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Parasuraman and ors. Vs. Purushothaman and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. No. 516 of 1974
Judge
Reported inAIR1977Ker132
ActsLimitation Act, 1963 - Sections 18 and 19 - Schedule - Article 1; Hindu Succession Act, 1956 - Sections 19
AppellantParasuraman and ors.
RespondentPurushothaman and Co. and ors.
Appellant Advocate S.N. Poti,; C.M. Devan and; P.E. Narayana Swamy, Adv
Respondent Advocate T.S. Venam Iyer and; P.K. Balasubramaniam, Advs.
Cases Referred and A. C. Misra v. J. C. Roy
Excerpt:
- - the place of business of the firm as well as the rice mill was in trichur town. the hulling charges as well as the rent due for the room used as office were being credited in an account kept by the plaintiff in the name of the rice mills. the rate of interest is also disputed as well as the plaint amount. --(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.....chandrasekhara menon, j.1. the scope and ambit of a co-heir's authority to enlarge the period of limitation as against the other co-heirs or co-owners by an acknowledgment of liability or payment of interest or principal is the main question that arises in this appeal. as the answer to this question would, to a great extent, be influenced by the facts and circumstances of the case, it is only proper that we give a rather detailed history of the case. purushothaman and company, a partnership firm of which one t. v. naganathan who has filed this suit, from which the appeal arises, on behalf of the firm and the 1st defendant are partners, were doing business in purchase and sale of paddy from 1961 onwards. one sri n. s. vaidyanatha iyer, father of defendants 1 to 10 and husband of the 11th.....
Judgment:

Chandrasekhara Menon, J.

1. The scope and ambit of a co-heir's authority to enlarge the period of limitation as against the other co-heirs or co-owners by an acknowledgment of liability or payment of interest or principal is the main question that arises in this appeal. As the answer to this question would, to a great extent, be influenced by the facts and circumstances of the case, it is only proper that we give a rather detailed history of the case. Purushothaman and Company, a partnership firm of which one T. V. Naganathan who has filed this suit, from which the appeal arises, on behalf of the firm and the 1st defendant are partners, were doing business in purchase and sale of paddy from 1961 onwards. One Sri N. S. Vaidyanatha Iyer, father of defendants 1 to 10 and husband of the 11th defendant was the proprietor of Sri Balasubramania Rice Mills. The place of business of the firm as well as the rice mill was in Trichur town. The plaintiff-firm was having its office in one of the rooms of a building belonging to Sri Vaidyanatha Iyer and was situated adjacent to the Rice Mills. The paddy purchased by the plaintiff-firm was being hulled in the said Rice Mills. The hulling charges as well as the rent due for the room used as office were being credited in an account kept by the plaintiff in the name of the Rice Mills. Large amounts were being advanced by the plaintiff to Vaidyanatha Iyer for the running and maintenance of the Rice Mills, which amounts were also debited in the said accounts. Sri Vaidyanatha Iyer had undertaken to repay the amounts so taken with interest. According to the plaintiff, there was thus mutual, open and current accounts between the plaintiff-firm and the Rice Mills from 1961 onwards.

2. There was a temporary break in the plaintiff's business in 1965 on account of the Paddy Control Order. Vaidyanatha Iyer died in January, 1968. At the time of his death more than Rs. 60,000 were outstanding to be paid by him to the plaintiff-firm. It is the plaintiff's case that Vaidyanatha Iyer during his lifetime had acknowledged his liability to pay the amount due from him in accordance with the accounts. The original plaint filed proceeds on the basis that after the death of Vaidyanatha Iyer, the defendants as members of a joint Hindu family became liable for the amount concerned, and the first defendant as the manager of the family executed in favour of the plaintiff a pass book evidencing the debt of the Rice Mills and personally undertaking to discharge the same. Small payments made by the 1st defendant subsequently, were entered in the pass book towards the outstanding debt. Plaintiff further proceeds to state that during the lifetime of Vaidyanatha Iyer the 1st defendant was solely attending to the management of the Rice Mills and all the properties including in the Rice Mill inherited by the defendants from Vaidyanatha Iyer came into possession of the 1st defendant after his death. The 1st defendant managed the properties and continued the business for and on behalf of all the defendants, according to the plaintiffs' case. It is alleged that the acknowledgments and part payments made by the 1st defendant were in the course of such management and as the duly authorised agent in law of the other co-heirs of Vaidyanatha Iyer, namely defendants 2 to 11. As on 1-4-1971 a sum of Rs. 36,261.55 was outstanding to be paid to the plaintiff. Interest at the rate of 9% per annum is claimed in the plaint from 1-4-1971 as being due to the plaintiff. The liability of the defendants are sought to be fastened, on the basis of their being members of the joint family as such and also as heirs of deceased Vaidyanatha Iyer. The 1st defendant is said to be personally liable to discharge the amounts. The plaint is brought forward on the allegation that in spite of demand the defendants are refusing to pay the amount. The 1st defendant though a partner of the firm is brought on the party array, as a defendant as he is one of the persons liable to pay the amount sued for.

3. The 1st defendant himself and defendants 2, 3, 7 10 and 11 together filed written statements in the case. Subsequently an additional written statement was filed by defendants 2 to 11.

4. It might be noted that the 1st defendant though he filed written statement did not proceed to contest the suit. In his written statement he takes up the position that the business of the plaintiff-firm came to an end because of the Paddy Control Order in the last quarter of 1964. The firm was not dissolved and the accounts of the partnership settled and the amount due to him have not been paid. He alleges in the written statement that the assets of the partnership are in the hands and enjoyment of the other partner Sri Naganathan. According to the 1st defendant he was not consulted by Naganathan in filing the suit, and without his junction as a plaintiff or as a defendant representing the plaintiff-firm, the suit is not maintainable. He states that because of his friendship with Naganathan from his childhood onwards he was signing all the papers and documents tendered by Naganathan without looking into the contents thereof. According to his knowledge, his father has not acknowledged any debt nor he himself has acknowledged any debt of his father to Naganathan or to anybody. He denies that he was the manager of the joint family, and asserts that he had never acknowledged any liability as manager of the joint family or as agent of defendants 2 onwards. He also states that he has not been authorised by the defendants to make any such acknowledgments. He points out that Vaidyanatha Iyer's properties are his own self-acquisitions and not ancestral properties and his heirs succeeded to those properties on Vaidyanatha Iyer's death as tenants-in-common. Any acknowledgment by the 1st defendant could not bind the right, title and interest of the other defendants in the estate of deceased Vaidyanatha Iyer. The plaint claim is barred by limitation. The 1st defendant also contends that interest cannot be claimed at a rate more than 6%. The correctness of the amount shown in the plaint is also disputed. It is stated that if at all any amounts are due from the Mills, it has only to be adjusted in the account against the 1st defendant.

