1. This is a plaintiffs' appeal and has arisen out of, what is in effect, a suit for contribution. There was a man named Sital Nath Tewari. The suit was instituted by Sripat Nath Tewari and Rama Kant Nath Tewari sons of Raghunandan Tewari and Achuta Nand Tewari and Chabi Nath Tewari sons of Shyam Saran Nath Tewari against six persons, Chandrabali Nath, Mt. Sorja, Jarbandhan Nath Tewari, Brij Bhukan Nath Tewari, Ram Kishore and Jugal Kishore Tewari. The facts of the case are complicated, but are briefly these. The family, on 1st March 1927, acquired certain property under a sale-deed for a sum of Rs. 2195. They had not the necessary funds. They, therefore, raised a sum of Rs. 1000 on 28th February 1927, by means of three promissory notes for payment to the vendor. Part of the sale consideration was Rs. 1325 which was due to the family itself under a usufructuary mortgage. It had, therefore, to pay a further sum of Rs. 870. Rupees 800 were paid out of the consideration received under the three promissory notes. For the balance of Rs. 70 Raghunandan, the son of Beni Sewak, executed a promissory note in favour of the vendor. It may be noted here that the promissory note of us. 70 was discharged by Raghunandan by a payment on 19th October 1931, of a sum of Rs. 123. Three promissory notes were executed on one and the same date, that is 28th February 1927, in favour of the same person. One of the promissory notes was executed by Raghunandan for a sum of Rs. 400 whereas the remaining two were executed for Rs. 300 each by Jar-bandhan and Ram Kishore. The promissory note by Raghunandan for a sum of Rs. 400 was renewed by a further promissory note by him on 28th June 1932, and this was actually discharged on 18th June 1934, by a payment of Rs. 563.
2. Coming now to the two promissory notes executed on 28th February 1927, by Jarbandhan and Ram Kishore, we find that they were discharged in the following manner. On 26th June 1927, four promissory notes were executed by different members of this family in favour of different persons. The first was executed for a sum of Rs. 125 by Chandrabali in favour of Sumari Ahir, the second by Ram Kishore also for a sum of Sections 125 in favour of Pranpati Hajjam, the third by Jarbandhan for a sum of Rs. 175 in favour of Budhu and the fourth by Raghunandan for a sum of Rs. 200 in favour of Sukhai Ahir. The total consideration of this debt was Rs. 625. As a result of these four promissory notes the two promissory notes of 28th February 1927, by Jarbandhan and Ram Kishore were wiped off. Of the four promissory notes mentioned above the two by Ram Kishore and Jarbandhan do not concern us in this appeal and may, therefore, be dismissed from consideration. Of the remaining two, we shall first take up the one executed by Chandrabali for a sum of Rs. 125 in favour of Sumari Ahir. Instead of Chandrabali paying it off, Raghunandan renewed it by a promissory note of 1st April 1930, which was further renewed on 5th March 1933, and ultimately paid off on 18th June 1934. The sum actually paid was Rs. 142. We now come to the last of the two other promissory notes executed by Jarbandhan in favour of Sukhai for a sum of Rs. 200. We again find Raghunandan and not Jarbandhan taking upon himself the liability for the discharge of the debt. The renewal of the above promissory notes was made on 5th May 1933, and it was finally paid off by him on 21st June 1934. The sum actually paid was Rs. 245. This completes the history of the promissory notes. It must also be mentioned that the family separated sometime in 1928. The present claim has been brought by Raghunandan for contribution on the basis of the payment made by him on 19th October 1931, in discharge of the promissory note executed by him for Rs. 70, the payment made on 18th June 1934, in discharge of the pronote executed on 28th February 1927, for a sum of Rs. 400 in favour of Tula Dhar, that of 18th June 1934, in discharge of the promissory note of 26th June 1927, executed by Chandrabali for a sum of Rs. 125 in favour of Sumari Ahir and finally the payment of 2lst June 1934, in discharge of the promissory note executed by Raghunandan in favour of Sukhai in lieu of the promissory note executed by Ram Kishore for a sum of Rs. 800 in favour of Tula Dhar on 28th February 1927.
