SIR HARILAL NEMCHAND GOSALIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a reference under S. 5, Court-fees Act, 1870, and the very narrow question that calls for our determination is the meaning to be given to the expression appearing in Schedule III, in, Court-fees Act in Annexure B of that schedule,

(2.) The question, therefore, is whether the law permit the executor to pay these debts, or is there anything in law which prevents the executor from paying time-barred debts, and the answer to that question is clearly that there is nothing in law which prohibits an executor from paying time-barred debts. It is significant to note also that the Legislature has advisedly not used the expression "recoverable" but "payable." The difference between the two expressions "payable" and "recoverable" is fundamental, because in the case of the expression "recoverable" what is emphasised is the remedy; in the case of the expression "payable" what is emphasised is the right of the person paying to pay under the law. The legislature in this case is not referring merely to enforceable debts; it is referring to all those debts which an executor in law is entitled to pay out of the estate of the deceased. The position as regards the right of the executor is made clear by Section 323, Succession Act, 1925, .which provides that

(3.) If we were to accept the argument of the Advocate General and to construe the expression "payable" as if it was the same as "recoverable " a very curious result would ensue. It is not disputed, and it cannot be disputed, that an executor has the right of promising to pay in writing a time-barred debt. If he does so, that debt would become an enforceable debt. Therefore, according to the Advocate General, although an executor may easily get round this provision of the law by making a promise to pay and making the debt enforceable, he could not include this debt in Schedule III although the law permits him to pay it without necessarily promising to pay it in writing. In our opinion, the Legislature did not intend such an anomalous result. Therefore, in our opinion, the executor is a entitled to include these two debts in Annexure B to Schedule III.