Radhanath das vs Chittaranjan Das

M.M. Dutt, J.—This appeal is at the instance of the Plaintiffs and it arises of a suit for recovery of money.

One Nandalal Das, since deceased, owned considerable properties. He died leaving six sons, Nilmoni, Govinda, Gopinath, Madan, Radhanath and Kanailal. All of them, excepting Radhanath and Kanailal, are dead. Nilmoni instituted a suit for partition in the Original Side of this Court being Suit No. 1468 of 1937 against his brothers. The said suit was decreed in a preliminary form on August 26, 1937 and on July 1, 1943, it was decree finally on compromise. Nilmoni separated from his other brothers and he was allotted properties in respect of his share. The properties that were allotted to him by the compromise decree are a specific portion of the homestead at 269 Vivekananda Road, Calcutta, a specific portion of the flour mill at 244/2 Upper Circular Road, Calcutta and the whole of a house property at 244/1 Upper Circular Road, Calcutta. The other brothers of Nilmoni remained joint and constituted a joint family.

On November 15, 1965, another suit being T.S. 104 of 1965 of the Tenth Court of the Subordinate Judge, Alipore, was instituted by Sm. Mahamaya Das, widow of Madan and by Radhanath, Kanailal and the sons of Gopinath against Govinda for partition and accounts. In the plaint, certain allegations were made against Govinda including those contained in para. 19:

The Plaintiffs also claim all moneys withdrawn from the common joint till by or at the instance of or on account of the Defendant and advance or debited by the said Defendant Govinda Chandra Das to Chittaranjan Das, Panchanan Das and Karunaranjan Das (who are the sons of Nilmoni) jointly of 269B Vivekananda Road, Calcutta-6, as Karta and Manager in the books of account of the joint family kept and maintained by the Defendant and/or under his control and custody.

In the said suit, Radhanath was appointed a Receiver for realisation, management, protection, preservation and improvement of the immovable properties described in Schedule ''C'' of the plaint and for collection of rents and profits thereof till the disposal of the said suit. The Defendant Govinda was also appointed a Receiver for the aforesaid purposes in respect of the immovable properties described in Schedule ''D'' of the plaint. Govinda died during the pendency of the said suit and in his place one Somenath Ghosh was substituted. The said suit was ultimately disposed of in accordance with the terms embodied in a joint petition of compromise. Clause (iv) of the terms of compromise is as follows:

The Plaintiffs shall not claim any sum of money from Somenath Ghosh alias Das, the substituted Defendant in place of Govinda Chandra Das, the Defendant No. 1, nor Somenath Ghosh shall claim any sum of money from the Plaintiffs.

During the pendency of the said T.S. 104 of 1965, the present suit was instituted by Radhanath Das for self and as Receiver in respect of the joint estate of himself and Sm. Mahamaya Das, Kanailal Das and the sons of Gopinath Das against the Defendants who are the sons of Nilmoni Das. The case of Radhanath as made in the plaint was that from time to time the Defendants being in need of money an account of their family expenses, business, litigations and other purposes, had taken from the joint family diverse sums of money as loans on diverse dates since Baisakh 1360 B.S. The amounts of the loans aggregated to Rs. 51,346 upto Shravan 26, 1371 B.S. corresponding to August 11, 1964. By three letters dated Jyaistha 32, 1969 B.S., Kartik 30, 1370 B.S. and Shravan 26, 1371 B.S. corresponding to June 15, 1962, November 17, 1963 and August 11, 1964, respectively, all written by the Defendants to Radhanath, the Defendants admitted and/or acknowledged in writing their liability to him for the sums mentioned in the said three letters and agreed or promised to pay the same to him. Thereafter, the Defendants borrowed from the till of the said joint family diverse sums of money on diverse dates amounting to Rs. 6,931-30 and they became liable for the total sum of Rs. 58,277-30. The Defendants agreed to pay interest on the amounts advanced as loans which was claimed at the rate of 10% per annum. The total claim on account of the principal and interest was laid at Rs. 90,903-21. It was alleged that in spite of repeated demands the Defendants did not pay the said sum or any portion thereof. The cause of action for the suit was alleged to have arisen on various dates, namely, Shravan 26, 1371 B.S. and thereafter, on the respective dates of advances. On these allegations, a decree for the said sum of Rs. 90,903-21 and interest thereon at the rate of 6% per annum from the date of institution of the suit till realisation, was claimed against the Defendants.

