D.N. Mitter, J.
1. Three questions emerge for determination in these two appeals which arise out of a suit for partition of the estate of Rakhal Kristo Chattopadhaya, an inhabitant of Howrah, and the father of the plaintiff and two defendants to the suit. One is a question of fact, and the other two are questions of law. The question of fact arises out of Issue No. 6 which runs as follows:
Did the defendant No. 2 advance any money to his father Babu Rakhal Krishna Chattopadhaya for the, acquisition and subsequent construction and repair of the Benares house. If yes, what amount.
2. The questions of law may be formulated thus:
(1) Is the debt due by defendant No. 2 from the father barred by the statute of limitations ?
(2) Whether defendant No. 2 is to get 2/3rd of the money advanced by him to his father although such debt has become barred by the statute of limitation.
3. On the question of fact the Subordinate Judge, has come to the conclusion that the amount advanced to the father was Rs. 10,900 and that the plaintiff and defendant No. 1 are liable to pay to defendant No. 2 in equal halves. The Subordinate Judge has reached the conclusion that the liability of the plaintiff and defendants to discharge their father's debt arose after their father's death which happened in October 1926, and as defendant No. 2 put in his written statement within 6 years of that event the debt is not time-barred. The relief, said the Judge below, claimed by the defendant No. 2 is a sort of equitable set off and in that case the question of limitation does not arise. The Subordinate Judge has passed a preliminary decree for partition and has directed the Commissioner to take into account the sum of Rs. 7,266 which is payable by defendant No. 1 and plaintiff in equal halves to defendant No, 2. Hence the two appeals have been brought by defendant No. 1 (No. 266 )and plaintiff (No. 284) and the main controversy in these two appeals centres round the three questions indicated at the outset of this judgment.
4. It is contended with regard to the question of fact that there is no reliable evidence to show that the sum advanced by the defendant No. 2 to his father was his own, that in any event the sum advanced was not Rs. 10,900 but considerably less. It becomes necessary to examine the evidence in this behalf. Defendant No. 2 Anup Narain has given evidence to the effect that he and his father carried on stock and share business in partnership under the name and style of Messrs. R. Chattopadhaya & Co. with Cox and Co. which has since been amalgamated with Lloyds Rank. He states that Lot No. 2 of schedule Ka of the plaint which is the Benares houses was purchased for Rs. 6,000 and that he contributed Re. 1,500 out of his 1/4th share of assets in the partnership business (see page 42 Pt. I). He states that there was a delapidated house on Lot No. 2 of schedule Ka to the plaint (Benares house) that 'that house was pulled down and a new house was built there at a cost of Rs. 9,000 and that he lent this sum to his father to build the house (see page 43 16--20). We have no doubt on the evidence that defendant No. 2 furnished Rs. 1,500 on account of the price of the land and the whole of the costs for the new building, for there is the admission of the plaintiff's father in a letter to that effect (see Ex. c (8) dated November 11, 192-1, page 29, p. 11). At page 32, part 11, there is the significant passage:
and the house at Benares being No. 15 Agastha Kundu which has been purchased for Rs. 5,500 (five thousand and five hundred out of your and my earnings and which I am getting reconstructed out of your self-acquired money for more than these two years that I have been staying....
5. and what a man admits to be true must reasonably be presumed to be so. And this admission shifts the burden on the plaintiff and defendant No. 1 of showing that the building or reconstruction of the Benares house was not with the self-acquisition of defendant No. 2. The admission/is not conclusive but, may be shown to be wrong; but unless the admission is explained it is binding on the party making it or those who claim through him. See Chandra Kunwar v. Narpat Singh 29 A 184 : 34 IA 27 : 11 CWN 331 : 4 ALJ 102 : 9 Bom.LR 267 : 5 CLJ 115 : 17 MLJ 103 : 2 MLT 109 (P.C.), and also a decision to which I was a party where the effect of such admissions is discussed Nanilal Das v. Nutbehari Das 38 CWN 861 at p. 864. The admission is the strongest proof of the fact that the reconstruction of the Benares house was out of the self-acquisition of defendant No. 2. The question next arises as to what is the amount which was required for reconstructing the Benares house. For this we must turn to the evidence of defendant No. 2, at page 43 (P. 1), line 20. Defendant No. 2 states
that the house was pulled down and a new house was built at a cost of Rs. 9,000. Construction of the house was commenced 1 1/2 or 2 years after the purchase of that land. I lent this sum to my father to build the house.
6. This defendant states this in another place,
I have not kept any account of the money I sent to my father for the Benares house.
