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Nabendra Nath Basak Vs. Shasabindoo Nath Basak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal595
AppellantNabendra Nath Basak
RespondentShasabindoo Nath Basak and ors.
Cases ReferredHoffmann v. Bynton Ltd
Excerpt:
- .....each had one-fourth share. (4) defendant 1 used to draw money from this moneylending business from time to time for his own business and to repay certain amounts from time to time.2. the hatchita in suit on the face of it purports to have been executed for rupees 33, 513.9-10 paid in cash to defendant 1 on 31st chaitra 1338. it appears from the account books of the moneylending business belonging to the persons in whose favour the hatchita was executed (ex. 2, khatian from 1333 b.s. to chaitra 1338 b.s. and ex. 3, the entry in the jama kharach dated 31st chaitra 1338) that this amount was the balance arrived at by setting off the items showing payments made by defendant 1 from time to time against the items showing the loans taken by him from time to time. the genuineness of these.....
Judgment:

1. This appeal arises out of a suit to recover half share of the money due on a hatchita alleged to have been executed by defendant 1 in favour of himself, defendant 2, plaintiffs 2 and 3 and the father of plaintiff 1 on 31st Chaitra 1338 B.S. corresponding to 15th April 1932. The defence of defendant 1 is that he did not execute the hatchita in suit, that the claim in the suit is barred by limitation and that the suit is not maintainable in the present form. The Subordinate Judge has overruled all these defences and has decreed the suit. Hence this appeal by defendant l. The first point for determination in this appeal is whether the hatchita in suit was executed by defendant 1. Two handwriting experts were examined in this case: one (Mr. F. Brewster) by the plaintiffs and the other (D. W. l) by defendant 1. Mr. Brewster is of opinion that the hatchita in suit bears the signature of defendant 1. The opinion of D. W. 1 is that the signature on the hatehita in spit which purports to be the signature of defendant 1 is forged. This being the nature of expert evidence it is necessary to look into the admitted facts as well as other evidence in this case. The admitted facts are these : (1) Dharani (father of plaintiff l), Jadu (father of plaintiffs 2 and 3), Debendra (husband of defendant 2) and defendant 1 were four brothers living as members of a joint Hindu family governed by the Dayabhaga School of Hindu law. They had considerable joint moveable and immovable properties. (2) In the year 1319 B.S. (1912) there was a division of the jewelleries, gold and silver ornaments, shawls, etc., among the four brothers but their other properties remained joint. (3) In the year 1328 B.S. (1921), the four brothers opened a moneylending business with a capital in which each had one-fourth share. (4) Defendant 1 used to draw money from this moneylending business from time to time for his own business and to repay certain amounts from time to time.

2. The hatchita in suit on the face of it purports to have been executed for Rupees 33, 513.9-10 paid in cash to defendant 1 on 31st chaitra 1338. It appears from the account books of the moneylending business belonging to the persons in whose favour the hatchita was executed (Ex. 2, khatian from 1333 B.S. to Chaitra 1338 B.S. and Ex. 3, the entry in the jama kharach dated 31st chaitra 1338) that this amount was the balance arrived at by setting off the items showing payments made by defendant 1 from time to time against the items showing the loans taken by him from time to time. The genuineness of these account books was not challenged before us. The evidence in this case shows that they were kept in regular course of business and that defendant 1 agreed to this set-off and accepted the balance as the amount due from him. No attempt was made by the appellant to surcharge or falsify the entries in the account books. The account book (ex. 3) shows that on 31st of Chaitra 1338 the amount mentioned in the hatchita was debited to the account of defendant 1 as having been lent to him in cash on that date and a similar amount credited to his account on that date as having been paid by him in cash on that date. This explains why the hatchita mentions the amount stated in it as lent to defendant 1 in cash. This is however a method of bookkeeping. Nothing was paid in cash to defendant 1 on the date of the execution of the hatchita. The amount mentioned in the hatehita is the balance arrived at by consent of parties after setting off the payments against the debts.

3. Defendant 1 admits that he executed a hatchita for a sum exceeding Rs. 30,000. His case however is that he did so not on 31st Chaitra 1338 but in Aswin 1339 (September 1932) and that the hatehita was taken from him by coercion, Defendant 1 admits that the hatchita which he executed was written by Jadab (P. W. 3). This witness admittedly was the amuktear of all the four cosharers. He is no longer in their service. His evidence is that he wrote out the hatchita in suit and that defendant 1 in his presence signed it on 31st chaitra 1338 B.S. There is no reliable evidence on the side of defendant 1 to show that he executed a hatchita in Aswin 1339 or that any pressure was put upon him when he executed the hatchita on 31st chaitra 1338 B.S. The trial Judge has believed the evidence of P. W. 3. We see no reason to disbelieve him. The trial Judge on a consideration of the entire evidence in the case has come to the conclusion that the hatchita is a genuine document. The admitted facts and the oral and documentary evidence in this case clearly support the conclusion of the trial Judge. We therefore hold that the hatchita in suit was executed by defendant 1 and is a genuine document. The second point for determination is whether the claim on the hatchita in suit is barred by limitation. Plaintiff's case is that the suit is for recovery of money found to be due on accounts stated within the meaning of Article 6i, Limitation Act, and is therefore within time. An account stated is an account which contains entries on both sides and in which the parties have agreed that the items on one side should be set against the items on the other side and the balance should be paid. The items on the smaller side are set off and deemed to be paid by the items of the larger side from which arises a promise for good consideration to pay the balance. A stated account is a promise for good consideration to pay the balance even though some of the debts were barred by limitation. (Per Lord Atkin, Sequeira v. Noronha ('34) 21 AIR 1934 PC 144 at p. 337.)

