AZIZUR RAHAMAN OSMANI Vs. UPENDRA NATH SAMANTA

JUDGEMENT

(1.) This appeal arises out of a suit to recover money due on a mortgage bond. The facts which are not in dispute are these: Defendant 1 and his wife Khatemunnissa Bibi borrowed from the plaintiffs Rs. 400 agreeing to pay interest at the rate of two per cent. and executed the bond in suit in favour of the plaintiffs on 14 Chaitra 1327 B.S. corresponding to 27th March 1921. They agreed to repay the principal with interest within the month of Falgun 1328 B. S., that is, on or before 14 March 1922. On 16 June 1928 Khatemunnissa died leaving defendant 1 and defendants 2 and 3 as her heirs. Defendant 1 made two payments towards interest due on the bond on 12 March 1933 and 10 October 1933 on his own behalf only and not on behalf of defendants 2 and 3 and endorsed those payments on the back of the bond, On 14 April 1934 the plaintiffs instituted the present suit in the Court of the Munsiff at Danton against defendant 1 and Khatemunnissa Bibi although she died long ago. On 19 June 1934 the plaintiffs applied to the trial Court to substitute defendants 2 and 3 in her place, the other heir, namely, defendant 1 being already on the record, on the allegation that she died on 3 May 1934. This prayer was allowed and defendants 2 and 3 were brought on the record.

(2.) On these facts the question arises whether the suit against defendants 2 and 3 is barred by limitation. The trial Court held that the payments made by defendant 1 in the year 1933 were made by him on his own behalf and not on behalf of defendants 2 and 3 and the suit was barred against them. He accordingly decreed the suit against defendant 1 and dismissed it against defendants 2 and 3. The plaintiffs appealed to the District Judge of Midnapur. The conclusions of the learned District Judge are : (1) Payments by defendant 1 must be regarded as payments by him in his capacity as the original co- mortgagor as well as in his capacity as one of the heirs of the other mortgagor, viz. Khatemunnissa. (2) Payment of interest by one of the heirs of Khatemunnissa Bibi saved the suit from limitation against her other heirs also. He accordingly decreed the suit against all the defendants. Hence this second appeal by defendants 2 and 3.

(3.) The only point for determination in this appeal is whether the suit is barred by limitation against defendants 2 and 3. The payment of interest was made by defendant 1 alone. At the time of payment he had two capacities. He was one of the mortgagors as well as one of the heirs of the other mortgagor. Where a payment is made by a person who fills two different capacities, the capacity in which the payment he makes is a question of fact. The learned District Judge has held that the payments by defendant 1 must be regarded as payments by him in both the capacities filled by him at the time. He appears to have treated this question not as a question of fact but as a question of law. He seems to have presumed from the mere fact that defendant 1 filled two different capacities at the time of the payment, that the payment amounted in law to payment in both the capacities. There seems to be no foundation in law for such a presumption. If A and B are jointly and severally liable on a promissory note and if A dies appointing B as one of his executors and B pays interest, the character in which he makes the payment is a question of fact: see Atkin V/s. Trade Gold (1823) 2 B & C 23. Where a surviving person, who is also the executor of a deceased person, makes payment, which as a surviving person he is bound to make, the payment is to be usually taken to have been made by him personally and not as executor: see Way V/s. Basset (1845) 5 Hare 55; Way v. Basset (1856) 3 Drew 628. Where there is a double liability and the surviving co-contractor or joint debtor makes the payment, he is presumed to be discharging his own liability- Lightwood on Time Limit of Actions, 384, Halsbury's Laws of England (Hailsham Edition) Vol. XX, p. 644. In the absence of any evidence or circumstances to show that, defend ant 1 made the payment in both the capacities, it must be therefore presumed that he paid the interest in 1933 towards the discharge of his own liability as one of the original mortgagors.