1. The questions for decision in these two appeals are whether, as contended by the appellant in Appeal No. 23 of 1903, the suit is premature, and, whether, if that is not the case, the suit in respect of the amount claimed as having been paid by the plaintiff respondent - on account of peshkush for faslis 1303 and 1304, is, as held by the District Judge, time barred.
2. The facts are shortly these. The village of Repudi, which formed part of the Zamindarni of Reddigudem, was conveyed on the 24th March 1893 by the plaintiff and his deceased brother to the late Papamma Rao, Zamindarni of Nidadavolu, for the sum of Rs. 40,000. A duly registered conveyance was executed and delivered by the vendors to the vendee, and possession of the property was given to her. The village has ever since remained in the hands of the vendee or her representatives, the income thereof being received by them. The price was not paid to the vendors but was retained by the vendee in order that the debts payable by the vendors, and mentioned in the conveyance, might be liquidated therefrom by her, and the balance, if any, paid to the vendors. When the conveyance was executed, the vendors and the vendee applied to the Collector of the district that the village be sub-divided and registered in the name of the vendee and that the proportionate peshkush payable in respect of it be ascertained and assessed. In the instrument of conveyance the vendors entered into a covenant to do at the request of the vendee any further acts that might be necessary in respect of the subdivision, registration and separate assessment of the village. With reference to the communications made to the collector by the vendors and the vendee as aforesaid, the Collector, on the 20th April 1893, informed Papamma Rao that as the village was registered in the names not only of the vendors but of one, Chendramowli Rao also, her request for sub-division, etc, would not be granted unless 'a duly authenticated document bestowing on the two proprietors above named the power of disposing the property of Chendramowli Rao also is produced.' This was made known to one Lingiah, now deceased, a pleader who had taken part in bringing about the purchase, and who was a lessee under the plaintiff. Lingiah was asked to obtain certain information from the plaintiff with reference to the point raised by the collector. There is no direct evidence that Lingiah called upon the plaintiff to furnish the information wanted, but there can be no doubt that the fact that the Collector was raising objections to the sub-division, etc., must have been brought to the notice of the plaintiff in the course of what subsequently took place. For exhibit B, a settlement of account which took place in June 1898 between the agents of the plaintiff on the one hand, and the agent of Papamma Rao, on the other (proved to have been authorised by the respective principals to make a settlement), refers to correspondence between the plaintiff and Lingiah in regard to the adjustment of the accounts connected with the purchase money left with the vendee, and it is expressly recorded therein that the settlement is made conditional, among other things, upon the plaintiff procuring the subdivision and the registry of the property in the name of Papamma Rao, and this condition as to the subdivision and registry implies, we think, that the plaintiff was aware why the subdivision and registry had not been effected Papamma Rao and, after her death, her representatives, abstained from paying any amount towards the publio revenue due in respect of the village, and the plaintiff has had to pay the Government demand on the whole zemindari, including the proportionate share that would have been payable by the defendant on account of Repudi if it had been sub-divided and separately registered, as intended by the parties.
3. Such being the facts, the contention of Mr. Sundara Aiyar for the defendants appellants in Appeal No. 23 - was that, under the terms of the conveyance, the plaintiff is not entitled to make any claim with reference to the payments made by him unless and until the exact amount payable in respect of the village has been fixed by the revenue authorities.
4. We are unable to accept this contention. Now under Section 55(5)(d) of the Transfer of Property Act the buyer is bound to pay all public charges subsequent to the date of passing of the property to him, in the absence of a contract to the contrary. So far as fasli 1302 was concerned the parties to the instrument did enter into a special arrangement which was to the effect that the vendors were to deduct out of the incomes already derived by them from the village for that fasli what was payable for that year in respect of the peshkush of the village and to account for the remainder only to Papamma Rao. As regards subsequent faslis there was no special agreement, the instrument stating generally, in more than one place, that the vendee was to be responsible for the public demand on account of the village and that the vendors should in no way be liable for it. No doubt the words 'as per subdivision' occur between the words 'the amount due' and 'of the peshkush payable to Her Majesty's Government of India' in the passages dealing with the matter. But it seems to us that the introduction of those two words was not for the purpose of making the right of the vendors to claim reimbursement from the vender of what the vendors might be compelled to pay in consequence of the vendee's omission to meet her proportion of the public demand, conditional upon an actual sub-division. The reasonable meaning of the language used is, in our opinion, no more than that the vendee should from and after fasli 1303 be liable for her share of the peshkush, as she would be in the usual course in the absence of a contract to the contrary. Considering that possession of the village had been parted with by the vendors and that all the rents of the village were to be received by the vendee from fasli 1303, there was no sufficient reason for imposing on the vendee only a conditional liability in respect of what was a first charge on the incomes of the village in her hands and which vendors would not have been required to meet except for her default. If it was the intention of the parties to make any such exceptional terms it would have been done in far dearer words. In our opinion the instrument does in this respect but put in express