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Azizur Rahaman Osmani and anr. Vs. Upendra Nath Samanta and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1938Cal129
AppellantAzizur Rahaman Osmani and anr.
RespondentUpendra Nath Samanta and ors.
Cases ReferredArjun Ram Pal v. Rohima Banu
Excerpt:
- nasim ali, j.1. this appeal arises out of a suit to recover money due on a mortgage bond. the facts which are not in dispute are these: defendant 1 and his wife khatemunnissa bibi borrowed from the plaintiffs rs. 400 agreeing to pay interest at the rate of two per cent. and executed the bond in suit in favour of the plaintiffs on 14th chaitra 1327 b.s. corresponding to 27th march 1921. they agreed to repay the principal with interest within the month of falgun 1328 b. s., that is, on or before 14th march 1922. on 16th june 1928 khatemunnissa died leaving defendant 1 and defendants 2 and 3 as her heirs. defendant 1 made two payments towards interest due on the bond on 12th march 1933 and 10th october 1933 on his own behalf only and not on behalf of defendants 2 and 3 and endorsed those.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of a suit to recover money due on a mortgage bond. The facts which are not in dispute are these: Defendant 1 and his wife Khatemunnissa Bibi borrowed from the plaintiffs Rs. 400 agreeing to pay interest at the rate of two per cent. and executed the bond in suit in favour of the plaintiffs on 14th Chaitra 1327 B.S. corresponding to 27th March 1921. They agreed to repay the principal with interest within the month of Falgun 1328 B. S., that is, on or before 14th March 1922. On 16th June 1928 Khatemunnissa died leaving defendant 1 and defendants 2 and 3 as her heirs. Defendant 1 made two payments towards interest due on the bond on 12th March 1933 and 10th October 1933 on his own behalf only and not on behalf of defendants 2 and 3 and endorsed those payments on the back of the bond, On 14th April 1934 the plaintiffs instituted the present suit in the Court of the Munsiff at Danton against defendant 1 and Khatemunnissa Bibi although she died long ago. On 19th June 1934 the plaintiffs applied to the trial Court to substitute defendants 2 and 3 in her place, the other heir, namely, defendant 1 being already on the record, on the allegation that she died on 3rd May 1934. This prayer was allowed and defendants 2 and 3 were brought on the record.

2. On these facts the question arises whether the suit against defendants 2 and 3 is barred by limitation. The trial Court held that the payments made by defendant 1 in the year 1933 were made by him on his own behalf and not on behalf of defendants 2 and 3 and the suit was barred against them. He accordingly decreed the suit against defendant 1 and dismissed it against defendants 2 and 3. The plaintiffs appealed to the District Judge of Midnapur. The conclusions of the learned District Judge are : (1) Payments by defendant 1 must be regarded as payments by him in his capacity as the original co- mortgagor as well as in his capacity as one of the heirs of the other mortgagor, viz. Khatemunnissa. (2) Payment of interest by one of the heirs of Khatemunnissa Bibi saved the suit from limitation against her other heirs also. He accordingly decreed the suit against all the defendants. Hence this second appeal by defendants 2 and 3.

3. The only point for determination in this appeal is whether the suit is barred by limitation against defendants 2 and 3. The payment of interest was made by defendant 1 alone. At the time of payment he had two capacities. He was one of the mortgagors as well as one of the heirs of the other mortgagor. Where a payment is made by a person who fills two different capacities, the capacity in which the payment he makes is a question of fact. The learned District Judge has held that the payments by defendant 1 must be regarded as payments by him in both the capacities filled by him at the time. He appears to have treated this question not as a question of fact but as a question of law. He seems to have presumed from the mere fact that defendant 1 filled two different capacities at the time of the payment, that the payment amounted in law to payment in both the capacities. There seems to be no foundation in law for such a presumption. If A and B are jointly and severally liable on a promissory note and if A dies appointing B as one of his executors and B pays interest, the character in which he makes the payment is a question of fact: see Atkin v. Trade Gold (1823) 2 B & C 23. Where a surviving person, who is also the executor of a deceased person, makes payment, which as a surviving person he is bound to make, the payment is to be usually taken to have been made by him personally and not as executor: see Way v. Basset (1845) 5 Hare 55; Way v. Basset (1856) 3 Drew 628. Where there is a double liability and the surviving co-contractor or joint debtor makes the payment, he is presumed to be discharging his own liability- Lightwood on Time Limit of Actions, 384, Halsbury's Laws of England (Hailsham Edition) Vol. XX, p. 644. In the absence of any evidence or circumstances to show that, defend ant 1 made the payment in both the capacities, it must be therefore presumed that he paid the interest in 1933 towards the discharge of his own liability as one of the original mortgagors.

