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(Hafiz) Allah Bakhsh Vs. Hamid Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All160
Appellant(Hafiz) Allah Bakhsh
RespondentHamid Khan
Excerpt:
.....who can only sign his name cannot be bound in the absence of any reliable evidence on record that the agreement was executed with full knowledge of its contents or that it was ever read out to him. 5. in this case like the one before us the plaintiff had sued on the basis of an acknowledgment regarding a time-barred debt. in this view, the plaintiff's suit for recovery of money on foot of an implied promise to pay must fail on the ground that the agreement sought to be enforced is without consideration, section 25 (3), contract act, not being applicable to the case. in the view of the case that we have taken, this appeal must fail......the case therefore has to be decided on the assumption that the above writing acknowledged a time-barred debt. defendant 1, mt. mumtazi begam, was joined in the acknowledgment as the shop which it was agreed would be mortgaged by conditional sale belonged to her. for some reason the plaintiff discharged mt. mumtazi begam from the array of parties confining his claim to defendant 2, her husband. both the defendants contested the suit. we need not refer to the written statement of defendant 1. defendant 2 denied the execution of the acknowledgment, pleading that he was an illiterate man and if the acknowledgment sued on was found to bear his signature it must have been obtained by some fraudulent means. the courts below have held that the plaintiff failed to establish the passing of.....
Judgment:

Niamatullah, J.

1. This is a plaintiff's appeal arising out of a suit brought by him for recovery of Rs. 1,671-8-6 alleged to be due under an acknowledgment, dated 8th August 1924, executed by the two defendants: Mt. Mumtazi Begam defendant 1, and her husband Hamid Khan defendant 2. Both the Courts below have dismissed the suit. Hence this second appeal. The acknowledgment is in the following terms:

That the second executant (Hamid Khan) has borrowed Rs. 1,900 from Hafiz Allah Bakhsh, son of Hafiz Nabi Baksh caste Sheikh now resident of Nai Mandi, Agra City and utilized in his business, and the said Hafiz has been persistently demanding his dues and at present we cannot manage to pay off his debt we agree to execute an agreement for mortgage by conditional sale within four months of this.

2. It has been found, and the finding has not been contested before us, that the liability acknowledged in the writing quoted above represented certain debts due from defendant 2 to the plaintiff which had become barred by limitation. The case therefore has to be decided on the assumption that the above writing acknowledged a time-barred debt. Defendant 1, Mt. Mumtazi Begam, was joined in the acknowledgment as the shop which it was agreed would be mortgaged by conditional sale belonged to her. For some reason the plaintiff discharged Mt. Mumtazi Begam from the array of parties confining his claim to defendant 2, her husband. Both the defendants contested the suit. We need not refer to the written statement of defendant 1. Defendant 2 denied the execution of the acknowledgment, pleading that he was an illiterate man and if the acknowledgment sued on was found to bear his signature it must have been obtained by some fraudulent means. The Courts below have held that the plaintiff failed to establish the passing of consideration under the acknowledgment sued on. The lower appellate Court observes:

Most probably there was some debt due by the defendant to this plaintiff but its amount has not been established on the record except for the recital in the deed of agreement with which the illiterate defendant who can only sign his name cannot be bound in the absence of any reliable evidence on record that the agreement was executed with full knowledge of its contents or that it was ever read out to him.

3. The learned Subordinate Judge seems to have been of opinion that the plaintiff must establish not only the due execution of what he calls the agreement but also establish the passing of consideration independently of the recital. If the disposal of the appeal before us had depended upon that question, we would have in all probability differed from the view taken by the learned Subordinate Judge, as if the execution of a document which contains an admission by a debtor to have received the debt is established the burden of proving want of consideration is shifted to the defendant who disputes it. But there is a serious difficulty in the plaintiff's way to succeed in the suit.

4. It has already been mentioned that the sum of Rs. 1,900, acknowledged by the writing already referred to represented a time barred debt. The learned advocate for the appellant has argued before us that in so far as it is an acknowledgment of existing liability, it implies a promise to pay. Therefore, it is argued under Section 25 (3), Contract Act, a time-barred debt is a sufficient consideration for an agreement to pay. This argument is untenable in view of at least two rulings of two different Division Benches of this Court. It was held in Gobind Das v. Sarju Das [1908] 30 All. 268 that:

where it is sought to recover a time-barred debt on the strength of a subsequent promise to pay made in writing by the debtor, the document relied on must contain an express promise to pay. A promise to pay cannot be inferred from a more acknowlegment.

5. In this case like the one before us the plaintiff had sued on the basis of an acknowledgment regarding a time-barred debt. The argument put forward on his behalf was that in so far as an acknowledgment implied a promise to pay Section 25 (3). Contract Act, applied and consequently the acknowledgment in suit should be deemed to be for consideration and not void for want of it. This argument was rejected by this Court and the suit was dismissed. Recently, another Bench of this Court followed the aforesaid ruling. It was held in Raj Narain Rao v. Ram Sarup : AIR1930All467 , that Section 25, Contract Act applied only to a case in which there was an express promise to pay and had no application to a case where an implied promise was inferred from a mere acknowledgment. In this view, the plaintiff's suit for recovery of money on foot of an implied promise to pay must fail on the ground that the agreement sought to be enforced is without consideration, Section 25 (3), Contract Act, not being applicable to the case.

6. The learned advocate for the appellant, in the last resort, requested us to allow him to amend the plaint so as to make his suit one for specific performance. It is quite true there is an express promise to execute a deed of conditional mortgage and, if the suit had been one for specific performance, Section 25 (3), Contract Act, could have been invoked by the plaintiff for enforcement of an agreement to have a deed of mortgage by conditional sale executed by the defendant. We express no opinion as to whether a suit for specific performance of that nature could have succeeded on the merits, but such a suit could have been conceivably 'brought and in the alternative the plaintiff-appellant could have claimed damages for breach of an agreement to execute a deed of mortgage by conditional sale. This however is not the present frame of the suit and to allow the plaint to be amended at this stage will be to deprive the defendant of the plea of limitation applicable to a suit for specific performance. The amendment of the plaint, if allowed, would date back to the institution of the suit, and is for that reason calculated to prejudice the defendant to a very great extent. Under these circumstances, we are unable to exercise our discretion in second appeal in allowing the amendment of the plaint to be made in the manner desired by the plaintiff-appellant. In the view of the case that we have taken, this appeal must fail. It is accordingly dismissed with costs, including counsel's fees in this Court on the higher scale.


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