P.N. Veeti
Narayani Vs. Pathumma Beevi & Anr [1990] INSC 279 (13 September 1990)
Punchhi,
M.M. Punchhi, M.M. Ahmadi, A.M. (J)
CITATION:
1991 AIR 720 1990 SCR Supl. (1) 433 1990 SCC (4) 672 JT 1991 (5) 420 1990 SCALE
(2)481
ACT:
Limitation
Act: Sections 18, 19 and 20--Acknowledgment of debt--When saves limitation.
Muslim
Personal Law--Liability to discharge debts de- volves on heirs proportionate to
their respective Shares in the estate of the deceased.
HEAD NOTE:
One Vellappa
Rawther, deceased, had incurred debt by means of two promissory notes for Rs.25,000
and Rs.50,000.
In the
suits filed on the basis of the promissory notes, the Trial Court granted a
decree against the estate of Vellappa Rawther in the hands of defendants 2 to
10.
The
High Court on appeal modified the decree reducing it to one fourth of the
decreed sum and focussed the liability on defendant-Respondent No. 2 absolving
others of the re- maining liability on the bar of limitation. Such view was
taken as the facts established that the liability to dis- charge debts of Vellappa
Rawther after his death was indi- vidually on his heirs proportionate to the
extent of their share in the estate devolving on them, and since the debt had
become time barred, acknowledgment of the same by de- fendant-respondent No. 2
as well as partial payment of the debt by him rendered him alone liable to meet
liability to the extent of one fourth related to the share of the estate which
as a Muslim heir he received from the deceased.
Before
this Court, it was claimed on behalf of the appellant that under sections 18
and 19 of the Limitation Act the acknowledgment and partial payment saved
limitation against all and thus the entire debt could be recovered from
defendant-respondent No. 2, he being in possession of the estate lying joint.
Dismissing
the appeal, this Court,
HELD:
(1) The debt of the deceased gets divided in shares by operation of Muslim
Personal Law amongst the heirs proportionate to their shares in the estate. The
theory of sanctity of the integrity of the 434 debt is apparently foreign in
the case of a deceased muslim leaving debt and some estate both being divisible
amongst his heirs. [247G] Mohd. Abdul Qadeer v. Azamatullah Khan and 8 Others,
[1974] 1 Andhra Weekly Reporter 98; Vasantam Sambasiva Rao v. Sri Krishna
Cement and Concrete Works, Tenali 1977 Andhra Law Times Reports at 528; N.K.
Mohammad Sulaiman v.N.C. Mohammad Ismail and Others, [1966] 1 SCR 935 at 940,
re- ferred to.
(2) It
would be right to treat it settled that muslim heirs are independent owners of
their specific shares simul- taneously in the estate and debts of the deceased,
their liability fixed under the personal law proportionate to the extent of
their shares. [248H] Jafri Begum v. Amir Muhammad Khan, [1885] Vol. 7 ILR Allahabad
series, referred to.
(3)
The heirs of a muslim are by themselves independent debtors; the debt having
been split by operation of law.
Inter
se, they have no jural relationship as co-debtors or joint debtors so as to
fall within the shadow of contrac- tors, partners, executors or mortgagees or
in a class akin to them. They succeed to the estate as tenants-in-common in
specific shares. [250D]
(4)
Even a signed written acknowledgment by the princi- pal or through his agent
would bind the principal and not anyone else standing in jural relationship
with the princi- pal in accordance with section 20(2) of the Limitation Act.
The Muslim heirs inter-se have no such relationship. [250E]
(5) If
the debt is one and indivisible, payment by one will interrupt limitation
against all the debtors unless they come within the exception laid down in
section 20(2).
And if
the debt is susceptible of division and though seem- ingly one consists really
of several distinct debts each one of which is payable by one of the obligors
separately and not by the rest, section 20 keeps alive his part of the debt
which has got to be discharged by the person who has made payment of interest.
It cannot affect separate shares of the other debtors unless on the principal
of agency, express or implied, the payment can be said to be a payment on their
behalf also. [250H; 251A] Abheswari Dasya and Another v. Baburali Shaikh and
Others, AIR 1937 Cal. 191, referred to.
435
(6) The property of the co-heirs supposedly in posses- sion of defendant-respondent
No. 2 cannot be touched direct- ly in his hand unless the co-heirs being
parties to the suit are held liable to pay their share of the debt; the debt
being recoverable. [251F]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 229 of 1976.
From
the Judgment and Order dated 6.9.1974 of the Kerala High Court in A.S. No. 76
of 1974.
S. Padmanabhan,
K. Prasonthi and N. Sudha-Karan for the Appellant.
Ms. Shyamla
Pappu, G. Vishwanathan lyer, V.B. Saharya and Mrs. Sarla Chandra for the
Respondents.
