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Shamsud Ali Vs. Miriam Elias and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1140,97Ind.Cas.710
AppellantShamsud Ali
RespondentMiriam Elias and ors.
Cases Referred(P.C.) and Guru Charan Saha v. Surendra Krishna Roy
Excerpt:
limitation act (ix of 1908), section 19 - acknowledgment of liability--liability to benamidar admitted but right of beneficiary denied, effect of--beneficiary if can rely on such acknowledgment. - .....limitation. that section provides that where before the expiration of the period prescribed for a suit an acknowledgment of liability in respect of such property or right has been made in writing, signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. explanation (i) to the section provides that an acknowledgment may be sufficient inter alia if it is addressed to a person other than the person entitled to the property or right and according to explanation (ii) 'signed' means signed either personally or by an agent duly authorised in this behalf.6. the three specific points urged in this appeal are as.....
Judgment:

Ewart Greaves, J.

1. This is an appeal by the first defendant against a decision of Mr. Justice Buckland. The facts are not in dispute and I may state them very shortly.

2. The claim in the suit was for a sum of Rs. 20,000 based on an agreement, dated the 28th of August, 1919, and the agreement came to be under the following circumstances:--One Abdul Gunny between the 25th of September, 1918, and the 2nd of April, 1919, executed ten promissory notes and hundis for Rs 22,100 in all in favour of the plaintiff Miriam Elias and also one promissory note, one for Rs. 1,100, in favour of the plaintiff Jonah Reuben Jacob. These were assigned by Miriam Elias and Jonah Reuben Jacob on the 2nd of July, 1919, to the defendant Alee Coyne for realization. Coyne instituted two suits to recover the amounts due on the hundis and the promissory note. He obtained a decree in the first suit for a sum of Rs. 22,485 odd, but before the second suit was brought to trial an agreement was arrived at between the parties which is the agreement sued upon. This is dated the 28th of August, 1919. The parties thereto were Alee Coyne, the defendant, Abdul Gunny and the appellant Shamsud Ali. By the terms qf the agreement Shamsud Ali was to pay a sum of Rs. 28,000 in full satisfaction of the amounts due to the defendant Coyne. Rupees 8,000 was paid in part performance of the agreement on the 14th of October, 1919. Then subsequently the defendant, Hira Lall-Hoti Lall attached the balance in Shamsud's hands for the payment of a debt due from Alee Coyne to Hira Lall-Hoti Lall and thereupon the plaintiffs commenced a declaratory suit for a declaration of their title to the sum of Rs. 20,000. The suit was decreed on the 13th of February, 1923, and it was thereby declared that the plaintiffs were entitled to the sum of Rs. 20,000 in the hands of Shamsud Ali and the plaintiffs agreed to pay out of this amount a sum of Rs. 6,000 to Hira Lall Hoti Lall.

3. The plaint in this suit is dated the 10th of March, 1923, and the only point that arises in the appeal is whether the claim in the suit is barred by limitation.

4. The agreement, as I have stated, is dated the 28th of August, 1.919, and the suit was not commenced until March, 1923. Consequently the claim, on the face of it, is barred by limitation unless there has been an acknowledgment of the debt which is sufficient to take the case out of the provisions of the Statute. The acknowledgment relied upon by the plaintiffs is contained in the letter, Ex. (c), dated the 15th. March, 1920. That letter is written by Mr. S.M. Dutt who was acting as an attorney for the defendant Shamsud Ali. The letter after referring to the agreement and to the payment of Rs. 8,000 by Mr. Coyne goes on to state that the writer's client had all along been and was still ready and willing to pay the balance amounting to Rs. 20,000 upon his getting a proper release executed by the client of the person to whom the letter was addressed.

5. The letter then goes on further to state that the clients of the addressee according to writer's instructions were only to get Rs. 2,295 odd out of Rs. 20,000 and the letter further denies the suggestion that Coyne was a benamidar for the plaintiffs. The letter is addressed to Messrs. Fox and Mondal, the attorneys for the plaintiffs. As I have already stated the only question which arises in this appeal is whether this is sufficient acknowledgment of the debt under the provisions of Section 19 of the Indian Limitation Act, so as to avoid the operation of the Statute of Limitation. That section provides that where before the expiration of the period prescribed for a suit an acknowledgment of liability in respect of such property or right has been made in writing, signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Explanation (i) to the section provides that an acknowledgment may be sufficient inter alia if it is addressed to a person other than the person entitled to the property or right and according to Explanation (ii) 'signed' means signed either personally or by an agent duly authorised in this behalf.