The Defendants contested the suit by filing a joint written statement. Their defence was that Radhanath Das, being a lawyer and a member of the legislative Assembly and also a Minister for some time, was the most (sic) member amongst the heirs of late (sic) Das. The Defendants had placed implicit trust and faith in trim in all matters and fie exercised great (sic) upon them. In 1954, a suit being T.S. 82 of 1954 was instituted by the members of the said joint family including Radnanath as also by the Defendants in respect of the flour mill at the instance of Radhanath. It was alleged that during the course of the said suit, on many occasions, Radhanath asked the Defendants to sign blank papers representing that they would be necessary for the said suit and the Defendants in good faith put their signatures on such blank papers; that similarly during all these years, Radhanath taking advantage of his position and influence upon the Defendants asked them on many occasions to write and sign chits and slips of papers alleging that they would be necessary for the said suit as also for the purpose of income tax, his election expenses and for other purposes and the Defendants, in good faith, relying on his representations, wrote and signed such papers and chits as directed by him and that, in abuse of the trust reposed in him and by misrepresentation and fraud, he created those fictitious papers and chits to grab the properties of the Defendants and to cheat his co-sharers. The Defendants denied that any loan or money was ever taken by them on any such chits or slips of papers, as alleged, either from Radhanath or from anybody and no consideration passed or could have passed on those papers. It was alleged that Radhanath in collusion with his officers caused false writings and created documents for his own fraudulent purposes. Further, it was alleged that the suit was vitiated by undue influence, misrepresentation and fraud. It was contended on behalf of the Defendants that in view of the fact that the said suit being T.S. 104 of 1965 in which a claim was made by the Plaintiffs of that suit including Radhanath against Govinda for the amounts of money now claimed against the Defendants, having been disposed of on compromise on terms including the said terms as quoted above, the present suit was barred by res judicata. It was also contended by them that the suit was barred by limitation.

During the pendency of the suit, Radhanath was discharged from the office of the Receiver as the said T.S. 104 of 1965 was disposed of on compromise. On March 28, 1973, an application was made by the Appellants including Radhanath praying for the amendment of the plaint by substituting them as Plaintiffs in place of the Receiver. The said application was allowed by the learned Subordinate Judge, the Defendants were also permitted to file an additional written statement which they did.

The learned Subordinate Judge, Tenth Court, Alipore, held that the suit was not barred by limitation and believed the Plaintiff''s case that, excepting the sum of Rs. 931-30, the sum of Rs. 57,346 was taken by the Defendants from the joint estate of the Plaintiffs as loan. He overruled the Defendants'' plea of res judicata. He found that the claim of the Plaintiffs, excepting to the sum of Rs. 6,000, was barred by limitation and the promise to pay the barred debt as contemplated by Section 25(3) of the Contract Act and contained in the letter of the Defendants, Ex. 1(b), was not an unconditional promise and the conditions mentioned therein were not fulfilled. In that view of the matter, he decreed the suit for Rs. 6,000 only with interest at the rate of 6% per annum from the date of institution of the suit till realisation of the said sum. Hence, this appeal. The Defendants have also filed a cross-objection to the decree.

Before we proceed to consider the appeal on merits, we may dispose of some technical objections raised on behalf of the Defendants-Respondents. It is argued that as Radhanath was appointed a Receiver only in respect of a portion of properties in suit in the said T.S. 104 of 1965, he did not represent the entire estate of the Appellants and Govinda and as such, the present suit instituted by him as Receiver was not maintainable. Secondly, it is contended that in spite of the amendment of the plaint of the present suit by the substitution of all the Appellants as Plaintiffs in place of Radhanath as the Receiver, the Appellants not having amended the plaint within the statutory period of 14 days from the date of the order allowing the application for amendment, it shall be deemed that there was no such amendment and the suit should be dismissed on that ground. The third contention of the Respondents in this regard is that even assuming that the Appellants were brought on record by the amendment of the plaint as Plaintiffs, it was a case of addition of parties and the suit should be deemed to have been instituted by the Appellants other than Radhanath on the date they were brought on record as Plaintiffs, that is beyond the period of limitation and should be held to be barred by limitation in terms of Section 21 of the Limitation Act, 1963.