4. The next question is whether the payment of interest by defendant 1 saves limitation against defendants 2 and 3. Under the English law there is a distinction between secured debts and unsecured debts. By Section 8 of R. P. L. A. 1874, part payment of principal or interest checks the running of the statute in case of secured debts. There is no statutory provision regulating the effect of payment upon unsecured debts and payment only saves the debt when it is such that the promise to pay the debt can be implied. The Limitation Act however makes no such distinction. Section 20 of the Act provides that where interest on a debt is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt or by his agent duly authorized in this behalf, or where a part of the principal of a debt is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. This section contemplates debts of all kinds. In India it is not necessary to import the doctrine of implied promise to save by payment a simple debt from limitation. Part payment of principal or interest saves from limitation a debt, whether secured or unsecured, under the Indian law.

5. In none of the three English Statutes, namely R. P. L. A. 1837, R. P. L. A. 1874, and Civil Procedure Act 1833, the person by whom the payment is to be made is expressly defined. But Lord Chancellor (Lord Westbury) in Maria Chinnery v. Eyre Evans (1864) 11 H LC 115 at p. 134 thought that the words 'by the person by whom the same shall be payable' in Section 8 of R. P. L. Act, 1874 applied to acknowledgment as well as to payment. Under each of the three English Statutes the payment may be made by any person liable or interested or entitled to pay or who is in such a relation to the debtor that a payment by him operates as an admission by the debtor. Section 20, Lim. Act, expressly defines the person by whom the payment is to be made. In the case of part payment of principal, payment is to be made by the debtor or his agent, while in the case of payment of interest the payment may be made by the person liable to pay. The expression 'person liable to pay' does not mean all the persons liable to pay. In Section 19, Lim. Act, the acknowledgment is to be made by the party against whom the property or right is claimed. In Section 20 however we do not find any such restriction. The reason for this distinction apparently is that acknowledgment is a mere admission of right, whereas payment is more than a mere admission of right. It operates for the benefit of all the persons who are liable.

6. The effect of an acknowledgment in Section 19 is more restricted, and in general it only affects the person giving it. But payment under Section 20 affects not only the person making the payment but also other persons who are liable-see the oases in Krishna Chandra Saha v. Bhairab Chandra Saha (1905) 32 Cal 1077, Domi Lal Sahu v. Roshan Dobay (1906) 33 Cal 1278, Rajtilak Narayan v. Mufizuddi Topadar : AIR1927Cal193 , Achola Sundari Debi v. Doman Sundari Debi AIR 1926 Cal 150, Velayudam Pillai v. Vaithyalingam (1912) 17 IC 619, Raushan Lal v. Kanhaiya Lal AIR 1918 All 61 and Muhammad Taqi Khan v. Raja Ram : AIR1936All820 . If Section 20 of the present Limitation Act stood alone, there could not have been any room for doubt that the payment of a joint debt by one of the joint debtors may amount to a payment of the debt within the meaning of that section so as to save limitation as against all the debtors.

7. But the operation of this section is subject to Section 21 (2) of the Act which provides that nothing in Section 20 of the Act renders one of several contracts, partners, executors or mortgagees chargeable by reason only of a payment made by or by the agent of any other or others of them. Section 20 of Act 9 of 1871 corresponded to the present Section 19 and Section 21 of that Act corresponded to the present Section 20. In Section 20 of Act 9 of 1871, an Explanation (Expln. 2) was given which is in these terms:

Nothing in this section renders one of several partners or executors chargeable by reason only of a written promise or acknowledgment signed by another of them.

8. In Act 15 of 1877 a separate provision was made for the first time in Section 21 which corresponds to Section 21 (2) of the present Act. Under the English law the operation of part payment of principal or interest except where the debt is charged upon land is subject to the special provisions of Section 14, Mercantile Law Amendment Act, 1856. This section provides that one of several co-contractors or co-debtors or executors or administrators of a contractor shall not lose the benefit of the statute of limitation by reason only of payment of another co-contractor, co-debtor or executor or administrator.

