1. I understand that I am now asked to decide only one point before referring the account to the Commissioner, that is Avhether the defendant is liable for Rs. 4,000 said to have been borrowed from Hirbai by Fazul on the 11th May 1901?
2. Defendant's first objection is under Section 87 of the Negotiable Instruments Act. He contends that there has been a material alteration in the promissory note, and therefore that it is void and the plaintiff cannot sue on it. This implies that Ex. B is a promissory note. As to that, although it is in form a promissory note, there can I think be no doubt that neither party to it had any intention of putting it in circulation or using it as a negotiable instrument. It is written in Hirbai's book and is plainly meant to be no more than an acknowledgment of indebtedness I am further of opinion that there was no such material alteration as in the intention of the section would make it void. I am not to be understood as saying that altering a date is not speaking generally a material alteration. It is. But in the circumstances of this case, and for the purposes of this case only, I hold that there was no material alteration. For I have no doubt that the account given of this change of the date, by the plaintiff, is substantially true. I have no doubt that Fazul wrote out the whole of B in his own hand and went as far as Jeth Sud then stopped not being sure what the native date realty was Shown to the plaintiff he ascertained that the true date of execution was not in Jeth Sud at all but in Ashad Vad, and accordingly filled in the correct English date, the 11th May 1901. Although this was not done with the present knowledge and consent of Fazul, I have no doubt that it was in furtherance of the common intention, namely, that the paper should be rightly dated. And I am sure that if Fazul was not immediately apprized, of what had been, done, he knew of it shortly afterwards when Hirbai died, and the book in which Bis. came into, and long remained in his possession as executor. If this was a bonafide transaction, and I see no reason whatever to doubt that it was, no reason occurs to me why Fazul should have wished the date not to be a true date, but a date some ten or twelve days forward. Nor is it as though he had definitely filled in a date. He only went as far as putting down the part of the native month in which he thought the day lay. I am of opinion that this objection fails. The next objection taken depends on and falls with the first The contention was that the plaintiff sued on this promissory note, and as that was void he could not be allowed to. prove the alleged liability aliunde. I need not now discuss that at length. Suffice it to say that the plaintiff does not claim on the promissory note. And in any event, looking to the circumstances of this case, I should hesitate to apply the doctrine of Alderson v. Langdale (1882) 3 B. &. A. 660 or hold that Section 91 of the Evidence Act barred the plaintiff from proving the liability by other evidence than the note itself, The English rule founded on Alderson v. Langaale, that where a debt has been discharged by making a promissory note, and the creditor makes the note his own by vitiating it, the debtor, is wholly discharged, and the creditor can neither sue on the note, nor for the price of the goods, seems not only very rigorous, but to rest upon considerations which apply peculiarly to. the negotiability of the instrument. Here the case is different, and the force of such considerations would I think be greatly weakened, I am satisfied not only from Ex. E but from the oral evidence of the plaintiff that Hirbai did advance Rs. 4,000 to Fazul in cash on the 11th May 1901 and that he, on that day, did agree to repay the same at 6 per cent, interest. The defendant next relies on limitation. The first point he takes is that in the 7th para of the plaint the plaintiff obeying Section 50 of the Code of Civil Procedure states the ground upon which he intends to surmount the apparent bar of limitation, and that he must be confined to that ground and that ground only. The plaintiff says that as the defendant was the executor of the deceased Hirbai from the year 1901 there can be no bar of limitation. The defendant upon this contends that he cannot now be allowed to urge that the defendant was a trustee within the meaning of Section 10 of the Limitation Act. Jageshwar Raj v. Raj Narain Milter ILR (1903) Cal. 195.