5. We will now go into the contentions raised by defendants 2 onwards. They are more material for the purpose of the decision in the appeal. According to them the business of the plaintiff-firm was stopped in 1964 and the accounts between the partners were settled and closed even though no formal deed of dissolution was drawn up. It is their case that Naganathan in collusion with and taking advantage of the weakness of the 1st defendant managed to bring about the so-called acknowledgments and kaipadas to show that the family of the defendants is a debtor. The family has nothing to do with the liability of the 1st defendant, if any. The Rice Mill had stopped functioning in 1965 and at the time of death of Vaidyanatha Iyer in 1968 there was no business. Under the Hindu Succession Act the defendants inherited the Rice Mill of Vaidyanatha Iyer as tenants-in-common in equal shares. They do not constitute a joint Hindu family and the 1st defendant is not the manager of any such family. Long after the death of Vaidyanatha Iyer the 1st defendant is said to have applied for and took out a licence to run the Mill in his own name. The other defendants have nothing to do with the conduct of such business and they are not in any way liable for the debts of the 1st defendant or for any of his actions. The allegation in the plaint that large advances were made by the plaintiff-firm for the upkeep and running of the Rice Mills is denied. Dealings between the plaintiff and Mills have ceased with the stoppage of the business of the plaintiff-firm in 1964. The defendants also contend that there was no amount due from Vaidyanatha Iyer at the time of his death to the plaintiff-firm. According to them even when Vaidyanatha Iyer was alive the elder son, the 1st defendant, had executed kaipadas to Naganathan and his nominees evidencing his liability. There was no necessity for Vaidyanatha Iyer to acknowledge any liability. The acknowledgment made by the 1st defendant if any is not binding on the other defendants or their shares in the properties of Vaidyanatha Iyer. The rate of interest is also disputed as well as the plaint amount. They positively assert that the plaint claim is barred by limitation.

6. In the additional written statement which they filed they categorically state that they have not authorised the 1st defendant to acknowledge any liability or to make any part payment on their behalf, that if the 1st defendant has given any such acknowledgment or made any part payment, it can only be the result of fraud and collusion between Naganathan and the 1st defendant and during the lifetime of Vaidyanatha Iyer the mill was being managed by Vaidyanatha Iyer and not by the 1st defendant. They refuted the allegation made by the plaintiff that after the death of Vaidyanatha Iyer, all the assets came under possession and management of the 1st defendant. The agency set up of the 1st defendant as representing the other defendants is denied. It is stated after the death of Vaidyanatha Iyer his assets were obtained by his heirs in accordance with the provisions of the Hindu Succession Act.

7. Number of issues were raised in the suit. In regard to the competency of Sri Naganathan to file the suit the court found in favour of Sri Naganathan in the light of the fact that this contention though raised by the 1st defendant he had not cared to go into the box to speak to his case and his counsel had not even cared to cross-examine P.W. 1, Sri Naganathan. The court found that there were no joint family properties belonging to the defendants and that the properties left by Vaidyanatha Iyer are his self-acquisitions. In regard to the question whether the let defendant was the manager of the joint family of the defendants, the court found against the plaintiff and in favour of the defendants. The lower court also held that the properties left by deceased Vaidyanatha Iyer were his self-acquisitions which fact was not really disputed at the evidence stage.

8. However, the court held against defendants as far as their contention that the plaintiff-firm stopped business in 1964 and that the accounts of the partnership were settled. The debt as mentioned in the plaint was found due from the deceased Vaidyanatha Iyer and his properties were liable for the same, no doubt subject to the law of limitation. The court found from the evidence in the case that at the time of death of Vaidyanatha Iyer, there was an amount of Rs. 57,184.42 liable to be paid by him to the plaintiff-firm and the properties left by him are liable for the debt as claimed in the plaint subject to law of limitation. On the evidence it was further held that the account between the plaintiff and Balasubramania Rice Mills was mutual, open and current, and on the basis on which the accounts are kept between the parties there was a period of three years from 31-3-1966 for filing the suit. Then the court held that the 1st defendant is the authorised agent of the other defendants and he was competent to acknowledge the liabilities for and on behalf of the other defendants, that the 1st defendant acted as agent of the other defendants in respect of the properties inherited by him and the other defendants from Vaidyanatha Iyer and that the acknowledgment set up by plaintiff is true and valid. In the light of this the plaint claim was held to be not barred by limitation. The court was also of the view that the interest claimed in the plaint is not excessive. In the result the suit was decreed in terms of the plaint with costs against the 1st defendant and the properties of deceased Vaidyanatha Iyer in the hands of defendants 1 to 11. Future interests at the rate of 6% per annum on the principal sum was allowed from the date of suit till the date of realisation.

9. It is from this decree that defendants 2 to 11 have come up in appeal to this Court. It is their contention in the appeal that the transactions entered between the 1st defendant and the plaintiff-firm after the death of Vaidyanatha Iyer in the running of Rice Mill was in his own behalf and on his own responsibility and without the junction of the other defendants. Therefore those transactions could only be treated as fresh transactions between the plaintiff and the 1st defendant it is their case that the various reasons given by the court below to find that the 1st defendant was the authorised agent of the other defendants are unsustainable and not based on proved facts. They also state that the 1st defendant really obtained the licence of the Rice Mill on his own behalf and defendants 2 onwards had no right or liability in the Rice Mill business run by the 1st defendant and the Rice Mill property which belonged to them in tenancy in common cannot be proceeded against for the recovery of liabilities or debts incurred by the 1st defendant. They point out that on the evidence on record and in the circumstances of the case it cannot be said that the 1st defendant, one of the co-owners acted on behalf of others with the express or implied consent or that the other co-owners acquiesced in or ratified the acts of the 1st defendant alleged to be done on behalf of them. It is their case that the kaipada Ext. A27 cannot be relied to get over the bar of limitation. It is in the handwriting of the plaintiff and was signed by the 1st defendant as proprietor of the said Rice Mill over which business the other defendants had no control or interest. The wording in the kaipada is stressed by the defendants in regard to their contention that the 1st defendant had not acted on their behalf. It is their further case that Ext. A27 is a colourable and spurious document inasmuch as the person who wrote it and the person who signed it did so in their own interest as to their own advantages, they being the only two partners of the plaintiff-firm. It is strongly contended on behalf of the defendants that showing of the debt in Ext. X13 series documents and/or acknowledgment of the debt in the kaipada Ext. A27 and the payment as seen made in Ext. A27 will not amount to acknowledgment of debt as contemplated in Section 18 of the Limitation Act. It is their case that the court below had overlooked the fact that the mill being run by the 1st defendant in his individual capacity, any acknowledgment or payment made by him will not bind the appellants in any manner. The court below grossly erred in holding that the 1st defendant was the authorised agent of the other defendants and was authorised to acknowledge liabilities for and on behalf of the other defendants.