In order to meet the first contention of the Respondents, namely, that the suit was not maintainable at the instance of the Receiver as Plaintiff, the Appellants have filed before us an application for admitting additional evidence, a certified copy of an application filed by Radhanath in the said T.S. 104 of 1965 praying for permission to sue the Defendants and certified copies of Order No. 41 dated July 17, 1967, Order No. 44 dated July 28, 1967, Order No. 54 dated September 9, 1967, all passed by the learned Subordinate Judge in that suit. We feel that for proper adjudication of the contention of the Respondents, the certified copies of the said application and of the said orders are necessary to be considered. No objection was raised on behalf of the Respondents for admission of these documents in evidence as additional evidence. Accordingly, the certified copy of the application dated July 17, 1967, is marked as Ex. I(H.C) and the certified copies of the said Orders Nos. 41, 44 and 54 are marked as Exs. II(H.C), III(H.C) and IV(H.C) respectively.

It appears that by Order No. 44 the learned Subordinate Judge permitted Radhanath as Receiver to sue the present Respondents and by Order No. 54 he permitted the Receiver to raise a loan for the purpose of payment of court-fee. Govinda, who was the only Defendant in that suit did not object to the granting of such permissions. As already stated, the suit was one for partition and two Receivers were appointed in that suit, namely, Radhanath was appointed in respect of the properties described in Schedule ''C'' to the plaint and Govinda was appointed a Receiver in respect of the properties described in Schedule ''D''. When a Receiver is appointed in respect of the joint estate of the parties in a partition suit, he is, in our opinion, entitled to sue for the recovery of the debt due to the joint estate. It is true that Radhanath was not appointed a Receiver in respect of the joint estate, but his appointment related only to a portion of the properties of the joint estate. In his application for permission to sue the present Defendants he mentioned the said fact and in spite of that no objection having been raised by the Defendant Govinda, the Court granted him permission to sue the present Defendants. The effect of such permission was that the scope of the appointment of Radhanath was extended to the recovery of the debt due to the joint estate. He was, therefore, entitled to sue the present Defendants for the recovery of the debt due to the joint estate of the Appellants.

Even if we assume that as a Receiver Radhanath had no locus standi to sue on behalf of the joint estate, still we are unable to accept the contention of the Respondents that the substitution of the Appellants in place of the Receiver, after his discharge by the amendment of the plaint, was a case of addition of parties. The names of all the Appellants were mentioned in the plaint as having been represented by the Receiver Radhanath Das. The clear intention was that the Receiver was suing for himself and on behalf of the co-owners of the joint estate. In our view, it was really a case of bona fide mistake and misdescription of the names of the parties and comes within the proviso to Sub-section (1) of Section 21 of the Limitation Act which provides:

Provided that where the Court is satisfied that the omission to include a new Plaintiff or Defendant was due to a mistake made in good faith it may direct that the suit as regards such Plaintiff or Defendant shall be deemed to have been instituted on any earlier date.

It is not the case of the Respondents that there was want of good faith on the part of the Receiver or the Appellants, but as pointed out above, it was a case of bond fide mistake and misdescription. This disposes of the third contention of the Respondents.

We are now left with the second contention of the Respondents. It is argued that in view of the default of the Appellants not to amend the plaint within the period of 14 days in terms of Order 6, Rule 18 of the Code of Civil Procedure, it shall be deemed that the plaint was not so amended. It is further contended that this appeal at the instance of the Appellants, whose names were not actually included in the plaint due to their negligence, is not maintainable. It does not appear that by his order allowing the amendment of the plaint, the learned Subordinate Judge fixed any time limit within which the amendment was to be carried out by actual amendment of the plaint. In the absence of any such direction the Appellants were to amend the plaint within 14 days as required by Rule 18. The Appellants, however, did not take any steps in that regard. It does not also appear that the Respondents ever brought to the notice of the Court the failure of the Appellants to amend the plaint, although the Respondents filed an additional written statement. In the decree that was drawn up by the learned Subordinate Judge the names of the Appellants, excepting the name of Radhanath Das for self and as the Receiver, are not shown as the Plaintiffs. The Appellants, however, preferred the present appeal in their names although their names, excepting the name of Radhanath, were not in the decree. In this Court the Appellants made an application before the learned Additional Registrar praying for accepting them as Appellants. The application was referred to by the learned Additional Registrar to this Court and after hearing the learned Advocates of both sides, this Court accepted the filing of the appeals by the Appellants and fixed the hearing of the same. No objection was taken on behalf of the Respondents at the time the order was passed by this Court on the said application of the Appellants. In the circumstances, we think that the objection of the Respondents based on the failure of the Appellants to amend the plaint is not available. After this Court accepted the appearance of the Appellants and no objection having been taken in that regard, it shall be taken that the previous defect stands removed. In our opinion, the Court should take a liberal view when objections founded on technical grounds are raised not at the proper time in the trial Court but for the first time at the time of argument before the appeal Court. Be that as it may, we direct the Appellants to amend the cause title of the plaint within a month from date, in default, the matter would be put up before us for orders. We also direct the Court below to amend the decree in accordance with the amendment of the cause title. All the aforesaid contentions of the Respondents relating to the maintainability of the suit are rejected.

