Hasan Imam and Others vs Brahmdeo Singh and Others

Ross, J.—In this suit the plaintiffs claimed Rs. 17,487-9-3 as due under a registered lease of mauza Srirampur Mirich executed on 4th January 1917 for a term of seven years from 1324 to 1330 in favour of defendant) 1 as the managing member of the joint family of the defendants, after giving credit for the payments made.

The defence was that nothing was due; that the account had been adjusted and an acquittance given. The payments set forth in the written statement differ in certain respects from those Set out in the schedule to the plaint. It was further pleaded that there was no stipulation for interest and that the suit is barred by limitation. A further plea was taken that defendants 2 to 15 and 20 to 27 were separate from defendant 1 and his song, defendants 16 to 19. The plea of these defendants was that they ware separate from defendant 1 and had no concern with the lease.

The findings of the learned Subordinate Judge were that the accounts had not been adjusted and that the acquittance produced by the defence was not genuine; that where there was a defence between the payments stated by the plaintiffs and those stated by defendant, the plaintiffs'' version was correct except as to a payment of Rs. 300 on 28th November 1923 that interest at 24 per cent per annum was agreed upon, that the suit was governed by the Bengal Tenancy Act und not by the Transfer of Property Act and that consequently the rate of interest could not exceed 12 percent per annum ; that although Sections 19 and 20, Lim. Act, applied, the suit was barred by time, neither the acknowledgment of 7th January 1923 nor the payment of Rs. 300 on 28th November 1923 which were set up by the plaintiffs as saving limitation being accepted; and, lastly, that the defendants were a joint family, but that defendant 1 had no authority to take this lease and that any liability under the lease would be limited to defendant 1 and his sons. On these findings the Subordinate Judge dismissed the suit. I shall deal first with the last point, namely the liability of the defendants other than defendant 1 and his sons. The finding that the defendants were a joint family was not contested in appeal. The grounds of the Subordinate Judge''s decision limiting the liability to defendant 1 and his sons are that at the time when the lease was executed defendant 1 was not the karta of the family, as appeared from the plaint (Ex. 1) together with the admission that the Ramcharan Singh the father of defendant 1 was alive at the date of the lease; and that the lease does not show that defendant 1 acted as manager of the family in taking it.

In addition to these grounds the learned advocate for the respondents referred to the terms of the lease, and in particular to the expression which occurs several times: "I, the lessee, my heirs and representatives", and argued that these words negative the idea that defendant 1 took the lease as karta of the joint family. In my opinion none of these grounds is satisfactory. Defendant 1 was the de facto karta at the time of the lease. It is true that in the plaint (Ex. 1) it is said that formerly Ramcharan Singh was the managing member of the family and that since his death Barhamdeo Singh was looking after the business. But it does not follow from this that Ramcharan Singh was the karta until his death; and the evidence of Parbhu Singh (P.W. 4) was that Ramcharan Singh who died a year after the lease was taken was 80 or 85 years old and that owing to illness he could not look after the family affairs for seven or eight years before his death and that since then defendant 1 had been the manager. There was no cross-examination on this statement. This lease required the payment of Rs. 1,600 as advance rent. The family was joint and the presumption is that this money came from the joint family funds. There is no evidence that Barhamdeo Singh had any private fund of his own. It must therefore be taken that in taking this lease he was acting for the joint family. The use of the expression "heirs and representatives" is common form and the words "heirs" is often used loosely in transactions of Mitakshara families. I would therefore hold that this lease was taken on behalf of the joint family and that all the defendants are liable under it. (His Lordship here'' considered the accounts to establish whether payments made were on account of interest so as to bring the case within Section 19, Lim, Act and proceeded.) There is one other document which ought to for of erred, to an acknowledgments liability (Ex. 12), On 7th January 1923 a parwana (Ex, 10) was sent to defendant 1 requiring him to pay his arrears and on the same day a reply was sent (Ex. 12) which clearly acknowledges the debt and says that ho was trying to sell grain.

The reasons that the learned Subordinate Judge has given for not accepting this document are, in my opinion, without force. The Diwan has sworn that the letter (Ex. 12) is in the handwriting of defendant 1 and was brought to him by one of the peons in reply to a letter written by him to defendant 1 and that he knows his handwriting. The only comment that the respondents had to make on this document was that it was not a definite acknowledgement of a definite sum due, but this is not necessary in order to constitute an acknowledgment of liability. In my opinion the defendant did acknowledge his debt on 7th January 1923. Now the effect of this acknowledgment is that id saves from limitation the rents of the years 1327, 1328 and 1329, the year 1327 having expired in September 1920. The effect of the payment of interest as such on 28th November 1923 was again to give a fresh starting point to limitation and to save the rents of these three years from being barred. Consequently unless the suit is haired altogether by reason of the provisions of Section 29, Lim. Act, the plaintiffs are entitled to recover the rents of 1327, 1328 and 1329 with interest, the rent of 1330 having been admittedly settled according to the terms of the lease by the advance payment of Rs. 1,600/- made when the lease was granted. The payments shown in the schedule to the plaint were validly appropriated to the arrears and interest of preceding years although the rate of interest must be reduced to 12 percent and interest will only accrue from the end of the quarter in each year in which the instalment fell due. The word malguzari or the words malguzari bakaya cannot be limited to the actual rent: see AIR 1927 250 (Privy Council) but must be understood as meaning that the landlord was crediting the payment to whatever was due to him, without making any distinction between rent and interest. It is a question of intention and it would be unreasonable to suppose that the landlord in making the appropriation was abandoning any part of what was in fact due to him. There was some discussion about the meaning of ''san guzasta'' (sic) the words used in the receipts showing appropriation, and it was contended for the respondents that the words mean only "the last year" and not "the last years." There is evidence, however, that the expression can bear that latter meaning and there can be no reasonable doubt that it was used in this sense.

