Sant Lal Mahton Vs. Kamala Prasad
[1951] INSC 47 (17 October 1951)
MUKHERJEA, B.K.
SASTRI, M. PATANJALI DAS, SUDHI RANJAN BOSE,
VIVIAN
CITATION: 1951 AIR 477 1952 SCR 116
ACT:
Indian Limitation Act (IX of 1908), s. 20
(1)--Payment of interest before expiry of period of limitation--Acknowledgment
in writing after limitation--Whether gives fresh period of
limitation-Acknowledgement after institution of suit, whether sufficient.
HEADNOTE:
While s. 20 of the Limitation Act requires
that the payment should be made before the expiration of the period of
limitation, it does not require that the acknowledgement of the payment should
also be made within that period. But it is essential that such acknowledgement,
whether made before or after the period of limitation, must be in existence
prior to the institution of the suit. An acknowledgement of the payment by the
defendant in a written statement filed after the institution of the suit is not
enough.
Mohd. Moizuddin v. Nalini Bala (I.L.R. [1937]
2 Cal.
137), Lal Singh Gulab Rai (I.L.R. 55 All.
280), Venkatasubbu v. Appa Sundaram (I.L.R. 17 Mad. 92}, Ram Prasad v. Mohan
Lal (A.I.R. 1923 Nag. 117), Viswanath v. Mahadeo (I.L.R. 57 Born. 453)
approved.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 81 of 1950. Appeal from a judgment and decree dated 17th March, 1944, of
the High Court of Judicature at Patna (Fazl Ali C.J. and Beevor J.) in F.A. No.
47 of 1942, arising out of decree dated 27th February, 1942, of the Subordinate
Judge of Purnea in Title Mortgage Suit No. 7 of 1940.
B. C. De (Bhabhananda Mukherjee, with him)
for the appellants.
S.P. Sinha (B. K. Saran, with him) for the
respondent.
1951. October 17. The Judgment of the Court
was delivered by MUKHERJEA J.--This appeal, which was originally taken to the
Judicial' Committee, on special leave, granted by an Order in Council dated
August 2, 1946, 117 now stands transferred to this court by reason of the abolition
of the jurisdiction of the Privy Council. It is directed against a judgment and
decree of a Division Bench of the Patna High Court dated March 17, 1944,
affirming, on appeal, a decision of the Subordinate Judge of Purnea dated
February 27, 1942.
The appellants before us are the first party
defendants in a suit, commenced by the plaintiffs respondents, for enforcement
of a simple mortgage bond, by sale of the mortgaged property. The trial Judge,
while deciding all the other issues in favour of the plaintiffs, held on the
evidence on the record, that the bond sued upon was not legally attested and
hence could not rank as a mortgage bond. On this finding he refused to make a
decree for sale of the mortgaged property in favour of the plaintiffs and
passed a money decree, for the amount due on the bond, personally against the
defendants first party. According to the Subordinate Judge, although the suit
was instituted more than 6 years after the date fixed for payment in the bond,
yet the claim for personal relief against the mortgagors did not become
time-barred by reason of the fact that there were several payments made by the
defendants towards the satisfaction of the debt, which attracted the operation
of section 20 of the Indian Limitation Act. Against this decision an appeal was
taken by the defendants mortgagors to the High Court of Patna, but no appeal or
,cross-objection was filed by the plaintiffs against the refusal of the trial
Court to make an order for sale of the mortgaged property in their favour. The
appeal was heard by a Division Bench of the Patna High Court, consisting of
Fazl Ali C.J. and Beevor J., and the principal point canvassed on behalf of the
defendants appellants was, that the trial court was wrong in holding that the
plaintiffs' claim for a personal decree was not barred by time. The argument
put forward was that the suit, as one for personal relief against the debtors,
was barred on the expiry of 6 years from the date for repayment mentioned in
the bond and the part payments relied upon by the plaintiffs in their plaint
were ineffectual for 16 118 the purpose of extending the period of limitation
under section 20 of the Indian Limitation ActThe High Court on hearing the
appeal came to the conclusion that the bond in suit was duly attested and was
effective and enforceable as a mortgage bond, and that the view taken by the
trial court on the question of attestation could not be sustained on the
evidence on the record. As the bond could be treated as a mortgage bond, the
suit, as one for enforcement of a mortgage, was, in the opinion of the learned
Judges, quite within time, and it was not necessary in these circumstances to
call in aid the provisions of section 20 of the Limitation Act for the purpose
of extending the period of limitation. The learned Judges held, however, that
as the plaintiffs had not preferred any appeal or cross objection attacking
that part of the judgment of the trial Judge which dismissed their claim for a
sale of the mortgaged property, they were unable to pass a mortgage decree in
their favour.
