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Kanraj Vs. Vijai Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 3 of 1950
Judge
Reported inAIR1951Raj74
ActsTransfer of Property Act, 1882 - Sections 130 and 131; Evidence Act, 1872 - Sections 114; Contract Act, 1872 - Sections 62; Limitation Act, 1908 - Sections 19; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 7 - Order 41, Rule 1
AppellantKanraj
RespondentVijai Singh
Appellant Advocate Hastimal, Adv.
Respondent Advocate Sumer Chand, Adv.
DispositionAppeal dismissed
Cases ReferredPo Sein v. E. M. Bodi
Excerpt:
- - 11. it was next argued that the suit was filed on 24-7-1948, & the summons was served both on vijai singh & khub chand on 19-8-1948. the 'written statement of vijai singh, which was filed on 24th september, does not mention any settlement with khub chand & khub chand, who takes a plea of the settlement in his written statement on 7-2-1949, clearly says that he made a settlement after the receipt of the summons in the present suit. c, & unless good cause is shown for its non-production in the lower ct, it cannot be allowed to be produced in the appellate ct. act was not in force, the english law was administered as a matter of justice, equity & good conscience, & that under the english law a notice by transferee only was sufficient, & that the notice by service of a copy of the.....bapna, j.1 this is an appeal by the pltf in a money suit against one of the defts.2. the applt, kanraj, filed a suit on 24-7-1948, against the resp, vijai singh, jagirdar of ramseen, & one khub chand on the allegations that khub chand had secured a decree on 4-4-1947, against mohabbat singh, father of vijai singh, for recovery of rs. 11,359/7/- (the correct figure is rs. 11,365/7/-), from the ct of wards, jodhpur, & khub chand thereafter made an assignment of that decree in favour of the applt on 27-7-1947. it was alleged that the deft, vijai singh, being the heir & legal representative of mohabbat singh, & being in possession of the property left by mohabbat singh, was liable to pay the amount of the decree, but had refused to do so, & as the thikana of the deft was no longer under the.....
Judgment:

Bapna, J.

1 This is an appeal by the pltf in a money suit against one of the defts.

2. The applt, Kanraj, filed a suit on 24-7-1948, against the resp, Vijai Singh, Jagirdar of Ramseen, & one Khub Chand on the allegations that Khub Chand had secured a decree on 4-4-1947, against Mohabbat Singh, father of Vijai Singh, for recovery of Rs. 11,359/7/- (the correct figure is Rs. 11,365/7/-), from the Ct of Wards, Jodhpur, & Khub Chand thereafter made an assignment of that decree in favour of the applt on 27-7-1947. It was alleged that the deft, Vijai Singh, being the heir & legal representative of Mohabbat Singh, & being in possession of the property left by Mohabbat Singh, was liable to pay the amount of the decree, but had refused to do so, & as the Thikana of the deft was no longer under the Ct of Wards, the suit had to be filed by the pltf. It was prayed (1) that a decree for recovery of Rs. 11,365/7/- be passed in favour of the pltf against Vijai Singh, & (2) that, if deft 2, Khub Chand, had recovered any amount from Vijai Singh towards the decree of the Ct of Wards, a decree for such amount be passed against Khub Chand. Interest was claimed from the date of the suit till realization.

3. Vijai Singh by his written statement dated 24-9-1948, denied any knowledge of the decree having been passed against his father by the Ct of Wards, adding that the order of the Ct of Wards, dated 4-4-1947, relied upon by the pltf, did not amount to a decree. It was pleaded that the said order of the Ct of Wards, could not be made the basis of the suit against the deft, & that Khub Chand had, by means of some fraud, obtained the order of the Ct of Wards, which was not binding on him.

4. Khub Chand filed a written statement on 7-2-1949, alleging that the assignment had been executed on a promise of payment of Rs. 10,000/-, which sum was never paid by the pltf to Khub Chand, & that, therefore, the agreement of assignment was without consideration & void. It was also alleged that on receipt of the summons of the present suit, the deft realized the deception caused upon him by the pltf, & he made a settlement with the Jagirdar in respect of the debt evidenced by the order of the Ct of Wards, &, therefore, the pltf was not entitled to any relief.

5. Only three issues were framed, viz.,

'1. Whether the agreement of assignment was without consideration, &, therefore, invalid?

