Pathumma Beevi and ors. Vs. Rajakrishna Menon and anr. - Court Judgment

Gopalan Nambiyar, J.

1. Aninteresting question of limitation has been debated in this appeal preferred by defendants 2 and 4 to 10 against the decree in O. S. No. 141 of 1965, Sub-Court, Palghat. The suit as originally framed, was one for recovery of the amount due under a hypothecation bond, Ext. B-39 dated 11-11-1964 executed by the 1st defendant in respect of the assets of his deceased brother, Vellappa Rowther, who died on 26-6-1962. The 1st defendant purported to execute the hypothecation bond by virtue of authority stated to be derived by him under certain trust-deeds, Exts. A-l dated 9-4-1963, and A-13 dated 21-5-1962. The amount due under the hypothecation bond together with interest claimed in the suit, amounted to Rs. 62,749.00. The 2nd defendant in the suit was the widow of the deceased Vellappa Rowther; defendants 3 and 5 to 8 were his daughters, and the 4th defendant, was his only son. The 3rd defendant is now dead, and is represented by his legal representatives defendants 9 and 10. The 3rd defendant had instituted a suit for partition of the assets of Vellappa Rowther -- O. S, 41 of 1965 -- impugning the trust deeds Exts. A-l and A-13. The same was tried along with the suit out of which this appeal arises, namely, O. S. 141 of 1965. There were two other suits O. S. 84 of 1965 and O. S. 127 of 1965. It is enough to state that they were also suits for rec9very of certain monies. All the four suits were disposed of by the trial court by a common judgment, in the first instance in April 1967. That court upheld the contention of the 3rd defendant in the partition suit that the trust-deeds were neither genuine nor valid. In O. S. 141 of 1965, it was found that the consideration for Ext. B-39 was made up of two promissory notes, Exts. B-14 dated 23-11-1960 for Rs. 25,000.00, and B-15 dated 5-1-1961 for Rs. 50,000.00, and certain additional sums borrowed. It was held that the amounts due under Exts. B-14 and B-15 had become barred by limitation when the suit was instituted on 31-7-1965 and that to the extent to which the consideration for Ext. B-39 was constituted of these, the same could not be enforced. Therefore, the trial court granted a decree for only the additional amounts which went to make up the consideration for Ext. B-39, other than what was covered by the two promissory notes (about Rs. 5,384/-). It also held that the endorsements of payments on the promissory notes were insufficient to save^ limitation. Against the common judgment, the plaintiff in O. S, No. 141 of 1965 preferred A. S. No. 375 of 1967 to this Court; the 7th defendant in the suit for partition (O. S. No. 41 of 1965), filed A. S. 377 of 1967; and against the decision in O. S. 127 of 1965, the plaintiff in O. S. No. 141 of 1965 and his broher filed A. S. No. 366 of 1967. All the three appeals were disposed of together by a common judgment of his Court dated 11-9-1972. This Court affirmed the finding of the trial Court that Exts. A-l and A-13 were neither genuine nor valid. It is enough to notice that regarding O. S. 141 of 1965 this Court allowed the plaintiff's application to amend the plaint, so as to base the suit on the promissory notes. This Court expressed itself thus:

'Before this Court, a petition for amendment of the plaint has, however, been moved on behalf of Rajakrishna Menon -- Plaintiff in O. S. 141 -- for leave to amend the plaint in such a way as to allow him to pursue the claim on the original consideration. The prayer for amendment was, of course, opposed by the third defendant in O. S. 141 (plaintiff in O. S. 411 and also by the 1st defendant-trustee. On hearing the arguments on both sides, we are satisfied that for determining the real question in controversy, and for advancing the interests of justice the amendment should be allowed. The lower court has considered the question from the stand point of the promissory notes only, in dealing with that part of the consideration in Ext. B-39, and viewed in that light the finding of the court is correct. But now the party seeks permission to place his case on the original consideration and relies on acknowledgements contained in documents like Exts. A-l, B-6, B-7, B-38, B-39, B-49, B-50 and B-51. We see force in this submission. By means of the amendment no new or inconsistent cause of action is introduced. So we allow the amendment under Order 6, Rule 17, Civil Procedure Code, and remand the case to the court below for fresh trial of the concernedissues in the light of the amendment'.