The
Judgment of the Court was delivered by PUNCHHI, J. This appeal by special leave
is against the judgment and decree dated 6.9. 1974 passed by the High Court of Kerala
in A.S. No. 76 of 1974 whereby the High Court reduced the decree of the trial
court to one fourth disal- lowing the remaining three-fourth on the ground that
the same was barred by limitation. The plaintiff-appellant hereinbefore us
ventures to have the decree of the trial court restored. Since
defendant-respondent No. 2, Santu Mohammed Rawther is to meet the established
liability, there is an effort on his behalf, though quite belated, to seek
leave to cross-object to the partial decree of the suit.
The
facts giving rise thereto were indeed diverse and varied which got involved in
four suits disposed by the trial court by a common judgment, in the first
instance, in April, 1967. Four appeals, were filed by the aggrieved parties
before the High Court out of which three were dis- posed of by a common
judgment on 11-9-1972. The fourth appeal arising from
O.S. No. 141 of 1965 was allowed grant- ing permission to the
plaintiff-appellant herein to amend the plaint so as to base his money suit on
the basis of two promissory notes with the aid of acknowledgments contained in
some documents. The trial court in pursuance of the order of remand granted a
decree against the defendants for a sum of Rs.56,769.80, with interest thereon
at 6-1/4 per cent from 11-11-1964 till 31-7-1955 and thereafter at 6 per cent
per annum till payment, with proportionate costs against the estate of 436 Vellappa
Rawther in the hands of defendants 2 to 10; and another personal decree for a
certain sum against the first defendant-respondent which presently is not in
dispute. The High Court on appeal preferred by defendant-respondents No. 2 and
4-10 in Original Suit No. 141 of 1965 (the only one surviving) modified the
decree reducing it to the one fourth of the decreed sum and focussed the
liability on defendant- respondent No. 2 absolving others of the remaining
liability on the bar of limitation. Such view was taken on the facts
established that the liability to discharge debts of Vellap- pa Rawther
deceased incurred by means of two promissory notes dated 23-11-1960 and
5-1-1961 for Rs.25,000 and Rs.50,000 respectively, after the death of Vellappa Rawther
on 26-6-1962, was individually on his heirs proportionate to the extent of
their share in the estate devolving on them and since the debt had become time
barred, acknowledgment of the same by defendant-respondent No. 2 as well as
partial payment of the debt by him rendered him alone liable to meet liability
to the extent of one fourth related to the share of the estate which as a
Muslim heir he received from the deceased. In this appeal it is claimed on
behalf of the plaintiff-appellant that the acknowledgment and partial payment
afore-referred to saved limitation against all and thus the entire debt could
be recovered from defendant- respondent No. 2, he being in possession of the
estate lying joint, and thus the High Court was in error in upsetting the
decree of the trial court.
It has
been urged on behalf of the appellant that the integrity of the two debts of
Rs.25,000 and Rs.50,000 creat- ed by two promissory notes Exhibits B 14 and B
15 could not be broken on the footing that the liability to discharge those
debts stood devolved on the heirs of the deceased debtor, proportionate to
their shares known to Mahomedan Law. It has also been urged on behalf of the
appellant that the acknowledgment of liability made by defendant-respondent No.
2 would under section 18 of the Limitation Act save limitation not only against
him but as against other heirs as well, since he is supposed to have acted as a
representa- tive, agent or partner on their behalf. Further, it has been urged
on behalf of the appellant that part payment made by defendant-respondent No. 2
would save limitation under section 19 of the Limitation Act against the other
co-heirs of the deceased Mahomedan debtor. The view taken by a learned Single
Judge of the Andhra Pradesh High Court in Mohd. Abdul Qadeer v. Azarnatullah
Khan and 8 Others, [1974] 1 Andhra Weekly Reporter 98 has been pressed into
service to contend that though under the Mahomedan Law each heir is liable for
the debts of the deceased to the extent only of a share of the debts,
proportionate to his share of the es- tate, but so far as the cre- 437 ditor is
concerned, the identity and integrity of the debt remains unimpaired by the
death of the original promisor, and no several debts emerge in place of one
debt.
However,
in all fairness it was in the next breath pointed out to us that another Single
Judge of the same High Court in Vasantarn Sambasiva Rao v. Sri Krishna Cement
and Concrete Works, Tenali, [1977] Andhra Law Times Reports at 528 doubted the
view in Mohd. Abdul Qadeer's case (supra) on the basis of a division bench case
of that Court taking the view that section 19 of the Limitation Act emphasised
not the identity or integrity of the debt, but the due authori- sation by one
of the debtors or the other to make part- payment towards debt due from them,
and further that the concept of identity and integrity of the debt due from
several heirs was foreign to sections 19 and 20.