The principal question that arises for our consideration is whether or not the Defendants had taken any loan from the joint estate of the Plaintiffs. In support of his case, the Plaintiffs have produced a number of account books of the joint estate and also 98 receipts executed by the Defendants. A number of witnesses were also examined on behalf of the Plaintiffs. It is not disputed that during the period the alleged loans were advanced to the Defendants, Govinda was the karta of the joint family and he was in charge of the management of the joint estate. It is the evidence of Radhanath that, at all material times, the Defendants had no source of income; Chittaranjan and Panchanan, the Defendants Nos. 1 and 2, were engaged in the fishery business, but they sustained heavy loss and bad to wound up their business. The account books which consist of javedas (cash books) and khatians (ledger books) were proved by Radhanath and the P.W. 4 Asit Bhusan Ghosh, the accountant of the joint estate. P.W. 3 Subol Chandra Mondal, P.W. 4 Asit and P.W. 5 Himadri Sekhar Das, a co-sharer of the joint estate, deposed about the payment of loans to the Defendants from time to time.

At the trial, the execution of 98 receipts have not been denied by the Defendants. These receipts have been written by the Defendant No. 1 Chittaranjan and ail of them bear the Signature of the Defendants. The Plaintiffs have placed much reliance on the account books to prove their case and to disprove the allegation of the Defendants that no money was paid to them against the receipts. It is contended on behalf of the Plaintiffs-Appellants that the entries in the account books proved the advancement of loans to the Defendants on various dates. Mr. Shyama Charan Mitter, learned Advocate appearing on behalf of the Defendants-Respondents, has taken much pains in preparing a comparative chart of the entries of the javeda and khatian books and the receipts granted by the Defendants. It appears that the sums mentioned in the receipts are not borne out by the entries in the account books. Barring a few entries, the amount noted under each entry in the account books is different from that mentioned in the receipts. The total sum advanced in a particular year calculated on the basis of the entries in the account books is different from the total amount of the receipts. P.W. 1 Radhanath has sought to explain this discrepancy. He has stated that it was not the practice of the joint estate to take a receipt forthwith for the money paid to the Defendants. It is his evidence that generally after one month and a halt the Defendants used to give receipts for a lump sum, but payments as and when made were recorded in the cash books. Further, he says that when the receipts were taken from the Defendants, the account papers were not consulted and they were taken on their words. It is also his evidence that no verification was made to see whether the receipts were taken for excess amounts. The explanation is difficult to accept. It is not disputed that the entries in the ledger books are made from the cash books, but curiously enough the entries in the cash books are different from those in the ledger books. Even if we accept the explanation of Radhanath as to the discrepancies between the cash books and the receipts, it is not understandable how there can be any discrepancy between the entries in the cash books and those in the ledger books. The attention of the learned Subordinate Judge was drawn to this aspect and he had to admit that the postings were not properly made from the cash books to the ledger books. He, however, took the view that in case of conflict between the cash book and the ledger, the former being a primary book should always prevail over the latter which is a subsidiary one. We are unable to follow the argument of the learned Subordinate Judge. The question is not as to which of the two account books will prevail, but the real question is whether any reliance can be placed upon the books of accounts. In view of the discrepancies pointed above, the account books furnish no evidence in proof of the Plaintiffs'' case. The learned Subordinate Judge is also wrong when he says that though there are some accounting discrepancies in the books of accounts, yet the amounts involved are very small. In order to meet this observation of the learned Subordinate Judge, we may cite only one instance of discrepancy out of many. The jabeda book, Ex. 12, shows that in the month of Chaitra 1365 B.S. a sum of Rs. 5,440-2-3 was advanced to the Defendants, but the corresponding receipt for that month, Ex. 2/Z(56), is for Rs. 500 only. The learned Subordinate Judge was, therefore, not right in placing reliance on the cash books.