6. The three specific points urged in this appeal are as follows:--First, it is said that Mr. S. M.Dutt was instructed by Ghulam Ali who was an agent of Shamsud Ali and there was nothing to show that Ghulam Ali was authorised to make any acknowledgment or to give the attorney any instruction for the making of an acknowledgment and it is suggested that his authority was confined merely to paying the money. Secondly, it is stated that upon the true construction of the letter of the 15th March, 1920, there was no sufficient acknowledgment within the meaning of Section 19, that is to say, that there was no acknowledgment of the indebtedness to the plaintiffs in the suit but merely to Coyne, which, it is said, upon Section 19 of the Act is not sufficient. Thirdly, it is said that in any case the claim of the defendants Hira Lall-Hoti Lall is barred as they claimed to receive Rs. 6,000 in their own right and there was no acknowledgment even suggested so far as they are concerned. Turning to the first point it seems to me that there is really no substance in this. The letter of the 15th March states that the letter to which it is a reply was addressed to the writer's client Shamsud Ali and had been handed over to him by his agent. The letter is clearly written by or on behalf of Shamsud Ali and the mere fact that it was actually handed over to the attorney by the agent does not seem to me to make any difference. I think, therefore, that the acknowledgment must be taken to have been made by a duly authorised agent of Shamsud Ali.

7. So far as the third point is concerned I do not understand that Hira Lall-Hoti Lall's claim on the facts is to recover Rs. 6,000 direct although it is true that in their written statement their claim is so put, but it seems to me as a result of an arrangement which was arrived at in the declaratory suit, a declaration of the plaintiffs' right to Rs. 20,000 was made and Hira Lall-Hoti Lall's right to receive Rs. 6,000 thereout was also declared. This being so, it seems tome that the true position is that Hira Lall-Hoti Lall, once Rs. 20,000 is paid to the plaintiffs, are entitled to recover from the plaintiffs Rs. 6,000 out of that amount and no question of any acknowledgment of that really arises. It is sufficient if the acknowledgment relates to the Rs. 20,000 which the plaintiffs claim, even if on the receipt of that money some portion is paid over to Hira Lall-Hoti Lall.