10. Mr. Narayanan Poti learned counsel for the appellants in putting their case before us stressed on three reasons which according to him would establish that there had not been any acknowledgment of the liability of Sri Vaidyanatha Iyer in regard to the amount he owed to the plaintiff-firm, for and on behalf of the appellants. They are: (i) on a proper construction of the alleged acknowledgment in Ext. A27 it will be seen that the same has been done by the 1st defendant in his individual capacity and not as representing the other co-heirs; (ii) there was absolutely no proof that the 1st defendant had been authorised as an agent by the other defendants and (iii) it was pointed out that the 1st defendant himself is a creditor; being a partner of the plaintiff-firm his interest conflicts with that of the other co-heirs to a great extent, and the acknowledgment in Ext A27 is on that ground vitiated and cannot be relied upon. We will deal with these questions one by one. First we take the second ground advanced by the learned counsel, namely, whether the 1st defendant has been authorised to act as en agent on behalf of the other co-heirs.

11. The effect of acknowledgment in writing is provided for in Section 18 of the Limitation Act, 1963 which reads as follows:

'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 purpose 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.'

In regard to interpretation of the provisions in the Limitation Act many divergent views have been expressed. Sometimes strict construction has been advocated and sometimes a liberal construction has been encouraged, in the leading case of Luchmee Buksh Roy v. Runjit Ram Pundey ((1873) 20 Suth WR 375), the Judicial Committee of the Privy Council observed:--

'It has been said that this case ought to be decided upon an equitable construction and not upon the strict words of the statute; but their Lordships think that the statutes of limitation, like all others, ought to receive such a construction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments. The object of legislature in passing them is to quiet long possession and to extinguish stale demands. Such legislation has been advisedly adopted in India as it has been in this country and their Lordships think that in construing these statutes the ordinary rules of interpretation must prevail.'

As the learned Commentator B. B. Mitra points out in his Limitation Act the statute of limitation is a disabling Act and therefore the limitation has to be found within the four corners of the statute. It is not permissible to alter or cut down the effect of the clear words by a comparison with the language of the earlier statutes. It is for the litigant who pleads the bar to justify a construction which is other than literal and which would have the effect of depriving the party entitled to a right of the benefit arising by a literal construction. (Lakshminarasimham v. Suryanarayana, AIR 1948 Mad 246). The fixation of the period of limitation must always be to some extent arbitrary and may frequently result in hardship and in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide-Nagendra v. Suresh, (AIR 1932 PC 165 at p. 167); General Accident etc. v. Jan Mohamed (AIR 1941 PC 6 at p. 9) and Boota Mal v. Union of India (AIR 1962 SC 1716).

12. On the above basis let us consider Section 18. The section itself imports that an agent can sign on behalf of a person. The authorisation need not be in writing and it has been held in many decisions that such authorisation can be implied from the facts and circumstances of the case. It has also to be noted that the lower court has correctly found (which finding is not attacked in this appeal) that the defendants had inherited the assets of Vaidyanatha Iyer including the Balasubramania Rice Mill as tenants-in-common under Section 19 of the Hindu Succession Act. It cannot be controverted or doubted that joint tenants or tenants-in-common as such have no implied authority, in the absence of a contract to the contrary to act for all. A co-owner, as such, has no authority to enlarge the period of limitation, as against the other co-owners, by any acknowledgment of liability or payment of interest or principal. (We certainly note the difference of opinion between the different High Courts in regard to the question whether the payment of interest or part of principal of a debt by one of the co-heirs of a single debtor will save limitation as regards the other co-heirs. This aspect will be considered at the appropriate stage.)

13. As regards the question whether an agent can make the acknowledgment on behalf of the principal, the following principles will have to be taken note of. A representation made by an agent is admissible in evidence against the principal only in the following cases:

'(a) Where it was made as part of a communication expressly authorised by the principal.

(b) Where it has reference to some master or transaction upon which the agent was employed on the principal's behalf at the time when the admission or representation was made, and the making thereof was within the ordinary course of that employment.

(c) Where it has reference to some matter or transaction respecting which the person to whom the admission or representation was made had been expressly referred by the principal to the agent for information.'

(See Bowstead on Agency, Thirteenth Edition, p. 352).

As is quoted in the same work:

'It is important to distinguish between authority to do an act and authority to talk about it' (Morgan (1929) 42 Harward LR 461, 464): the scope of the agent's authority as regards the making of admissions may therefore be much narrower than that of his authority to make contracts or dispose of property, for in the latter case the interests and possible losses of a third party must be considered. Thus in the absence of express authority to make the communication during which an admission is made, not only must the transaction about which the admission was made have been one upon which the agent was concerned on the principal's behalf at the time of the admission, but also the admission must have been within his authority, and this may be difficult to establish. Beyond this the principal will not be bound. Authority to make admission is a type of implied authority, but the implication should be made with caution.' (Bowstead on Agency, Thirteenth Edition, pp. 352 and 353).

14. This principle is reflected in the Indian decisions. In Uma Sankar v. Gobind Narain (AIR 1924 All 855) it was pointed out that the mere fact that the 'Munim' of the defendants used to write letters on behalf of his principal is not sufficient in law to enable the Court to infer that he was an authorised agent for the purpose of making an acknowledgment of liability. In that case the particular letter purported to be from the principal to his creditor. The contents of the letter contained an acknowledgment of liability sufficient to come within the scope of Section 19 of the earlier limitation Act (corresponding to the present Section 18). The trial court held that the acknowledgment of the agent came within the meaning of Explanation 2 of the section, on the ground of defendant's admission that the agent used to write letters on behalf of the principal. There was no evidence that the particular letter was written by the authority of the principal or as to whether the agent was authorised to acknowledge debts on behalf of his principal.

15. This decision was affirmed by a subsequent Division Bench of the Allahabad High Court in L. R. Cotton Mills v. Aluminium Corporation of India (AIR 1967 All 391). In that case the acknowledgment was in the correspondence of a secretary of a corporation who was not specifically authorised to acknowledge liabilities and bind the corporation. The correspondence was entered into for exploring and clarifying the state of accounts. The court held that the statements in correspondence cannot amount to acknowledgment of a liability. Though it was argued in that case that the secretary of a corporation in Indian law is a responsible officer and as such must be deemed to have inherent powers to bind the corporation without any proof of any special authority to do so, this was not accepted. On the basis of the principles of Company Law the court said that the secretary has not by virtue of his position any authority to make representations to induce persons to contract with the company, the functions being ministerial only.