9. It may be noticed that in the English statute executors or administrators of contractors are mentioned whereas in Section 21 (2), Limitation Act, those words do not appear. If the persons who did not pay are those who borrowed the money along with the persons who make the payment, limitation is not saved against them by that payment in view of the provisions contained in Section 21 (2) unless the payment was made on their behalf also. But where the payment is made by one of the joint contractors on his own behalf only, after the death of the other contractor, as in the case before us, the question arises whether the heirs of the deceased contractors come under the category of contractors within the meaning of Section 21 (2). Thiruvenkatachariar J. of the Madras High Court seems to think that Clause (2) of Section 21 cannot be extended to the heirs of the deceased contractor, as such an extension would only be by analogy which is not permissible : see the case in Narasinmha Rama Aiyar v. Ibrahim AIR 1929 Mad 419. In Lokhanda Naiko v. Lokhono Naiko : AIR1930Mad738 , Curgenven J. has observed that the party who pleads Section 21(2) has to show that he can claim exemption under its terms and that the categories mentioned in that section are not merely illustrative. The opinion of the two learned Judges in the above two cases is that the legal representatives of a deceased contractor are not entitled to the benefit of the exemption under Section 21 (2). A contrary view however has been taken by this Court in Arjun Ram Pal v. Rohima Banu (1912) 14 IC 128. In that case the benefit of the section was extended to the heirs of the deceased contractor. This view has been affirmed by Costello J. and Jack J. in Jogesh Chandra v. Monindra Narain Chakravarty : AIR1932Cal620 . The point came up for consideration recently before a Full Bench of the Allahabad High Court in Muhammad Taqi Khan v. Raja Ram : AIR1936All820 . In that case the learned Judges of the Allahabad High Court have observed that at the time when the payment is made, the relation of joint contractors between the parties who are liable exists and it matters little whether they are original contractors or they are the legal representatives for the time being. The reason given by the learned Judges is as follows : Where A and B are jointly liable to pay a debt, if B makes a payment, A would be protected. But if B dies and his heirs make the payment, A would lose his protection. Such a position is untenable. The view taken by this Court as well as by the Allahabad High Court takes co-contractors to be equivalent to co-debtors. The English Statute mentions co-debtors and executors and administrators of a contractor. The Indian Statute does not. In principle it is very difficult to make a distinction between the original contractor and those who stand in his shoes. As at present advised, I am not prepared to differ from the view taken by this Court in the previous cases as well as by the Full Bench of the Allahabad High Court.

10. Defendants 2 and 3 are therefore entitled to the benefit of Section 21 (2), Limitation Act, and the payments by defendant 1 cannot save limitation as against them. The result therefore is that this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored. But in view of the facts and circumstances of this case, we direct the parties to bear their own costs in this Court as well as in the lower Appellate Court.

B.K. Mukherjea, J.

11. This appeal involves certain interesting points of law which turn upon the construction of Sections 20 and 21, Limitation Act. The plaintiffs are the mortgagees who commenced the suit out of which this appeal arises to enforce a mortgage bond executed by defendant 1 jointly with his deceased wife Khatemunnissa Bibi. The suit was instituted on 14th March 1934 making both the husband and wife parties defendants, but as a matter of fact the wife was dead long before on 16th June 1928. Defendants 2 (1) and 2 (2), who are the appellants in the second appeal, are the son and daughter of Khatemunnissa Bibi, and they were brought on the record at a time which was beyond 12 years from the date of payment mentioned in the mortgage bond. They con-tested the suit primarily on the ground that the suit against them was barred by limitation. To get round the plea of limitation, the plaintiff relied upon certain payments of interest made by defendant 1 on 12th March 1933 and 10th October 1933 and the point in controversy is as to whether these payments which were made by defendant 1 would extend the period of limitation against defendant 2(1) and defendant 2 (2) as well. The trial Court; answered the question in favour of the appellants and held that the suit was time-barred as against them. The lower Appellate Court has reversed this decision and has given a decree against all the defendants. It is against this decision that the present second appeal has been preferred.

