1. The question which arises for determination in this petition is whether the suit is barred by limitation against the respondents. The suit is brought on a promissory note executed by one Chinna Babu Rowther on 29th October, 1920, in favour of the appellant (plaintiff). Chinna Babu Rowther died and his estate devolved on his widow, two minor sons and a 'minor daughter as his heirs. On the 22nd October, 1923, the widow Muhammad Beevi Ammal (1st defendant) purporting to act on behalf of herself and her minor children made a payment of Rs. 5 towards interest due on the promissory note. Plaintiff sues all the co-heirs, viz., the widow, sons and daughter of Chinna Babu Rowther for the balance due to him on the pro-note.
2. The respondents who were impleaded as defendants 2 to 4 pleaded that the alleged payment of interest is not true, and that even if true, the payment by their mother, the; 1st defendant would not save the suit from the bar of limitation as against them. The trial Judge finds that the payment for interest is true but he holds that as the payer, namely, the mother of the other defendants was not their lawful guardian under the Mahomedan Law the payment made by her will not save limitation as against them. He therefore gave a decree for plaintiff only as against the 1st defendant (mother) and dismissed the suit against other defendants. The plaintiff has preferred this petition and the question which arises is whether the payment by the mother saves the suit from the bar of limitation as against her co-heirs also. Apart from the question of limitation there can be no doubt that all the defendants who as co-heirs inherited the property of Chinna Babu Rowther are liable for the debt though such a liability can be enforced as against them only to the extent of the assets of the deceased in their hands.
3. The petitioner's learned Advocate does not question the correctness of the view taken by the trial Judge that the mother (the 1st defendant) in making the payment cannot be regarded as having made the payment as their guardian or agent but his contention is that under Section 20 of the Limitation Act when interest on a debt is paid by any one of the persons who are liable to pay the debt such payment is effectual to save limitation as against all persons liable to pay the debt. The material portion of Section 20 on which reliance is placed is as follows:
Where interest on a debt is before the expiration of the prescribed period paid as such by the person liable to pay the debt a fresh period of limitation shall be computed from the time when the payment was made.
4. It is argued that the language of Section 20 differs materially from that of Section 19 which. relates to acknowledgments. In the latter section the material words are:
Where an acknowledgment of liability in respect of such property or right has been made in writing signed by the person against whom such property or right is claimed or by some person through whom he derives title or liability.
5. It seems to me that apart from the authorities which were referred to on both sides the material difference between the words of Sections 19 and 20 strongly supports the petitioner's contention. In the case of acknowledgment it must have been made by the person against whom the right is claimed, but in case of a payment for interest or principal all that is required is that it should have been made by a person liable to pay the debt. Section 21 of the Limitation Act has also a bearing on the question. Sub-section (2) of that section says:
That nothing in Sections 19 and 20 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.
6. It will be seen that co-heirs who become liable as such for the debt of a deceased do not come within the words of the section and it is only by analogy if the same is permissible that the section can be extended to the case of co-heirs. In my opinion the extension of the sub-section by analogy to co-heirs is not warranted and I am therefore unable to agree with the decision in Arjun Ram Pal v. Rahima Banu 14 Ind.Cas. 128 in which such a view was taken by a single Judge of the Calcutta High Court. I am therefore of opinion that upon the construction of Sections 19, 20 and 21 alone, payment for interest made by the mother who was a person liable to pay the debt will save limitation as against her co-heirs also. It does not matter that they took the property as tenants in common and that their interests are several. The payment made by one of the co-heirs is so far as the creditor is concerned payment made on behalf of the estate and it enures to the benefit of all the co-heirs. The question is also amply covered by authority.
7. The case in Velayudam Pillai v. Vaithialingam Pillai (1912) 24 M.L.J. 66 is directly in point and fully supports the petitioner's contention. In Venkatakrishniah v. Subbarayudu I.L.R. (1916) Mad. 698, Napier, J., points out the distinction between Sections 19 and 20. He says that Section 19 only operates against the person making the acknowledgment while Section 20 makes the payment good in favour of any suit on that liability. In the same case Srinivasa Aiyangar, J., also observes:
Acknowledgments under Section 19 have an operation which is different from the operation of part payments under Section 20. The distinction between the effects of acknowledgments and part payments has often been pointed out in England and the same distinction appears to have been made in the enactment of Sections 19 and 20 of the Limitation Act.
8. The leading English case on the point is Roddam v. Morley (1857) 1 De G. & J. 3 : 44 E.R. 622 in which it was held by the Lord Chancellor, supported by the opinion of the other Judges, that payment by a devisee for life of interest on a speciality of his testators in which the heirs were bound was held to be acknowledgment made by the party liable by virtue of such speciality within the meaning of the fifth Section of 3 and 4 William IV c. 42 and as such sufficient to keep the right of action alive in its integrity against all parties interested in the remainder.
9. The Allahabad High Court also has taken the same view in Ibrahim v. Jagdish Prasad 99 Ind.Cas. 424. That was also a case in which the co-heirs of a Mahomedan was sued in respect of a debt contracted by him and it was held following Velayudam Pillai v. Vailhilingam Pillai (1912) 24 M.L.J. 66 among other cases that the payment made by one of the co-heirs is sufficient to keep the debt alive against all the co-heirs Achola Sundari Debt v. Daman Sundari Debi 90 Ind.Cas. 774 is also to the same effect. Chanan Shah v. Firm of Wadhmran-jivan-Mal 42 Ind.Cas. 17 which is relied on for the respondent is a case in which the mother of a Mahomedan minor made an acknowledgment of debt and it was held that as she was not his lawful guardian she had no authority to make the acknowledgment on his behalf. That case has no bearing on the present in question.
10. The principle on which payment towards a debt is differentiated from mere acknowledgment is that such payment enures to the benefit of all who are liable to pay which cannot be said of a mere acknowledgment made by one of the persons liable to pay.
11. The decree of the Lower Court in so far as it dismisses the suit against defendants 2 to 4 must be set aside and a decree passed in favour of the plaintiff against all the defendants for the amount claimed with costs here and in the Court below realisable out of the estate of the deceased Chinna Babu Rowther.