It has been strenuously urged on behalf of the Defendants Respondents that the bogus entries in the account books prove their case that they were not paid any money as alleged, it has been already stated that the execution of these 90 receipts had not been denied by the Defendants, indeed, all these receipts have been written by the Defendant No. 1 Chittaranjan and admittedly, the Defendants signed the same on revenue stamps. It is true that the Plaintiffs have failed to prove payment of money from the entries in the books of accounts, but as soon as it is found that the receipts were executed by the Defendants, the onus is on them to prove that no money was paid to them. It is the case of the Defendants that at the request of Radhanath in whom they had unbounded faith and confidence, they granted the receipts in order to help him to meet the objections of Govinda regarding his election expenses and expenses on account of litigations and other purposes from the joint fund. D.W. 1 Chittaranjan has deposed to that effect. It is no doubt true that some suits were filed and Radhanath stood as a candidate from time to time in the General Elections of members to the West Bengal Legislative Assembly. But, besides the uncorroborated oral testimony of Chittaranjan, there is no satisfactory evidence that Radhanath had taken money from the joint estate for his election purposes or for litigation expenses. Chittaranjan also sought to prove the financial solvency of the Defendants, but failed. The learned Subordinate Judge has not been able to accept his evidence and we do not find any reason to differ from him. It transpires that the Defendant No. 1 was a businessman. It is not easily comprehansible why a businessman like him would readily agree to grant receipts for considerable sums of money without receiving anything. It is hardly believable that at the request of Radhanath the Defendants signed the receipts. The actual payments to the Defendants have been proved by P.W. 3 Subol Chandra Mondal and P.W. 4 Asit Bhusan Ghosh. It also transpires from the evidence of P.W. 1 Radhanath and P.W. 5 Himadri that the Defendants sustained loss in their fishery business. It is the case of the Defendants that the claim which has now been made against them by the Plaintiffs was made in T.S. 104 of 1965 against Govinda who was the karta of the joint estate at the material time. The plaint of that suit is on record. On January 30, 1976, an application under Order 41, Rule 27 of the CPC has been filed in this Court by the Defendants praying for admitting two documents, one of which is a written statement filed by Govinda in the said T.S. 104 of 1965. The Appellants have not objected to the admission of the written statement as additional evidence and we also feel that for the proper adjudication of the dispute between the parties before us it should be admitted. But, we do not find any necessity to admit the other document. The written statement in is, accordingly, admitted in evidence and marked as Ex. L(H.C).

We have already referred to para. 19 of the plaint of the said suit. In para. 19 of the written statement it was, inter alia, stated by Govinda that after the death of Nilmoni, his sons, that is the present Defendants, fell into difficulties due to litigations with the tenants and it was agreed amongst all co-sharers to help and assist them by giving'' them money occasionally and accordingly, money had been paid to them with the consent of all the co-sharers through Radhanath. Radhanath has also said in his evidence that Govinda in his written statement filed in that suit stated that some amounts were paid to the Defendants not as loan but as ex gratia relief from the estate. It is not disputed that the Defendants were on good terms with Govinda and they assisted him and took his side in the said T.S. 104 of 1965 against Radhanath and others. The statement of Govinda, as made in para. 19 of his written statement, supports the Plaintiff''s case that Govinda advanced moneys to the Defendants. It is now too late for the Defendants to allege that they did not receive any money as stated in the receipts. The Defendants having denied receipt of any money from the joint estate cannot now be allowed to fall back upon the statement of Govinda that the payments that were made to them were ex gratia, which is belied by the mass of receipts executed by them. In their written statement, the Defendants'' case is that they signed some blank papers, chits etc. at the instance of Radhanath. They have not, however, disclosed the receipts which were admittedly written by Chittararanjan and signed by him and the other two Defendants. No explanation has been given by the Defendants in their written statement as to why the receipts were executed by them. It appears that they tried to conceal the execution of the receipts by them. In his evidence Chittaranjan has sought to make out another case regarding these receipts. He has said that one of the grounds for which Radhanath had taken the receipts from them was that Govinda was squandering away the money of the joint estate and that Radhanath got these receipts signed by them in four or five sittings. But this case has not been made in the written statement. As stated above, they tried to conceal the receipts granted by them.