16. The decision in Uma Sankar v. Gobind Narain (AIR 1924 All 855) has been quoted with approval by the Supreme Court in L. C. Mills v. Aluminium Corporation of India (AIR 1971 SC 1482). No doubt on the facts and circumstances of the particular case the letter in question, written by a person, who was Secretary-cum-Accountant and holder of power of attorney of the corporation, to the company and the statement of account enclosed therewith were held to be admission of jural relationship of debtor and creditor and of the liability to pay the amount due at the foot of the account on finalisation of accounts. We would quote the relevant portion in the Supreme Court decision:

'Ordinarily, the functions of Subramanayam as the Secretary of the Corporation would be ministerial and administrative. As a Secretary only, he would have no authority to bind the corporation by entering into contracts or ether commitments on its behalf. As the chief accountant and holder of a power of attorney, his functions in regard to the former would be to supervise over maintenance of proper accounts, and in regard to the latter to look after and represent the corporation in litigation. None of these three positions held by him would by itself or cumulatively make him a person duly authorised to make an acknowledgment binding on the corporation. Also, the fact that he carried on correspondence for the corporation would not make him a person authorised to make an acknowledgment binding on the corporation. (See Uma Sankar v. Gobind Narain. ILR 46 All 892 : (AIR 1924 All 855)). But such a description of the functions and duties performed by him would not be complete. If the correspondence together with the statements of accounts enclosed therewith is closely examined it becomes clear that he was authorised to scrutinise the claim made by the appellant-company, the various items for which the appellant-company claimed credit and to reject some, and what is important, to allow the others. That he had such an authority is clear from the fact that in respect of such of the items which he allowed credit was given to the appellant-company and necessary entries to the credit of the appellant-company were posted in the account maintained by the corporation in its books of account.'

17. A Division Bench of the Madras High Court in Thirumalai v. O. L. Srinivasa Mills Ltd. (AIR 1962 Mad 253) said that an acknowledgment of lability under Section 19 of the Limitation Ad of 1908 will be valid where it is signed by an agent duly authorised in this behalf by the debtor. It is not necessary that the authorisation should be in writing. The authorisation need not also be in express terms, but can be implied from the course of conduct of the parties or from the surrounding circumstances of the case. Where under the terms of the managing agency (in that case) the managing agent was not expressly authorised to acknowledge the liabilities of the Company, the list of creditors signed by the managing agent including his own name as one of the creditors of the company filed in proceedings under Section 153C of the Companies Act was held not to operate as a valid acknowledgment of the liability of the company in respect of the remuneration of the managing agent.

18. We may also refer to an old English decision in this connection in the Great Western Rly. Co. v. Willis ((1865) 144 ER 639). There in an action against a railway company for not conveying cattle to market within a reasonable time, a county-court judge allowed evidence to be given of a conversation which took place a week after the alleged cause of action arose, between the plaintiff and a 'night-inspector' at one of the company's stations, whose duty it was to forward the cattle, in which the latter, in answer to a question as to why he did not send the cattle, stated that 'he had forgotten them': Erle, C. J. held, the rest of the court concurring that, the officer is not to be presumed to have had authority to make admissions relative to transactions gone by, so as to bind his employees.

19. Let us go into the facts of the matter in this case. Vaidyanatha Iyer was admittedly conducting the rice mill and we will also proceed on the basis that during Vaidyanatha Iyer's time itself, the 1st defendant was attending to the management of the rice mill. After Vaidyanatha Iyer's death, the 1st defendant makes an application for renewal of the licence. In a letter dated 30-3-1968, sent by the 1st defendant 'for Bala-subramania Rice Mill', for 'N. S. Vaidyanatha Iyer'', it is stated:

'We are enclosing herewith our licence No. RM.27.2/TCR together with the chal-lan No. 13225 for Rs. 5, being the renewal fee and request you to be kind enough to renew the licence and send the same to us. The erstwhile proprietor of the mill. N. S. Vaidyanatha Iyer died recently and we would request you to kindly transfer the licence in the name of his eldest son, Sri V. Subramanian. A letter of concurrence signed by his other brothers (5) will be sent to you shortly.

Thanking you in the meantime',........

(See p. 11 of file Ext. X25). Page 15 of the said file contains the renewal application form dated 24-1-1969. The name of the applicant is shown as V. Subramanian. An application dated .30-3-1968 signed by all the heirs of Vaidyanatha Iyer is seen in the file at page 3, which reads as follows:

'The Balasubramania Rice Mill was in the name of late Shri N. S. Vaidyanatha Iyer, Puthole, Trichur. He passed away on 25-1-68. Even during the lifetime of the late Shri Vaidyanatha Iyer, the mill was being managed by his eldest son Shri V. Subramaniam and all correspondence was being signed by him in the capacity of Manager. The legal heirs of late Shri Vaidyanatha Iyer are as follows:

1. T. B. Janaki Ammal -- wife.2. V. Subramaniam -- Eldest Son.3. V. Parasuraman -- '4. V. Gopalakrishnan -- '5. V. Ramathan -- '6. V. Sundara Raman -- '7. V. Sivarama Krishnan -- '8. Dharmambal Subramaniam Daughter9. Seethalakshmi Subramaniam '10. Saraswathi Swaminathan '11. Sundarambal Devarajan ' All the legal heirs of the deceased Vydianatha Iyer do hereby declare and sign hereunder to the effect that we have absolute willingness to transfer the licence of the abovesaid Rice Mill in the name of No. 2 Sri V. Subramaniam.

In view of our willingness to transfer the Mill in the name of No. 2 Sri V. Subramaniam, it is humbly prayed that the licence of the rice mill for which application has already been made, may be renewed in his name immediately and orders issued.'

D.W. 1 in his examination stated that he had signed in Ext. X25 application as desired by the 1st defendant. The lower court states that in the face of Ext. X25, the relevant application, the contention of the defendants that the 1st defendant has obtained licence of the Mill on his own behalf cannot for a moment be accepted. The question is whether the 1st defendant was acting for and on behalf of the other defendants also in the matter of conduct of the Rice Mill. We are afraid that an affirmative answer to this cannot be given. It is not possible to come to the conclusion that the 1st defendant had taken up management of the rice mill as manager and for and on behalf of the other defendants as a managing co-owner.