Before
we proceed any further it would be apposite to clearly recapitulate and
re-state the principles of Mahome- dan Law on the subject. A five-judge bench
of this Court in N.K. Mohammad Sulaiman v. N.C. Mohammad Ismail and Others,
[1966] 1 SCR 935 at page 940 culled out certain well-settled and well accepted
principles. Some of these are as under:
"The
estate of a muslim dying intestate devolves under the Islamic Law upon his
heirs at the moment of his death i.e., the estates vests immediately in each
heir in proportion to the share ordained by the personal law and the interest
of each heir is separate and distinct. Each heir is under the personal law
liable to satisfy the debts of the deceased only to the extent of the share of
the debt proportionate to his share in the estate." It is plain from the
afore-quotation that the debt of the deceased gets divided in shares by
operation of Muslim Personnal Law amongst the heirs proportionate to their
shares in the estate. The theory of sanctity of the integri- ty of the debt is
apparently foreign in the case of a de- ceased muslim leaving debt and some
estate both being divis- ible amongst his heirs.
A.A.A.
Fyzee in his Outlines of Muhammadan Law (4th Edition) at page 385 quotes Mulla
to say:
"Proceeding
logically, the first principle to be borne in 438 mind is that each heir is liable
for the debts of the de- ceased in proportion to the share he receives of the inheri-
tance. For instance, a Muslim dies leaving three heirs, who divide the estate
amongst themselves in accordance with their rights. A creditor of the deceased
sues two of the heirs and not the third; the two heirs sued will each be liable
to pay a part of the debt proportionate to his own share of the inheritance,
and they will not be made to pay the whole of the debt, either jointly or
severally (h)." In Principles of Mahomedan Law by Mulla, 17th Edition,
sections 43 and 46 provide:
"43.
Extent of liability of heirs for debts--Each heir is liable for the debts of
the deceased to the extent only of a share of the debts proportionate to his
share of the estate (d).
46.
Suit by creditor against heirs--If there be no executor or administrator, the
creditor may proceed against the heirs of the deceased, and where the estate of
the deceased has not been distributed between the heirs, he is entitled to
execute the decree against the property as a whole without regard to the extent
of the liability of the heirs inter se (h)." The question whether the
ownership of a Muhammadan intestate devolves immediately on his heirs, and such
devo- lution is not contingent upon, and suspended till, payment of such debts
was answered authoritatively almost a century ago by a Full Bench of the
Allahabad High Court in Jafri Begam v. Amir Muhammad Khan, [1885] Vol. 7
ILR--Allahabad Series in the negative. Rather it was authoritatively set- tled
(see page 843 of the Report) that Muhammadan heirs are independent owners of
their specific shares, and if they take their shares subject to the charge of
the debts of the deceased, their liability is in proportion to the extent of
their shares.
These
observations in Jafri Begam's case (supra) are prime roots of the theory as to
the divisibility of the debt in the hands of heirs of a Muslim intestate. So it
would be right to treat it settled that muslim heirs are independent owners of
their specific shares simultaneously in the estate and debts of the deceased,
their liability fixed under the Personal Law proportionate to the extent of
their shares. In this state 439 of law it would be unnecessary to refer to
other decisions of various High Courts touching the subject. So we proceed on
the footing that as many heirs, as are defending this cause, there are debts in
that number.
Now it
is time to advert to Exhibits B7 and B51. Exhibit B7 is a letter by
defendant-respondent No. 2 to the plain- tiff-appellant stating that he will
pay off all the amounts due to the plaintiff and to everyone else within two
months.
The
trial court construed this to be an acknowledgment of the debt. The High Court
agreed with that finding that the document contained an acknowledgment in
writing. Practically nothing was said against this finding before the High
Court.
Then
we have Exhibit B51 which is styled as a consent-deed, executed by
defendant-respondent No. 2 authorising the first defendant-respondent to
dispose of two motor cars for a sum of Rs. 13,000 and discharge the liabilities
of his deceased father arising out of the two promissory notes Exhibit B 14 and
B 15 aforesaid. The trial court found that Exhibit B51 created an agency in favour
of defendant-respondent No.1 within the meaning of section 19 of the Limitation
Act. The High Court agreed with the view of the trial court and came to the
conclusion that the deed Exhibit B51 contained an acknowledgment and the two
endorsements made on the respec- tive promissory notes Exhibit B 14 and B 15
coupled by a payments of sums towards the debt by the duly authorised agent of
defendant-respondent No. 2 could well be regarded as payments attracting
extension of limitation under section 19 of the Limitation Act. Having recorded
that finding the High Court directed itself to the question whether payments
thus made would extend limitation as against the other heirs also and held in
the negative. The conclusion is that ac- knowledgment Exhibit B7 and
endorsements on Exhibits B 14 and B 15 on the authority of Exhibit B51 were
held to have extended the period of limitation only against defendant re- spondent
No. 2. Though we have been addressed to take a contrary view on
reinterpretation of these documents but, having heard learned counsel in that
behalf we are inclined to agree with the High Court and leave the matter undis-
turbed denying ourselves treading in the field of facts.
