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Abani Bilas Banerjee and anr. Vs. Kanti Chandra Sinha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal178
AppellantAbani Bilas Banerjee and anr.
RespondentKanti Chandra Sinha and ors.
Cases ReferredAsa Ram v. Karam Singh
Excerpt:
- .....in my judgment the words 'chahibv matra dibar angikare' in the beginning of the ex. (1) and 'yai handnote likhiya dilam' towards the end of ex. (1) should be read together and in this view there cannot be any doubt that there was a distinct promise to pay the amount in writing and signed by the defendants as contemplated by clause 3, section 25, contract act. the defendants are therefore liable to pay the money secured by the hand-note.2. the next question however that arises for consideration is whether this liability is a personal liability or the liability extends only to the extent of the assets which have come into their hands from their father. in my judgment the defendants cannot be made personally liable, because under the law they were liable to the extent of the assets which.....
Judgment:
ORDER

Nasim Ali, J.

1. The facts which have given rise to the present rule are these. The plaintiff's father, the late Nabin Chandra Sinha, obtained a money decree against the father of the defendants on 20th February 1914. The said decree was put into execution but the execution ease was dismissed for non-prosecution on 5th January 1933. Thereafter the decree-holder did not take any further step for the execution of the decree. The judgment-debtors that is the father of the defendants, died on 31st August 1925. Thereafter the eldest son of the judgment, debtor on 27th January 1927 executed a hand-note Ex. 1-A for Rs. 125 with the object of paying off the amount due for the decree mentioned above. The eldest son having died on 24th January 1930 the defendants executed hand-note Ex. (1) for Rs. 120 in full satisfaction of the decretal debt due from their father. The present suit has been brought to recover Rs. 150 on the basis of the hand-note Ex. (1)-Rs. 120 being the principal amount secured by the hand-note and Rs. 30 having been claimed as damages. The Small Cause Court Judge found that Ex. (1) is a genuine document that was executed by the defendants to satisfy the decretal debt due from their father and in view of the provisions of Section 25, Clause 3, Contract Act, he has decreed the suit. The present rule has been obtained on the ground that Ex. (1) on which the suit is based being without consideration is not enforceable in law. It is contended by the learned advocate for the petitioners that Ex. (1) does not contain a promise to pay but that it simply shows an acknowledgment of a debt due from the father which was already barred. In my judgment the words 'chahibv matra dibar angikare' in the beginning of the Ex. (1) and 'yai handnote likhiya dilam' towards the end of Ex. (1) should be read together and in this view there cannot be any doubt that there was a distinct promise to pay the amount in writing and signed by the defendants as contemplated by Clause 3, Section 25, Contract Act. The defendants are therefore liable to pay the money secured by the hand-note.

2. The next question however that arises for consideration is whether this liability is a personal liability or the liability extends only to the extent of the assets which have come into their hands from their father. In my judgment the defendants cannot be made personally liable, because under the law they were liable to the extent of the assets which have come into their hands. Consequently if the promise was to pay the debt personally, that promise would be without any consideration, or in other words there would be no consideration for making a promise to pay the debt personally. This view is supported by the decision of the Allahabad High Court in the case of Asa Ram v. Karam Singh : AIR1929All586 .

3. The result therefore is that the decree of the trial Court is varied to this extent that the defendants would not be personally liable for the decretal amount but the plaintiff will be entitled to realise the decretal amount from the assets, if any, in the hands of the defendants which they have inherited from their father. In view of the facts and circumstances of this case, I make no order as to costs in this rule.


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