20. The court below takes it that the reference to the fact that the 1st defendant was already in management of the Rice Mill during his father's time in the application given to the authorities expressing their willingness to transfer the licence to the 1st defendant will go to show that it is to manage the Mill in like manner that all the heirs have agreed to have the licence issued in the name of the 1st defendant. That is not such an obvious inference that could so readily be made. The application of the legal heirs is only one intimating their willingness for transfer of the licence in the 1st defendant's name. In one place of that application they state of their willingness to transfer the Mill in the name of the 1st defendant. But from that alone, one could not make any positive inference to the effect that the other heirs of Vaidyanatha Iyer were washing off their hands, in regard to the conduct of the Mill and the loss or profit from it leaving to the 1st defendant alone. It might be a mistake for transfer of licence of the Mill as pointed out by the learned counsel for the plaintiff-respondent, Mr. T. S. Venkateswara Iyer. But is there any record or any circumstance revealed in the evidence from which the court might safely come to the conclusion, no doubt acting on preponderance of probability, that the other heirs of deceased Vaidyanatha Iyer authorised the 1st defendant to function as their manager or agent to run the Mill on their behalf? The answer could only be in the negative. Nor are we able to find out anything from the evidence to show that the loss or profit from the Mill were being shared by the other co-heirs. The Mill was not such a flourishing concern then. It might very well be that the other heire of Vaidyanatha Iyer might have thought to allow the 1st defendant to conduct the Mill at his own risk. Nothing in the file Ext. X25 would be against such an inference. If there is such positive evidence to indicate that the 1st defendant was asked to take up the working of the Mill for and on behalf of the defendants, then there is nothing wrong in taking that the 1st defendant acted as the agent of all the heirs in the matter of working the Mill. But there is no positive evidence for making such an inference. The lower court places much reliance on some documents which will go to show that the 1st defendant was signing petitions and statements before the authorities styling himself in some as manager and in some as managing partner of the Balasubramania Rice Mill. The court below states that if the 1st defendant was conducting the Mill on his own behalf, there was no necessity for him to sign the aforesaid documents in the capacity of manager, or managing partner. A further inference is made by the court below that these documents show that the 1st defendant had held himself as the agent of the other co-owners, namely, defendants 2 onwards. But then the court forgets or omits to take into account the fact that in the very acknowledgment relied on by the plaintiff what is stated is this:

'This pass book is issued by me to M/s. Purushothaman & Co., Puthole, Tri-chur-4, showing an amount of Rupees 57,596.42 (Fifty seven thousand five hundred ninety six and paise forty two only), due to them by Balasubramania Rice Mill, Puthole, Trichur-4 as on 31-3-1969. Payments made in discharge of this amount will also be noted in this Pass Book and incorporated in the balance-sheet of Purushothaman & Co. at the end of the year.'

Below this he signs giving his address in the following manner: 'V. Subramanian, S/o. N. S. Vaidyanatha Iyer, Prop. Balasubramania Rice Mill, Puthole, Trichur-4'. Whether the word Proprietor used herein refers to Vaidyanatha Iyer or Subramanian is not very clear. There is much in what the learned counsel for the appellant states that the word proprietor could only be the description of the 1st defendant as Vaidyanatha Iyer was dead at that time, even assuming that it indicates the proprietorship of Vaidyanatha Iyer over the Mill, even then, it might be noted that there is a total absence of any indication in this acknowledgment that the 1st defendant was signing as-manager and for and on behalf of the other co-owners also. Why has he not indicated that he is acting on behalf of the other co-owners in the acknowledgment which is a very vital factor especially, when we take into account the fact that he is himself one of the partners of Purushothaman & Company. Why did not the other partner insist on Subramanian signing on behalf of the other co-heirs also, if really he was signing on behalf of them. We find also that the first payment towards the acknowledged debt shown in the Pass Book is an amount transferred from the 1st defendant's account with the partnership. That amount is a very substantial amount, payment made on 1-4-1969 of Rs. 19,598.11. We find in the Pass Book two other signatures of Subramanian, the 1st defendant, where he did not indicate that he was signing as the manager of the Mill or as authorised agent or representative of the other co-heirs. Another substantial amount of Rs. 3,276.20 is seen transferred from the 1st defendant's partnership account for payment of the acknowledged debt. This was on 31-3-1971. The amount due to Subramanian from the partnership account is only as money. We find very big sums being paid towards the acknowledged debt from his own resources by the 1st defendant. These to a great extent support the appellant's case that the 1st defendant was really conducting the Mill on his own behalf and further the acknowledgment of the debt is made by him only on his behalf. Even if the Mill was being conducted on behalf of all the heirs in the nature of the acknowledgment that is made it is difficult to come to the conclusion that the acknowledgment was on behalf of all the heire.

21. We may in this connection refer to the following passage appearing in a decision of the Calcutta High Court in Azizur Rahman v. Upendra Nath (ATR 1938 Cal 129). There speaking on behalf of himself and B. K. Mukherjee J. constituting the Bench Nasim Ali J. said:

'If A and B are jointly and severally liable on a promissory note and if A dies appointing B as one of his executors and B pays interest, the character in which he makes the payment is a question of fact: see Atkins v. Trade Gold, (1823) 2 B & C 23. Where a surviving person, who is also the executor of a deceased person, makes payment, which as a surviving person he is bound to make, the payment is to be usually taken to have been made by him personally and not as executor: see Way v. Basset, (1845) 5 Hare 55; Thompson v. Waithman, (1856) 3 Drew 628. Where there is a double liability and the surviving co-contractor or joint debtor makes the payment, he is presumed to be discharging his own liability-- Lightwood on Time Limit of Actions, 384 Halsbury's Laws of England (Hailsham Edition) Vol. XX, p. 644. In the absence of any evidence or circumstances to show that defendant 1 made the payment in both the capacities, it must be therefore presumed that he paid the interest in 1933 towards the discharge of his own liability as one of the original mortgagors.'

22. The lower court also makes reference of instances where the 1st defendant had acted as agent of ether defendants. Ext. X27 is the file relating to the acquisition of a portion of the property belonging to deceased Vaidyanatha Iyer and the disbursement of the compensation regarding that. There a joint application had been filed by defendants 1 to 11 on 8-5-1968, before the personal Assistant to the District Collector, Trichur, requesting that the compensation amount in deposit may be paid to them as per the documents produced by them, it is further stated therein that all the heirs authorise and accept the 1st defendant to receive the payment of the full amount on their behalf. This is a case of a specific authorisation. From that no inference could be made that in the management of the Mill and acknowledgment of the debt, the 1st defendant acted as the authorised agent of the other defendants. It is also pointed out that the rent of a godown which belonged to Vaidyanatha Iyer and which had been inherited by the defendants was received by the 1st defendant as agent of the other defendants. It might be that in many matters, the 1st defendant was acting as agent of the other defendants. But the question is whether in the light of the circumstances revealed in the evidence and in the nature of the acknowledgment it could definitely be said or whether it could be inferred on the basis of probability that the 1st defendant was conducting the Mill on behalf of the other defendants and the acknowledgment of the debt concerned was on behalf of the other defendants. We have to take into account the cumulative effect of the facts and circumstances that have been revealed in the case. We find it difficult to agree with the lower court that there is sufficient material before the court for coming to the conclusion that the 1st defendant has acknowledged the debt on behalf of all the other defendants.