The result was that the decree made by the
trial Judge was affirmed. It is the propriety of this decision that has been
challenged before us in this appeal.
Mr. De, who appeared in support of the
appeal, has contended in the first place that even if the High Court was right
in holding that the bond in suit was effective as a mortgage bond and the suit
could be treated as one for enforcement of a mortgage, no decree for money
could be passed against the defendants personally, unless the suit was
instituted within the period prescribed by Article 116 of the Limitation Act.
The High Court, it is said, overlooked this aspect of the case altogether and
was wrong in not considering the question of limitation. It is argued by the
learned Counsel that on the point of limitation the decision of the Subordinate
Judge was wrong, and as the payments relied upon by the plaintiffs had not been
acknowledged in the manner contemplated by section 20 of the Limitation Act, no
extension of time was permissible under the provisions of that section. Mr. De
further contends that on the question of attestation, the correct finding was
that arrived at by the Subordinate Judge and it 119 is impossible to hold on
the evidence that has been adduced in this case that the bond was legally s,
attested.
Mr. Sinha, appearing on behalf of the
plaintiffs respondents, has, on the other hand, attempted not only to repel the
contentions advanced on behalf of the appellants;
he has further argued that even if no appeal
or cross-objection was filed by the plaintiffs against that part of the decree
of the trial court which went against them, it was open to the High Court, in
view of the findings which it arrived at on the question of attestation, to
make a mortgage decree in this case under the provisions of Order 41, Rule 33,
of the Civil Procedure Code. The learned Counsel invited us to exercise our
powers under the said provision of the Civil Procedure Code in this appeal and
pass a mortgage decree in favour of his clients on the basis of the findings of
the High Court.
We will first take up the question of
limitation, and to appreciate the nature of the controversy that centres round
this point, it will be convenient to advert to a few relevant dates. The
mortgage bond is dated the 8th of April, 1927, but it is no longer disputed
that the executants put their signatures to the document on the 12th of April
following, and admittedly it was registered on the latter date.
Whether the attesting witnesses signed the
deed on the 12th of April or on the 8th when the document was actually scribed,
is a debatable point upon which the courts below have divergent views and we
will discuss this matter later on. The due date, as given in the mortgage, is
the 6th of March, 1928. The suit was instituted on 4th of March, 1940, and if
it could be treated as a mortgage suit pure and simple for enforcement of a
charge on immovable property, the suit was obviously within time and no
question of limitation would arise. If, however, the attestation is held to be
defective and the mortgagee seeks to recover the debt personally from the
mortgagor on the basis of a covenant to pay, such suit, if the bond is
registered, would be governed by Article 116 of the Limitation 120 Act and the
period of limitation would be 6 years from the date fixed for repayment unless
it could be extended under some other provision of the Limitation Act. The mere
fact that in such cases the plaintiff chooses to frame his suit as one for
enforcement of a charge, would not give him an extended period of limitation
for obtaining a personal decree against the debtor. The position, therefore, is
that if the bond in the present case cannot be treated as a mortgage bond and
the only relief which the plaintiffs can claim is one for recovery of money
against the defendants personally, the suit must be deemed to be barred, as it
was instituted beyond 6 years from the due date of payment unless limitation is
saved by reason of the payments under section 20 of the Limitation Act. This
leads us to enquire as to whether the trial Judge was right in holding that the
payments made by the defendants satisfied the requirements of section 20 of the
Limitation Act and were hence available to the plaintiffs for the purpose of
extending the period of limitation within which the suit should otherwise have
been brought.