7. It is argued by Mr. H.D. Bose, Counsel for the defendant No. 1, that the best evidence, viz., Banker's book, the books of the Mercantile Bank, might have been produced and such evidence not having been given in this case an inference unfavourable to the defendant No. 2 should have been drawn. The Subordinate Judge, however, is of opinion that it would have been far better if the defendant No. 2 had produced his account with the. Mercantile Bank to show that he withdrew a sum to the tune of Rs. 9,000 to lend to his father for the construction of the house, but in his opinion the admission of the father renders it quite unnecessary to produce the Bank account. The fallacy in this reasoning of the Subordinate Judge consists in this that the admission has the effect of relieving the defendant No. 2 from proving that the house was rebuilt with his self-acquisitions; but it does not relieve him from proving what the actual cost of construction was. It appears, however, from Ex. 11, true copy of the written statement of plaintiff before the arbitrators, that the value of the land and house at Benares would be Rs. 14,000. The value of the land is Rs. 6,600 and according to this estimate the value of the building would be. Rs. 7,400. Proceeding on this estimate of the plaintiff we think it will be safe to hold that the loan to the father was 7,400 plus 1,500 equal to Rs. 8,900 for the piece of the land and not Rs. 10,900 as found by the Subordinate Judge. The plaintiff and defendant No. 1 are liable to pay to defendant No. 2 2-3rd of Rs. 8,900 in equal halves, i.e. each is liable to pay l-3rd of Rs. 8,900 equal to Rs. 2,966-10-8 instead of Rs. 3,633-5-4 as found by the trial Court, provided the debt is either not barred by the statute of limitations or even if barred could be equitably set off against the estate of the plaintiff and defendant No. 1 inherited from their father. This leads us to consider the two questions of law indicated before.
8. First as to limitation: Let us consider the case from the stand-point as if the loan has been advanced by a. stranger to a father governed by the Dayabhaga school and not by one who subsequently shares the inheritance on the death of the father. The question arose in this Court with regard to the liability or a Mitakshara son before a Full Bench of this Court in the case of Briinandan v. Bidya Prasad Singh 42 C 1068 : 29 Ind. Cas. 629 : 21 CLJ 543 : 19 CWN 849 : AIR 1916 Cal. 279. Sir Lawrence Jenkins, C.J., held that Article 120, of the Limitation Act governed the case where the debt was an unsecured one and the period of limitation is six, years, but the question as to the date when the right to sue accrues was left open. Three alternatives were suggested, 1st, the date when the debt incurred by the father accrues, secondly when the creditor after exhausting the remedies against the father finds that the debt or a portion there of is still unsatisfied and thirdly the dale of the death of the father. But the question was not decided as the suit was barred) if any of the three views were taken. In the present case the death of the father took place within six years from the date of the written statement of defendant No. 2, and if this view is adopted, then the debt is not barred. But if the date is taken to be the date of the loan, admittedly the written statement was filed much beyond six years and the claim of defendant No. 2 would be barred against the father or those claiming under him. The house was completed in 1924 and tie written statement was filed in 1931 and even the letter of the father Ex. C (2) could not save limitation seeing that the letter was written in 1921. There is some point in the argument of Mr. Hiralal Chakrawarty for the respondent that the right of a son under a Dayabhaga school to pay his father's debt is limited to assets he receives after his father's death and in these circumstances the right to sue can only arise after the father's death. It is not necessary, however, 'to decide this question in the present case, for in our view even a statute-barred debt can be set off against the inheritance on principles recognised by Courts of equity. In a suit whose object is to have a partition of joint property the equities of the parties have to be adjusted. The person who succeeds to the inheritance should not be allowed to get the inheritance without shouldering the burdens. It is argued on the other hand by Mr. H.D. Bose, that if this principle is acceded to, then every unsecured creditor of the father will be able to enforce the statute-barred debts of the father against the sons. But the point of distinction is that the creditor does not get a share in the inheritance from the father and no question of equity can arise between the father's heirs and the creditor. But it is different where the loan has been advanced by one of the sons and the question arises between him and the other sons who share in the inheritance of the father, In such a case the rule laid down-in one of the case's hot cited at the bar should apply. That case is that of White v. Cordwell (1875) 20 Eq. 644 : 44 LJCh. 748 : 23 WR 326. The rule laid down in that case is that an administrator is entitled to set off against the share of one of the next of kin in the intestate's estate the whole of a debt of which part had become barred by. the statute of limitation. Sir James Bacon, V.C. in that case said:
The duty of an administrator is to administer the estate of the intestate. In this instance part of the estate consists of this debt which is due to the estate though the remedy for recovering part of it has become barred by statute. Until the debtor discharges his duty to the estate by paying the debt which he owes to it, he can have no right or title to any part of it under the statute. I have not the slightest doubt....
said the Vice Chancellor ;
that this person being one of the next of kin of the intestate can take no share of the estate until he has discharged his obligation to. it, and paid the debt in full...Page 647 Page of (1875) 20 Eq.--[Ed.] of the Report.
9. The same view has been taken in this Court (in a case not cited at the bar) in which Sir Arthur Wilson who was afterwards a member of the Judicial Committee, took the same view. In the case of Lokenath Mullick v. Odoy Charan Mullick 7 C 644, Sir Arthur Wilson in the following circumstances, viz. Where A and B two of the sons of one N had been declared in a suit brought to administer N's estate to be indebted to the estate, A and B having died without satisfying the debt held that notwithstanding that the debt due from A to B to the estate was barred, the descendants of A and B could not be allowed to share in the accumulation of interest in the hands of the Court without first satisfying the debt due by their ancestors to the estate. We think, therefore, that the amount actually spent should be set off in the manner suggested by the Subordinate Judge. The amount is now varied instead of its being Rs. 7,266, and odd it should be two-thirds of Rs. 7,400 plus Rs. 1,500 = Rs. 8,900, i.e. Rs. 5,933-5-4 only which the defendant No. 1 and the plaintiff are to pay in equal halves to defendant No. 2. With this variation the appeal stands dismissed, The costs of this appeal will be in proportion to the success of each party.
10. We assess the hearing fee at 15 gold mohurs.
11. I agree.