23. Another important factor in this matter which has to be considered is the third ground urged by Mr. Poti that the acknowledgment even if it is on behalf of all the co-heirs should be considered to be vitiated as the 1st defendant is himself a creditor as regards the particular debt concerned and his interest conflicts with that of the other defendants. He therefore contends that the acknowledgment cannot be relied on at all. He pointed out to the principle that every agent owes his principal fiduciary duties (that is duties of loyalty). It is a general rule established to keep trustees in the straight line of their duty that they shall not derive any personal advantage from the administration of the trust property. The following passage from Lord Herschell in Bray v. Ford (1896) AC 44 at p. 51 has been quoted with approval in Lewin on Trusts at page 191 of the Sixteenth Edition:

'It is an inflexible rule of a court of equity that a person in a fiduciary position...... is not. unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict.'

At page 193 of the Book the learned author points out that the principle that a trustee must not benefit from his trust applies to agents, etc. There is much force in this contention. The acknowledgment is to a partnership of which the acknowledger is a partner. In such circumstances, it is only proper that express consent of the other co-heirs is also obtained in making the acknowledgment and so indicated in the acknowledgment.

24. It will be interesting and profitable to glance at the relevant decisions on the matter. The first case that we would refer to in this connection is In re The Coliseum (Barrow), Limited, (1930) 2 Ch 44. The facts of the case were as follows: A company during a period of several years was making trade losses. The directors of the company were guaranteeing its bank overdraft and also making cash advances to it. In order to help its affairs, they allowed their remuneration as directors to stand over and to remain a debt due from the company to them. March 31, 1919, was the last occasion upon which they received their remuneration in fees. On March 25, 1929, an order for the compulsory winding up of the company was made. From 1919 to that date the amounts due to directors were shown from year to year in the company's balance sheets, each of which was duly signed by the directors. The balance-sheets were in each year duly presented by the directors to the shareholders at the annual general meetings, and were duly passed by the company. The applicant 'on the summons in the case', a director who had been present at each of the meetings at which balance-sheets were adopted, presented to the liquidator a proof for 9501, being the amount due to him in respect of director's fees at the date of the winding up. The liquidator admitted the proof for only 6001, rejecting the full proof on the ground that all directors' fees which accrued due more than six years before the date of the winding-up order were barred by the Statute of Limitations. By the summons the applicant asked that the decision of the liquidator rejecting his proof to the extent of 3501, might be reversed, and that the proof might be allowed in the full sum of 9501, Maugham J. hearing the matter observed:

'In the present case the directors of the company, at various board meetings held from time to time, passed the balance-sheets before them and two of them signed the balance-sheets on behalf of the board pursuant to Section 114 of the Companies (Consolidation) Act, 1908. Accordingly, had the statement been made in the balance-sheet that the company owed a specified sum to a shareholder to whom the balance-sheet was sent in the usual way that would have amounted, I think, to a sufficient acknowledgment within the authorities. The difficulty in the present case is that the promise, if any, is a promise by the directors, as a board acting on behalf of the company, to pay to themselves the amount of the directors' fees, and it seems to me that this is not in the circumstances a promise to pay on behalf of the company. Having regard to the position which a director, as agent of the company, necessarily occupies in relation to the company, it would not have been competent action to the beard, acting as a board, to authorise the giving of a definite promise to pay to themselves. They would all have been interested in the matter, and so would have been incapable of passing the resolution so as to bind the company.

Accordingly I must hold that the balance-sheets in question do not amount to acknowledgments in writing within Lord Tenterden's Act, and the claim must fail.'

The relevant provision in Lord Tenter-den's Act, 1828 referred to in the above-mentioned decision is as follows:

'...,.. in actions of debt or upon the case grounded upon any simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments or either of them (i. e., the Statute of Limitations and an Irish Act, 10 cha 1, sess 2, c 6) or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.'

25. No doubt Maugham J. was dealing with a case where the acknowledgment had to be one from which a promise to pay could be inferred but Atkinson, J. said in Ledingham v. Ber-mejo Estancia Co. Ltd., ((1947) 1 All ER 749):

'There is this further point. It is said that Maugham, J., (In Re Coliseum (Barrow) Ltd. (1930) 2 Ch 44 was dealing with an acknowledgment that had to be one from which a promise to pay ceuld be inferred. The Limitation Act, 1939, had made a mere acknowledgment sufficient, and it is said: 'There is a difference now because all you want now is an acknowledgment and you have not to consider whether the circumstances are such as to amount to a promise to pay. You do not need the promise to pay. It is only an acknowledgment, an acknowledgment made to the creditor, and upon that the principle of that decision ought not to apply'. I have difficulty in seeing the distinction there. I think that, if a trustee cannot rely on a promise to himself, it would be difficult to say he could rely on an acknowledgment which he makes to himself. So I am not disposed to draw that distinction......'

26. The principles laid down in these two cases have been referred to and followed in Re Transplanters Ltd. ((1958) 2 All ER 711). The head-note of the said decision reads as hereunder:

'On Dec. 19, 1955, a company was ordered to be wound-up. The applicant sought to prove for money lent to the company by him but the liquidator rejected his proof on the ground that the debt was statute-barred. The applicant relied on two balance-sheets of the company, those for 1951 and 1953, as acknowledgments of the company's indebtedness within the Limitation Act, 1939. Section 23 (4). At all material times the applicant was one of the two directors of the company, and the balance sheets were signed by the two directors and certified by the auditors, whose signature was appended to the balance-sheets for the purpose of such certification.

Held: the balance-sheets did not constitute acknowledgments of the debt for the purposes of the Limitation Act, 1939, Section 23, because--

(a) the applicant himself had signed the balance-sheets, his signature being necessary in order to comply with the Companies Act. 1948, Section 155 (1), and it was not competent to the applicant, in his fiduciary capacity as director, to give such an acknowledgment to himself.

Re Coliseum (Barrow) Ltd. ((1930) 2 Ch 44) and Ledingham v. Bermejo Esta-ncia Co. Ltd. ((1947) 1 All ER 749) applied.

(b) the auditors were not agents of the company for the purpose of giving any such acknowledgment, and their signature of their certificate of the balance-sheets was not the signature of agents within Section 24 (2) of the Limitation Act, 1939.

Jones v. Beligrove Properties Ltd. ((1049) 2 All ER 198) distinguished.'

27. The dictum in the aforementioned case has been followed in Thirumalai Iyengar v. Official Liquidator, Srinivasa Mills Ltd. (AIR 1962 Mad 253). Krishnaswami v. S. C. Constructions Pvt Ltd. (AIR 1964 Mad 191) goes to a further extent. In that case the question related to the acknowledgment of debt made by the Board of Directors of a company. The Board had expressly acknowledged the debt of one of its directors. The creditors of the director was not a party to the resolution. Still principles laid down in In re Coliseum (Barrow) Ltd. (1930) 2 Ch 44 and In re Transplanters Ltd. (1958) 2 All ER 711 were held to be applicable there. We might point out that the dictum in the second Madras case was not accepted by the Rajasthan High Court in Babulal Rukmanand v. Official Liquidator (AIR 1968 Raj 214). There it was held:

'Where the balance-sheet of the Company is signed by minimum two Directors as required by law and having no fiduciary relation with the creditor, the acknowledgment of the debt is not vitiated, only because the balance-sheet is also signed by one more director having fiduciary relation with the creditor.'