It concluded as follows:

'In the result, A. S. Nos. 377 and 376 of 1967 are dismissed. In A. S. 375 of 1967, the decree of the court below allowing recovery of Rs. 5,384/- with interest and proportionate costs, is confirmed; but the dismissal of the suit disallowing part of the plaint claim covered by the two promissory notes Exts. B-14 and B-15 is set aside and the suit is reopened to that extent, and the issues arising from the amended plaint will be tried and decided by the court below afresh. Both parties will be at liberty to adduce evidence in support of their claims as recast by the amended plaint. In all the three appeals the parties will bear their respective costs in this Court.'

2. In pursuance of the above order of remand, the court below by its Judgment under appeal, granted a decree for Rs. 56,769.80, with interest thereon, at 61% from 11-11-1964 till 31-7-1965 and thereafter at 6% per annum till payment, with proportionate costs against the estate of Vellappa Rowther in the hands of defendants 2 to 10; and a personal decree for Rs. 3,230.30 with interest thereon at the same rates for the same periods with proportionate costs against the 1st defendant. It is against this decree that the above appeal has been preferred, by defendants 2 and 4 to 10 in O. S. No. 141 of 1965 (which is the only suit with which we are now concerned). The 1st defendant has preferred a memorandum of cross-objection objecting to the personal decree against him for costs.

3. We may straightway say that the memorandum of cross-objections preferred by the 1st defendant (2nd respondent) against the plaintiff, (1st respondent), in respect of a matter in which the appellant is not interested, is not maintainable and has only to be dismissed. We 'do so with costs.

4. Ext. B-14 is dated 23-11-1960, and B-15 is dated 5-1-1961. The suit was instituted on 31-7-1965. Ext. B-39 hypothecation bond which recites Exts. B-14 and B-15, is dated 11-11-1964, which is beyond three years from the date of the notes. Any recitals in Ext. B-39, would not therefore, save limitation for a suit on the notes. As noticed in the judgment of this Court on the earlier occasion, in the application for amendment of the plaint, and in the course of arguments, the following were relied on as evidencing either an acknowledgment under Section 18, or a part payment under Section 19 of the Limitation Act 1963 (Sections 19 and 20 respectively of the earlier Act of 1908), for saving limitation; namely, Ext. B-38 dated 3-11-1961 (a statement by the deceased): A-l dated 9-4-1962 (trust-deed); B-49 dated 10-9-1962 (unregistered partition-deed between the 4th defendant and 1st defendant and 1st defendant's son); B-50 dated 3-7-1963 (a surrender-deed by the 4th defendant to the 1st defendant and to his son); Ext. B-51 dated 15-7-1963 (a letter of consent or authority, reciting payments made towards the notes, passed by the 4th defendant to the 1st defendant): B-6 dated 23-8-1964 (a letter by Vellappa Rowther's son-in-law to the plaintiff); and B-7 dated 31-8-1964 (a letter by the 4th defendant to the plaintiff). Among these, the court below was of the view that Exts. B-7 and B-51 alone can avail to save limitation, and none of the others were useful for the purpose. (Ext. B-6, for instance is wholly out of place to save limitation). The court below discussed Ext. B-51 in paragraph 15 of its judgment; and it there recorded, that although as an acknowledgment by the 4th defendant it may not have binding force on the other heirs, when taken as evidencing a payment of a debt or part thereof, it will save limitation. The reasons for so holding were given in paragraphs 16 to 19 of the judgment. In substance, the court below held that the 1st defendant was an agent duly authorised to make the payments as such, and that therefore all payments endorsed on the promissory notes should be treated as payments under lawful authority, and hence the suit was within time. These, according to the learned Judge are binding on all the heirs of the deceased Vellappa Rowther. Regarding Ext. B-7, the learned Judge discussed the position in paragraphs 12 and 13. In paragraph 12, he recorded that there is a valid and clear acknowledgment in writing by the 4th defendant, of the debt due to the plaintiff, and as it was made within three years, it will save limitation. In paragraph 13, the court below was of the view that Ext. B-7 would be binding against the 4th defendant, but not against the other heirs of the deceased Vellappa Rowther.

