1. S.A. No. 180 of 1938. - This appeal is concluded by the findings of fact of the lower appellate Court. The cross-objection relates to the land in Schedule 3 and is concerned with the form which the relief to be granted to the plaintiffs ought to take. The facts are these : This land originally belonged to defendant 8. It was sold in execution of a rent decree and purchased by one Nagendra. Nagendra sold part of it, in area 18 gandas, to defendant 1. He then sold the balance to one Ambica Bhattacharyya, who in his turn sold it to the plaintiffs. Defendant 8 instituted a title suit in connexion with this land. It was eventually compromised. By the compromise, defendant 1 and the plaintiffs surrendered half to defendant 8. No terms inter se were arranged between them as to the mode in which the balance was to be divided. It is clear that on these facts the plaintiffs cannot claim khas possession. They are really co- sharers with defendants 1 and 8. It is now agreed between the parties that the share remaining with defendant 1, after the com promise, is 9 gandas. As both he and the plaintiffs allowed defendant 8 to recover half, it is only reasonable to suppose that the intention was that they should each surrender half of their own respective interests. The result is that the appeal is dismissed with costs. The cross-objection is allowed and the decree of the lower appellate Court is modified. The plaintiffs will be given a declaration of their title to an eight annas share, minus 9 gandas belonging to defendant 1 in the lands included in Schedule 3 of the plaint and joint possession with defendants 1 and 8. There will be no costs in the cross-objection.
2. Second Appeal No. 338 of 1938 : This appeal is by the defendant. The plaintiffs instituted the suit in order to enforce two mortgage bonds executed in their favour by the defendant. Plaintiff 1 who at different times worked in Rangoon and Basra remitted Rs. 720 to the appellant on different dates between 21st June 1920 and 17th April 1926. The two mortgage bonds were executed on 24th October 1929 and 24th February 1930. The plaintiffs' case is that the consideration for these mortgages was part of the money so remitted. The defence, on the other hand, contended that the transactions were benami and that no interest was conveyed by them to the plaintiffs. The Munsif dismissed the suit upon this view, but it has been decreed by the lower appellate Court.
3. Two points have been pressed in support of the appeal: (1) that the suit ought to be dismissed on the ground of res judicata and (2) that on the findings of fact there was no-legal consideration for the mortgages. In order to understand the former argument, it is necessary to refer to certain facts. The appellant also executed a sale deed and a lease in favour of the plaintiffs. 'With regard to these transactions the plaintiffs' case was that the consideration was the balance of the remittances. Similarly, the defence was that these two transactions also were benami and that no interest passed to the plaintiffs. In order to recover possession of the land conveyed by the kobala and the lease the plaintiffs instituted Title Suit No. 158 of 1936 in the Second Munsif's Court on 10th July 19S6. The Munsif accepted the defence of benami and dismissed the suit on 6th April 1937. The plaintiffs appealed, but their appeal was dismissed on 26th June 1937. There was a finding of fact that the plaintiffs' story that these remittances were a loan to the appellant was false. The present suit was instituted in the third Court of the Munsif on 21st December 1936, and dismissed on 5th May 1937. The plaintiffs appealed. It was contended in the lower appellate Court by the appellant that the finding in the former suit regarding the story of a loan was res judicata. This plea was overruled by the Subordinate Judge. Apart from that, he considered the facts and came to the conclusion that the transactions were genuine.
4. In my judgment, the learned Subordinate Judge rightly overruled this plea. The question whether the money was a loan was not really an issue in the suit. Order 14, Rule 1 lays down when issues arise. In the present suit the questions whether there was consideration for the mortgages and, in view of the plaint, whether money was remitted by plaintiff 1 to the appellant are certainly issues; but it can hardly be said that in order to get a decree the plaintiffs must allege that the money was remitted as a loan. This is no more than an explanation of the circumstances in which the consideration passed, and if the story is disbelieved, the plaintiffs' case that the documents were for consideration will become very much weakened. It is really similar to the defendants' story that the document was stolen from his wife; but it can hardly be treated as an issue. Then, in the second place, the learned Subordinate Judge has not tried it. He left the question open. On his view it was sufficient to find that the money belonged to the plaintiffs and he expressly refrained from expressing any opinion as to the truth or falsity of the story of the loan. It appears that the second point on which the appeal was pressed was not quite appreciated by the learned Subordinate Judge. All he says about it is this : '... in law also a past consideration is also valid consideration.' The contention made by the appellant, however, is not that there was no consideration because it was past, but because the alleged consideration was a barred debt. The case is governed by Section 25, Contract Act, and the relevant provision is in the following terms:
An agreement made without consideration is void unless it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
5. In support of the decree, Mr. Das urged that the terms of that section have been complied with in the present case. His argument was as follows: On the finding of fact the consideration for the mortgages was part of the money remitted by plaintiff 1 to the. appellant. In the mortgages there is a promise in writing to ready the consideration money. This is a substantial compliance with the law and it makes no real difference that in the actual promise a falsehood is substituted for the truth. I have no hesitation in rejecting this contention. There can be no doubt that in order to comply with the terms of the section, there must be an express promise to pay a time-barred debt. If there were two debts, one barred and the other not, the promise to pay the latter could not possibly be interpreted as a promise to pay the former. Similarly, I can see no reason why a promise to pay an imaginary debt should be interpreted as a promise to pay a barred debt. No cause of action lies on the barred debt. A promise to pay in writing makes a new cause of action. So far as the reality of that promise is concerned, it makes no difference whether it is oral or whether it is in writing. But to insist upon a promise in writing, as the section does, is to afford some guarantee of its reality. In fact, unless there is an express promise to pay a barred debt in writing, there is no real guarantee of the reality of the new cause of action. On this view there was no legal consideration for the mortgages and the suit should have been dismissed. The appeal is accordingly allowed. The decree of the lower appellate Court is set aside' and that of the Munsif restored with costs in all Courts.