2. Whether the suit was maintainable on the basis of the order of the Ct of Wards?

3. Whether the deft 2 had received satisfaction from the deft 1 after the assignment, & if so, what was its effect?'

The trial Ct, after evidence held that the debt against Vijai Singh was an actionable claim, & its transfer was complete by execution of the deed of assignment, & that thereafter any objection as to the invalidity of the transfer for want of consideration could not be agitated under the provisions of Section 130, T. P. Act. On the second issue it was held that the order of the Supdt, Ct of Wards, dated 4-4-1947, was an acknowledgment of the debt in question, which could not be challenged by the holder of the estate even after the release of the estate from the management of the Ct of Wards under Sections 35 & 47, Marwar Ct of Wards Act, & that, therefore, the said acknowledgment furnished a valid cause of action. On the third issue it was held that no notice of assignment had been proved to have been served on Vijai Singh, &, therefore, the settlement made by Vijai Singh, with Khub Chand was valid. As a result, the Ct passed a decree for Rs. 10,000/-, which was the amount of consideration for the transfer of the actionable claim, against Khub Chand, & the suit was dismissed against Vijai Singh.

6. The pltf has come in appeal, & it is urged that he is entitled to a decree for recovery of Rs. 11,365/7/-, the entire sum, from Vijai Singh. Khub Chand has not filed any appeal, nor was he made party in the present appeal preferred by Kanraj, pltf.

7. The pltf has challenged the finding on issue 3, while the resp preferred arguments in support of the decree by challenging the findings on issues 1 & 2, besides other objections, which will be considered hereafter.

8. It was argued on behalf of the applt that a notice, Ex. P. 3, written on a post-card was sent by registered post by Khub Chand addressed to Vijai Singh on 9-12-1947, intimating that Khub Chand had transferred the debt to the pltf, Kanraj. The lower Ct observed in respect of this document that it had not come from proper custody, & had not been proved. It is admitted by the pltf that the sender of this notice was Khub Chand, & in the ordinary course it should have been returned to him by the Post Office on refusal to take delivery by the addressee. It is explained by the pltf in his evidence that his son, Vijai Raj, was the lawyer for Khub Chand, & the sender's address was noted as C/o Vakil Vijai Raj, & when the notice after refusal happened to be delivered to Vijai Raj, the latter passed it on to the pltf. While there is no doubt that Vijai Raj acted very improperly in giving to his father a document which he had received for his client, who is a deft in this case, that does not affect the merits of the case. The sole point is whether any notice was given to the debtor, Vijai Singh, as required by Sections 130 & 131, T. P. Act. Sub-section (1) of Section 130 of the Act lays down the mode of transfer of an actionable claim, & its effect, viz., that the transfer shall be complete & effectual upon the execution of the instrument of transfer, & that thereupon all the rights & remedies of the transferor shall vest in the transferee. There is, however, a proviso to that Sub-section which lays down that notwithstanding the rights created in the transferee, as mentioned in sub-s (1), every dealing with the debt or actionable claim by the debtor except where he is a party to the transfer or has received express notice, as provided later on, shall be valid as against such transfer of the debt. The provision, for notice, referred to, is found in Section 131, T. P. Act, which lays down that every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorised in this behalf or, in case the transferor refuses to sign, by the transferee or his agent, & shall state the name & address of the transferee. The notice, Ex. P. 3, purports to be given by Khub Chand to Vijai Singh intimating the transfer of the debt, &, therefore, fulfils the formalities required by Section 131, T. P. Act. The only point that remains to be determined is whether this notice was received by Vijai Singh or should be deemed to have been received by him. It was urged that the endorsement signifying refusal of the addressee to receive the same should lead to a presumption that it was tendered but refused. Reliance is placed upon 'Sher Afzal v. Mohan Lal, AIR (13) 1926 Lah 520: (94 IC 103), in which 'Jogendro Chunder v. Dwarka Nath', 15 Cal 681; 'Durga Nath v. Rajendra Nath', 17 CWN 1073: (20 IC 363); & 'Girish Chandra v. Kishore Mohan', 23 CWN 319: (AIR (7) 1920 Cal 287) were followed. A contrary view has been taken in 'Butto Kristo v. Gobindram', AIR (26) 1939 Pat 540: (182 IC 132). In this Patna case' a notice was sent by registered post but was received back with an endorsement that the addressee had refused to accept it. But the peon who made the endorsement of refusal was not examined nor his handwriting had been proved. Their Lordships held that

'a letter if posted & not received back through the D. L. O. may be presumed to have been received by the addressee, but this presumption does not apply where the letter purports to have been returned as being refused by the addressee.'