12. Mr. Rai Chaudhuri who appears in support of this appeal has assailed the propriety of the view taken by the lower Appellate Court substantially on the grounds that Section 20, Lim. Act, does not entitle the plaintiff to get an extended period of limitation as against the present appellants, and in any view of the case, defendants 2 (1) and 2 (2) are protected by the provision of Section 21 (2), Lim. Act. The first argument of Mr. Rai Chaudhri is that the words 'the person liable to pay' as used in Section 20, Lim. Act, mean that the payment must be made by the sole debtor, or the entire body of debtors if there are more than one. In case payment is made by a debtor or by one of two joint debtors, the section, according to him, has got no application. This contention is manifestly untenable. The wording of Section 20 is quite general and there is no reason why a limited interpretation should be put upon the words 'the person' as used in the same. If Mr. Rai Chaudhuri's contention is accepted, the result will be that when payment is made by one of two joint debtors, there will be no interruption of limitation as against any body under Section 20, Lim. Act, and the debt will not be kept alive even so far as the debtor making the payment is concerned. Section 21 (2) would in that case be not only superfluous but) unmeaning and payment of interest will not count even as an acknowledgment and would not bind the person who makes the payment.

13. Mr. Rai Chaudhuri argues next that Section 20 would keep alive the debt and would give a fresh period of limitation only against the person who makes the payment, but not against his co-debtors, It is said that defendant 1 made the payments in this case exclusively on his own behalf, and not on behalf of defendant 2 (1) and defendant 2 (2) and was in no sense authorised by the latter. The payments therefore would save limitation against him, but not against the added defendants. It is suggested in this connexion that Section 21 (2), Lim. Act, is to be regarded as an explanation attached to both the Sections 19 and 20, clearly indicating that it was not the intention of the Legislature to make one debtor liable because of an acknowledgment or payment made by his co-debtor. Now the language of Section 20, Limitation Act, is perfectly clear, and there is a distinction in this respect between 8s. 19 and 20. Section 19 speaks of acknowledgment being made and signed by the party against whom the right or property is claimed, whereas Section 20 lays down that when 'interest is paid as such by the person liable to pay, a fresh period of limitation shall be computed from the time when the payment is made' and does not limit the extended period to the person who actually made the payment.

14. As Sir Francis Mclean pointed out in Domi Lal Sahu v. Roshan Pobay (1906) 33 Cal 1278, where the Legislature intends that a fresh period of limitation is to operate against certain persons only, it says so in distinct terms. There being no such restriction in the language of Section 20, no restriction can be implied. The Privy Council in (1886) 11 A C 639, while discussing certain sections of the Statutes of New Brunswick dealing with limitation of Real Actions, pointed out the distinction between acknowledgment and part payment which accounted for the difference between Sections 29 and 30 of the Colonial Statute which correspond approximately to Sections 19 and 20 of the Indian Act. 'It must be remembered', said their Lord-ships,

that payment and acknowledgment are two very different things. As regards the person making them, acknowledgment may ... be made by a person who, though a party to a mortgage con-tract, has ceased to have any substantial interest in it and has nothing to lose by acknowledgment, whereas payment is certain to be made only by those who have some duty or interest to pay. As regards the recipient, so long as he is paid according to the intention of the contracting parties, he is in full enjoyment of his bargain and is not put upon any further assertion of his rights; but not so if he only receives acknowledgment. If therefore we find that the Legislature has used different language about the two oases, we must not readily conclude that it has done so by accident or without meaning it.

15. This last observation, in my opinion, applies in its entirety to the provisions of Indian Law, where, as I have said before, there is a clear distinction in the language between Section 19 and Section 20, Lira. Act. It is unnecessary for me to refer in details to the rules of English law on the point, where there are various statutory provisions relating to various kinds of debts and liabilities. In ordinary simple contract debts, there is no statutory provision as regards the effect of part payment; it stops limitation only if it is made under circumstances from which an admission of liability and a promise to pay the residue can be inferred, A mortgagee, on the other hand, is entitled to enter or bring an action within 12 years after the last payment of any part of the principal money or interest: Section 9 R. P. L. A. (1874). In case of money charged on land, limitation is interrupted, if some part of the principal money or some interest thereon is paid, or some acknowledgment is given, signed by the person by whom it is payable or by his agent (R. P. L. A. Section 8). Then again in the case of 'specialty' debts, the period of twenty years runs afresh

if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such specialty or his agent, or by part payment or part satisfaction on account of any principal or interest having due thereon. (Civil Procedure Code 1833, Section 5.)

