N. Vakadaraja Iyengar, J.
1. This appeal arises out of a suit based on a lost promissory note and filed against the legal representatives of the alleged executant, which has been decreed by the court below. The 3rd defendant who represents one-half the estate is the appellant.
2. The 1st plaintiff Lekshmi Ammal who isthe payee under the disputed promissory note isthe widow of A. R. Subramonia Iyer the executant thereof. They had two sons, KalyanaramaIyer, the 2nd defendant since transposed as the2nd plaintiff and Narayana Iyer deceased, whowas the father of the 3rd defendant Subramonian,minor, and husband of the 4th defendant O. S.Lekshmi Ammal. Subramonia Iyer had retired asHead Clerk of the Magistrate's Court at Terintha-lamana and died on 26-8-1945.
Some time before his death, i.e., on 4-3-1945 he made entries in his account books showing a borrowing of sum of Rs. 14,000/- under a promissory note of even date executed by Him in favour of the 1st plaintiff with provision for interest at 3 per cent per annum. Subsequently on 19-4-1945 be made further entries showing a payment of Rs. 7,000/- towards the principal and Rs. 52-8-0 towards interest till date and mentioning also the fact of an endorsement on the back of the promissory note of these payments then and there.
These entries were however ignored as creating any liability as against the estate of A. R, Subramonia Iyer when suit O. S. 55 of 1946 was filed after his death for partition of the 3rd defendant's one-half share therein. So the 1st plaintiff applied for and obtained permission to institute suit against the Receiver in O. S. 55 and laid this suit accordingly on 4-3-1948. viz., the last day of limitation reckoned on the basis of the promissory note date and making the Receiver the sole defendant and praying for the realisation of the balance principal of Rs. 7,000/- and the interest of Rs. 603-12-0 accrued thereon after 19-4-1945, amounting in all Rs. 7603-12-0.
A few days after the suit was filed, i.e., on 13-3-1948, the 1st plaintiff, got the defendants 2 to 4 impleaded as supplemental defendants in the suit and also had the plaint suitably amended. The plaint averred that the 4th defendant was in a position to and did take away the promissory note from the receptacle where it had been kept and had suppressed the same with a view to selfish gain but this could not affect the 1st plaintiff as the account book entries were there to fully support her.
The 2nd defendant pleaded ignorance of the promissory note but was willing that the estate should pay in view of the entries in the account books. The defendants 3 and 4 however denied that there was any borrowing: or payment on account as appeared from the account entries and further repudiated the explanation attempted in the plaint as regards the non-availability of the promissory note for purpose of production.
They claimed on the other hand that the promissory note was insufficiently stamped and that accounted for the non-production. They took the point also that the suit was barred by limitation. It should be added that the 1st plaintiff died during the course of the suit after making provision for the devolution of the plaint claim in favour of the 2nd defendant her elder son and his children. The 2nd defendant was accordingly transposed as the 2nd plaintiff and his children were brought on the plaintiff's array as additional plaintiffs 3 to 6.
The subsequent contest in the case was carried on as between the plaintiffs 2 to 6 on the one side and the defendants 3 and 4 on the other. The court below found in favour of the plaintiffs that the suit promissory note was true, supported by consideration and valid and further it was in the defendants possession as alleged by the plaintiff. It found also that the suit was in time. In the result the suit was decreed as prayed for, against the estate of the deceased executant. Hence this appeal by the 3rd defendant as above-said, to the extent he is affected.
3. Mr. Sundara Iyer, learned counsel for the 3rd defendant-appellant has canvassed before us, all the questions raised on his behalf in the court below. However, it seems to us unnecessary to deal with them all, as in our opinion the suit is liable to be dismissed on the single ground of limitation. Taking up then this aspect of limitation, we have first to observe that the institution of the suit within three years of the date of the promissory note could not avail the plaintiffs inasmuch as the estate was not sufficiently represented by the impleading of the Receiver alone as party defendant. See Md. Kader Ali v. Govinda Bandhu, AIR 1946 Cal 127 (A).
By the time the legal representatives were impleaded, the promissory note had become obviously barred and it was on this basis that the issue of limitation was pressed by the contesting defendants. The court below was aware of this difficulty but got over it by its finding, that there was an acknowledgment of liability within the meaning of section 20 of the Limitation Act, by virtue of the payment, on account of, the promissory note debt, before the expiration of the prescribed period of three years and the acknowledgment of such payment by the executant himself in his handwriting.