The plaintiffs stated specifically in their
plaint that the defendants made eight payments in all, aggregating to a sum of
Rs. 780-9-0, in part satisfaction of the debt, since the execution of the
mortgage bond. The first payment which was of a sum of Rs. 300 was made on 21st
January, 1928, and this was before the expiry of the due date mentioned in the
bond. The second payment was of Rs. 75 and was made on the 5th of June, 1929.
The third payment is dated 8th of March, 193l, and the fourth was made within
one month after that on 3rd April, 1931. the fifth and the sixth payments were
both made in the month of May, 1932, the seventh on 25th July, 1934, and the
last payment was made on 15th of May, 1936.
The present suit was instituted, as said
above, on the 4th March, 1940. There cannot be any doubt that if a fresh period
of limitation could be computed from each one of the payments mentioned above,
the plaintiffs' suit would be quite in time even if it is treated as a suit for
121 obtaining a money decree against the defendants personally.
The contention of the appellants is that as
San there is no acknowledgement in the handwriting of, or in any writing signed
by, the payer in respect of any Of these payments, they could be of no avail in
giving a fresh start to the period of limitation under section 20 of the
Limitation Act.
For determination of this point, it is
necessary to turn to the provision of section 20 of the Limitation Act. The
section, after it was amended by Act I of 1927, stands as follows :-20(1).
"Where interest on a debt or legacy is, before the expiration, of the
prescribed period, paid as such by the person liable to pay the debt or legacy,
or by his agent duly authorized in this behalf, or where part of the principal
of a debt is, before the expiration of the prescribed period, paid by the
debtor or by his agent duly authorized in this behalf, a fresh period of
limitation shall be computed from the time when the payment was made:
Provided that, save in the case of a payment
of interest made before the 1st day of January, 1928, an acknowledgment of the
payment appears in the handwriting of, or in a writing signed by, the person
making the payment." Admittedly in the case before us, none of the
payments specified above were endorsed on the bond itself and there was no
acknowledgment either in the handwriting of, or signed by, the debtors prior to
the institution of the suit.
What the Subordinate Judge relied upon, is
the admission contained in paragraph 15 of the written statement filed on
behalf of defendants 1 to 3 in the present suit where these defendants admitted
not only that the payments specified in the plaint were actually made on the
respective dates but asserted that there were other payments besides these,
which reduced the debt still further and for which the plaintiffs' did not give
any credit to the defendants. In the opinion of the Subordinate Judge as the
written 122 statement was signed by these defendants, it would fulfil all the
requirements of a signed acknowledgment as is contemplated by the proviso to
section 20. The short point for our consideration is: whether the view taken by
the Subordinate Judge is correct ? It would be clear, we think, from the
language of section 20 of the Limitation Act that to attract its operation two
conditions are essential: first, the payment must be made within the prescribed
period of limitation and secondly, it must be acknowledged by some form of
writing either in the handwriting of the payer himself or signed by him. We
agree with the Subordinate Judge that it is the payment which really extends
the period of limitation under section 20 of the Limitarian Act; but the
payment has got to be proved in a particular way and for reasons of policy the
legislature insists on a written or signed acknowledgment as. the only proof of
payment and excludes oral testimony. Unless, therefore, there is acknowledgment
in the required form, the payment by itself is of no avail. The Subordinate
Judge, however, is right in holding that while the. section requires that the
payment should be made within the period of limitation, it does not require
that the acknowledgment should also be made within that period. To interpret
the proviso in that way would be to import into it certain words which do not
occur there. This is the view taken by almost all the High Courts in India and
to us it seems to be a proper view to take(1).
But while it is not necessary that the
written acknowledgment should be made prior to the expiry of the period of
limitation, it is, in our opinion, essential that such acknowledgment, whether
made before or after the period of limitation, must be in existence prior to
the institution of the suit. Whether a suit is time-barred or not has got to be
determined exclusively with reference to the date on which the plaint is filed
and the allegations made therein.