16. It will be noticed that in none of the sections mentioned above the law specifies the person by whom the payment must be made. It has been held by the English Courts that the payment can be made by any person, who is liable, or his agent or by a person interested, or by one who is entitled to make payment under some statutory provision : (vide Lightwood on Time Limit of Action, p. 357, etc.), and when payment is made by one such person it preserves the liability of all others. This is partly because of the wording of the particular statutes and partly because of the fact that part payment is more than a mere admission of right, it is for the benefit of all persons against whom such liability can be enforced: (Lightwood, p. 364). For our purposes, we need not go beyond the actual wording of Section 20, Lim. Act, and it is plain upon a proper reading of the section that subject to the provisions of Section 21 (2) to which 1 am going to advert presently, when payment is made by any person liable to pay the debt, an extended period of limitation is given to the debt itself in respect of which the payment was made, and the right is preserved against all the debtors. Instances, indeed, may be conceived where the debt though seemingly one or arising out of the same transaction, really consists of distinct debts in respect of which the liability of the different obligors is different. In such cases, payment by one of the debtors, who has a separate or distinct obligation of his own, may not keep alive the obligation of the others. An apposite illustration of this principle is furnished by the case in Brojendro Kishore v. Hinduathan Co-operative Insurance Society Ltd. AIR 1918 Cal 707 where it was held that the obligation of the surety though as rising out of the same transaction was separata from that of the principal debtor and payment by the debtor could not keep alive the debt against the surety. This however does not assist the appellants, as in the present case the mortgage debt is one and indivisible and it cannot be said that the obligation of defendant 2 (1) and defendant 2 (2) was in any sense distinct and separate from that of defendant 1. The second argument of Mr. Rai Choudhuri therefore must fail.

17. There remains now to consider the other contention raised by the appellant, viz. as to how far Section 21 (2) of Lim. Act affords a protection to the present appellants. In view of the interpretation that I have put upon Section 20, it would not be proper to speak of Section 21 (2) as a mere explanation attached to Section 20. Section 21 (2) lays down that

Nothing in Sections 19 and 20 would render one of several joint contractors, partners, executors or mortgagees, chargeable by reason only of a written acknowledgment signed, or a payment made by or by the agent of any other or others of them.

18. In the first place it explains that a contractor, partner, etc., would not be an implied agent of his co-contractors or copartners for purposes of Sections 19 and 20 and if it is sought to bind the latter, by any act of acknowledgment or payment made by the former, authorization must be proved. In the second place it engrafts an exception upon Section 20 to this extent that payment by one of several joint contractors, partners, executors or mortgagees would not keep alive the debt or liability as against the other contractors, partners, executors and mortgagees, unless the payment is proved otherwise to be a payment on their behalf also. This sub-section, it seems, combines to some extent the provisions of two English Statutes, viz. Section 1, Lord Tenterden's Act (9 George IV, Ch. 14), and. Section 14, Mercantile Law Amendment Act 1856. By Section 1 of Lord Tenterden's Act, it was laid down that in case of joint contractors, executors or administrator of a contractor, no such joint contractor, executor or administrator shall be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. Section 14, Mercantile Law Amendment Act, on the other hand, makes similar provision in case of two or more contractors, or creditors or executors or administrators of any contractor who would not be chargeable by reason only of payment of any principal or interest by any other or others of such co-contractors, co-debtors, executors or administrators. These are special provisions which modified the English law that was generally applicable prior to these statutes. Section 21 (2), Lim. Act, is also to be read in that light, and in fact it has been treated as an exception to the general law as stated in Section 20, Lim. Act, in more than one decision of this Court : vide Brojendro Kishore v. Hinduathan Co-operative Insurance Society Ltd. AIR 1918 Cal 707 and Jogesh Chandra v. Monindra Narain Chakravarty : AIR1932Cal620 .

19. The question therefore narrows down to this : as to whether the appellants in this case do come within the purview of 5?. 21 (2), Lim. Act? Now the sub-section does not expressly mention joint mortgagors, though it mentions joint mortgees. Mr. Rai Chaudhuri argues that joint mortgagors would come under the general description of joint contractors. This contention seems to be reasonable. There is no difference between an ordinary contract debt and a mortgage debt for purposes of Section 20, Lim. Act, and it has been expressly held by some of the other High Courts that joint mortgagors do come within the purview of the subsection : vide Sarah Narain Das v. Topojha AIR 1918 Pat 646 Mubarak Ali v. Gopi Nath AIR 1918 Oudh 152 and Muhammad Taqi Khan v. Raja Ram : AIR1936All820 . But this by itself is not enough to enable the appellants to succeed, for,' as has been argued on the other side, even if defendant 1 was a joint contractor with the deceased wife during her life time, he could not be said to be joint contractor with defendants 2 (1) and 2 (2)-after the death of the wife. The question is not free from difficulty, and upon the language of the section, it is quite possible to hold different opinions. A distinction has however to be made between two classes of cases. First, when there was originally a single contractor, and upon his death the liability devolved upon a number of heirs or legal representatives jointly, and second, where there was originally two or more joint contractors, and on the death of one the question arises as to whether his heirs are still joint contractors with the survivor or survivors.

