DEEP NARAIN Vs. BHAGAUTI DIN

JUDGEMENT

(1.) This is a defendants' appeal arising out of a suit for recovery of a sum of money on the basis of a pronote. The pronote in suit was executed by the defendants' father Chhaterpal Singh on 13.7.1935. Thereafter Chhaterpal Singh applied under the Encumbered Estates Act. An order under Section 6 of the Act was passed by the Collector on 16-10-1936. Chhaterpal Singh filed a written statement on 20-11-1936, in which he admitted his liability under the pronote. On 16-12-1938, a compromise was arrived at between Chhaterpal Singh and his creditors under which also Chhaterpal Singh admitted his liability. Chhaterpal Singh bad two sons and one nephew, all of whom were members of a joint Hindu family. The nephew and the sons had not applied under the Encumbered Estates Act along with Chhaterpal Singh. Therefore, an apportionment of the liability of the parties under the pronote in suit had to be made. This apportionment was made on 31-1-1941. The Special Judge held that Rs. 100 out of the sum of Kg. 1600 had been taken for legal necessity for which the entire family was liable and that RS. 1500 was not taken for legal necessity and that for this sum Chhaterpal Singh and his two sons alone were liable. The Special Judge, therefore, ordered that Rs. 600 of the amount of the pronote out of Rs. 1500 and one-sixth of Rs. 100 were payable by Chhaterpal Singh and two-thirds of Rs. 1500 i.e., Rs. 1000 and two sixths of Rs. 100 were payable by the sons. On 31-1-1944, the plaintiffs filed the suit which has given rise to this appeal for recovery of a sum of Rs. 1000 plus RS. 33 5 4 with interest against the two sons of Chhaterpal Singh.

(2.) The defence to the suit was that the suit was barred by limitation as it was filed more than three years after the date of the pronote.

(3.) Both the Courts below have held that the suit was not barred by limitation. The reasonings of the two Courts below are, however, different. According to the trial Court the sons' liability under the pronote was admitted by Chhaterpal Singh on 20-11-1936 by his written statement which he filed in Encumbered Estates Act proceedings. Limitation started to run from that date and the period from 16-10-1936, the date when order under Section 6, Encumbered Estates Act was passed, upon 311-1941, when apportionment under Section 9, Encumbered Estates Act, was made, was to be excluded by virtue of the provisions of Section 9 Sub-section (5) (c) proviso. The lower appellate Court on the other hand held that Section 9(6)(c) proviso could apply only to joint debts due from persons who were not members of a joint Hindu family and as the sons were joint with their father, Section 9(4) applied to their case. Since there was no provision in Sub-section (4) of Section 9 corresponding to the proviso in Sub-section (5)(c), there was no exclusion of the period of limitation from 16-10-1936, to 31-1-1941. But according to that Court the suit was within limitation because the period of limitation was not three years but six years under Article 120, Limitation Act, which was to be counted from the date of the admission of the liability by Chhaterpal Singh which was made on 16-12-1988. Against the decree of the Court below, the defendants have come up in second appeal to this Court and the only point foe determination is whether the suit is barred by limitation.