3. I am doubtful whether the law has not been laid down too narrowly in that case. It seems to me that when a plaintiff does satisfy the requirements of Section 50 of the Civil Procedure Code by stating what is in his opinion the ground upon which he intends to get. over the bar of limitation, he ought not to be precluded from taking another and not inconsistent ground should he be later advised that the latter is the true ground. I say this with all respect and deference to the learned judges of the Calcutta High Court who were of a contrary opinion. In cases coming from the mofussil at any rate, it is matter of common experience that limitation objections which have not been mentioned in the plaint or at the trial in the first Court at all, are entertained in appeal. And while there may be a difference between such cases, and one in which the plaintiff does state the ground on which he proposes to rely, and then wants to change it, I think the former would still be difficult to reconcile with the strict application of the Calcutta ruling. But for Section 87 of the Trusts Act, the point would have no practical importance. For merely construing the will I am clear that there was no specific trust of this sum of Rs. 4000. The will appoints executors and although in later clauses it describes them as trustees, it imposes upon them nothing more than the ordinary, duties of executors for getting in and discharging debts etc. And that unless they are authorized to pay debts out of real property does not create any trust: In re Stephens (1889) 43 Ch. D. 39 : Scott v. Jones (1838) 4 C & F.382 and all that class of cases. Then there is the 7th clause which directs that when the executors have sold all the wearing apparel, the jewellery and added thereto what cash there may be, they are to invest the whole in house property to be thenceforward held in trust etc. But in my opinion that does not create or declare any trust of a particular outstanding debt which never has been got in. So far then I am clear that this case would not fall under Section 10 of the Limitation Act. That would give rise to a very nice question which as far as I am aware has never yet been definitely decided in any Indian Court. I except the case of Narrondas v. Narrondas ILR (1907) 31 Bom. 418 because although from the report it would appear that the point was taken and considered by the learned judge, he held that Section 10 of the Limitation Act applied, and therefore what follows may fairly be regarded as mere obiter dicta. The question is whether when a debtor is appointed executor, time runs in his favour while he is acting as executor According to the sensible common law rule, the appointment of a debtor to be executor was held to be a discharge of the debt. For it was said that if the creditor chose to put his debtor in a position of such authority as executor, he meant to forgive the debt which the executor himself was the only person to collect. That is perfectly reasonable and intelligible. But then equity stepped in, and said that if the executor accepted, he must be presumed, as debtor to have at once paid himself as executor, and so to hold the amount, whether in fact paid or not, as assets. This does away at once with the sense of the common law rule and by introducing a fiction, greatly complicates the question. For it might well be that the testator appointed an executor who was his debtor, thereby forgiving his debt, while the executor refused to act, thereby avoiding the operation of the equitable fiction and resultant responsibility. What would be the position then? As however the Courts in this country follow the equity and not the English Common law rules, where the two are opposed, I should have no doubt that where an executor who owes money to the deceased accepts the executor ship, his debt becomes at once assets, and he is responsible for the amount of it. In that case no limitation would run as long as he remained executor or till he died, whichever happened first. But the defendant has strenuously argued that in India we are bound by our own statutes, and must not go outside them to give effect to special doctrines of English equity. I concede that. I should be the last to wish to go further afield than need be, or where our own statute law seemed clear and explicit to seek to enlarge it by embroidering upon it English rules of equity. But I am not at all sure that that is the true position here. Section 9 of the Limitation Act provides for the case of an administrator who owes the estate money. Time is not allowed to run in his favour because according to that section he is under a disability to sue. Closely examined the section may seem to be unhappily worded. For if the administrator did not want to pay his debt, he would not, however able to sue, sue to enforce it for the benefit of the estate; and if he did want to pay it, no technical disability to sue would prevent him doing so. It is in fact not a case of disability at all, whatever it may be in words. The argument is that since there is this provision to meet the case of an indebted administrator and none to meet the case of an indebted executor, the latter must have been intentionally loft out, or at best, from the plaintiff's point of view, it must be a casus omissus which no Court has the right deliberately to supply. The commentators have been alive to the difficulty and suggest reasons for the distinction. In Mitra's book these are not accurate. In Starling they are well enough, but of course they do not bind any Court. Starling's reason appears to be that if a man deliberately puts one of his debtors in a position to avoid payment of his debt, that is a very different thing from the Court doing so, as in the case of an administrator, and it might therefore be presumed that in the former case the legislature designedly left the executor to his own sense of honour. In other words, that the Indian legislature had gone back to the English common law rule, and had completely given the go by to the equitable doctrine. This in effect would amount to saying that in this country appointing an executor who owed the testator money was tantamount to forgiving the debt. For of course in equity the reason does not hold and would not account for the omission. I should have gravely doubted, whether, considering the consistent manner in which the Indian Courts have followed Equity in preference to common law, that could have been the intention of the legislature. And I think that Section 87 of the Trusts Act shows convincingly that it was not.. That section practically enforces the equitable doctrine in its fullest sense, carries it jndeed further than in England, for it seems to me, though I may be wrong in so reading it, that it makes a specific trust of any debt owing by an executor to the testator for whom he is acting. And this brings the present case again within Section 10 of the Limitation Act. In coming to this conclusion I have not thought it necessary to discuss the numerous English cases have read, because it is not and never has been denied, that the rule is well settled in England and quite beyond dispute. The argument here has been confined, and I may say that it was a very ingenious argument, to showing that that Rule did not apply in India. I think that it does. I must, therefore, hold that in respect of this sum of Rs. 4000 there is no bar of limitation. And that disposes of all the contentious matter with which I have to deal, The rest is, I understand, merely a matter of accounts