3. The case of the plaintiff's stripped of unnecessary details, was that these debts were originally taken by the family and it was immaterial in whose name the transaction stood. The entire family was liable for the debt and if Raghunandan alone made the payments, the branch of Beni Sewak, which the appellants represent, is entitled to claim contribution from the rest of the family. The suit was instituted on 20th October 1934, in the Court of the Munsif of Deoria. The learned Munsif dismissed the suit as he understood the claim as a claim virtually for partial partition. In this view he was obviously wrong. The learned Civil Judge on appeal came to the conclusion that it was really a claim for contribution, although, the language in which the plaint was couched might not have been very happy. He, therefore, remanded the case with the direction for the amendment of the plaint. The plaint was amended and it was thereafter treated as a suit for contribution. The learned Munsif, however, again dismissed the suit by his judgment of 1st June 1937. This judgment was substantially affirmed in appeal by the learned Civil Judge on 22nd September 1938. The plaintiffs have come before us in second appeal and some of the defendants have preferred a cross-objection. The main ground on which the claim was dismissed both by the trial Court and also by the learned Civil Judge was that it was barred by limitation. The two articles to which reference has been made by him are Article 61 and Article 99, Limitation Act. It was practically conceded before the learned Civil Judge that Article 61 was the article applicable and there has been no departure from that position by the parties before this Court. We have, therefore, to consider the terms of Article 61, Limitation Act, and see whether the claim is within time. The article is in these terms:
For money pay- | Three | When theable to the plaintiff | years | money isfor money paid for | | paid.the defendant. | |
The starting point of limitation is 'when the money is paid.' The learned Counsel for the appellants contends that the starting point of limitation will be the date of the actual payments made by Raghunandan. The learned Counsel for the respondents, on the other hand, argues that the starting point will be the date of the fresh promissory notes. There is no doubt that if the contention of the learned Counsel for the respondents is correct and the starting point is treated as the dates, of the renewal of the promissory notes, the suit is clearly beyond limitation. In determining the meaning of the expression 'when the money is paid' we have to consider the effect of the expression 'paid.' Does 'paid' mean actual payment or merely a notional payment? The Courts below and the learned Counsel for the respondents in this Court relied upon the case in Sat Rohan Prasad v. Bharat Prassd : AIR1931All652 . It must be conceded that the opinion on this point is divided, but if this authority is applicable to the case in hand we are bound by it and shall feel compelled to dismiss the suit. The case will have, therefore, to be examined in some detail. Its facts briefly are these : One Bharat Prasad Man Tewari had three brothers and they all formed a joint Hindu family. They were indebted to a firm Bilas Eai, which kept the account in the name of two brothers, Bharat and Lachhman. In 1913, a suit was brought against Bharat and Lachhman for the amount due from the joint family and on 4th June 1913, a decree for Rs. 450 with future interest at six per cent, per annum was passed against the defendants. This decree was against the family which was represented by its karta. Admittedly the family till then was joint. A separation took place several years afterwards. In 1924, Bharat the plaintiff was arrested in execution of this decree and he executed a simple mortgage on 4th July 1924, in lieu of the amount due under the simple money decree. Later on, another suit was instituted on the basis of this mortgage deed which was also decreed, and Bharat executed a fresh mortgage-deed in lieu of this mortgage decree. Bharat then instituted a suit on 4th July 1927 for contribution against his three brothers.
4. It is clear that the suit was brought within three years of the execution o the mortgage-deed. There were two contentions raised before their Lordships. The first was that Article 107 constituted a bar to the claim and, in the alternative, that the claim was premature. Their Lordships rejected the contention that the claim was premature. They further held that the claim having been brought within three years of the date of the mortgage, was within time. Mr. Pant, the learned Counsel for the appellants, has strenuously contended that the following observations of their Lordships at page 652 are conclusive of this matter:
It is only when separation took place that the rights and liabilities became separate and distinct. Bharat by executing a simple mortgage in 1924 discharged a joint debt by taking upon himself the responsibility of paying it. So far as the joint debt was concerned, it was wiped out on that occasion, and it may, therefore, be assumed in favour of Bharat that he discharged that debt by taking the responsibility upon himself alone in 1924. The time, therefore, began to run against Bharat from 4th July 1924 and the appropriate article which would apply to his claim would be Article 99, Limitation Act.
5. The suit was brought just within three years of that date and was, therefore, treated as within time. Strictly speaking these observations are not decisive of the present case. That was a case under Article 99, Limitation Act, which speaks of a claim for contribution by a party who has paid the whole of more than his share of the amount due under a joint decree. The present is not a case of joint decree. But, assuming for the sake of argument, that the principle laid down by their Lordships has application to the present case, we are of opinion that the facts of the case before us are distinguishable from those of that case. Their Lordships were, in that case, called upon to determine two points and two points only. The first was whether the claim was premature. It was held that it was not. The second point was whether the suit having been brought within three years of the date of the mortgage was within time. Their Lordships held that it was. But they were not called upon to decide the question of the starting point of limitation in case Bharat had waited and brought a suit after actually paying off the mortgage. The learned coun-sel for the respondents contends that there was and could be only one cause of action in respect of a transaction. This might have been the law at one time but is not the law now. By way of analogy some authorities of this Court bearing upon another point might be referred to. The case in Raghuber Rai v. Jai Rai ('11) 34 All. 429, will afford sufficient light for the determination of this vexed question. The facts of that case were briefly these:
6. On 20th April 1895, one Jai Raj along with others sold certain zamindari to some of the defendants and left a sum of Rs. 708 with the vendees for payments to one Sanchi Ram. The vendees failed to pay, and Sanchi's heirs sued on the mortgage and obtained a decree on 14th January 1910, for rupees 1769-4-8. The plaintiffs did not pay off the decree. They, however, on 6th June 1910 brought an action against the defendants for the recovery of the decretal amount. Their Lordships dismissed the claim on the ground of limitation. Their Lordships say:
The breach in the case before us occurred on 20th April 1895, and the action for compensation was brought on 6th June, 1910 and it was, therefore, barred by six years' limitation under, Article 116, Limitation Act. There is no substance in 'the suggestion that the obtainment of the decree of 14th January 1910, gives the plaintiffs a fresh starting point of limitation. The law of limitation has prescribed certain modes which give a fresh starting point of limitation and the obtainment of a decree 18 not one of those. One breach of a contract can only furnish one cause of action and no more. Actual loss when it occurs is only one of the results of the breach, and is not an act of the party who breaks a contract and can, therefore, create no second cause of action.
