BABU LAL Vs. BHAT MAL

JUDGEMENT

(1.) THIS Civil Second Appeal raises a question of limitation which under the following circumstances: - On the 20th of September, 1946, the four defendants, namely, Bhatmal and Chouthu, sons of Khuma, Nathu and Jamna executed a bond for the payment of Rs. 406/- in favour of the plaintiff-appellant Babulal. In the opening part of the document, where the description of the parties is given, Bhatmal and Chouthu are described as principal debtors, while Nathu and Jamna are described as sureties, but in the operative part all these four persons had taken upon themselves the liability to pay the amount due under the bond to the plaintiff" on demand with interest at Rs. 2/- per cent per mensem. The plaintiff was further given the right to recover the amount from the person and property of all the defendants. THIS document is signed by all the four defendants at the end and no distinction is made when putting the signatures that Bhatmal a|nd Chouthu were the principal debtors while Nathu and Jamna were the sureties. One of the defendants namely Chouthu paid Rs. 50/- towards interest on the 11th of April, 1951 and the plaintiff has brought the suit against all the four defendants for the recovery of Rs. 700/- including interest on the 22nd of February, 1954, pleading that payment of interest of Rs. 50/- saved limitation as against all the defendants. The case was contested by Bhatmal who denied the allegations set up by the plaintiff in the plaint while the case proceeded ex parte against the other defendants. The trial court decreed the suit against Chouth Mal holding that the bond was executed by all the four defendants but as Chouth Mal had paid Rs. 50/- towards interest and had endorsed the payment on the bond, the suit was within limitation as against him and was barred by limitation as against the other defendants. The same view was upheld by the first appellate court in appeal by the plaintiff. The plaintiff has come in second appeal against the three defendants Bhatmal, Nathu and Jamna.

(2.) IN this Civil Second Appeal, it is conceded that the suit is barred by limitation as against Bhat Mal in view of sec. 21 (2) of the Limitation Act which lays down that payment by one of the several joint contractors would not save limitation against the order co-contractors. It is, however, contended that the other two defendants namely Nathu and jamna were sureties and not joint contractors and payment by Chouthu saved limitation as against them also. No doubt there is divergence of judicial opinion on the point whether a surety could be held as a joint contractor with the principal debtor. IN this case, however, I am definitely of the view that the two defendants Nathu and Jamna who have styled themselves as sureties in the opening part of the bond, had taken upon themselves unreservedly to pay the amount due under the bond. IN the operative part of the document, it has been nowhere mentioned that they were to pay or discharge the liability of Bhatmal and Chouthu in case of their default. Under S. 126 of the Contract Act, a contract of guarantee is a contract to perform the promise or discharge the liability of a third person in case of his default. Learned counsel had to concede that in the bond there was expressly no contract of guarantee but he argued that such a contract of guarantee was to be inferred by the fact that in the opening part of the document Nathu and Jamna had described themselves as sureties and the other two defendants were described as principal debtors. The description of the legal status of a party given in the opening part of a document may be an important clement in the construction of a document but nevertheless, it cannot cut down the plain effect of the operative part of a deed. The operative part of the bond in this case clearly shows that all the four defendants were jointly contracting with the plaintiff to pay the amount due under the bond. This being the position they were joint contractors within the meaning of these words under sec. 21 (2) of the Limitation Act. Only because of the payment by one of the joint contractors namely Chouthu, the suit was not within limitation as against the rest.