference in the Indian law between acknowledgment of liability in respect of property or right (Section 19 of the Limitation Act) and promise to pay a barred debt (Section 25(3) of the Contract Act) is not borne in mind. So far as the English law is concerned, there is no such distinction.
Their Lordships of the Privy Council in the case of -- '33 Cal 1047 (C)', dealing with a case under Section 19 of the Limitation Act and referring to the facts of that particular case, observed at page 1058 as follows, after having found that all the requirements of Section 19, Explanation (1), had been complied with in that case:
"We have, therefore, the bare question of whether an acknowledgment of liability, if the balance on investigation should turn out to be against the person making an acknowledgment, is sufficient."
At page 1030, their Lordships said:
"But in English law it is the acknowledgment of liability, which is the ground upon which a promise to pay is inferred, so that the requirements of English law are, if anything, more, and not less stringent than those of Indian Law, which seems to be bad reason for holding that the English cases have no application to the present enquiry."
In English law, from an acknowledgment of liability an inference of promise to pay arises and, therefore, their Lordships said that the English law is more stringent than the Indian law where a mere acknowledgment of liability is enough.
The view which I have taken finds support from the case of -- 'Ram Bahadur Singh v. Damodar Prasad Singh', AIR 1921 Pat 29 (N). Their Lordships in that case say:
"In India a distinction has always been made between the acknowledgment which is sufficient for the purposes of Section 19 of the Limitation Act and the promise which is required by Section 25 of the Indian Contract Act. An acknowledgment no doubt implies a promise to pay but in order to create a new contract, and this is what Section 25 of the Contract Act requires, it is necessary that the promise to pay should be expressed."
12. Mr. Prem Lall has placed before me several cases, and I would like to consider them. In -- 'Rangaswami Chetti v. Thangavelu Chetti', AIR 1919 Mad 317 (O), it was found that exhibit B, which was relied upon in that case as containing the acknowledgment, did not acknowledge a subsisting liability as the deponent said distinctly that he had discharged the debt. It was, therefore, held that the statement in exhibit B did not amount to an acknowledgment of any subsisting liability.
In -- 'Parasram Shukul v. Bindeshari Pandey', AIR 1953 All 33 (P), all that was said was that an acknowledgment under Section 19 of the Limitation Act necessarily implied a conscious acknowledgment of liability. I respectfully agree with that view, but this case again, is of no assistance because there was no question raised whether it was payment of whole or part of the debt in respect of which liability was acknowledged.
In -- 'Chandra Kumar Dhar v. Ram Din Pod-dar', 13 Ind Cas 702 (Cal) (Q), the decree-holder had applied for execution of a certain decree and he prayed for realisation of Rs. 231/-. One of the judgment-debtors had acknowledged that sum. Later, the decree-holder made an application for execution for recovery of Rs. 845/-, including additional amount of interest which by mistake had not been mentioned in the previous execution, where one of the judgment-debtors had acknowledged his liability to the extent of Rs. 231/- only. Their Lordships held that the acknowledgment being only in respect of a small amount it could not be a fresh starting point for limitation as regards the additional amount.
In my opinion, with great respect to their Lordships, this case was not correctly decided inasmuch as this was a case covered by Section 19 of the Limitation Act and all that was needed was the acknowledgment of liability in respect of a right, the right being to make an application for execution. Limitation for making such an application would, in my opinion, be certainly extended by the acknowledgment.
In a very recent case, the Calcutta High Court in -- 'Hatimulla v. Sukhamoy Chaudhuri', AIR 1930 Cal 304 (B) has taken a different view. In this case, their Lordships held as follows:
"In the judgment debtors' petition of 10-12-1924 they acknowledged liability for a sum of Rs. 1,500/- alleging tnat there has been a set off or payment of Rs. 500/-. This acknowledgment gives a fresh start under Section 19, Limitation Act. The Munsif is not quite right in saying that the fresh start for saving limitation is confined to the sum of Rs. 1,500/- admitted by the judgment-debtors. It gives a fresh start according to the provisions of the section to an application for execution of the entire decree."
The case of -- 'Bans 'Gopal v. Mewa Ram', AIR 1930 All 461 CS), is a single Judge decision of that Court. This case holds that where no definite sum is mentioned and an acknowledgment is made in general terms, the entire amount of debt can be recovered as mentioned in 3. 19 (Explanation 1), but where a definite sum is acknowledged the acknowledgment could be used to save limitation only with respect to the sum acknowledged. His Lordship has given no reasons and has relied upon no authority.
This case also, in my opinion, has not been correctly decided. The case of -- 'Karamadai Naicken v. Raju Pillai', AIR 1949 Mad 401 (T), is not quite relevant to the facts of the present case. In that case, it was held that there was no acknowledgment within the meaning of Section 19 of the Limitation Act.
The last case cited was the case of -- 'Kandasami Reddi v. Suppamal', AIR 1922 Mad 104 (U). The facts of that case were entirely different, and it was held that the alleged, acknowledgment was no acknowledgment of a subsisting liability and, threfore, it could not extend the period of limitation under Section 19 of the limitation Act.
I am therefore, firmly of the opinion that, in the present case, there was acknowledgment of liability within the meaning of Section 19 of the Limitation Act, and that, therefore, the suit is not barred by time and that the liability must be discovered upon evidence in the case and cannot possibly be limited to the amount of Rs. 325/-only as mentioned in the recital.
13. In the result, the appeal fails as it is without substance and it is dismissed with costs.