Reliance was placed on a 'Calcutta case', 'Govinda Chandra v. Dwarka Nath', 19 C W N 489: (AIR (2) 1915 Cal 313). The same view was taken in Nagpur in 'Raja Udram v. Khan Beg Amir Beg', 48 IC 904: (AIR (5) 191.8 Nag 202).

9. The Calcutta view does not appear to be uniform, & the two divergent views have already been referred. under Section 114, Evidence Act, the Ct may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, & public & private business in their relation to the facts of the particular case.

10. The postal service in India is, on the whole, fairly satisfactory, & if an endorsement purports to be by an officer of the Post Office that the addressee had refused to receive the document, it can be presumed that the document was tendered & refused. Such presumption can be rebutted, & in proper cases only by a denial, by the addressee. Reference may be made to 'Saila Bala Dasi v. Atul Krishna', AIR (35) 1948 Cal 63: (82 CLJ 9). In the present case the deft, Vijai Singh, had no opportunity to deny, since the notice was not referred to in the pleadings, nor produced before the issues, but was put to Khub Chand during, his cross-examination. The document itself bears three endorsements, dated 19th, 20th & 26th December 1947, that the addressee was not found. The endorsement of the 26th is signed by one Sohan Lal. The endorsement of refusal is dated 22nd Decemebr, & an illegible signature appears, which may or may not be in respect of the said endorsement. There is nothing to show that the endorsement of 'refusal' was made by an officer of the Post Office. The document was not produced from proper custody in proper time, & no reliance can be placed on the said endorsement.

11. It was next argued that the suit was filed on 24-7-1948, & the summons was served both on Vijai Singh & Khub Chand on 19-8-1948. The 'written statement of Vijai Singh, which was filed on 24th September, does not mention any settlement with Khub Chand & Khub Chand, who takes a plea of the settlement in his written statement on 7-2-1949, clearly says that he made a settlement after the receipt of the summons in the present suit. It was urged that the receipt of the copy of the plaint should be deemed to be a notice of the transfer of the actionable claim, & any settlement made by the debtor thereafter should be held to be ineffective against the assignee of the debt. Reliance was placed on 'Bagho v. Narayan', 21 Bom 60. The said decision was based on the language of Section 131 of the old Act. The old section did not validate payment by the debtor if he was a party to or 'otherwise became aware of or had received express notice of the transfer. The language of the present Section 130 is, however, different, & the protection is taken away only if the debtor is a party to the transfer or has received express notice thereof as provided in Section 131.

12. It was urged' on behalf of the resp that the plaint, even if it be assumed to be a notice of transfer, was not one given by the transferor, & although nothing is mentioned in the plaint, the fact of the existence of Ex. P. 3 showed that the transferor had till that date never refused to sign. The notice by the plaint was, therefore, not valid. Reliance was placed upon 'Basant Singh v. Burma Rly. Co. Ltd.', AIR (2) 1915 LB 10: (8 LBR 288), in which it has been held that in the case of a notice by the transferee, mention must be made in the notice itself that the transferor had refused to sign the notice. A contrary view has been taken in 'Gopala Krishna v. Gopala Krishna', 33 Mad 123: (4 IC 420), & their Lordships observed at p. 130 that the Act does not require that the circumstance of the refusal by the transferor to sign the notice should be mentioned in the transferee's notice. In my opinion, according to the plain language of Section 131, the notice of transfer is to be given by the transferor & if given by the transferee, it should be alleged or shown that the transferor had refused to sign the notice, although that circumstance need not be mentioned in the notice.

13. Assuming that the service of summons & delivery of a copy of the plaint was a notice of assignment of the debt by the transferee, it could also be understood therefrom that the pltf was willing to relinquish his claims against Vijai Singh to the extent of realisations made by Khub Chand. This is evident from the prayer that in respect of such realisations by Khub Chand the pltf was willing to have a decree against Khub Chand rather than against Vijai Singh.

14. Mr. Hastimal, who appeared for the applt, made an appln that he may be allowed to produce additional evidence of the fact that, a notice had been given by a registered post card by the transferee on 9-12-1948, the same date on which Ex. P. 3 was written by Khub Chand, out that such notice was also refused by the debtor, & returned to the sender. The alleged notice, after its return, remained all along with the pltf, & no reason is given why proper allegations were not mentioned in the plaint, & why the document was not produced in the lower Ct. The powers of the Appellate Ct to take additional evidence are given in Order 41, Rule 27, C. P. C, & unless good cause is shown for its non-production in the lower Ct, it cannot be allowed to be produced in the Appellate Ct. The prayer cannot be accepted.