5. Counsel for the plaintiff-respondent drew our attention to Ext. B-38, dated 3-11-1961 a statement, found by the lower court in paragraph 10 of its judgment to have been filed by the deceased Vellappa Rowther himself on 3-11-1961 before the Sales-tax Authorities, wherein he expressly referred to the promissory notes Exts. B-14 and B-15 as liabilities to be discharged by him. Ex. X-6, the return of turnover produced by the Sales Tax Authorities showed that the statement had been filed by the deceased in November, 1961. Counsel for the plaintiff-respondent is therefore right, that it would be enough to search for any acknowledgment or part payment within three years of Ext. B-38, i.e., within3-11-1964. Exts. B-51 and B-7, are both within three years of B-38 If these evidence valid acknowledgments or part payments against all the heirs, there can be little doubt that limitation for the suit on the notes would be saved.

6. We shall proceed to notice the contents of these documents before dealing with the legal aspects involved. Ex. B-7 is a letter by the 4th defendant to the plaintiff stating that he will pay off all the amounts due to the plaintiff and to every one else, within, two months. We agree with the court below that the document amounts to an acknowledgment that amounts are outstanding to the plaintiff. Little was said against the finding that Ext. B-7 amounts to an acknowledgment. We shall then turn to Ext. B-51. It is styled a 'Sammathapathram' (consent deed), and is executed on 15-7-1963 by the 4th defendant to the 1st defendant in the latter's capacity as trustee of Vellappa Rowther's estate under Exts. A-1 and A-13. It empowers the 1st defendant to sell the lorry K.L.P. 1738 and the motor vehicle K. L. P. 1849. It recites that the 4th defendant was satisfied that it would be better to dispose of these vehicles immediately and discharge the liabilities of his deceased father. These were to be sold for a total sum of Rupees 13.000.00/-. Ext. B-51 recites the two promissory notes, Exts. B-14 and B-15, certain, payments made towards the amounts due under them, and directs certain payments to be made to the plaintiff -respon-dent and to get proper vouchers and receipts. Counsel for the plaintiff-respondent fairly agreed that Ext. B-51 by itself cannot be regarded as a payment of the debt or part thereof, as broadly and generally stated by the Court below at the end of paragraph 15. But he submitted that Ex. B-51 constituted an authority conferred by the 4th defendant on the 1st defendant to make payments towards both the promissory notes, and that the payments so made by the 1st defendant in pursuance of the said authority would be payments by an agent authorised in that behalf within the meaning of Section 19 of the Limitation Act. It was also submitted that this, in effect, is what the court below found in the course of its discussion in paragraphs 16 to 18 of the judgment. We have no hesitation to agree with counsel for the plaintiff-respondent that Ext. B-51 evidences an authority conferred on the 1st defendant by the 4th defendant to sell the lorry and the motor vehicle and utilise the proceeds for discharging the debts under the promissory notes, and that the 1st defendant was an Agent authorised in this behalf. The payments, if any, made subsequent to Ext. B-51 and endorsed on the two promissory notes Exts. B-14 and B-15, in pursuance of the said authority -- at least to the extent 3f Rs. 13,0007-, can therefore well be regarded 33 payments by the 4th defendant's agent, duly authorised in that behalf. But the difficult question that we have to consider is whether the payments under Section 19 by the 4th defendant and the acknowledgment by him under Section 18, by Ext. B-7, can avail as against the other heirs of Vellappa Rowther. As far as the acknowledgment under Ext. B-7 is concerned, having regard to the express language in Section 18 of the Limitation Act, and the judicial decisions we shall refer to, we think that it can save limitation only against the person making the acknowledgment. Therefore, it cannot avail against the other heirs. Regarding part payment, under Section 19 of the Act, the position is difficult, and judicial decisions are conflicting. The matter requires careful consideration. We may read Sections 18, 19 and 20:

'18. (1) Where, before the expiration of the prescribed period 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 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.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received.

Explanation. -- For the purposes of this section. -

(a) 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 set off, or is addressed to a person other than a person entitled to the property or right.

(b) the word 'signed' means signed either personally or by an agent, duly authorised in this behalf, and

(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

19. Effect of payment on account of debt or of interest on legacy. -- Where payment on account of a 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 shallbe computed from the time when the payment was made.