7. A mass of literature grew up in this Court on this question and the consensus of opinion was that the observations of their Lordships that there could be only one cause of action as a result of a breach was wrong. The earlier authorities circumvented its effect by dismissing the observations as merely an obiter dictum but the later pronouncements expressly dissented from the principle. This point has been settled definitely in Mt. Naima Khatun v. Basant Singh : AIR1934All406 and their Lordships have made it clear
that the damage caused would undoubtedly give a fresh cause of action for a suit for damages, which is of a different character from a suit for the enforcement of the covenant.
8. Muhammad Siddiq v. Muhammad Nuh : AIR1930All771 is another case which might be of some assistance. A Hindu widow executed a sale deed on 17th February 1877. That sale was challenged by the reversioners on the ground of legal necessity and was condemned as a bad sale. The transferee lost possession. A suit was brought for damages and one of the questions which arose in the case was whether it was within time. There can be no doubt that the action was brought about forty years after the transaction but it was within three years of the actual loss. At p. 662 their Lordships have said:
But even if Article 97, Limitation Act, were applicable, the next question that would arise for consideration would be as to the starting point of limitation. Under that Article three years run from the date of the failure of the consideration.
9. It is true that the present is not a case under Article 97 but the ratio of the decision is applicable to the facts of this case. In this view of the case we must hold that the claim, if brought within three years, from the date of the actual payment is within limitation. The case may be examined from yet another point of view. It has been held in several cases, for instance, in Raghubar Dayal v. Abdul Ghaffar ('36) 23 A.I.R. 1936 Oudh 253 that:
The mere giving of renewal security as distinguished from cash payment by one of the two debtors in discharge of a debt for which two persons are liable does not give the person giving the security a cause of action for contribution suit as against the other debtor.
10. The test which has been laid down by their Lordships is when did the person actually become out of pocket? In this case by merely renewing the promissory notes Raghunandan did not become out of pocket. He substituted one promissory note for another promissory note - both paper transactions - and the mere substitution did not give him a cause of action. To the same effect is the decision in Venkatanarayana v. Lakshmibayamma : AIR1929Mad309 . Their Lordships have made it clear that if the renewal of the pronote amounted to the discharge of the original debt, then the date of the cause of action would be the date of renewal, but it is clear law that the cause of action dates from the actual payment of the debt. It is true that their Lordships in Sat Rohan Prasad v. Bharat Prasad : AIR1931All652 have observed that when Bharat discharged the joint debt by taking upon himself the sole responsibility for paying it, it was tantamount to payment of the joint debt, by him and ruled out the plea that the suit was premature. But, as we have already said, the point in the precise form which it has assumed in this case, never emerged for consideration in that case. Indeed we are relieved of the necessity of a further examination of this point by an observation of their Lordships of the Privy Council in Commissioner of Income-tax, B. & O. v. Kameshwar Singh, Darbhanga . That was no doubt a case under the Income-tax Act but the principle laid down by their Lordships is one which can be applied to the case in hand. Say their Lordships:
Now here the first six items, amounting to Rs. 20,74,973, may perhaps reasonably enough be regarded as the equivalent of cash, but item 7 of Rs. 17,34,596, consisting of the debtor's own promissory notes, was clearly not the equivalent of cash. A debtor who gives his creditor a promissory note for the sum he owes can in no sense be said to pay his creditor he merely gives him a document or voucher of debt possessing certain legal attributes.
11. The promissory notes executed by Baghunandan either in lieu of the earlier promissory notes executed by the other members of the family or in lieu of the promissory note granted by himself cannot, therefore, be called a payment of the debt. On a consideration of the above authorities it is abundantly clear that the expression in Article 61, Limitation Act, 'when the money is paid' must mean actual payment and not merely a notional payment which a renewal implies. We, therefore, allow this appeal, set aside the decrees of the Courts below and hold that the plaintiffs' claim is within limitation. We send the case back to the Court of first instance through the lower appellate Court for the trial of the case according to law. It has been agreed by the-learned Counsel for the parties that the cross-objection need not be decided by us. We, therefore, send the whole case back to the Court of first instance through the lower-appellate Court for trial in the light of the observations made by us. Costs here and hitherto will be on the parties. Costs here-after will abide the result.