15. It was next argued that the T. P. Act was only brought into force in Marwar in 1948, &, therefore, the provisions of Sections 130 & 131, T. P. Act were not applicable to the present suit filed on 24-7-1948, & that as soon as the debt had been assigned, the transferee had alone the right to recover the same, & any payment made by the debtor to the transferor after the filing of the suit should be held to be of no consequence as against the transferee. The above contention was also raised in support of an argument that in places where the T. P. Act was not in force, the English law was administered as a matter of justice, equity & good conscience, & that under the English law a notice by transferee only was sufficient, & that the notice by service of a copy of the plaint should be sufficient. Reliance was placed on 'Nihal Chand v. Ali Baksh', 9 PR 1907: (25 PLR 1908).

16. It may be observed that in England the common law rule is no longer in force, & the matter is now regulated by Statute, & if the assistance of the Statutes have to be taken, it would be far more consonant with justice, equity & good conscience to rely upon the Indian Statute rather than the English Statute, & the matter, from the point of view of the Indian Statute, has already been discussed.

17. As to the first aspect of the case; if the provisions of the T. P. Act were to be left out of account, the general principles of the law of contract would apply, & the promisor cannot be held liable to a third party not privy to the contract. In order that the promisor may become liable to a third party, it would require the consent of the promisor, the promisee & the third party so that the original contract would be discharged, & a new contract between the third party & the promisor would come into existence, vide Section 62, Contract Act. In the present case, the debtor was no party to the contract between Khub Chand & the pltf, & on general principles of contract, the pltf is not entitled to succeed against Vijai Singh.

18. It was next argued by Mr. Hastimal that the finding of the learned Dist J. that Vijai Singh had paid up the amount to Khub Chand is not supported by reliable evidence, & if the alleged settlement may only be a promise to pay in future, the pltf-assignee does not lose his remedy against the debtor.

19. It is true that the debtor did not, at any stage, take the plea that he had paid the entire amount of Rs. 11,385/7/- to Khub Chand. Khub Chand had taken the plea that he settled the account with the debtor without disclosing whether he had received the amount in cash or made any remission or entered into a contract for payment in future. The entire evidence on this point consists of the statement of Khub Chand alone. He was not cross-examined by the pltf & made to disclose what settlement he had made. The evidence of Khub Chand is insufficient to prove that the debtor paid up the debt in cash but some sort of settlement can be held proved by the statement of Khub Chand. The point can be of importance if the pltf were willing to step in the shoes of Khub Chand with respect to the new contract of the discharge of the debt that may have been made. The pltf was not willing to adopt that contract as he did not know where it may land him & the lower Ct, therefore, did what was most beneficial to the pltf & gave him decree for the full amount of consideration mentioned in the deed of assignment. The pltf's grounds of appeal, thus, have no force.

20. The resp argued certain other points also in support of the decree. It was argued that the assignment was without consideration, &, therefore, invalid & that the lower Ct had made a mistake in the interpretation of Section 130, T. P. Act, in holding that the plea could not be raised after the execution of the deed of assignment. The relevant portion of Section 130 of the Act reads as under:

'The transfer of an actionable claim 'whether with or without consideration' shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, & shall be complete & effectual upon the execution of such instrument, & thereupon all the rights & remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not.'

The words 'whether with or without consideration' only mean that the assignment can be by means of sale, mtge, or by means of a mere gift, & the words 'shall be effected only by the execution of an instrument in writing' mean that parole assignment is not valid. The words 'shall be complete & effectual upon the execution of such instrument' mean that it takes effect from the execution of the instrument irrespective of the notice to the debtor so far as the transferor & the transferee are concerned. It does not mean that the assignment once having been executed cannot be challenged on grounds, including want of consideration, on which any other contract can be impeached. The view of the lower Ct that after the assignment had once been executed, it cannot become invalid for want of consideration is incorrect. The plea, however, does not succeed on merits. (After discussing evidence His Lordship concluded). In my opinion, the transferor has failed to prove that he did not receive consideration. The plea was raised by Khub Chand, & he has not filed any appeal.