Provided that, save in the case of payment of interest made before the 1st day of Jan., 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.

Explanation, -- For the purposes of this section.-

(a) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;

(b) 'debt' does not include money payable under a decree or order of a court.

20. Effect of acknowledgment or payment by another person. -- (1) The expression 'agent duly authorised in this behalf' in Sections 18 and 19 shall, in the case of a person under disability, include his lawful guardian, committee or manager or an agent duly authorised by such guardian, committee or manager to sign the acknowledgment or make the payment.

(2) Nothing in the said sections 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.

(3) For the purpose of the said sections,--

(a) an acknowledgment signed or a payment made in respect of any liability by, or by the duly authorised agent of, any limited owner of property who is government by Hindu law, shall be a valid acknowledgment or payment, as the case may be, against a reversionary succeeding to such liability; and

(b) where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by or by the duly authorised agent of the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.'

These correspond to Sections 19 to 21 of the Act of 1908.

7. One of the cases which has discussed the difference between an acknowledgment and a part payment with respect to the provisions of the earlier Act of 1908, is Azizur Rahaman Osmani v. Upendra Nath Samanta, AIR 1938 Cal 129. In the course of his judgment. Nasim Ali, J., observed:

'The expression 'person liable to pay' does not mean all the persons liable to pay. In Section 19, Limitation Act, the acknowledgment is to be made by the party against whom the property or right is claimed. In Section 20 however we do not find any such restriction. The reason for this distinction apparently is that acknowledgment is a mere admission of right, whereas payment is more than a mere admission of right. It operates for the benefit of all the persons who are liable.

The effect of an acknowledgment in Section 19 is more restricted, and in general it only affects the person giving it. But payment under Section 20 affects not only the person making the payment but also other persons who are liable -- see the cases in (1905) ILR 32 Cal 1077, (1906) ILR 33 Cal 1278, (1926) 44 Cal LJ 475 = (AIR 1927 Cal 193); AIR 1926 Cal 150, (1912) 17 Ind Cas 619 (Mad). 41 All 111 and ILR (1937) All 272 = (AIR 1936 All 820 (FB). If Sec. 20 of the present Limitation Act stood alone, there could not have been any room for doubt that the payment of a joint debt by one of the joint debtors may amount to a payment of the debt within the meaning of that section so as to save limitation as against all the debtors.

But the operation of this: section is subject to Section 21 (2) of the Act which provides that nothing in Section 20 of the Act renders one of several contractors, partners, executors or mortgagees chargeable by reason only of a payment made by or by the agent of any other or others of them.'

B.K. Mukherjea, J. (as he then was), the other learned Judge who constituted the Division Bench, stated thus:

'For our purposes, we need not go beyond the actual wording of Section 20. Limitation Act, and it is plain upon a proper reading of the section that subject to the provisions of Section 21 (2) to which I am going to advert presently, when payment is made by only person liable to pay the debt, an extended period of limitation is given to the debt itself in respect of which the payment was made, and the right is preserved against all the debtors.'

Earlier (at page 133) the learned Judge observed that their is a distinction between Sections 19 and 20, and that while Section 19 speaks of acknowledgment being made and signed by the partyagainst whom the right or property is claimed. Section 20 lays down that when interest is paid by 'the Person liable to pay', a fresh period of limitation shall be computed from the time when the payment is made and does not limit the extended period to the person who actually made the payment. In Arjun Ram Pal v. Rohima Banu, (1912) 14 Ind Gas 128 (Cal), which appears to be the earliest case on this aspect of the matter, a learned Judge of the Calcutta High Court without much discussion held that a payment by one co-heir cannot bind the others or save limitation against them.