Our attention has been drawn on behalf of the Defendants to the fact that quarter of foolscap size papers have been used for 57 receipts, half of foolscap size papers have been used for 38 receipts and the letter-heads of the West Bengal Legislative Assembly have been used for the remaining three receipts. It is contended that the same size of papers utilised for the purposes of 57 and 38 receipts show that they were executed in five or six sittings. We are unable to accept this contention. Merely because same size of papers were used for a certain number of receipts, no such inference can be drawn as contended. It is next pointed out on behalf of the Defendants that, as the loans were alleged to have been advanced by Govinda, there was no justification for them to grant receipts or to write the said three letters to Radhanath. In his cross-examination, Radhanath has said that the receipts were given in his name as the estate papers recorded the amounts in his name. We are not satisfied with the explanation which has been given by Radhanath, but at the same time, the fact that by the receipts the Defendants acknowledged receipt of money from Radhanath and not from Govinda or that they had written the said three letters (Exs. 1 series) to him and not Govinda will not justify an inference that those are fictitious. After considering the facts and circumstances of the case and the evidence on record, we hold, in agreement with the learned Subordinate Judge, that from time to time the Defendants received moneys from the joint estate as loan and granted the said receipts. We also agree with him that the Plaintiffs have failed to prove the advancement of the loan of Rs. 931-30.

It is, however, contended on behalf of the Defendants-Respondents that the said T.S. 104 of 1965 in which a claim for accounts was made against Govinda, having been disposed of on compromise, one of the terms of which being that the claim for accounts was given up, the present suit is barred by res judicata. It is argued that, in any event, the Plaintiff is estopped from making the self-same claim against the Defendants. We are unable to accept this contention. The Defendants were not parties in that suit and so there cannot be any question of res judicata or estoppel. No representation was made by the Plaintiffs of that suit to the Defendants and the latter had not changed their position to their detriment.

Prima facie the claim of the Plaintiffs appears to be barred by limitation. The Plaintiffs have, however, placed reliance on the three letters dated Jyaistha 32, 1369 B.S., Kartik 30, 1370 B.S. and Shravan 26, 1371 B.S., corresponding to June 15, 1962, November 17, 1963 and August 11, 1964, respectively which are Exs. 1(a), 1(c) and 1(b). It is the Plaintiffs'' case that by these letters, the Defendants admitted and/or acknowledged their liability to the Plaintiffs for the sums mentioned therein and agreed or promised to pay the said sums. Indeed, it is the evidence of Radhanath that he has based his claim on the three letters. It is contended that in view of Section 25(3) of the Contract Act the suit having been instituted within three years of the date of the last letter, that is August 11, 1964, it is not barred by limitation. Before we consider the contentions of the parties on these three letters with reference to Section 25(3), we may dispose of the contention of the Defendants that these letters are not genuine. It has been already noticed that their case is that they signed blank papers and it is said by Chittaranjan in his evidence that they signed three blank pieces of papers which were converted into three letters. The body of these letters were written by P.W. 4 Asit Bhusan Ghosh. There is no dispute that the letters, bear the signatures of the Defendants. It is difficult to believe the evidence of Chittaranjan that they signed three blank pieces of papers and those have been utilised for creating these letters. His other two brothers have not come forward either to deny their liability or the execution of the letters by them. In these circumstances, we hold that the letters, Exs. 1(a), 1(b) 1(c) were signed by the Defendants after they were written by P.W. 4 on the respective dates and the Defendants were aware of the contents of the said letters at the time they signed the same.

