ACHUTA NAND TEWARI Vs. CHANDRABALI NATH TEWARI

JUDGEMENT

(1.) This is a plaintiffs appeal and has arisen out of, what is in effect, a suit for contribution. There was a man named Sital Nath Tewari. The suit was instituted by Sripat Nath Tewari and Rama Kant Nath Tewari sons of Raghunandan Tewari and Achuta Nand Tewari and Chabi Nath Tewari sons of Shyam Saran Nath Tewari against six persons, Chandrabali Nath, Mt. Sorja, Jarbandhan Nath Tewari, Brij Bhukan Nath Tewari, Ram Kishore and Jugal Kishore Tewari. The facts of the case are complicated, but are briefly these. The family, on 1 March 1927, acquired certain property under a sale-deed for a sum of Rs. 2195. They had not the necessary funds. They, therefore, raised a sum of Rs. 1000 on 28 February 1927, by means of three promissory notes for payment to the vendor. Part of the sale consideration was Rs. 1325 which was due to the family itself under a usufructuary mortgage. It had, therefore, to pay a further sum of Rs. 870. Rupees 800 were paid out of the consideration received under the three promissory notes. For the balance of Rs. 70 Raghunandan, the son of Beni Sewak, executed a promissory note in favour of the vendor. It may be noted here that the promissory note of us. 70 was discharged by Raghunandan by a payment on 19 October 1931, of a sum of Rs. 123. Three promissory notes were executed on one and the same date, that is 28 February 1927, in favour of the same person. One of the promissory notes was executed by Raghunandan for a sum of Rs. 400 whereas the remaining two were executed for Rs. 300 each by Jar-bandhan and Ram Kishore. The promissory note by Raghunandan for a sum of Rs. 400 was renewed by a further promissory note by him on 28 June 1932, and this was actually discharged on 18 June 1934, by a payment of Rs. 563.

(2.) Coming now to the two promissory notes executed on 28 February 1927, by Jarbandhan and Ram Kishore, we find that they were discharged in the following manner. On 26 June 1927, four promissory notes were executed by different members of this family in favour of different persons. The first was executed for a sum of Rs. 125 by Chandrabali in favour of Sumari Ahir, the second by Ram Kishore also for a sum of Secs.125 in favour of Pranpati Hajjam, the third by Jarbandhan for a sum of Rs. 175 in favour of Budhu and the fourth by Raghunandan for a sum of Rs. 200 in favour of Sukhai Ahir. The total consideration of this debt was Rs. 625. As a result of these four promissory notes the two promissory notes of 28 February 1927, by Jarbandhan and Ram Kishore were wiped off. Of the four promissory notes mentioned above the two by Ram Kishore and Jarbandhan do not concern us in this appeal and may, therefore, be dismissed from consideration. Of the remaining two, we shall first take up the one executed by Chandrabali for a sum of Rs. 125 in favour of Sumari Ahir. Instead of Chandrabali paying it off, Raghunandan renewed it by a promissory note of 1st April 1930, which was further renewed on 5 March 1933, and ultimately paid off on 18 June 1934. The sum actually paid was Rs. 142. We now come to the last of the two other promissory notes executed by Jarbandhan in favour of Sukhai for a sum of Rs. 200. We again find Raghunandan and not Jarbandhan taking upon himself the liability for the discharge of the debt. The renewal of the above promissory notes was made on 5 May 1933, and it was finally paid off by him on 21 June 1934. The sum actually paid was Rs. 245. This completes the history of the promissory notes. It must also be mentioned that the family separated sometime in 1928. The present claim has been brought by Raghunandan for contribution on the basis of the payment made by him on 19 October 1931, in discharge of the promissory note executed by him for Rs. 70, the payment made on 18 June 1934, in discharge of the pronote executed on 28 February 1927, for a sum of Rs. 400 in favour of Tula Dhar, that of 18 June 1934, in discharge of the promissory note of 26 June 1927, executed by Chandrabali for a sum of Rs. 125 in favour of Sumari Ahir and finally the payment of 2l June, 1934, in discharge of the promissory note executed by Raghunandan in favour of Sukhai in lieu of the promissory note executed by Ram Kishore for a sum of Rs. 800 in favour of Tula Dhar on 28 February 1927.

(3.) The case of the plaintiff's stripped of unnecessary details, was that these debts were originally taken by the family and it was immaterial in whose name the transaction stood. The entire family was liable for the debt and if Raghunandan alone made the payments, the branch of Beni Sewak, which the appellants represent, is entitled to claim contribution from the rest of the family. The suit was instituted on 20 October 1934, in the Court of the Munsif of Deoria. The learned Munsif dismissed the suit as he understood the claim as a claim virtually for partial partition. In this view he was obviously wrong. The learned Civil Judge on appeal came to the conclusion that it was really a claim for contribution, although, the language in which the plaint was couched might not have been very happy. He, therefore, remanded the case with the direction for the amendment of the plaint. The plaint was amended and it was thereafter treated as a suit for contribution. The learned Munsif, however, again dismissed the suit by his judgment of 1 June 1937. This judgment was substantially affirmed in appeal by the learned Civil Judge on 22 September, 1938. The plaintiffs have come before us in second appeal and some of the defendants have preferred a cross-objection. The main ground on which the claim was dismissed both by the trial Court and also by the learned Civil Judge was that it was barred by limitation. The two articles to which reference has been made by him are Art. 61 and Art. 99, Limitation Act. It was practically conceded before the learned Civil Judge that Art. 61 was the article applicable and there has been no departure from that position by the parties before this Court. We have, therefore, to consider the terms of Art. 61, Limitation Act, and see whether the claim is within time. The article is in these terms: The starting point of limitation is when the money is paid. The learned Counsel for the appellants contends that the starting point of limitation will be the date of the actual payments made by Raghunandan. The learned Counsel for the respondents, on the other hand, argues that the starting point will be the date of the fresh promissory notes. There is no doubt that if the contention of the learned Counsel for the respondents is correct and the starting point is treated as the dates, of the renewal of the promissory notes, the suit is clearly beyond limitation. In determining the meaning of the expression when the money is paid we have to consider the effect of the expression paid. Does paid mean actual payment or merely a notional payment? The Courts below and the learned Counsel for the respondents in this Court relied upon the case in Sat Rohan Prasad V/s. Bharat Prassd . It must be conceded that the opinion on this point is divided, but if this authority is applicable to the case in hand we are bound by it and shall feel compelled to dismiss the suit. The case will have, therefore, to be examined in some detail. Its facts briefly are these : One Bharat Prasad Man Tewari had three brothers and they all formed a joint Hindu family. They were indebted to a firm Bilas Eai, which kept the account in the name of two brothers, Bharat and Lachhman. In 1913, a suit was brought against Bharat and Lachhman for the amount due from the joint family and on 4 June 1913, a decree for Rs. 450 with future interest at six per cent, per annum was passed against the defendants. This decree was against the family which was represented by its karta. Admittedly the family till then was joint. A separation took place several years afterwards. In 1924, Bharat the plaintiff was arrested in execution of this decree and he executed a simple mortgage on 4 July 1924, in lieu of the amount due under the simple money decree. Later on, another suit was instituted on the basis of this mortgage deed which was also decreed, and Bharat executed a fresh mortgage-deed in lieu of this mortgage decree. Bharat then instituted a suit on 4 July 1927 for contribution against his three brothers.