The only question that remains is as to the effect of the amendment of Section 29, Limitation Act, made by Act 10 of 1922. As this Act came into force on 5th of March 1922, the present suit is governed by the amended section. Section 29 provides that;

Where any special or local law prescribes for any suit, appeal or application a pertod of limitation different from the period prescribed therefore by Schedule 1, the provisions of Section 3 shall apply as if such period were prescribed there for in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply.

The respondents rely upon this Clause (b). Section 184, Ben. Ten. Act. Prescribes the limitation for the suits specified in Schedule 3, of which the present suit one, being governed by Article 2(b) of that schedule. Section 185 excluded the operation of Sections 7, 8 and 9, Limitation Act, and Sub-section (2) provides that:

Subject to the provisions of this Chapter, the provisions of the Limitation Act, 1877, shall apply to all suits appeals and applications mentioned in the last foregoing sections.

Apparently, therefore, when a suit is governed by Schehule 3, Ben. Ten. Act, it is also governed by the Limitation Act subject to the provisions of this Chapter 16. The argument for the respondents is that as the Limitation Act itself by Section 29(2) excludes the operation of the remaining provisions of the Act, their operation is not restored by Section 185(2). This construction makes Section 185(2) altogether nugatory, because it leaves nothing to apply. What Section 29(2)(b) means clearly is that the remaining provisions of the Limitation Act shall not apply of their own force, that is, unless the Act is expressly applied by the special local law. But the Act is specially applied by Section 185(2), Ben. Ten. Act and consequently it must be taken that Ss, 19 and 20 Limitation Act govern this case. Section 185(2) requires the application of the Limitation Act in order to ascertain the starting point for limitation for suits governed by Schedule 3, Ben. Ten. Act. Under the Limitation Act as it stood before the amendment it was consistently held that its provisions applied to cases under Ben. Ten. Act: see, for instance, Rakhal Chandra Tewari v. Hemangini Debi [1906] 3 C.L.J. 347 Kamal Krishna Kundu v. Kedar Nath Kundu [1909] 10 C.L.J. 517 Harihar Lal v. Guncndar Parshad 9 C.W.N. 1025 and Paresh Nath Pal v. Ismail Sardar AIR 1922 Cal. 187.

On the other hand there are three cases in which the Limitation Act was not applied; but these were cases u/s 104-H, Ben, Ton. Act, which prescribes its own limitation and is not included within Schedule 3 to that Act, Secy. of state v. Gangadhar Nanda [1918] 45 Cal. 934, Secy. of State v. Shib Narain Hazra [1918] 46 Cal. 199 and Gangadhar Nanda v. Scy. of State 22 C.W.N. 817.

In the second of these cases all the authorities are referred to. In the first of these cases Mukerjee, J. said:

It is plain beyond reasonable controversy that Section 15(2), Lira Act, which is made applicable to suits, appeals and applications mentioned in Schedule 3 annexed to the Bin. Ten. Act, by virtue of Section 185 Sub-section (2), cannot possibly apply to suits instituted u/s 104 H which are not mentioned in Schedule 3.

The ground of the distinction between these three cases and the others is that they deal with applications u/s 104-H which are not included within Schedule 3. The effect of the amendment was to extend and not to restrict the operation of the Limitation Acts. The result of the argument on behalf of the respondents would be that the amendment of the Limitation Act by implication repealed Section 185(2), of the special Act; but the rule of construction is that repeal by implication will not be admitted If the two Acts can be reconciled and can stand together, lean see no conflict between Section 29(2)(b) and Section 185(2). There is an express reference in Section 29(2) to Section 3 which itself refers: to Sections 4 to 25. Sections 4, 9 to 18 and 22 are specifically made applicable so far as not expressly excluded; and the only reasonable way in which clause (b) can be read is that the remaining provisions of the Act, if they are to apply, are to be specially applied. They will not be applied by force of the Limitation Act itself.

In this view the argument of the respondents fails and it must be held that the suit is not barred by limitation. The result is that the appeal must be decreed and the suit decreed in part. There will be a decree for the rents of 1327, 1328 and 1329 after allowing credit for any payments attributable to these years. In order to ascertain this the whole account will have to be corrected from the beginning by reducing the rate of interest from 24 to 12 percent, and calculating from the end of the first quarter in each year. The arrears of rent will carry interest from the end of the quarter in each year in which the instalments of rent fell due, up to the date of the suit, and the amount of the decree will carry future interest at 6 per cent per annum. The plaintiffs are entitled to proportionate costs in both Courts.

Das, J.

I agree.