This was followed in Jogesh Chandra v. Monindra Narain Chakravarty, 36 Cal WN 487 = (AIR 1932 Cal 620). But that was a case of two joint debtors, (directly covered by Section 21) payment by one of whom was sought to be made binding on the other. It was held it could not be made so binding. The same was the view of a Division Bench of the Madras High Court in Raja Rama v. Fakruddin Sahib, AIR 1930 Mad 218. But earlier, in Narasimha Rama Aiyar v. Ibrahim, AIR 1929 Mad 419 a learned Judge held that 'coheirs' do not come within the expression 'joint contractors' in Section 21 of the Limitation Act of 1908, and that principle of that Section cannot be extended to cover the case of co-heirs. In that case, the acknowledgment of a debt owed by the deceased China Babu Rowthen, the executants of a promissory note, was made by his widow, and the question was whether the same will save limitation against her two minor sons and one minor daughter, all of whom were co-heirs of the deceased along with the widow. The learned Judge (Thiruvenkatachari, J.) noticed that an acknowledgment under Section 19 must be by the person against whom the right is claimed, whereas under Section 20 it is enough if payment is by 'a person liable to pay' (the actual language is 'the person liable to pay' and not 'a person liable to pay'). The learned Judge dissented from the decision in (1912) 14 Ind Cas 128 (Cal), and held that acknowledgment by a co-heir would be binding on the other heirs. The ruling of the Allahabad High Court in Ibrahim v. Jag-dish Prasad, AIR 1927 All 209 which took the same view was followed. The Allahabad ruling thus relied on, was overruled by a Full Bench of the Allahabad High Court in Mohammed Taqi v. Raja Ram, AIR 1936 All 820 (FB), which contributed a new line of thought to this branch of the law. It was pointed out that Section 21 of the Limitation Act applied to both acknowledgments under Section 19, and to part payments under Section 20; so far as an acknowledgment in writing under Section 19 is concerned, the Section itself is plain enough, and does not justify the view that an acknowledgment made by one debtor is good against all joint-debtors; that if Section 20 stood alone, there was certainly room for holding that payment of a joint-debt by one of the joint-debtors may amount to a payment of the debt within the meaning of' that Section, so as to save limitation against all the debtors; but that Section 21 of the Limitation Act of 1908 enacted a provision different in this respect from the English Law. After noticing the provisions of Section 21 of the 1908 Act the Full Bench observed that what the court has to see in order to decide whether the persons concerned are 'joint contractors'is the relation which subsists between the various persons at the time when the acknowledgment or the payment is made and not at the time when the debt was contracted. If at the time of the acknowledgment or payment there are two or more persons in existence who stand in the relationship of joint contractors, the acknowledgment or payment by one would save limitation against that person alone, and would be of no avail against the others. This principle of the decision of the Full Bench of the Allahabad High Court was applied by a Division Bench of the Travancore-Cochin High Court in Rama Varma Thampuran v. Parvathi Kunju Pennama, (AIR 1952 Trav-Co 310), to a case of acknowledgment of a redemption decree by a co-mortgagee, and it was held that the same will not be effective to save limitation for redemption of the share of the other co-mortgagee. Again in Janardhanan Embranthiri v. Mariam AIR 1957 Trav-Co 186, it was held that the equity of redemption devolving on two heirs as tenants-in-common constituted them joint contractors within the meaning of the provision in the Tra-vancore Limitation Act, corresponding to S. 21 of the Indian Limitation Act of 1908, and that an acknowledgment in writing by the one keeps alive the debt as against him alone and not against the other. In Hakim Rahman Bux v. Muhammad Mahmood Hassan, AIR 1957 Pat 559 it was ruled that payment by one of the heirs of a Mahommadan mortgagor does not extend limitation against the others. Reference was made to the decisions in AIR 1920 Mad 418, to the Full Bench ruling in AIR 1936 All 820 (FB), and to the Division Bench ruling of the Calcutta High Court in Azizur Rahman Osmani v. Upendra Nath Samanta, AIR 1938 Cal 129.