20. As regards the first class of cases, it is to be noted that in Lord Tenterden's Act as well as in the Mercantile Law Amendment Act, the executors and administrators of a deceased contractor are expressly included, but they are not specifically mentioned in the Indian Act. In Arjun Ram Pal v. Rohima Banu (1912) 14 IC 128, which is the earliest decision of this Court on the point, it was held broadly, not on the express provision but rather on the analogy of Section 21 (2), that a payment of interest by one of the heirs on a debt due by a deceased person does not save limitation against the other heirs. It is to be noted that this case would come under the first class mentioned above, and there were not two or more joint contractors at the time when the contract was entered into. This decision was approved of by a Division Bench of this Court in Jogesh Chandra v. Monindra Narain Chakravarty : AIR1932Cal620 , where however there were two joint debtors and the question was whether payment by one, which undoubtedly kept alive the debt against bis heirs, would give an extended period of limitation against the other surviving debtor. The learned Judges answered the question in the negative. It was held that the question was really settled by the wording of Section 21 (2), Lim. Act, and it was held further that the case in Arjun Ram Pal v. Rohima Banu (1912) 14 IC 128 was correctly decided. Undoubtedly there is a fundamental distinction between this and the earlier case, inasmuch as in this ease there were really two joint contractors at the inception, and the question arose, after the death of one, as between the surviving debtor and the heirs of the other. The decision in Arjun Ram Pal v. Rohima Banu (1912) 14 IC 128 was expressly dissented from by the Madras High Court in Narasinmha Rama Aiyar v. Ibrahim AIR 1929 Mad 419 where also there was only a single debtor, and payment of the interest was made by one of the heirs after his death. It was held that the payment was effectual to save limitation against the other coheirs, and the extension of Sub-section (2) by analogy to co-heirs was unjustified. In 45 IC 615,19 there was a mortgage by two persons Mubarak and Wares and the question arose as to whether payment of interest by Mubarak would save limitation against the heirs of Wares. The question was answered in the negative in view of the provision of Section 21 (2), Lim. Act, and an express distinction was made between this class of cases and the other where the mortgage was by a single individual and liability was sought to be enforced against certain persons who derived their liability from the mortgagors. In a recent Full Bench decision of the Allahabad High Court, Muhammad Taqi Khan v. Raja Ram : AIR1936All820 , Sulaiman C. J. has discussed the matter elaborately and held that the expression 'joint contractors' in Section 21 could not be interpreted to mean only the original contractors if they are alive. If the respondent's contention were accepted' says the learned Chief Justice:

the result would be that where A and B are jointly liable to pay a debt, if B were to make an acknowledgment, A would still be protected, but if B were to transfer half of the property or if one of B's heirs were to make an acknowledgment, A would lose his protection. Such a position is in our opinion untenable.

21. Thus it would be seen that even leaving aside the extreme position which is found in Arjun Ram Pal v. Rohima Banu (1912) 14 IC 128 there is practical unanimity of judicial opinion or the question that in case of joint contractors the relationship does not cease with the death of one of the contractors and the surviving contractor still remains a joint contractor with the heirs of the deceased. This view in my opinion ought to prevail. In this case therefore defendants 2 (1) and 2 (2) are still to be regarded as joint contractors with defendant 1 and a payment of interest by the latter cannot give a fresh start of limitation as against the former. In my opinion the fact that defendant 1 is also one of the heirs of his wife does not make any difference. He was a joint contractor with his wife, and he does not lose that character by becoming one of her heirs. The payment of interest that he made must be deemed to have been made by him in his capacity as a mortgagor and not in the capacity of an heir of the co-mortgagor. I agree therefore with the order that has been passed by my learned brother. The judgment and decree of the lower Appellate Court should be set aside, and those of the trial Court restored.


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