The legislature has expressly (1) See Md.
Moizuddin v. Nalini Bala (A.I.R. 1937 Cal.
284: I.L.R. (1937) 2 Cal. 137), Lal Singh v.
Gulab Rai (I.L.R. 55 All 280), Venkata Subbhu v. Appa Sundaram I.L.R.
17 Mad. 92). Ram Prasad v. Mohan Lal (A.I.R.
1923 Nagpur 117), Viswanath v. Mahadeo (57 Bom. 453).
123 declared in section 3 of the Limitation
Act that whether defence of limitation be pleaded or not, the court is bound to
dismiss a suit which is brought after the period provided therefore in the
first schedule to the Limitation Act. If the plaintiff's right of action is
apparently barred under the statute of limitation, Order 7, Rule 6, of the
Civil Procedure Code makes it his duty to state specifically in the plaint the
grounds of exemption allowed by the Limitation Act upon which he relies to
exclude its operation; and if the plaintiff has got to allege in his plaint the
facts which entitle him, to exemption, obviously these facts must be in
existence at or before the time when the plaint is filed; facts which come into
existence after the filing of the plaint cannot be called in aid to revive a
right of action which was dead at the date of the suit. To claim exemption
under section 20 of the Limitation Act the plaintiff must. be in a position to
allege and prove not only that there was payment of interest on a debt or part
payment of the principal, but that such payment had been acknowledged in
writing in the manner contemplated by that section.
The ground of exemption is not complete
without this second element, and unless both these elements are proved to exist
at the date of the filing of the plaint the suit would be held to be
time-barred. In the plaint as it was originally filed in this case, the prayer
was only for a mortgage decree in the usual form. After the hearing was closed,
the plaintiffs, it seems, were apprehensive that the court might not hold the
bond to be properly attested. In these circumstances. they prayed for an
amendment of the plaint which was allowed by the court. By the amended plaint
the cause of action was stated to arise from the different payments made on
different dates as were stated in paragraph 7 of the plaint and at the end of
paragraph 7 the following words were added :"The suit is saved from
limitation so far as the personal remedy is concerned and the payments were
made by the defendants on different dates as mentioned in Schedule A
below." 124 These amendments must be deemed in the eye of law to be a part
of the original plaint, and obviously there is neither any averment nor proof
that any of these payments was acknowledgment in writing prior to the
institution of the suit. This being the position, the suit treated as one for
obtaining a money decree against the defendants must be held to be barred by
limitation at the date on which it was instituted and the courts below
consequently were not justified in giving the plaintiffs a money decree in this
suit.
The question now is whether we can pass a
mortgage decree in favour of the plaintiffs on the basis of the finding of the
High Court that the bond was properly attested; and it is not disputed that no
question of limitation would in that case arise. To decide this question there
are two points which require consideration :-(1) Whether the finding of the
High Court on the question of attestation is a correct and proper finding on
the evidence adduced in this case ? (2) If it is so, whether the facts of the
plaintiffs not having preferred an appeal or cross-objection against that part
of the judgment of the trial Judge which refused them a mortgage decree, stands
in the way of their claiming any relief other than what was given to them by
the trial Judge ? As regards the first point, the evidence shows that the
mortgage bond was written and engrossed at the plaintiffs' house at village
Chakla Maulanagur and the date which the document bears is 21st Chaitra 1334
Fasli corresponding to 8th April, 1027. Obviously, it was on that date the
document was written. There are four attesting witnesses whose names appear in
the deed, to wit, Sunderlal, Matukdhari Prasad, Dwarka Prasad and Nanak Prasad
the last named person being also the scribe of the document --and all of them
were residents of Chakla Maulanagur which is the place of residence of the
mortgagees. The mortgagors, on the other hand, are inhabitants of a different
village, namely, Chandpur. Nanak Chand, the scribe, was not alive 125 at the
time when the suit came up for hearing and out of the remaining three witnesses
two were examined on behalf of the plaintiffs. They are Sunderlal and
Matukdhari Prasad.