words the covenant implied by law on the part of the vendee under the provision of the Transfer of Property Act already referred to. The present case cannot 'be likened to one in which the parties to a transaction agree to an arbitrator doing something with reference to the substance of the matter as a condition precedent to the accrual of a right or liability. The power of the revenue authorities to determine the amount of the separate assessment is not derived from the consent of the parties, but is conferred by the statute, alike in the interests of the private persons concerned, as well as of the Government. Further, the matter for determination has no reference to the liability itself, which attaches as an incident of the transfer and is complete when the property passes. Dinham v. Bradford L.R. 5 Ch. App. 519 may be referred to by way of analogy. There, two partners made an agreement containing a provision that on the determination of the partnership one partner should purchase the share of the other at a valuation to be made by two persons, one appointed by each partner, and the partnership was carried on for some time under that agreement. It was held that though the valuation could not be so made because no umpire was appointed, the Court would carry the partnership agreement into effect by ascertaining the value of that share. In the course of his judgment Hatherly, L.C., says 'It is much more like the case of an estate sold and the timber on a part to be taken at a valuation, the adjusting of matters of that sort forming part of the arrangement, but being by no means the substance of the agreement, and in such cases the Court has found no difficulty. If the valuation cannot be made modo et forma the Court will substitute itself for the arbitrators. It is not the very essence and substance of the contract so that no contract can be made except through the medium of the arbitrators. Here the property has been had and enjoyed, and the any question is what is right and proper to be done with regard to settling the price.' It seems to us that the present case is even stronger, and if the parties are unable to agree as to the amount of the proportionate peshkush for Repudi, it is competent to the Court to decide that as between them, pending the determination of the amount by the revenue authorities so as to conclude the question between them and the Government. That here the parties themselves did not consider any action of the revenue authority in the way of fixing the assessment a pre-requisite to the plantiffs right to claim payment, is clear from their having included in the settlement made by them in 1893, this matter also of the payments by the plaintiff for the peshkush of Repudi up to that time. The question as to whose duty it was to have the sub-division and separate assessments effected does not appear to us to have any real bearing upon the decision of the question under consideration. Assuming for argument that it was the plaintiff's duty to do so, his failure in this respect would, at most, only entitle the other party to damages. But no claim under such a head has been made in the present case as against the plaintiff, and it is unnecessary to pursue this point. We hold that the suit is not premature, and we dismiss Appeal No. 23 with costs.
6. As regards the other question, viz., of limitation in regard to the payments towards the peshkush for faslis 1303 and 1304, it is to be observed that no charge against immovable property in respect of those payments is sought to be enforced in the present suit. The period of limitation applicable is, therefore, six years, and the suit, in so far as it relates to these faslis, having been instituted more than six years after the time when the plaintiff made the payments, must be held to be barred, unless exhibit B operates as an acknowledgment within the meaning of Section 19 of the Limitation Act. The concluding portion of the settlement provides : 'the Kavalai people (the vendors) should get the Zamindar's name entered in the Sircar Accounts, effect the subdivision, and bring and deliver Vallankivaru's mortgage deed. The said settlement has been agreed to subject to this condition.' As one of the things thus prescribed, viz., the effecting of the subdivision has not been fulfilled, the plaintiff is not entitled to rely on the document as an acknowledgment. The recent decision of the Judicial Committee in Maniram v. Seth Rupchand I.L.R. 33 Calc. 1047 to which we drew attention in the course of the argument, is decisive on the point. Though so far as the specific cases provided for in the explanation to Section 19 of the Limitation Act are concerned, the Indian is not the same as the English Law, yet there can be no doubt that here as well as in England an acknowledgment of a conditional liability such as the present would not give a fresh start so long as the condition remains unfulfilled. 'The question', observes Sir Alfred 'Wills in the course of the judgment,' is whether a given state of circumstances falls within the natural meaning of a word which is not a word of art, but an ordinary word of the English language, and this question is dear of any extraneous complication imposed by the statute Law of either England or India. In a case of very great weight, the authority of which has never been called in question, Lord Justice Mellish laid it down that an acknowledgment to take the case out of the statute of Limitations must be either one from which an absolute promise to pay can be inferred, or, secondly, an unconditional promise to pay the specific debt, or, thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed. Re River Steamer Co., Mitchell's claim L.R. 6 Ch. App. 822 The Indian Limitation Act, however, says nothing about a promise to pay and requires only a definite admission of liability as to which there can be no reason for departing from the English principle that an unqualified admission and an admission qualified by a condition which is fulfilled stand upon precisely the same footing.'
7. A farther question was argued as regards interest. The decree is not in accordance with the judgment, as the decree allows interest on the peshkush from the date of the plaint, whereas the time in the judgment is from the 1st November 1898. The decree will be modified in this respect, and in other respects confirmed. Subject to the above medication Appeal No. 22 is dismissed with costs.