28. Having due consideration to the facts and circumstances of the case we are of opinion that the 1st defendant himself could not acknowledge the debt due to the partnership firm of which he is a partner for and on behalf of the other co-heirs. The 1st defendant would be entitled to half share in the acknowledged debt. In the matter of acknowledgment of the principal debt there is a conflict of interest and duty as far as he is concerned.

29. In Meinhard v. Salmon, (19231 249 NY 458 at p. 464, Candozo C. J. speaking for the New York Court of Appeals, made the following observations:

'Many forms of conduct permissible in a worksday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honour the most sensitive, is then the standard of behaviour. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the 'disintegrating erosion' of particular exceptions. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd, it will not consciously be lowered fey any judgment of this court.'

After quoting the above observations, the learned authors George W. Keeton and Georg Schwarzenberger stated in their 'Current Legal Problems' Vol. 8 at page 91 :

'This statement emphasises the fact that in the administration of a trust it is the duty of a trustee to prefer the interests of the 'beneficiaries to his own, and that wherever there is a risk of conflict between the trustee's self interest and his duty to the beneficiaries, the policy of the law is directed to removing the risk by imposing an absolute requirement upon him to act in accordance with his duty. The rule is not confined to trustees but applies to other fiduciaries as well-- guardians, personal representatives, receivers, agents, company directors and partners, though, perhaps, it applies to these with a lesser degree of intensity than it does to trustees.'

30. We have earlier pointed out that in acknowledging the debt, the 1st defendant does not hold himself out as the agent of the other co-heirs. He does not state that he is signing for and on behalf of the other co-heirs. To a great extent this goes against the plaintiff's contentions. We do not think that there is any error in concluding from this that in acknowledging the debt the 1st defendant was only acting on his own behalf. In order that a person may be bound by a contract made by an alleged agent without express authority, there must be some words or conduct of the principal and such words or conduct must have induced a belief in the mind of the other contracting party as to the authority of the alleged agent to act for the principal and it has to be further established that relying thereon the other contracting party entered into the contract with the agent. See in this connection Rhotas Industries Ltd. v. Maharaja of Kasimbazar China Clay Mines (ILR (1951) 1 Cal 420 at pp. 426 to 428). The following quotation from Lord Halsbury in Farquharson Brothers & Co. v. C. King & Co.. (1902) AC 325 at p. 333: has been quoted in the Calcutta decision also:

'But, say learned counsel for the respondents, not only was he a delivery clerk, but sometime he had power and authority to make a contract. Suppose he had -- what then? Was anybody misled by that? Did anybody act in that belief? No one. Therefore, any notion of anybody acting upon something that was held out and represented & entirely out of the question.'

We might also state that it will not be safe to rely on the oral evidence of either the plaintiff or of the 2nd defendant in the nature of their interest

31. Mr. T. S. Venkiteswara Iyer said that entries in the pass book, Ext. A29 was more in the nature of an account-stated. He relied on the decisions in Durga Prasad v. Fateh Chand (AIR 1968 Cal 292) and Hiralal v. Badkulal (AIR 1953 SC 225). It is certainly true that an account stated may take the form of a mere acknowledgment and other elements being present a document does not cease to be an account stated. But then it might be noted that there is no suit on the accounts as such. In the plaint the case has not been put on account stated. Apart from that unless the fact that the 1st defendant has been authorised by the other co-heirs for making the relevant entry, we do not understand how Mr. Venkiteswara Iyer's argument could help the plaintiff. Mr. Venkiteswara Iyer also contends that in the matter of conduct of the Rice Mill the co-heirs of Vaidyanatha Iyer was acting as a virtual partnership. We are afraid it is difficult to draw such a conclusion from the evidence in the case.

32. The learned counsel for the plaintiff-respondent then sought to rely for an extended period of limitation based on Section 19 of the Limitation Act Section 19 reads:

'19. 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 shall be 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 January, 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.'

There is certainly a difference between sections 13 and 10, As in the case of an acknowedgment under Section 18, a payment under Section 19 is also required to be recorded in writing. But under Section 18 the writing must contain within itself an admission of existing liability, while under Section 19 it is sufficient if the writing merely records the fact of payment. An endorsement of payment need not imply an ac-knowledgment of liability; whereas an acknowledgment for purposes of Section 18 must be by the person against whom the property or right in question is claimed or by some person through whom he derives his title or liability, a payment for the purposes of Section 19 need only be by the person liable to pay the debt. An acknowledgment under Section 18 only operates against the person who makes the acknowledgment and those claiming under him, but subject to the provisions of Sub-section (2) of Section 20, a payment under Section 19 saves limitation against all the persons who are liable for the debt. Therefore can the payment by the 1st defendant of the amounts shown in the pass book save limitation as far as the other defendants are concerned. We will in this connection quote Section 20 also:

'20. (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 purposes 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 governed by Hindu Law, shall be a valid acknowledgment or payment, as the case may be, against a reversioner succeeding to such liability; and

(b) where a liability has been incurredby, or on behalf of a Hindu undividedfamily as such, an acknowledgment orpayment made by, or by the duly authorised agent of, the manager of the familyfor the time being shall be deemed tohave been made on behalf of the wholefamily.'

33. The question has often arisen whether the co-heirs of a angle debtor will be joint contractors within the meaning of Section 20. There is a wide divergence of opinion with regard to this in the decisions of the various High Courts. This is because of the diverse meanings given to the word joint contractors, occurring in Sub-section (2) of Section 20. This difference of opinion on the point has been well summarised in Chitaley and Rao's 'Limitation Act' at p. 635, Vol. I of the 4th (1964) Edition. We may extract that here:

'Where two or more persons jointly make a contract with another person, the former will be joint contractors. The question has arisen if the expression 'joint contractors' in this section includes any other class or classes of persons and if so, what class or classes of persons? On this question, there is a conflict of decisions. The different views taken may be classified as follows :

(1) The first view is that the test to be applied to see if any set of persons would constitute joint contractors is whether they are jointly liable on a contract which, when it was made, was made toy two or more persons jointly. According to this view, where a contract is made by two or more persons jointly, all persons who are jointly liable on such a contract will be joint contractors within the meaning of this section although they or any of them may not have been originally parties to the contract. Thus, where A and B make a joint contract with C, and A dies leaving D as his heir, B and D would be joint contractors. Similarly, where A and B make a joint contract with C, the successors of A end B would be joint contractors. But, where the contract, when made, was not entered into by several persons jointly but was only made by a sole contractor, the fact that subsequently two or more persons become jointly liable under the contract cannot make such persons joint contractors. Thus, the 'co-heirs of a single debtor will not be joint contractors. Similarly, where A mortgages certain property to B and subsequently transfers a portion of the equity of redemption to C who therefore becomes jointly liable with A in respect of the mortgage to B, A and C are not joint contractors.

