Madhavan Nair, J.
1. Plaintiffs are the appellants. Two points arise for determination in this second appeal, (1) Whether the plaintiff is entitled to a refund of Rs. 700 claimed by him in the plaint and (2) whether his suit is barred by limitation. The lower Court found that the plaintiff was entitled to the return, of the money because the breach of the contract under which the money was claimed was due to the default on the part of the defendants : But agreeing,, with the first Court it held that the suit was barred by limitation and hence the. suit was dismissed. On the merits the' lower Court's finding was that there was really no contract entered into between the parties as each one had a different idea as to the nature of the contract that he was entering into with the other and that the contract was the result of a mistake. This would mean there was no contract at all between the parties. If So, I could not understand how the question of default is material. On the merits I am inclined to hold that the plaintiff will be entitled to get a refund of Rs. 700 which he has paid if the claim is not barred by limitation.
2. The question of limitation is the important point for determination in this-case. It is admitted that the suit was-filed more than three years after the breach but exemption from limitation is-claimed on the ground of an acknowledgment of the liability of the defendant. To appreciate the point it is necessary to state a few facts. The plaintiff was the holder of a mortgage of certain properties. The owner of the properties sold them to the defendant who purchased them subject to the mortgage. Afterwards the suit contract was-entered into between the plaintiff and the defendant under which one item of property was agreed to be sold by the defendant to the plaintiff. The plaintiff was to pay Rs. 1,000 down to the defendant and the defendant was to allot Rs. 7,000 towards the mortgage, the total price of the property thus being Rupees 8,000. The contention of the plaintiff was that Rs. 7,000 went only towards a partial discharge of the mortgage while the defendant contended that it was in full discharge of the mortgage. This was the question at issue between the parties. As already indicated the contract did not fructify and the sale did not come off. Immediately after the contract the plaintiff instituted a suit for the recovery of the amount due on the mortgage in which the defendant filed a written statement that written statement is Ex. B. Reliance is placed on this to show that there has been an acknowledgment of liability by the defendant who was defendant 3 in that suit.
In para. 3 he says:
The plaintiff paid defendant 3 (that is to him self) Rs. 700 as advance on November 1922 on two occasions.
Then he says in para. 4
The plaintiff is not entitled to bring this suit on account of the said agreement' and for other reasons stated therein.
Then comes para. 6:
This defendant is now proparod to get the sale completed according to the said agreement. He can only bring a suit for specific performance for enforcing the said agreement, but he is not entitled to bring this suit.
3. Mr. Patanjali Sastri on behalf of the appellant says that there is an affirmation of the contract in para, 3 of the statement and that affirmation means that if the contract is broken on any account or becomes impossible of enforce merit the money received by the defendant from the plaintiff should be returned and therefore is acknowledgment Mr. Eajah Ayyar, on behalf of the defendant emphasises para. 6 of the statement where the defendant says that he is prepared to got the sale completed according to the said agreement which would mean that he is not prepared to pay Rs. 700 now in question. To find out whether there is acknowledgment in a document it is obvious that the document should be read as a whole. What would be the impression loft in one's mind on reading this written statement as a whole? It seems to mo that on a proper construction the defendant purports to say 'no doubt there is a contract into which we entered but no money is liable to be paid under the contract because I am prepared to see the contract through.'
4. If this view is correct it must follow that there is no acknowledgment of liability. It has been held in various cases that there must be a conscious acknowledgment that the party concerned is liable to pay under the document on which reliance is placed. But in this case as I have said reading the document as a whole it is difficult to say whether such a conscious admission has been made. The cases cited in favour of (the appellants, the most important of (which is Sukhamoni Choudhrani v. Ishan Chunder Roy (1898) 25 Cal 844 can all be distinguished. In Sukhamoni Choudhrani v. Ishan Chunder Roy (1898) 25 Cal 844 there was as a matter of fact an acknowledgment of liability because the defendant was generally liable along with the plaintiff for a debt claimed. Clearly when the liability is admitted the liability to pay is also admitted, but here it is hard to find such an admission, as I have said, taking the written statement as a whole. It is not necessary to refer to the other cases brought to my notice as each one depends on its own particular facts.
5. In my opinion the view of the lower Court that the plaintiff's suit is barred by limitation! is right. It follows therefore that/the second appeal should be dismissed with costs.