Next, we may come to the consideration of the question whether the Plaintiff is entitled to recover the amount claimed on the basis of these three letters which are in Bengali and couched in almost verbative the same language. The letters were written on three different dates and they refer to the amount of loan that was outstanding on the respective dates. The last one in point of time is Ex. 1(b) and it is important for our purpose, for the other two letters bear dates which are beyond three years of the date of the institution of the suit. The English translation of the relevant portion of Ex. 1(b), which has been addressed to Radhanath, is as follows:

At present as the tenants have not paid rents in respect of our lands at Nos. 244/1 and (part of) 244/2 Upper Circular Road let out to them, we cannot meet our family expenses. So we were finally obliged to sue the tenants at the aforesaid address '' for realisation of rent and we took the entire sum of money for that purpose as loan from you. Further, the landlords too of Jalkar at Kankrasuthi instituted a false suit claiming the amount of rent. We have been taking money from you for conducting these suits. We have made accounting upto date and find that we took the total sum of Rs. 51,346 (Rupees Fifty one thousand seven hundred forty six) only upto 26th Shravan, 1371 B.S. Now, so long as these our suits are not disposed of and the rents are realised, we have to take further sums of money from you. We hope you will not refrain from paying the same to us. For this purpose, we admit and promise that you shall take, with interest, at a time the sums of money that will be realised by us on account of these suits and if our loans are not satisfied, then you will realise the same with interest from our property mentioned above.

The sum of money taken is increasing, but we have no other means. If you do not help us with money in this manner, then our entire property will be lost and we shall be washed away. We cannot live without your money. The aforesaid loan taken by us shall remain as ''First charge'' on the aforesaid property. Dated 26th Shravan, 1371 B.S.

At this stage, we may refer to Section 25(3) of the Contract Act which is as follows:

An agreement made without consideration is void unless--

(1) ...

(2) ...

(3) It is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases such an agreement is a contract.

It is now well-settled that a promise to pay does not revive the old debt nor does it extend the period of limitation but the barred debt may be the consideration for the promise. Section 25(3) requires that the promise must be made in writing signed by the in debtor to pay wholly or in part a barred debt. Such a promise must be made with reference to a debt. A promise to pay is not a mere acknowledgment but something more than that. An acknowledgment beyond the period of limitation is useless but a promise to pay after the expiry of the period of limitation will entitle the creditor to sue on such promise. Such a promise when accepted by the creditor becomes a contract. Again, the promise may be absolute or conditional. It is not necessary for us to refer to the decisions cited at the bar relating to the principles for the construction of a document for the purpose of deciding whether a particular statement is a promise to pay or an acknowledgment of a debt. In the instant case, there is no dispute that a promise to pay has been made by the Defendants in their letter, Ex. 1(b). The question, however, is whether the promise which has been made by the Defendants is an absolute promise to pay or it is conditional. This question cannot detain us for the language of the letter clearly indicates that it is not an unconditional promise but a conditional one, namely, that the creditor Radhanath will be entitled to take with interest the sums of money that will be realised by the Defendants in the suits referred to in the letter and if the loans remain unsatisfied, in that case, he will realise the same with interest from the Defendants property mentioned in the letter. By this letter, there fore, two modes of recovery of the loans have been agreed to, namely (i) recovery from the amounts that may be received by the Defendants in the suits instituted by them and (ii) if the loan is not satisfied then from the Defendants'' property. In Chasemore v. Turner L.R. 10 Q.B. 500 Amphlett B. observed as follows:

First of all, if there be an absolute unconditional acknowledgment of the debt, that is sufficient. If that stands alone and nothing is said about payment, the acknowledgment of the debt would imply a promise in law to pay the debt. But if there is not only an acknowledgment of the debt but a promise to pay the debt in words, we then have to look whether the promise to pay is an unqualified unconditional promise or whether it is a conditional promise and if it is a conditional promise to pay and the condition is not performed, then the mere acknowledgment of the debt will not take the case out of the statute.

Mr. Bankim Chandra Dutt, learned Advocate appearing on behalf of the Appellants, has strenuously urged that as there was an unconditional acknowledgment of the debt by the Defendants in the letter, Ex. 1(b), it is sufficient as held in Chasemore v. Turner. It appears that the law that was prevalent in England at the time of the decision of Chasemore v. Turner an unconditional acknowledgment of a debt amounted to a promise to pay. That law was on the basis of justice, equity and good conscience and not on any statutory provision. It is not necessary for us to investigate the same any further, but sufficient it to say, that the statute of limitation in our country makes a clear distinction between an acknowledgment and a promise to pay. It has been already pointed out that a promise to pay is something more than an acknowledgment u/s 25(3) of the Contract Act. A promise to pay a barred debt is a contract if made in writing signed by the debtor with reference to a particular debt. Even the decision in Chasemore v. Turner does not help the contention made on behalf of the Appellants, for the observation made in that case as set out above also makes it clear that if it is a conditional promise to pay and the condition is not performed, then the mere acknowledgment of the debt will not take the case out of the statute. In the instant case, the unconditional acknowledgment of the debt does not stand alone but there is a further promise to pay the debt and that promise in conditional.