21. It was next argued that the order of the Ct of Wards dated 4-4-1947, is only an acknowledgment & cannot be made the basis of the suit. The argument is that the liability of the deft arose on the debt alleged to have been advanced to the father of the deft, & order of the Ct of Wards was at best only an acknowledgment, which did not give rise to any fresh cause of action & the suit, as framed, was not maintainable. On behalf of the resp reliance was placed on 'Ramprasad v. Anande', AIR (25) 1938 Nag 180: (174 IC 374), 'Mt Janaka v. Sheocharan', AlR (19) 1932 Oudh 49: (7 Luck 313); & 'Suraj Prasad v. W. W. Boucke', AIR (7) 1920 Pat 161: (5 Pat L J 371).

22. The point seems to be of considerable importance, & my learned brother informs me that he has referred another case coming up before him to a D. B. It is therefore, being dealt with at some detail.

23. The relevant order of the Ct of Wards, dated 4-4-1947, Ex. P. 2, is as under:

'This is a cairn of the pltf for Rs. 11,359/7/- against Thikana Ramseen on the basis of the Khata executed by the Thakur of Ramseen. The legal adviser had denied the claim on the ground that there is no entry of the transaction in the Thikana Bahies. The pltf has produced 7 witnesses to prove the execution of the Khata. The Thikana Vakil has produced no evidence. As the claim of the pltf has been proved, it is ordered that the said sum plus Rs. 6/- may be registered in the list of the unsecured creditors of the Thikana according to rank.'

These proceedings were taken by the Supdt, Ct of Wards in accordance with certain provisions of the Marwar Ct of Wards Act, 1923. under Section 32 of the said Act, a notice is required to be published calling upon all persons having claims against the ward to notify the same within six months & on presentation of claims, an officer is to be appointed to conduct an inquiry & to decide which of the claims notified are to be allowed & which to be disallowed in whole or in part & his proposal is required to be confirmed by the Ct of Wards. under Section 39, directions are given for the application of the income of the estate of the ward & certain classification is made as to the priority of objects on which the income can be spent. The liquidation of debts comes under class II & ranks third in that class. According to the scheme of the Act, the claims are called in order to arrive at correct record of the indebtedness of the ward, & the decision to allow any debt is only an acknowledgment of the admission of the debt by the Ct of Wards. It does not involve any promise to pay & indeed the contingency of payment may or may not arise as the disbursements for purposes of class I & certain other purposes of class II rank in priority to the debts. The Act does not prevent any creditor of the ward from filing a suit against the ward, but only provides for a notice being given prior to preferring the claim in Ct, vide Section 49. The order of the Ct of Wards, as stated above, is no better than an acknowledgment of debt. The lower Ct has held that an acknowledgment can, be made the basis of a suit as the discretion exercised by the Ct of Wards in any suit cannot be challenged in a civil Ct. The learned Dist J. has referred to Sections 32, 35 & 47, Ct of Wards Act. Sections 32 & 35 relate to the notice to claimants & the investigation of claim, & Section 47 lays down that the exercise of any discretion conferred on the Ct of Wards by the Act cannot be questioned in a civil Ct. What this means in relation to the facts of this case is that while it may not be questioned why the Ct of Wards made the acknowledgment yet it does not follow that it created any new rights in the creditor. The acknowledgment would remain there with all its legal effects & disabilities. The learned counsel for the applt relied upon 'Chunni Lal v. Laxman Govind', AIR (9) 1922 Bom 183: (46 Bom 200); 'Bai Shanta v. Trikamal Vrijvallabhdas', AIR (31) 1944 Bom 19 : (211 IC 155); 'Abdul Rafiq v. Bhajan', AIR (19) 1932 All 199: (53 All 963); & 'Shanti Parkash v. Harnam Das', AIR (25) 1938 Lah 234: (ILR (938) Lah 193 FB); in support of the proposition that an acknowedgment can form the basis of a suit.