The court below was in this connection, willing to overlook the omission in the plaint, formally to rely on the acknowledgment, as a ground of exception for saving limitation. For, the relevant facts had been made mention of there. Learned counsel for the appellant did not also want to object because the exemption was not claimed specifically. Indeed he cannot. Vide Ra-ghunath v. Syed Samad, 12 Cal WN 617 (B).
But he strongly contended that the acknowledgment was not sufficient in law because there was no real payment on account, either towards principal or interest, on the date mentioned or any other date and that the fact of entries in the accounts although made by A. R. Subramonia Iyer, did not by itself mean anything and he relied on Soudagar v. Joti Prasad, AIR 1937 All 260 (C). This case held that:
'merely entering a fictitious payment cannot possibly amount to payment itself, as, what the Statute of Limitation requires is a payment or at least something which is tantamount to a payment.'
So 'where a debtor instead of paying his creditor brings to him another person as surety who agrees to pay the creditor to a certain extent instead of his debtor, and the creditor accepts him by striking out the claim against the debtor to that extent, this acceptance Of a new person does not amount to a payment on behalf of the debtor and will not operate to save limitation'. We agree. The question therefore turns on whether there was in fact a payment, as betokened by the entries made by A. R. Subramonia Iyer in his account books, on 19-4-1945. The court below did not go into this aspect because apparently it was not stressed in the way it is presented before us.
4. Now the only evidence as to the payment in question is the admission of A. R. Subiumonia Iyer himself in the matter. And this is contained in the entries he has made in his account books Exts. B32, 26 and 22. Ext. B32 is the relevant rough book, Ext. B26 the fair day book prepared with the help of Exts. B32 and Ext. B22 the ledger book. All these books contain debit entries on 19-4-1945 without doubt, for the amount of Rs. 7052-8-0 in question.
But Ext. B26 the fair day book can alone provide a cross check for our present purpose, in that it gives the closing cash balance at the end of each day. Scrutinised from this 'aspect, it would appear there was no difficulty in making a cash payment of Rs. 7052-8-0 on 19-4-1945, because the previous day's cash balance was Rs. 7992-15-3 and the net debit under all the other transactions for 19-4-1945 came to only Rs. 4-4-0. But the plaintiffs are confronted with an insuperable difficulty in succeeding on the above test.
For, the previous day's balance RS. 7992-15-3 Is the resultant of a continuous operation on a cash balance on 1-10-1943 of Rs. 14774-2-2 which was really Rs. 4774-2-2, exaggerated by the addition of a simple vertical stroke at the beginning of the figure. Indeed it was on this alteration of RS. 4000 and odd into Rs. 14,000 and odd that the entries in the account book as to the borrowing of Rs. 14,000 in the first instance under the suit promissory note was itself questioned.
And the court below in dealing with that question, was willing to say that the exaggerated balance could be explained off on the basis of an omitted entry and anyhow did not matter much. It is clear to us however that A. R. Subramonia Iyer wanted to provide a sufficient opening cash balance on 9-10-1943 for operation on that day and for this purpose manipulated the balances on 1-10-1943 and the succeeding days till 8-10-1943 by the uniform addition of the vertical stroke 1 to the various figures concerned.
The result is that the account book entries cannot be relied upon for proof of the payment on account, of Rs. 7052-8-0. They are, on the other hand, tell-tale that no payment could, have been made, of that amount or even a portion thereof. It is significant in this connection that the 1st Plaintiff had a case in her written statement in the partition suit O. S. 55 of 1916, that she had not actually come in receipt of the sum of Rs. 7052-8-0 and could therefore make claim against the estate for the full principal and interest under the promissory note, but nevertheless was willing to be satisfied with the balance (now sued for) in view to the account book entries.
We have therefore necessarily to come to the conclusion that the entries in the accounts of A. R. Subramonia Iyer on 19-4-1945 as to payment and endorsement do not amount to an acknowledgment in law which could save the suit from the bar of limitation.
5. The appeal is in the result allowed. The suit will therefore stand dismissed as against the 3rd defendant and his one-half share of the estateof A. B. Subramonia Iyer, hut in the circumstances without costs in both courts.