8. We shall next refer to a line of decision which has explained the exact scope of the payment on account of a debt' contemplated by Section 20 of the 1908 Act. This is found discussed at some length in the Division Bench ruling of the Calcutta High Court in Abheswari Dasya v. Baburali Shaikh, AIR 1937 Cal 191, a case which appears to us to be directly in point. There, a Mohammedan debtor had executed a promissory note in favour of the plaintiff. On his death, his widow, defendant No. 1, and his three minor sons, defendants 2 to 4, were his heirs. The suit on the promissory note was laid more than three years from the date of the note. There was a part payment by the 1st defendant, within three years from the date of the suit. The question was whether this would save limitation against all the heirs. B.K. Mu-kherjea, J. (as he then was), who spoke for the Division Bench, observed:

'According to Mr. Sen Gupta in order to bring the case within Section 20. Limitation Act, it is not necessary that the payment should be made by all the debtors jointly and he tries to avoid the operation of Section 21 (2), Limitation Act, by suggesting that the position of the defendants was not that of joint contractors though their liability as the heirs of the original debtor was joint and indivisible. Mr. Sen Gupta's second argument is to the effect that the mother though not a legal guardian of the infants could be regarded as an implied agent and hence any payment made by her could be regarded in law as payment on behalf of the minors. As regards the first contention, we agree with Mr. Sen Gupta that there is some difference in language between Sections 19 and 20, Limitation Act, and whereas Section 19 speaks of the extension of time against the person who makes the acknowledgment, Section 20 states simply that:

'When interest is paid as such by the person liable to pay, a fresh period of limitation shall be computed from time to time when the payment was made.' and does not limit the extended period to the person who really makes the payment. This, in substance, was held by Maclean, C. J., in (1906) ILR 33 Cal 1278 to which our attention has been drawn by the learned Advocate for the petitioner and it is true also that by the use of the expression 'the person liable to pay under Section 20' it was not meant to include the whole body of debtors: vide AIR 1926 Cal 0150,'

It was further observed:

'On a plain reading of Section 20 as it stands, we think that the payment of interest by one of the debtors would give an extended period of limitation to the debtor in respect of which the payment was made. If the debt is one and indivisible, payment by one would interrupt limitation against all the debtors unless they can come within the exception laid down in Section 21 (2). But if the debt is susceptible of division and though seemingly 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 in our opinion would keep alive that debt or rather the portion of the debt which has got to be discharged by the person who has made payment of interest. It cannot affect the separate shares of the other debtors unless on the principle of agency, express or implied, the payment can be said to be a payment on their behalf also. This is in accordance with the principle enunciated by Sanderson, C. J. and Ashutosh Mu-kherjee, J., in 25 Cal LJ 238 though the question there arose as to whether the payment by the principal debtor could keep alive the debt against the surety. Their Lordships held that though theliability of the debtor and the surety arose out of the same transaction yet in law they were distinct. In this case after the death of Baburali each one of his heirs was liable for the debt from the deceased to the extent only of a share of the same proportionate to his or her share of the estate: see 4 All 361. The widow inherited the l/8th share of the husband's estate and her liability for the debt of her husband was also to that extent. The payment which she made is referable therefore to her own debt which is l/8th share of the total debt and in respect of this debt only, time could be extended under Section 20, Limitation Act,'

Reference was made to the decision in (1912) 14 Ind Gas 128 (Cal) and 36 Cal WN 487 = (AIR 1932 Cal 620). Reliance was also placed on Section 21 (2) of the Limitation Act of 1908. Observed the learned Judge:

'In (1912) 14 Ind Cas 128 (Cal) it was held by Cox, J., upon circumstances similar to those of the present case that where the widow was jointly liable with her daughters for a debt, a payment by the widow did not save limitation against the debtors. This was approved of in 36 Cai WN 487 = (AIR 1932 Cal 620). Reliance was placed for this view upon Section 21 (2), Limitation Act, which according to the learned Judges engrafted an exception in cases of joint debtors upon the provision of Section 20, Limitation Act. The decision in (1912) 14 Ind Cas 128 (Cal) undoubtedly supports the opposite party but it is not necessary for us to base our conclusion on Section 21 (2), Limitation Act, as we have already said that Section 20 itself would not keep alive the debt against a debtor who did not make the payment when the debt was in the eye of the Jaw distinct and separate from the debt in respect of which that payment was made.'

9. The principle thus expounded by the Division Bench in the above case regarding the scope of a debt in respect of which payment under Section 20 would save limitation, appears attractive to us, and we are in agreement with the same. Could it then be said that the debt in respect of which payment was made by the 4th defendant was, in the eye of the law, distinct and separate from the debt or debts of the others against whom limitation is sought to be saved? We think it could be so said, in the light of the principles of Mohammedan Law, which we shall notice. In Mulla's Mohomedan Law, 17th Edn. page 31, paragraph 41, it is said :

'Subject to the provisions of Sections ^9 and 40, the whole estate of a deceased Mohomedan if he has died, interstate, or so much of it as has not been disposed of by will, if he has left a will, devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as tenants-in-common in specific shares.'

x x x x x

Para. 43 : 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.

