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Laxminarayan and ors. Vs. Ashkar Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 78 of 1949
Judge
Reported inAIR1951Raj50
ActsLimitation Act, 1908 - Sections 20 and 20(1)
AppellantLaxminarayan and ors.
RespondentAshkar Khan and ors.
Appellant Advocate Sohanlal, Adv.
Respondent Advocate Chandmal, Adv. for Respondent 1
Cases ReferredParthasarathy Iyenger v. Ekambara Mudaliar
Excerpt:
- - there are other issues also on which the judgment of the learned sub-judge is silent, and it is incumbent that he should give his finding on them as well while disposing of the appeal......for determination is one of limitation. on pos sud 14, st. 1983, nathukhan, father of respondents ashkar khan and zumardi khan executed a bond in favour of the plaintiffs for rs. 136 4-0, being the balance of previous account and agreed to pay interest on this amount at 15% per annum. on migsar sud 5 st. 1989, nathukhan gave karbi worth rs. 2 towards this debt and thumb-marked the endorsement relating to it at the back of, the bond. nathu khan died in st. 1989. on migsar sud l, st. 1995, ashkar khan re. 1 and the endorsement relating to it was thumb-marked by him. after giving credit for the sum of rs. 3 thus paid, the plaintiffs, sukhdeo shivbux instituted the present suit for the recovery of rs. 300 consisting of us. 136. 14 0 on account of principal and rs. 166 20 its interest.....
Judgment:

Nawalkishore, C.J.

1. This is a second appeal by the plaintiff and the only question calling for determination is one of limitation. On pos Sud 14, St. 1983, Nathukhan, father of respondents Ashkar Khan and Zumardi Khan executed a bond in favour of the plaintiffs for Rs. 136 4-0, being the balance of previous account and agreed to pay interest on this amount at 15% per annum. On Migsar Sud 5 St. 1989, Nathukhan gave Karbi worth Rs. 2 towards this debt and thumb-marked the endorsement relating to it at the back of, the bond. Nathu Khan died in St. 1989. On Migsar sud l, St. 1995, Ashkar Khan Re. 1 and the endorsement relating to it was thumb-marked by him. After giving credit for the sum of Rs. 3 thus paid, the plaintiffs, Sukhdeo Shivbux instituted the present suit for the recovery of Rs. 300 consisting of us. 136. 14 0 on account of principal and Rs. 166 20 its interest against Ashkar Khan and Zumardi Khan, sons of the deceased Nathu Khan. Zumrdi Khan did not appear in the suit and, therefore, ex parte proceeding a were taken against him. Ashkar Khan, in the first instance, pleaded ignorance of the bond and further stated that he was a minor at the time the payment of Re. 1. is alleged to have been made and that this would not save limitation, the suit being barred by time. Trial Court dismissed the suit; as barred by time on the ground that at the time of the payment of Re. 1 Ashkar Khan was a minor. On appeal by the plaintiffs, the learned Sub-Judge did not go into the question relating to the minority of Ashkar Khan and adopted a wholly new line of argument while dismissing the appeal. He held that under Section 20, Limitation Act, payment by the person liable to pay the debt or his agent duly authorized alone extended the period of limitation. In this particular case, the person liable to pay the debt was only Nathu Khan who was dead on the date of the alleged payment and not Ashkar Khan who, not being the contracting party, was not the person liable to pay the debt. He also held generally that a son is not a debtor for a debt incurred by his father and, therefore, the payment by the son will not extend time. This is rather a startling proposition and its correctness has been hotly contested by the learned counsel for the plaintiffs. It is urged on behalf of the latter that the learned Sub-Judge has apparently adverted to the langunge of Para. 1 of Section 20, Limitation Act, where the words 'a person liable to pay the debt' occur in connection with the payment of interest on a debt as such and has not concentrated on Para. 2 which relates to the payment of a part; of the principal of a debt by the debtor. The learned counsel urges in essence that there was no legal support for the proposition that the person liable to pay the debt as mentioned in Para. 1 of Section 20 is in any way different from. the term debtor as it occurs in Para. 2 of that section. In the case of a debt which was originally contracted by the father, on the death of the latter, the son becomes substantially the debtor and is therefore, 'the person liable to pay the debt,' These words have not been exactly incorporated in Para. 2 of the section but that would not introduce a distinction between the terms used in the two paras. The learned counsel for the respondents has tried to support the finding of the learned Sub-Judge by citing LachhmiNarain v. Daya Shankar, 47 I. C. 655: (A.I.R.) (5) 1918 oudh 323) and Sukumari Gupta v. Dhirendra Nath, A. I. R. (28) 1941 Cal 643: (197 I. C. 869). These cases, however, are distinguishable from the fasts of the present case. In Lachhmi Narain v. Daya Shankar, 47 I. C. 655: (A. I. R. (5) 1918 oudh 323), the father was alive and accordingly, the son could by no means be said to be the debtor. If any payment is made by the son during the lifetime of the father, who alone has contracted the debt, since it is not a payment by the debtor, it cannot save limitation. Sukumari Gupta v. Dhirendra Nath, A. I. R. (28) 1941 Cal. 643: (197 I. C. 869) was a case of a surety who merely guarantees the payment of the debt and thereby does not become the debtor himself. Accordingly, if he makes the payment, he cannot save limitation. The authority which is in point and contains & discussion of this question is Thimmappa Chettiar v. Krishna Rao, A. I. R. (28) 1941 Mad. 6 at p. 14: (195 I. C. 329) and the following para may be cited from the judgment advantage;

'In regard to the payment of interest, it is stated that the person by whom the payment should be made is the person liable to pay the debt; in the case of part payment of a principal the person by whom the payment should be made is the debtor or his agent. The question is what is the interpretation to be placed upon the words 'person liable to pay.' So far as the part payment of principal is concerned, the section specifically says, 'the debtor.' Literally construed, it would mean the person who contracted the debt. We do not think that the Legislature intended by the use of the word 'debtor' to have that restricted interpretation. It would seem to us that the word 'debtor' was intended to connote not only this person who contracted the debt but his legal representative and in the case of a debt charged on land the parson who derived title from him; in short the person who can be rendered liable for the debt by the creditor, that is, the person against whom the debt can be enforced. That is, the liability need not be personal in the sense of being liable to be arrested; it may be proprietary; that is, liability arising from the possession of property; Cf Askaram Sowkar v. Venkataswami Naidu, 44 Mad. 544: (A.I.R. (8) 1921 Mad. 102). Parthasarathy Iyenger v. Ekambara Mudaliar, (1938) 1 M. L. J. 624: (A. I. R. (25) 1938 Mad. 579). We do not think that the Legislature intended to draw a distinction between the payment of interest and the payment of principal in saving limitation.'

2. I respectfully agree with the view taken in this judgment and hold that the word 'detor' connotes not only the person who contracted the debt but also his son in his capacity as his legal representative and, therefore, is liable to pay the debt, that is, the person against whom the debt can be enforced. Accordingly, the view taken by the learned Sub-Judge is not correct in law and if Ashkar Khan was a major at the time the payment of Re. 1 was made, the suit must be held to be within time. The only question, therefore, which now remains is whether Ashkar Khan was a major at the time of the payment. On this point the learned Sub-Judge has not arrived at any conclusion. There are other issues also on which the judgment of the learned Sub-Judge is silent, and it is incumbent that he should give his finding on them as well while disposing of the appeal. I accordingly accept this appeal, set aside the decree passed by the Sub-Judge and send the case back to him for fresh decision in the light of the above observations. Costs will abids the result.


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