24. In 'Chunni Lal v. Laxman Govind', AIR (9) 1922 Bom 183: (46 Bom 200), the debts were incurred in July & September, 1914, & an account was made up on 29-8-1917, on which date the acknowledgment was signed. After referring to 'Maniram v. Rupchand', 33 IA 165: (33 Cal 1047 PC), their Lordships held that an acknowledgment implied a promise to pay, & as the acknowledgment was made before the expiry of the period of limitation, there was no reason why such an acknowledgment should not form the basis of a suit. This case was followed in 'Bai Shanta v. Trikamal', AIR (31) 1944 Bom 19: (211 IC 155), where the facts giving rise to the liability were mentioned, & an acknowledgment of 17-3-1936, was relied upon as the basis of suit. It was held that the right of the pltf to sue arose solely on that document, & could, therefore, be the basis of suit. Their Lordships, however, observed that they were not dealing with a case of a time-barred debt to which Section 25, Sub-section (3), Contract Act would become applicable. In 'Abdul Rafiq v. Bhajan', AIR (19) 1932 All 199: (53 All 983), Niamatullah J. held that an unconditional acknowledgment implied a promise to pay & afforded a new cause of action to the obligee, & in support of his view relied on the observations of' their Lordships of the P. C. in 'Maniram v. Rupchand', 33 IA 185: (33 Cal 1047 PC). Sulaiman C. J., however, did not subscribe to this view, & explained that the observations of their Lordships of the P. C. in 'Maniram's case', 33 IA 165: (33 Cal 1047 PC), viz., that an unconditional acknowledgment always implied a promise to pay, was an exposition of the English law. It was pointed out that in 'Maniram's case', (33 IA 165: 33 Cal 1047 PC) the only point in dispute was whether certain words amounted to an acknowledgment of liability within the meaning of Section 19, Limitation Act. The learned Chief Justice observed that

' 'Maniram's case', (33 IA 165: 33 Cal 1047 PC) cannot be extended so as to be an authority for the proposition that in India every unconditional acknowledgment implies a promise to pay to such an extent' as to override the provisions of the Limitation Act, the Contract Act, the Stamp Act or the Evidence Act.

In order to enforce the law of limitation strictly, the legislature has thought fit to throw on the creditor the burden of proving that the acknowledgment was made within time. Mere acknowledgment is not enough under Section 19 unless it is shown that it has been made before the expiration of the prescribed period. It is, therefore, not sufficient for the pltf to merely prove the acknowledgment of liability to pay a money debt & throw the burden of showing that the acknowledgment was made beyond time on the debtor.'

The view was brought out with greater force in 'Balakrishna v. Deb Singh', AIR (21) 1934 All 76: (58 All 281) by a different Bench, where it was clearly held that a mere acknowledgment of an older debt could not be made the basis of the suit. In 'Ghulam Murtaza v. Mt. Pasiunnissa Bibi', AIR (22) 1935 All 129 : (57 All 434), which was again a judgment to which Sulaiman C. J. was a party, the learned Chief Justice explained his earlier case, 'Abdul Rafiq v. Bhajan', AIR (19) 1932 All 199: (53 All 963), & dissented from the view taken by Niamatullah J., & the view taken in 'Balkrishna v. Deb Singh', AIR (21) 1934 All 76: (56 All 281), was approved. It was held that

'where there is no fresh consideration proceeding from the promisee, the acknowledgment cannot be treated as an agreement which may give rise to a fresh cause of action.' In 'Shanti Parkash v. Harnam Das', AIR (25) 1938 Lah 234: (ILR (1938) Lah 193 FB), Dalip Singh J. observed,

'I do not think that this Ct has ever held that merely because an acknowledgment implies a promise to pay it can form the basis of a suit, apart from proof of consideration.'

Din Mohammad J. held the particular entry to be an express promise to pay within the meaning of Section 25(3), Contract Act. The third Judge, Coldstream J., although of different opinion, did not like to dissent.

25. On behalf of the resp, reliance is placed on 'Ramprasad v. Anandi', AIR (25) 1938 Nag 180: (174 IC 374); 'Mt. Janaka v. Sheocharan', AIR (19) 1932 Oudh 49: (7 Luck 313); & 'Suraj Prasad v. W. W. Baucke', AIR (7) 1920 Pat 161: (5 Pat L J 371).

26. In the 'Nagpur case', Bose. J. took into consideration the decision in 'Chunni Lal v. Laxman Govind', AIR (9) 1922 Bom 183: (46 Bom 200), & observed that the question was not discussed at length in that case. His Lordship held the document sued upon as an acknowledgment under Section 19, Limitation Act, & observed,

'It cannot operate to save limitation unless it has been executed within time; also in such a case, the suit must be founded on the original cause of action. The document itself cannot be used as basis of the suit.'