Sub-section
(1) of section 18 of the Limitation Act (corresponding section 19 of the
repealed Act IX of 1908) provides as follows:
"Where,
before the expiration of the prescribed period of a suit or application in
respect of any property or right, an acknowledgment of liability in respect of
such property or 440 right has been made in writing signed by the party against
whom such property or right is claimed, or by any person through whom he
derives his title or liability, a fresh period of limitation shall be computed
from the time when the acknowledgment was so signed." Sub-section (2) of
section 20 (corresponding to section 21 of the repealed Act IX of 1908) says
that nothing in the said sections (being sections 18 and 19) renders one of
several joint contractors, partners, executors or mortgagees chargeable by
reason only of a written acknowledgment signed by, or of a payment made by, or
by the agent of, any other or others of them.
The
heirs of a muslim dying intestate on whom falls the liability to discharge the
debt, proportionate to their respective shares in the estate devolved, can
hardly be classified as joint contractors, partners, executors or mortgagees.
As held above they are by themselves independent debtors; the debt having been
split by operation of law.
Inter
se they have no jural relationship as co-debtors or joint debtors so as to fail
within the shadow of contrac- tors, partners, executors or mortgagees or in a
class akin to them. They succeed to the estate as tenants in-common-in specific
shares. Even a signed written acknowledgment by the principal or through his
agent would bind the principal and not anyone else standing in jural
relationship with the principal in accordance with section 20(2). The Muslim heirs
inter-se have no such relationship. In this view of the matter, we take the
view that the High Court was right in confining the acknowledgment of the debts
only to respondent No. 2 and not extending the acknowledgment to the other co-
heirs for their independent position.
Section
19 of the Limitation Act, (corresponding to section 20 of the repealed Act IX
of 1908). so far as is relevant for our purpose, provides that where payment on
account of debt or of interest on a legacy is made before the expiration of the
prescribed period by the person liable to pay the debt or legacy or by his
agent duly authorised in this behalf, a fresh period of limitation shall be
computed from the time when the payment was made.
In the
context, if the debt is one and indivisible, payment by one will interrupt
limitation against all the debtors unless they come within the exception laid
down in section 20(2) which has been taken note of earlier. And if the debt is
susceptible of division and though seemingly one consists really of several
distinct debts each one of which is pay- 441 able by one of the obligors
separately and not by the rest, section 20 keeps alive his part of the debt
which has got to be discharged by the person who has made payment of inter-
est. It cannot affect separate shares of the other debtors unless on the
principal of agency, express or implied, the payment can be said to be a payment
on their behalf also.
See in
this connection Abheswari Dasva and Another v. Babu- rali Shaikh and Others,
AIR 1937 Cal. 191. The payment made on account of
debt by defendant-respondent No. 2 as an independent debtor, and not as an
agent, express or implied, on behalf of other co-heirs could hardly, in the
facts established, here be said to be a payment on behalf of all so as to
extend period of limitation as against all. We are thus of the considered view
that the High Court was right in confining the extension of limitation on
payment of a part of debt only against defendant-respondent No. 2, proportion-
ate to his share of the estate devolved on him which was one fourth. We are
further of the view that the High Court was right in holding the suit against
other co-heirs to be barred by limitation relating to their shares of the debt.
Lastly
it was urged by learned counsel for the appellant that even though the debts of
the deceased be taken to be divisible and devolving separately on the heirs in propor-
tion to their shares, the plaintiff still could proceed to recover the entire
debt from defendant-respondent No. 2 since he was still continuing in
possession of the estate and had not parted with it by means of partition to
the other co-heirs. This argument cannot sustain for a moment in view of the
clear statement of law made by the Allahabad High Court in Jafri Begam's case
(supra) at pages 841-42.
Such a
question has been driven therein to the realm of procedural law and held to be
not part of substantive law constituting any rule of inheritance. The property
of the co-heirs supposedly in possession of defendant-respondent No. 2 cannot
be touched directly in his hand unless the co- heirs being parties to the suit
are held liable to pay their share of the debt; the debt being recoverable. But
here it involves a factual aspect on which there is not enough material on the
record or the matter having been examined by the court below. We decline to
take up this issue at this stage.
For
the reasons aforesaid we find no merit in this appeal and dismiss it. We
equally find no merit in the belated cross-objection of defendant-respondent
No. 2, leave of which was sought during the course of the hearing of the
appeal. We decline to entertain the request. There shall be no order as to
costs.
R.S.S.
Appeal dismissed.
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