X X X X X

Para. 44. Distribution of estate.-- Since the estate devolves on the heirs at the moment of the death of the deceased, they are at liberty to divide it at any time after the death of the deceased. The distribution is not liable to be suspended until payment of the debts.'

It was on this principle that it was ruled in (AIR 1937 Cal 191) that payment by one of the Mohomedan co-heirs cannot avail to save limitation against the others.

10. Our attention was called to the decision of the Supreme Court in Mohammad Sulaiman v. N. C. Mohammad Ismail, (AIR 1966 SC 792 = (1966) I SCR 937). It was observed that a solution of the problem whether a decree obtained by a creditor in a suit instituted against some of the heirs for the payment of debts due to him is binding on the other heirs, has to be approached from four different angles; (i) by the analogy of Hindu Law, where, on devolution of property on death of a Hindu, a member of a joint Hindu family or a widow, is taken as representative of the estate of the deceased, and the creditor can obtain a decree against such a person which binds all the persons having interest in the estate; (ii) the rule of Mahomedan Law as stated in Hamilton's Hedaya that any one of the heirs, may act as a sufficient representative of the deceased, if all the effects of the deceased are in the hands of that heir; (iii) that a creditor of the deceased may sue one of the heirs who is in possession of the whole or any part of the estate, without joining other heirs as defendants for administration and for recovery of the entire debt and get a decree against the estate, and (iv) that only those who are sued by the creditor of the deceased ancestor are liable to satisfy the debt proportionate to their interest in the estates. The court noticed the decisions, which had accepted the first view; observed that the second view had not met with approval by the courts; that the third view had found recognition in some of the decisions; and that the last view had been uniformly expressed by the Allahabad High Court since its first enunciation by Mohammed, J. in Jafri Begam's case (1885) JLR 7 AH 822 (FB). It was held that where after due enquiry certain persons are impleaded on the ground that they are those interested in the estate, the whole estate will be duly represented by the persons brought on record or impleadsd. We think the theory of bona fide representation of the estate proceeds on a different principle, and has no application to the question whether a part payment by one will bind the other co-heirs.

11. There is another aspect of the matter. On the question as to whether the legal representatives of the sole executants of a promissory note, can be regarded as 'joint contractors', there is, as we noticed, divergence of judicial opinion. The position is noticed by B.K. Mukberjt, J. in AIR 1937 Cal 191 at p. 193, which we have extracted earlier. We have already referred to the view of the Allahabad Full Bench that it is enough if persons stand in the relationship of 'joint contractors' at the time of making the acknowledgement, and that it makes little difference whether there was only a sole contractor when She liability was incurred. In Rustomji's Limitation Act 6th Edn. at page 254 occurs the following :

'Co-debtors. No implied Agency. Section 20 speaks only of joint contractors and not also of joint and several contractors. When the liability of two or more persons is several only, payment or acknowledgement by one will not interrupt the statute as to the other, as they are severally liable and are severally entitled to the protection of the statute. This is too obvious for argument. Section 21 abolishes the doctrine of implied agency as between co-debtors.'