In the 'Patna case', Jwala Prasad J. held that

'an acknowledgment of a debt only enures to the benefit of the creditor for the purpose of saving limitation if it is made before the original debt is time-barred, but the basis of the suit is always the original debt. No suit can be maintained on a mere acknowledgment of a debt.'

Several cases in support of the above view are cited in the said authority. In the 'Oudh case', it was held that an acknowledgment of liability only allowed extension of limitation if made before the expiration of the period prescribed. It did not create a new right but only allowed a new period to run from the date of the acknowledgment. Such acknowledgment does not operate as a new contract but only keeps; alive the original cause of action. Maniram's case', (33 IA 165: 33 Cal 1047 PC) was referred to & explained in this judgment.

27 With great respect I agree with the view, which has been taken in the Nagpur, Oudh, & Patna cases, mentioned above & which is also supported by 'Balkrishna v. Deb Singh', AIR (21) 1934 All 76: (56 All 281) & certain observations in 'Shanti Parkash v. Harnam Das', AIR (25) 1938 Lah '234: (ILR (1938) Lah 193 PB). In the present suit, there is no mention of the original cause of action, & the deft Vijai Singh had clearly pleaded that it could not form the basis of a cause of action. He had also pleaded that he did not admit that consideration had passed in respect of the entries which were submitted before the Ct of Wards. It was the duty of the pltf to plead all the facts which gave rise to the debt against Mohabbat Singh. In the absence of such allegations, the pltf cannot succeed against Vijai Singh, & no decree can be passed against him.

28. One more point was argued on behalf of the resp. It was contended that the pltf's suit was in the alternative, & that as he obtained a decree against Khub Chand for the full amount of consideration paid by the pltf, his appeal against Vijai Singh was incompetent.

29. On behalf of the .applt it was explained that his suit was not against Khub Chand in the alternative, but his main claim was against Vijai Singh on the assignment. He, however, impleaded Khub Chand & claimed such amount only against him as he may have received after the assignment. It is, however, conceded that the pltf could not claim a decree against Vijai Singh while retaining the one against Khub Chand. The point is not free from difficulties as to what would be the rights of the pltf in such a case as this. It is, however, clear that the pltf sought relief against Vijai Singh on the basis of a deed of assignment of a certain debt, & he could obtain a relief against Vijai Singh on proof of the debt. It was not necessary for the pltf in the suit to have claimed any relief against Khub Chand. The pltf could only claim a relief against Khub Chand for the amount realised by him in case the pltf conceded that any dealing with the creditor by the debtor in the meanwhile was acceptable to him. The remedy could, however, be claimed either against the debtor or against the transferor, but not against both, in respect of the same amount. The trial Ct in giving a decree for Rs. 10,000/- seems to have disregarded the actual settlement, made by the debtor with the transferor, which may not have been of advantage to the pltf, but instead gave a decree for a full amount of consideration, which could be done as if on a breach of contract or the assignment having fallen through by the act of the transferor. This relief could be given only as an alternative to the grant of relief against debtor. The pltf, while filing the present appeal, has not made Khub Chand a party to the appeal, nor has he specifically mentioned in his grounds of appeal that he was' willing to relinquish the decree against Khub Chand, & would press for a consideration of his case against Vijai Singh only. It is obvious that the pltf cannot retain the decree against Khub Chand & also press his claim against Vijai Singh. It has been held in 'U Po Sein v. E. M. Bodi', 13 Rang 186: (AIR (22) 1935 Rang 397), that where the pltf claims from the two defts in the alternative & gets a decree against one, he has no cause of action left, & an appeal against the other is incompetent. The principle on which the Rangoon case was decided appears to be applicable in the present case. In my opinion, the pltf having obtained a decree against Khub Chand for the amount of consideration paid by him as on a breach of contract of assignment, is incompetent to assert his claim against Vijai Singh under the same contract.

30. At one stage of the case the learned counsel for the applt prayed that Khub Chand be now made a party resp, & under the provisions of Order 41, Rule 33, C. P. C, the decree against him be set aside, & his claim against Vijai Singh may be decreed. This was perhaps on the supposition that the pltf could claim relief against Vijai Singh on the merits. As discussed above, his claim against Vijai Singh cannot succeed, & in the circumstances the pltf has got all what he could get by a decree against Khub Chand. It is unnecessary to discuss whether Ct can grant relief under Order 41, Rule 33, in the manner contended by counsel.

31. As a result, this appeal fails, & is dismissed with costs.

Gupta, J.

32. I agree.


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