8. The second point remains which presents more difficulty. The case mainly relied on by the learned Counsel for the appellant was the case of Mylapore Iyasawmy v. Vyapoory Moodliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 11 Ind. Jur. 397 : 5 Sar. P.C.J. 50 : 7 Ind. Dec. (N.S.) 531 (P.C). In that case a suit was brought for a declaration that the plaintiff was entitled in his own right and as executor to the estate of one Mooroogasum Moodhiar to 2/5ths of certain land and property in Rangoon. The suit was brought in the year 1883, Mooroogasum Moodhiar died so long ago as 1864. The claim was accordingly barred by limitation unless there was any acknowled gment which could be relied on by the plaintiff in the suit. The acknowledgment which he relied on was an admission alleged to have been made by a Mr. Bennett in a conveyance of 1874 and in a recital in that conveyance. Now, Mr. Bennett had been in possession from the year 1864 but it was alleged on behalf of the plaintiff that this was not adverse possession as Mr. Bennett was holding as a mortgagee or a position similar to that of a mortgagee and that the testator was not absolutely entitled to the estate and we think that the case must be read in the light of these facts and of the admission which was there relied on. Now, what is stated in the judgment of the Judicial Committee, which was delivered by Sir Barnes Peacock, is that the admission relied upon was not sufficient as it did not satisfy the provisions of Section 19, as Sir Barnes Peacock points out that the liability referred to in Section 19 must be a liability to a person who is seeking to recover possession or some person through whom he claims and accordingly he says that the recital in the conveyance of 1874 was not an admission to the plaintiff, or to any one through whom he claims. Turning once more to the admission in the letter of 15th March, 1920, I am not sure myself, even if you apply the test laid down by Sir Barnes Peacock, that the admission contained in this letter does not satisfy that test. The admission seems to me to be an admission that the sum of Rs. 20,000 is due to Coyne, the benami transaction not being admitted. But turning to the declaratory suit we find that it has been established that Coyne was merely in the position of a benamdar, that is to say, he was really a trustee for the plaintiff who was his beneficiary, and it seems to me, therefore, that the acknowledgment of the indebtedness to Coyne is an acknowledgment of indebtedness to a person through whom the beneficiary, that is to say, the plaintiff, claims. Therefore, I am inclined to think myself that upon the true construction of the letter of the 15th March, 1920, there is a sufficient acknowledgment within the meaning of s. 19 to satisfy the test which Sir Barnes Peacock has laid down in Mylapore lyasawmy Vyapoory Moodliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 11 Ind. Jur. 397 : 5 Sar. P.C.J. 50 : 7 Ind. Dec. (N.S.) 531 (P.C). But there are various cases to which we have been referred in the course of the argument, and cases of the Judicial Committee, some of which have laid down that a general acknowledgment is sufficient and that it is not necessary that it should be addressed to the person who is an assignee or to anyone through whom he claims. The nrst of these cases is the case of Maniram Seth v. Seth Rup Chand 33 C. 1047 : 10 C.W.N. 874 : 4 C.L.J. 94 : 8 Bom. L.R. 501 : 1 M.L.T. 199 : 3 A.L.J. 525 : 16 M.L.J. 300 : 2 N.L.R. 130 : 33 I.A. 165 (P.C.). At page 1058 Page of 33 C. [Ed.] this passage occurs: 'The acknowledgment is not addressed to the person entitled, but according to the 'explanation' given in Section 19 this is not necessary.' Accordingly, it seems to me that this case which is a decision of the Judicial Committee gets over the first difficulty that was raised, namely, that it is necessary that the acknowledgment should be addressed to the person entitled or to the person through whom he claims. It is suggested, however, that Maniram Seth v. Seth Rup Chand 33 C. 1047 : 10 C.W.N. 874 : 4 C.L.J. 94 : 8 Bom. L.R. 501 : 1 M.L.T. 199 : 3 A.L.J. 525 : 16 M.L.J. 300 : 2 N.L.R. 130 : 33 I.A. 165 (P.C.) is not inconsistent with the construction put upon Section 19 by the decision in Mylapore Iyasawmy Vyapoory Moodliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 11 Ind. Jur. 397 : 5 Sar. P.C.J. 50 : 7 Ind. Dec. (N.S.) 531 (P.C) as the admission in Maniram Seth v. Seth Rup Chand 33 C. 1047 : 10 C.W.N. 874 : 4 C.L.J. 94 : 8 Bom. L.R. 501 : 1 M.L.T. 199 : 3 A.L.J. 525 : 16 M.L.J. 300 : 2 N.L.R. 130 : 33 I.A. 165 (P.C.) was one of a liability made to the executor of the deceased. The next case to which we were referred by the respondents was the case of Hiralal Ichhalal Majumdar v. Desai Narsilal Chaturbhujdas 18 Ind. Cas. 909 : 17 C.W.N. 573 : 13 M.L.T. 415 : (1913) M.W.N. 428 : 11 A.L.J. 432 : 17 C.L.J. 474 : 15 Bom. L.R. 483 : 37 B. 326 : 25 M.L.J. 101 : 40 I.A. 68 (P.C.). There Lord Macnaghten in delivering the judgment of the Judicial Committee states that the acknowledgment was a clear acknowledgment that the payment to which he refers had been received and that the interest of the persons sought to be charged was that of mortgagees. The entries relied on as acknowledgments rose in the following way: There were in the District of Broach certain desaigiri dastur and pasaeta lands and when this district came under the British Rule the British Government made a Vatan Settlement by which the desaigiri dastur in Broach was commuted into a fixed money allowance payable from the Treasury. The suit to which the judgment relates was instituted on the 16th October, 1901 and the acknowledgments relied on to take the matter out of the Statute had been made so long ago as 1843. They were acknowledgments made by the mortgagees of the desaigiri dastur in the Collector's books of money received by them in respect of the annual allowance made to those whose original rights had been commuted and received by them as mortgagees. This, as I have already stated, was held to be a sufficient acknowledgment so as to enable the mortgage suit to be brought by the mortgagee after a long lapse of time and if one considers the nature of the acknowledgment, then one sees that it was not an acknowledgment that was addressed to any particular person but merely a general statement of the capacity in which the money was received. We were also referred to another Privy Council case in Sukhamoni Chowdhrani v. Ishan Chundcr Roy 2 C.W.N. 402 : 25 C. 844 : 25 I.A. 95 : 7 Sar. P.C.J. 294 : 13 Ind. Dec. (N.S.) 550 (P.C.) where Lord Hobhouse in delivering the judgment of the Judicial Committee states at page 404 Page of 2 C.W.N.--[Ed.] that it is not required that an acknowledgment within the Statute should specify every legal consequence of the thing acknowledged. We think, therefore, that this must be taken as an authority that it is sufficient to take the case out of the Statute if you have an acknowledgment of the liability even if that acknowledgment is not necessarily made to the plaintiff or to somebody through whom he claims and that this is the view which has been taken of the present state of the law in this Court as shown in the case of Guru Charan Saha v. Surendra Krishna Roy 22 Ind. Crs. 650 : 19 C.W.N. 263 where Mr. Justice Carnduff in delivering the judgment of the Court states at page 265 Page of 19 C.W.N.--[Ed.] that it is now settled that an acknowledgment to whomsoever made, if it be an acknowledgment pointing with reasonable certainty to the liability in dispute or the right out of which that liability arises as a legal consequence, is an acknowledgment of liability within the meaning of Section 19 and Mr. Justice Carnduff refers to the various cases to which I have already referred in the course of this judgment. Therefore, it seems to me, first of all, that the letter does satisfy the test laid down by Sir Barnes Peacock in Myalapore Iyasawmy Vyapoory Moodliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 11 Ind. Jur. 397 : 5 Sar. P.C.J. 50 : 7 Ind. Dec. (N.S.) 531 (P.C). Moreover, I am inclined to think, that having regard to the recent Privy Council decision to which we have just referred, that decision must be taken as applying to the actual facts of that case, and that having regard to the concluding words of Explanation (1) to section 19 the well-considered view of the Judicial Committee is that a general acknowledgment is sufficient and that it is not necessary that, it should be addressed to the person claiming or to somebody through whom he claims, and, this being so, we think that the judgment of Mr. Justice Buckland is right and this appeal is dismissed with costs, one set of costs to each of the appearing respondents.