(2) The second view is that the test to be applied to see if certain persons ere joint contractors is whether, at the time of the acknowledgment or payment they are jointly liable on a contract. According to this view, therefore, although a contract may have been made, in the first instance, by a sole contractor, if subsequently several persons become jointly liable on the contract, they will be joint contractors within the meaning of this section. Thus, the co-heirs of a single debtor will be joint contractors under this view.

(3) The third view is that the expression 'joint contractors' is confined to persons who themselves jointly enter into a contract with another and cannot apply to their successors. According to this view, even where a contract is made by several persons jointly, the successors of the contractors will not be joint contractors. This view proceeds on the ground that the categories given in Section 21 are exhaustive and not merely illustrative and that cases of co-heirs and other persons who derive their liability not from direct contract with the promisee, cannot be brought within its scope.'

The following decisions take the view that payment by one of the co-heirs would save limitation against the other heirs on the basis that they are not joint contractors coming within the ambit of the sub-section. See Kale Gowda v. Mari-gowda (AIR 1952 Mya 107 at p. 108), C. K. Kunjandi v. Chinnavava Routher, (AIR 1941 Mad 110 at p. 111), Sarada Charan Chakrawarthi v. Durgaram De Sinha ((1910) ILR 37 Cal 461), Narasimha Rama v. Ibrahim (AIR 1929 Mad 419 (420)), Azizur Rahman Osmani v. U. N. Samanta (AIR 1938 Cal 129 (136)). The view that co-heirs of a single debtor will be joint contractors and payment made by one of them will not have the effect of extending limitation against all co-heirs is taken in Md. Taqikhan v. Rajaram (AIR 1936 All 820 (825)) (PB), Janardhanan v. Mariam (AIR 1957 Trav-Co 186 (189)) and A. C. Misra v. J. C. Roy (AIR 1935 Cal 548 (650)).

34. In this case we do not think that we should go into the controversy and express our opinion in the matter. This is because according to us the first payment towards the debt is made by the 1st defendant only oh 1-4-1969 which will be alter the expiry of the period of limitation. The plaintiff's case which had been accepted by the lower court is that the transactions between the plaintiff and Vaidyanatha Iyer gave rise to two independent obligations and there was a reciprocity of dealings between them, thus making the account a mutual, open and current one. In the case of mutual, open and current account the relevant provisions for considering the question is Article 1 of the Limitation Act of 1963. As per that Article, there is a period of three years for filing the suit from the close of the year in which the last item admitted or proved is entered in the account and such year is to be computed as in the account. The accounting year of the plaintiff firm as evidenced by the account books produced is from 1st April to 31st March. As per the ledger of the Rice Mill for the year 1141--Ext A1--the last entry is on 31-3-1966. So the lower court comes to the conclusion that on the basis on which the accounts are kept between the parties there is a period of three years from 31-3-1966 for filing the suit That period expires on 31-3-1969. If the acknowledgment in the pass book Ext A27 entered on 31-3-1969 could be valid acknowledgment, certainly the period of limitation will extend for three years more from 31-3-1969. But for the reasons we have earlier stated we do not think that the said acknowledgment could be a valid acknowledgment on behalf of the other co-heirs so as to bring the suit within the period of limitation as against them. It is stated by the learned counsel for the plaintiff-respondent that in Ext. P13 (e) deceased Vaidyanatha Iyer has acknowledged the debt on 29-9-1967, that is, within three years of 31-3-1966. If Vaidyanatha Iyer has so acknowledged the debt, then it could be contended that the payment on 1-4-1969 by the 1st defendant towards the debt is before the expiry of the period of limitation computing the period of three years from 29-9-1967. But we are afraid that in Ext. P13 (e) there is no such acknowledgment of debt coming within the ambit of Section 18 of the Limitation Act. Vaidyanatha Iyer had no doubt signed in Ext P13 (e) on 29-9-1967. That is a profit and loss account of his Mill for the year from 1-1-1141 to 31-12-1141 corresponding to the English year 17-8-1965 to 16-8-1966. There is no entry regarding the debt therein; but what Mr. Venkite-swara Iyer contends is that in the accompanying balance-sheet in respect of the year the amount due to Purushotha-man & Company specifically mentioned is Rs. 57,116.19. But in the balance-sheet Vaidyanatha Iyer had not signed. Relying on some passages in Batliboy's Text Book on Accounting, Mr. Venkiteswara Iyer contends that the profit and loss account and the balance-sheet are closely inter-dependant and an entry in the balance-sheet should certainly be taken into consideration as if it is an entry in the profit and loss account itself. The figures in profit and loss account are arrived at based on the entries in the balance-sheet Certainly the balance-sheet and the profit and loss account are inter-dependant. But we agree with Mr. Narayanan Poti, learned counsel for the appellant when he states that such inter-dependence is not enough to constitute an entry in the balance-sheet as a valid acknowledgment under Section 18 of the Limitation Act, when such balance-sheet is not signed by the debtor but he has signed only the profit and loss account where such entry is not seen. Only an acknowledgment of liability in respect of the right which has been made in writing signed by the party against whom such right is claimed could be a valid acknowledgment. As long as the balance-sheet is not signed an entry therein could not be taken as a valid acknowledgment and the entry in the balance-sheet could not be deemed to be an entry in the profit and loss account which has been signed by the debtor. Hence the payments made by the 1st defendant which were beyond three years from 31-3-1966 cannot help the plaintiff in the matter of getting even the bar of limitation.

35. As we had stated earlier and which we like to emphasise now, where the language of a statute is clear the court is bound to give effect to its plain meaning uninfluenced by extraneous consideration. There is no exception to this rule of construction in the Limitation Act also. Unless the language in the enactment is not itself precise or is ambiguous or of doubtful import recourse, could not be had to extraneous considerations in equitable construction. Provisions of the Limitation Act should be construed strictly and hardship is no consideration. Courts are not warranted for introducing savings or exceptions, not found in the statute. Interpretation following logically from language should not be rejected on the ground that such construction creates hardship or is unequitable. Statutory limitation is not concerned with merits--See ILR (1963) 1 Ker 438.

In the view we have taken the appeal has to be allowed. The judgment and decree of the court below in so far as it gives a decree against defendants 2 to 11 are set aside. The suit as decreed against the 1st defendant will stand. But it will stand dismissed as far as the appellants are concerned. The appeal is allowed is indicated above. There will be no order as to costs in the circumstances of the case.


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