Sunderlal, who is P.W. 1, states when
cross-examined on behalf of some of the defendants: "I signed the bond at
the plaintiffs' house, as did the attesting witnesses." The attestation of
the bond was on the same day that it was written." The other attesting
witness, Matukdhari Prasad, during cross-examination said as follows: "The
bond was written, signed by the executants and attested by the witnesses on the
same date." The document shows that all the three executants put their
signatures to it on 12th of April, 1927, and on the same day it was presented
for registration before the Registering Officer at Katihar. Katihar is at some
distance from the plaintiffs' village and a part of the journey has to be
covered by train. The evidence of the two attesting witnesses makes it clear
that the document was attested on the same day as it was written. As the
document was written on the 8th but actually executed on the 12th, the
Subordinate Judge was of opinion that the attesting witnesses must have signed
the deed before it was executed land this was no attestation in the eye of law.
The High Court, on the other hand, has held that the vernacular equivalent of
the word "written" as used by the attesting witnesses might mean
execution as well and the Subordinate Judge, who was not familiar with the
language of the witnesses might have committed the mistake of taking the word
"written" in the sense of mere engrossing or scribing of the deed,
although the word could be interpreted to mean execution as well. We do not
think that this assumption on the part of the learned Judges of the High Court
is justified. In the first place, Matukdhari Prasad, the plaintiffs' own
witness, is quite precise in his statement and makes a distinction between the
writing of a document and its signing or execution. According to him, the bond
was written, executed and attested on the same day. But 17 126 what is more
important for our purpose is the place of the execution of the document. If it
was executed at the plaintiffs' house, where it was admittedly written, the
date of execution would naturally be the date when the deed was scribed or
engrossed. This is exactly the suggestion which the plaintiffs' lawyers made to
defendant No. 1 Sant Lall when he was being crossexamined. He was asked as to
whether the document was executed at the' plaintiffs' village or at Katihar,
where it was taken for registration. The witness persisted in saying that he
and the other executants put their signatures not at the place of the
plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the
morning. This story seems to fit in with the circumstances and probabilities of
the case. The document was certainly taken to Katihar on the 12th of April,
1927, and the executants were all present there on that day and admitted
execution of the document by putting their signatures before the Registering
Officer. The signatures by way of execution of the document also bear the same
date. From these circumstances it would be natural to presume that the
execution took place at Katihar some time before the document was presented for
registration. On the other hand, it is nobody's case that any of the attesting
witnesses had gone to Katihar; they belong to the plaintiffs' village and were
present at the time when the document was written. It was quite natural in
these circumstances that they would sign the deed at the plaintiffs' place and
on the date when it was written. It might have been in contemplation of the
parties that the executants should also sign the document on the same day but
it seems that somehow or other that did not happen. We are not unmindful of the
fact that no specific defence was taken by defendants 1 and 3 pleading want of
attestation of this document and defendant No. 1 also did not say anything on
the point in his examination in chief.
But the point was definitely taken in the
written statement not only of the minor defendants but also of defendants 4 and
9, who are the sons of Bharath and defendant No. 2 respectively and 127 they
were no less interested in contesting the suit than defendants 1 to 3.
Moreover, a specific issue on the, question of attestation was framed by the
learned Subordinate Judge. On the Whole, our conclusion is that the view taken
on this point by the Subordinate Judge is right and it is difficult to hold on
the internal evidence furnished by the contents of the document itself taken
along with the statements of witnesses that the bond was attested in due and
proper manner. This being our view, the other question as to whether we should
pass a mortgage decree in this case in exercise of our powers under Order 41,
Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not
challenge the decision of the trial court by way of appeal or cross-objection
does not require to be considered The result is that the appeal is allowed, the
judgments and decrees of both the courts below are set aside and the
plaintiffs' suit dismissed. Having regard to the facts and circumstances of
this case, we would direct that each party would bear its own costs in all the
courts.
Appeal allowed.
Agent for the appellant:I. N. Shroff.
Agent for the respondents: R.C. Prasad.
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