MOHD ABDUL QADEEER Vs. AZAMATULLAH KHAN

JUDGEMENT

(1.) 1. The plaintiff is the appellant in this appeal. The facts which are now not in dispute are as follows : Samadani Begum borrowed a a sum of Rs. 30,000/- from the plaintiff and executed a promissory note Ex.A.1 dated 20-12-1958 in favour of the plaintiff. She also gave a receipt Ex.A.2 for the same amount. The receipt was attested by Abu Mohammad Abdur Rahman husband of Samdani Begum. Samdani Begum died issueless on 20-6-1959. On her death, her heirs were her husband Abu Mohammed Abdur Rahman and her other kindred, defendant 1 to 5. The husband was entitled to a half share of her estate and was liable to pay, under Mohammadan Law, half the debt due to the plaintiff. Defendants 1 to 5 were similarly entitled to half the estate of Samdani Begum and were liable to pay half the debt due to the plaintiff. On 3-10-1961 Abu Mohammad Abdur Rahman made a part payment of a sum of Rs. 1000/- to the plaintiff, An endorsement of pare payment was made on the promissory note and a separate document Ex.A.14 was also executed by which Abu Mohammed Abdur Rahman acknowledgse the debt due to the plaintiff. Abu Mohammad Abdur Rahman died on 12-2-1962. Defendants 6 to 8 are his heirs. The bungalow which belonged to Samadani Begum and which was her only property was partitioned on 21-5-1964 between defendants 3 to 8, The present suit to recover the sum due under the promissory note was filed on 21-9-1964. The learned Second Additional judge. City Civil Court found that Samadani Begum borrowed a sum of Rs. 30,000/- from the plaintiff and executed the sait promissory note and the receipt. He found that the part payment made on 3-10-1961 and the acknowledgment of the debt by Abu Mohammed Abdur Rahman saved limitation against defendants 6 to 8 but not against defendants 3 to 5. He was of the view that a part payment or acknowledgment by one of several co-heirs would not srve limitation against the other co-heirs. On that view, he decreed the suit in a sum of Rs. 14,000/- against defendants 6 to 8, Rs. 14,000/- being the half share of the debt which they were liable to pay after giving credit to the part payment of Rs. 1.000/- made by Abdur Rahman, and dismissed the suit against defendants 1 to 5. In this appeal the plain iff claims that he is entitled to a decree against defendants 1 to 5 for the remaining amount of Rs. 15,000/-. Though in the grounds of appeal it is mentioned that the lower court should have granted a decree against defendants 6 to 8 for the entire suit amount that ground is not pressed before me.

(2.) The only question for consideration in this appeal is whether the part payment of Rs 1000/ or the acknowledgment of the debt by Abu Mohmmad Abdur Rahman on 3-10-1961 saves limitation against defendants 1 to 5 also, Sri Mohammad Jahangir Ali, learned counsel for the appellant urges that while the acknowledgment by one co-heir may not save limitation against other co-heirs, part payment by one co-heir saves limitation against other co-heirs. He points out the difference in language between sections 18 and 19 of the LIMITATION ACT, 1963, 1963 (which correspond to Sections 19 and 20 of the LIMITATION ACT, 1963 of 1908), Under Section 18 of the present Limitation Act an acknowledgement of liability, in order to save limitation, has to be made by the party against whom the claim is made, whereas under S. 19 part payment may be made by the person liable to pay the debt. The difference is between 'the party against whom the right is claimed' and 'the person liable to pay the debt.' Thus acknowledgment by a person liable to pay the debt will save limitation against him only and not against others who are also liable to pay the debt. Whereas part payn ent will save limitation even against the others, That this was the effect of Sections 19 and 20 rf the LIMITATION ACT, 1963 of 1908 (which correspond to Sections 18 and 19 of the Present Act) was held in Velayudan Pillai v. Vaithaialingam Pillai. Benson and Sundara Aiyar JJ., observed. "According to Section 20 of the LIMITATION ACT, 1963, where interest on a debt or legacy is before the expiration of the prescribed period paid as such by the person liable to pay the debt or legacy..............a fresh period of limitation shall be computed from the time when the payment was made.

(3.) The Section requires that the payer should be one liable to pay the debt, and provides that the result of the payment would be to give the creditor a fresh period of limitation from the date of the payment. It does not restrict the benefit accruing to the creditor with resppct to his debt to his remedy against the payee alone. According to the language of the Section the debt being kept alive the result must be to make it enforceable against any one liable for it".