We do not find any observation in point in B. B. Mitra's Limitation Act edited by P. B.Mukharji, (16th Edn.). We are therefore not referring to it. In N. U. Mitra's Limitation Act (8th Edn. Vol. I -- pages 381, 382) there is a discussion regarding the effect of payment by one co-heir on the liability of another. The decisions in AIR 1929 Mad 419; AIR 1957 Pat 559; AIR 1957 Trav-Co 186 are noticed and preference is expressed for the Madras view as the sounder one. In Chitaley & Rao's Limitation Act (1964 Edn. Vol. I) there is a fairly good discussion of the meaning of the expression 'joint contractors' at pages 635 and 636. The different views reflected in the judicial decisions are classified under three heads : According to the first, the test to be applied to see whether the persons concerned constitute joint contractors is to see whether they are jointly liable on a contract, which, when it was made, was made jointly. According to this view if A and B make a contract with C, and A dies leaving D as heir, A and D would be joint contractors. The second view is that the test is to be applied not with respect to the time of the making of the contract, but with respect to the time of making the acknowledgement or payment. On this view the heirs of a sole contractor would be joint contractors. The third view is, that joint contractors are only those who themselves jointly entered into a contract with another, and the term cannot apply to their successors. The authors, then state that the first view is correct on principle, and that the balance of authority is also in favour of this view. At pages 636 and' 637 the authors discuss the case of Mohomedan co-heirs. They note the conflict of decisions on the question as to whether part payment by one of the heirs of a deceased Mahomedan debtor will have limitation against the other heirs also. According to one view, limitation would not be saved in such cases as co-heirs are joint contractors and so payment by one would be effective only against that particular co-heir, and not against others. According to the second view also, payment by one will not save limitation against the others, but this is on the ground that under Muhamedan Law each co-heir is bound to pay only a proportionate share of the debt. There being therefore no common debt, payment by one, cannot operate against the others. The third view is that payment by one will operate against the others also, the reason being that the debt is a single debt under Section 20, and co-heirs are not joint contractors.

12. In this state of the authorities, we prefer to base our decision on the principle adopted by B.K. Mukherji, J. (as he then was) in AIR 1937 Cal 191, viz. that Muham-medan co-heirs succeed to the estate of the deceased in severally, each in proportion to bis share, and there is no single and indivisible debt to which the payment by one heir can be related. We do not wish to express our final and concluded opinion as to whether the co-heirs of the deceased Mohemadan executant of a promissory-note are 'joint contractors', or not, within the meaning of Section 21 (2) of the Limitation Act.

13. In the view that we take, it is unnecessary to locate or specify the various payments, made in pursuance of the authority conferred on the 1st defendant by the 4th defendant under Ext. B-51 On the very date of Ext. B-51, namely 15-7-1963, there is an endorsement of payment of Rs. 5,000/-on Ext. B-15. That this was in pursuance of the authority granted under Ext. B-51 is clear from the entry at page 130 of the 1st defendant's account. Ext. B-163. That refers to an amount of Rs. 5.000/- having been received by the 1st defendant towards the sale proceeds of the motor vehicle and the lorry mentioned in Ext, B-51 and !he amount having been paid towards the pro-note abets (Malaya-lam omitted). Counsel for the plaintiff-respondent would argue that the entry affords also evidence of payment of the amounts towards both the promissory notes Exts. B-14 and B-l5. He stressed the plural expression 'promissory-note debts' occurring in Ext. B-163. But when we proceed to examine the actual payments endorsed, we find there was no payment at all towards Ext. B-14 subsequent to Ext. B-51, and that the entire amount of Rs, 5000.00 is paid and endorsed towards B-15 promissory-note. We are therefore unable to place reliance on Ext. B-163 as proving that there was actual payment towards Ext. B-14 also. Although there was no part payment towards the debt in Ext. B-14, subsequent to Ext. B-51, in view of Ext. B-7, there can be little doubt that limitation is saved as against the 4th defendant even inrespect of Ext. B-14. We are unable to hold that it is saved as against any of the other defendants. As the one payment on 15-7-1963 towards Ext. B-15 in pursuance of Ext. B-51 is within three years of the suit, it is unnecessary to search for other payments.

14. In the result, differing from the court below, we hold that the plaintiff is en-titled to a decree in respect only of the 4th defendant's one-fourth share of the amount decreed by the court below, against the 4th defendant and his share of the assets of the deceaed Vallappa Rewther. We modify the judgment and decree of the court below and grant the plaintiff-respondent a decree as indicated above. This, we may observe was the type of decree passed by the Privy Council in Sabir Hussain v. Farzand Hassan. (AIR 1938 PC SO). Similar was the decree passed by the trial court which was affirmed OT: appeal in the decision we have referred to if. AIR 1937 Cal 191. The appeal is allowed to the extent indicated above. We direct the parties to bear their costs throughout. The memorandum of cross-objections, as stated already, is dismissed with costs.