4. We have already found that the amount mentioned in the hatchita is the balance due after setting off the payments against the amounts borrowed from time to time as shown in the account books and that the parties agreed to this setting off, and accepted the balance as correct. The account books and the hatchita are parts of the same transaction. The hatchita was signed by defendant l. There cannot be any doubt therefore that the present suit is for money found to be due on accounts stated within the meaning of Article 64, Limitation Act. The present suit is admittedly within three years from 31st chaitra 1838. The learned Judge was, therefore, right in holding that the suit is not barred by limitation. The last point for determination is whether the suit is maintainable in law. The contention of defendant 1 is that in view of the provisions of Section 45, Contract Act, plaintiffs have no right to recover half of the money mentioned in the hatchita in suit. Section 45 contemplates a promise to one or more persons jointly. A proposal when accepted becomes a promise (Section 2 (b), Contract Act). There cannot be any promise unless there is a proposal by one or more persons and the acceptance of that proposal by one or more other persons. In the present case only one person, namely, defendant 1, was the promisor. But the promisees were more than one. One of the promisees, however, in the present case is the promisor himself. No man can in his own right be under any obligation to himself. Where the same human being has a 'double personality, e. g., the trustee of a trust and the beneficiary under the same trust, in the eye of the law he is not one person but two persons. In the present case defendant 1 had no double personality. He could not, therefore, be under any obligation to himself, as the obligation 'would be destroyed by a merger or confusio as the Romans called it' (Salmond on Jurisprudence, Edn. 5, p. 579). Defendant 1, cannot, therefore, in law be said to be one of the promisees. In other words, the promisees in the present case must be taken in law to be the persons mentioned in the hatchita other than defendant l.

5. It was contended before us that in view of the definition of the word 'person' as given in Section 3 (39), General Clauses Act, the four promisees named in the hatchita would, as 'an association or body of individuals' be a person distinct from the promisor and consequently all these four persons would be promisees within the meaning of the contract. Assuming this to be so, even then the practical result for our present purposes will not be different. In the absence of any evidence or circumstances which would justify a contrary inference, it will be presumed notwithstanding this form of obligation that a debt due to a number of joint creditors is due to them in severally : Abdul Hakim v. Adyata Chandra Das ('l9) 6 AIR 1919 Cal 593. The debtor can make payment of( such a debt to the several creditors and get valid discharge in respect of the share of the creditor concerned. This being so that portion of the debt of the promisor which is ascribable to himself as one of the promisees will stand discharged by the doctrine of merger or confusio as noticed above.

6. Section 45 contemplates that the promise should be to one or more persons jointly. There are no express words in the hatchita to indicate that the promise was to the promisees jointly. On the other hand it is an admitted fact in this case that the money due on the hatchita was a part of the assets of the money-lending business in which each of the promisees had a definite and specified share. The principle laid down in Hoffmann v. Bynton Ltd (1910) 1 Ch 519 does not, therefore, apply to the facts of the present case. Where a promise has been made to one or more persons jointly within the meaning of Section 45, Contract Act, the right to claim performance of such promise must be exercised by all the promisees jointly as laid down in that section.

7. This section does not, however, lay down the mode or procedure for enforcing this right. It is an elementary principle of the rule of procedure that the same person cannot be both plaintiff and defendant in the same suit. The promisor was, therefore, rightly made a defendant in the suit. Defendant 2 was no doubt one of the promisees. She filed a written statement stating that she was not a party to the transaction and declined to join with the plaintiffs in enforcing the promise in this suit. There was, therefore, no other alternative for the plaintiffs but to make her a pro forma defendant in the suit. The contention of defendant 1 is that the plaintiffs in the present suit ought to have prayed for a decree for the entire amount due on the hatchita in favour of themselves as well as defendants 1 and 2. No authority was cited before us in support of this contention. We are not aware of any principle or precedent which would justify such a procedure. We have already pointed out that defendant 1 had one-fourth share in the money-lending business and that the amount mentioned in the hatchita is a part of the assets of that money-lending business. An attempt was made in this Court to show that the money-lending business was a partnership business and that the promisees were partners of a firm within the meaning of O.30, Rules 1 and 9, Civil P.C. This, however, is a new case and is not a pure question of law. It was not raised before the trial Judge, no issue was framed on this point and it was not even mentioned in the grounds of appeal to this Court. Plaintiffs in the present suit, therefore, were right in excluding one-fourth share of the money to which defendant 1 was entitled from the claim in the present suit. Defendant 2 having also repudiated all benefit under the hatchita in suit it was not possible for the plaintiffs to include her share in the money in the present suit. There is, therefore, no reason why the plaintiffs should not get a decree for half share of the money due to them in the present suit. The appeal accordingly fails and is dismissed with costs to the plaintiffs-respondents.


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