George Claus Rankin, J.

9. I agree. In this case the firm of Solicitors to whom the letter of the 15th of March, 1920, was addressed was a firm who on the 9th of March, 1920, had written stating that they were acting on behalf of the present plaintiff. No question, therefore, arises in this case as to the person to whom the letter of the 15th of March, if it be an acknowledgment, was addressed.

10. The question, and in my opinion, the only substantial question, in this case is that raised by Mr. Pugh on behalf of the appellant to the effect that the liability which is acknowledged by the document must be a liability to the plaintiff, that is to say, the person who is seeking to assert the right that is in suit. As to that there is undoubtedly the authority of Sir Barnes Peacock in the case of Mylapore lyasawmy Vyapoory Moodliar v. Yeo Kay 14 I.A. 168 : 14 C. 801 : 11 Ind. Jur. 397 : 5 Sar. P.C.J. 50 : 7 Ind. Dec. (N.S.) 531 (P.C). That authority has been somewhat obscured by the circumstance that in the concluding passage of the judgment he uses a phrase per incuriam which has misled some Courts in India to think that he was discussing the question of the person to whom the acknowledgment was addressed. As a matter of fact, the only point (as a fair reading will show) which Sir Barnes Peacock is making is this--''What liability does this mean? It must mean a liability to the person who is seeking to recover possession, or some person through whom he claims.' The fair meaning of the letter of the 15th of March, in my judgment, is this: You, the plaintiff, are saying that Coyne is a mere trustee for you. I do not admit that. I admit that you have some beneficial interest to the extent of some Rs. 2,295 or thereabouts, but I am told that Coyne has a beneficial interest of his own. I am not going to pay unless I get a complete discharge from you and everybody else, but I do admit that the man who you say holds his right on your behalf is the man to whom I do, in fact, owe the sum of Rs. 20,000.

11. We are concerned with the question of an acknowledgment under Section 19--a section which is undoubtedly free from the doctrine of English Law which puts the value of an acknowledgment upon its being the equivalent of a new promise to pay. No doubt, the English requirement of a good acknowledgment is greater than that of the Indian Law. You can argue from the fact that an acknowledgment is good under English Law to show that it will be good under Indian Law, but you cannot argue the other way about. We have to look for the purpose of s. 19 upon this defendant merely as a debtor. There must be no doubt about the identity of the debt. Once it is clear that he admits that he owes the money and it is clear what debt he has admitted, it does not seem to me on the authorities to be any answer to say, 'Oh yes, he admitted that he owed your trustee but did not admit that you were the sole beneficiary.' It seems to me that what Sir Barnes Peacock said in the case cited is wide enough to cover the present case But, apart from that, I agree that the decisions of the Privy Council in the cases of Hiralal Ichhalal Majumdar v. Desai Narsilal Chaturbhujdas 18 Ind. Cas. 909 : 17 C.W.N. 573 : 13 M.L.T. 415 : (1913) M.W.N. 428 : 11 A.L.J. 432 : 17 C.L.J. 474 : 15 Bom. L.R. 483 : 37 B. 326 : 25 M.L.J. 101 : 40 I.A. 68 (P.C.) and Guru Charan Saha v. Surendra Krishna Roy 22 Ind. Crs. 650 : 19 C.W.N. 263 are authorities which cover the present case.

12. For these reasons, I agree that this appeal should be dismissed.


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