In Chasemore v. Turner the relevant portion of the letter which came up for consideration read as "the old account between us which has been standing over so long has not escaped our memory and as soon as we can get our affairs arranged, we will see you are paid." It was held that an unconditional and absolute acknowledgment was made by the debtor in the said letter. Amphelett B. observed as follows:

At all events it appears to me to be clear that there is no implication or expression, or intimation of a doubt of any kind that he has not the means to pay, but that he merely wants time until his affairs can be arranged.... I think that the letter contains really an assertion that the affairs will be arranged, the necessary implication is the affairs will be arranged and at the end of a reasonable time and as six years all but a few days had elapsed when this action was brought, I think it is a fair inference for the Court to draw from the letter itself that the affairs had been arranged; and if they had not been arranged, the burden....would lie upon the Defendant to show that the affairs had not been arranged.

Relying on the observation set out above, it has been strenuously urged by Mr. Dutt that in this case also several years having elapsed from the date of Ex. 1(b), it must be presumed that the Defendants realised money from the said suits and the burden is on them to show that no amount was realised by them. We are unable to accept this contention. In Chasemore v. Turner Supra it was specifically found that the debtor had the means to pay, but he took some time to pay for the purpose of arranging his affairs. It, therefore, follows that when a debtor has the means to pay and promises to pay the debt after some time for arranging his own affairs with which the creditor has nothing to do, in such a case the creditor may sue the debtor after waiting for a reasonable time and the burden will be on the debtor to prove to the satisfaction of the Court that he has not been able to arrange his affairs. In the instant case, the letter, Ex. 1(b), shows and it is not disputed that the Defendants had not the means to pay. They expected to realise some money from the tenants for which they were sued and promised to pay to the Plaintiffs out of the amounts that would be realised by them from the tenants. Secondly, the amount if ultimately realised by the Defendants from the tenants be insufficient, in that case, the Plaintiffs may recover their debt from the Defendants'' property. In our opinion, the onus of proving that the Defendants and realised money from the tenants sued by them is on the Plaintiffs and that is the first condition imposed subject to which the promise to pay the debt was made. Far from proving any realisation by the Defendants they were not even cross-examined on the point. It is contended on behalf of the Appellants that it was the duty of the Defendants to disclose as to what had happened to the suits instituted by them. Such a contention is difficult to accept as the onus lay wholly on the Plaintiffs and the Defendants were not obliged to show anything about the said suits.

In this connection we may refer to a Bench decision of this Court in Binode Dasya Chutiani v. Chota 16 C.W.N. 636. In that case, the daughter promised to pay her debt by a share of the profit of the elephant business and it was held that the Plaintiff could not recover in any other way, it was held that the whole of the promise, whether free or clogged with a condition, gives the cause of action. In support of the proposition that the creditor must prove the fulfilment of the condition, some English cases have been referred to in the above Bench decision. Instead of referring to the cases we shall only mention two promises that were involved in those cases and referred to in the Bench decision. If the debtor says, ''I will pay when I can'', it was held that the creditor must prove his ability to pay. Again, if he says, ''I will pay by a set off or some special arrangement'' it was held that the creditor could realise his dues in no other way. In the present case before us, the Appellants cannot realise the debt in any other mode and in the present action for the recovery of the debt they must prove that the Defendants realised money from the tenants who were sued for the same. As the Appellants have failed to prove the same they are not entitled to a decree for the amount claimed in the suit excepting the said sum of Rs. 6,000 the recovery of which was not barred by limitation on the date of the suit as held by the learned Subordinate Judge. No other point has been argued on behalf of the parties in this appeal.

In the result, the judgment and decree of the learned Subordinate Judge are affirmed and the appeal and the cross-objection are both dismissed. There will, however, be no order for costs in either of them. The application for additional evidence are disposed of as above without any order for costs.

Sharma, J.

I agree.