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Nundo Kishore Lall Vs. Musst. Ramsookhee Kooer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1880)ILR5Cal215
AppellantNundo Kishore Lall
RespondentMusst. Ramsookhee Kooer
Excerpt:
limitation - registration--non-registration of kobala, effect of--act ix of 1871 sections 17 and 20, clause (c) 49. - .....the defendant, and committed the plaintiff to the criminal court on a charge of having altered the document in question. the plaintiff was convicted and punished by the sessions court. under these circumstances the question we have to decide is, whether the plaintiff's claim is barred by limitation.4. the munsif was of opinion that, under section 20 of the limitation act of 1871, the claim was not barred, because, in the deed of sale executed by the defendant's husband in favour of the plaintiff, which transaction afterwards fell through for want of registration, the defendant's husband distinctly acknowledged that he was liable for the amount due under the bond, and that acknowledgment being within six years from the date of suit, the munsif overruled the plea of limitation.5. on.....
Judgment:

Mitter, J.

1. This suit is brought for the recovery of money due under a registered bond, dated the 3rd February 1868, executed by the husband of the defendant in favour of the plaintiff. The stipulated date of repayment was the 25th May 1869. The present suit was brought on the 21st November 1876. The principal objection taken by the defendant is, that the claim is barred by limitation, and it is apparently so barred, because the suit has not been brought within six years from the 25th May 1869. But the plaintiff's contention in the Courts below was, that the claim was not barred under the provisions of Section 20 of Act IX of 1871, which governs the present suit.

2. It has been alleged that, in the year 1875, there was an agreement between the plaintiff and the defendant's husband to pay off the debt due under this bond, by the sale to the creditor of certain property belonging to the debtor, and that the terms of this agreement were reduced to writing, and a kobala was executed by the defendant's husband in favour of the plaintiff. It is admitted that this kobala was written some time in the year 1875. The plaintiff's contention was, that in this kobala there was a clear acknowledgment on the part of the debtor of his liability under the bond, and that as this acknowledgment was within six years from the date of suit, the claim was not barred under the provisions of the section aforesaid.

3. It appears that, when this alleged deed of sale in which the acknowledgment in question is contained was presented for registration, the defendant's husband admitted the document as having been executed by him before the Registrar, but he alleged that the date which the document originally bore was the 11th April, which had been altered to the 11th August; and the only question before the Registrar was, whether it was so altered or not; because if the document was really dated the 11th April 1875, under the Registration Law it was not admissible to registration, it having been filed before the Registrar after the expiration of the time prescribed by that law. The Registrar decided that question in favour of the husband of the defendant, and committed the plaintiff to the Criminal Court on a charge of having altered the document in question. The plaintiff was convicted and punished by the Sessions Court. Under these circumstances the question we have to decide is, whether the plaintiff's claim is barred by limitation.

4. The Munsif was of opinion that, under Section 20 of the Limitation Act of 1871, the claim was not barred, because, in the deed of sale executed by the defendant's husband in favour of the plaintiff, which transaction afterwards fell through for want of registration, the defendant's husband distinctly acknowledged that he was liable for the amount due under the bond, and that acknowledgment being within six years from the date of suit, the Munsif overruled the plea of limitation.

5. On appeal, the Subordinate Judge was of opinion, that as the date of the alleged deed of sale, upon which the plaintiff relied as containing an acknowledgment by the defendant's husband of his liability under the bond had been altered, and as the plaintiff had been punished by the Criminal Court for the alteration, he was not entitled to take any advantage of that document, and that, therefore, he could not rely upon it in order to remove the plea in bar which had been set up against him. The Subordinate Judge was further of opinion that, under the circumstances set forth above, that document was not admissible in evidence. He accordingly decreed the appeal of the defendant, and dismissed the plaintiff's suit.

6. We are of opinion that the view taken by the Subordinate Judge is erroneous. Although the document is not admissible as evidence in respect of any question relating to the property covered by it, still it may be good evidence between the parties for any other purpose. And the fact that there was an alteration in the date of the document amounting to forgery would not make it wholly inadmissible evidence. We are, therefore, of opinion that the grounds upon which the lower Appellate Court has refused to look into this document are not tenable.

7. But the learned pleader, who appears before us for the respondent, has relied upon some other grounds to support the decree of the lower Appellate Court. He contends that, even admitting this document as evidence, it has not the effect of saving the plaintiff's claim from being barred by limitation. The pleader for the respondent urges, that the document does not contain an unqualified admission of the debtor's liability as a subsisting liability, but that, on the contrary, it declares the liability to be discharged by the sale of the property covered by the kobala. We have had that document read to us, and we think that there is clearly an unqualified admission, of this nature, although no doubt the document goes on to provide that the liability of the debtor would be discharged by the money due under the bond being set off against the consideration. We do not think, therefore, that there is any force in this contention.

8. It has been further pressed upon us, that if that document is to be treated as evidence, and is to be used as containing an admission against the defendant, the whole of the admission must be taken together, and that the whole of the admission, if taken together, would show that the money due under the bond had been paid off. We are also of opinion that this contention cannot succeed. The document shows that the arrangement between the parties was, that the debtor would sell a particular property to the creditor, and that the money due under the bond would be set off against the consideration-money; but it is quite clear that, if that contract was not ultimately carried out, the money due under the bond would be still due to the plaintiff. In support of this contention the learned pleader further relied upon the provision of Section 62 of the Contract Act. That section says: 'If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.' The question is, whether a new contract was substituted for the bond of the 3rd February 1868. It has been said that the kobala, although not registered, was a complete contract by itself, and its effect was to satisfy the debt due under the bond. Having regard to the provision of Section 49 of the Registration Act of 1871 (the kobala in question having been executed when that Act was in force), we do not think that there is any force in this contention. That section says: 'That no document required by Section 17 to be registered shall affect any immoveable property comprised therein, unless it has been registered in accordance with the provisions of this Act.' It is, therefore, clear, that unless registration was effected, the title to the property, which was agreed to be sold, would not pass. That being so, it is clear that the deed of sale for want of registration remained inoperative.

9. The only other contention before us is, that the admission or acknowledgment of subsisting liability, contained in the deed of sale in question, cannot avail the plaintiff, because in its present condition it bears no date. The learned pleader has further urged that, if the document had been originally undated, under Clause (c) of Section 20 oral evidence might have been given of the time when it was signed, but it is admitted that the document was dated. Therefore it cannot come within Clause (c). We are unable to understand upon what ground it has been contended that the document in question bears no date, when it was admitted by the defendant's husband before the Registrar that the date, which it originally bore, was the 11th April 1875.

10. For these reasons we are of opinion that the judgment of the Munsif upon the point of limitation is correct, and that the plaintiff's claim is not barred.

11. Referring to the petition of appeal before the lower Appellate Court, we do not find that there was any other substantial question raised by the defendant before that Court. It is, therefore, unnecessary to remand this case. The decree of the lower Appellate Court is, accordingly, reversed, and that of the Munsif, restored with costs.


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