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PATNA HIGH COURT
Raj Kishore Prasad and U.N.Sinha JJ.
Uma Shankar Prasad Narain Singh
Versus
Mst.Saraswati Devi
Appeal from Original Decree No. 66 of 1955 ;
Decided On : APRIL 06, 1960
ACKNOWLEDGMENT OF LIABILITY - LIMITATION ACT, SEC. 19 - INTERPRETATION - CONSTRUCTION OF ACKNOWLEDGMENT - MISTAKE IN USE OF WORD - INTENTION OF ACKNOWLEDGMENT - JOINT FAMILY LIABILITY - EXTENT OF LIABILITY.
Fact of the Case:
Plaintiffs sued defendant No. 1 (appellant) and his mother and minor brother for recovery of Rs. 11,500 on the basis of Bahi Khata accounts. Defendant No. 1 admitted liability for Rs. 7,150 on February 12, 1945 (Exhibit 1) and for Rs. 8,506 on August 23, 1945 (Exhibit 1(a)). The suit was decreed ex parte against defendant No. 1, who appealed.
Finding of the Court:
1. The ex parte decree was upheld as the appellant failed to establish that he had no knowledge of the date of hearing of the suit after receipt of the record from the High Court. 2. The second acknowledgment (Exhibit 1(a)) was a valid acknowledgment of liability within the meaning of Sec. 19 of the Limitation Act, despite the use of the word "to" instead of "from". The mistake in the use of the word did not change the intention of the appellant to acknowledge his liability to the plaintiffs. 3. The appellant was liable only to the extent of one-third if he was the karta of the joint family. However, there was no evidence to establish that he was the karta, and evidence showed that he had separated from his mother and minor brother in May 1945. 4. The plaintiffs were entitled to a decree in respect of all the items which were saved by the first acknowledgment (Exhibit 1) and which were borrowed by the appellant's father or by the appellant himself within three years from before February 12, 1945. The appellant's liability for the loans contracted by his father would be limited to the extent of the assets of his father in his hands.
Issues: 1. Whether the ex parte decree should be set aside due to lack of knowledge of the date of hearing. 2. Whether the second acknowledgment (Exhibit 1(a)) was a valid acknowledgment of liability under Sec. 19 of the Limitation Act. 3. Whether the appellant was liable only to the extent of one-third as a member of a joint family. 4. Whether the plaintiffs were entitled to a decree in respect of all the items saved by the first acknowledgment (Exhibit 1).
Ratio Decidendi: 1. The appellant failed to establish that he had no knowledge of the date of hearing of the suit after receipt of the record from the High Court. 2. The use of the word "to" instead of "from" in the second acknowledgment (Exhibit 1(a)) was a mistake that did not change the intention of the appellant to acknowledge his liability to the plaintiffs. 3. There was no evidence to establish that the appellant was the karta of the joint family, and evidence showed that he had separated from his mother and minor brother in May 1945. 4. The plaintiffs were entitled to a decree in respect of all the items which were saved by the first acknowledgment (Exhibit 1) and which were borrowed by the appellant's father or by the appellant himself within three years from before February 12, 1945.
Final Decision: The appeal was dismissed subject to the modification that the plaintiffs were entitled to all the dues which were within three years from before February 12, 1945, the date of the first acknowledgment (Exhibit 1).
1. This appeal by defendant No. 1, is from an ex parte decree, passed by the Court below, against the appellant alone, on the 17th of November, 1952. (1a) This appeal arises out of a money suit brought by the plaintiffs-respondents for recovery of Rs. 11,500.00 including interest, on the basis of Bahi Khata accounts, Exhibits 1 and 1(a), against defendant No. 1 the appellant, and, also against his mother, defendant No. 3, and, his minor brother, defendant No. 2.
2. The plaintiffs case was this: Bidya Prasad Narayan Singh, father of defendants 1 and 2 and husband of defendant No. 3, used to purchase clothes on credit and also take loans in cash from the plaintiffs from time to time. Bidya Prasad Narayan Singh died on the 8th September, 1944.
3. After making 3.11 account of the transaction between the plaintiffs and Bidya Prasad Narayan Singh between the 5th and 6th September, 1944. Rs. 5,561-13-9 pies was due from Bidya Prasad Narayan Singh. After his death defendant No. 1 took from the plaintiffs on the 8th and 10th September, 1944 a sum of Rs. 200-15-6 pies. Thus, on the 10th of September, 1944, the plaintiffs dues had amounted to Rs. 7,150. On the 12th of February, 1945, defendant No. 1 verified all the accounts and made an endorsement to that effect upon the statement of accounts shown to him. Defendant No. 1 found that he was liable to the plaintiffs for Rs. 7,150 and be admitted and acknowledged in writing signed by him on the 12th of February, 1945, a liability of Rs. 7,150, Exhibit 1.
4. Thereafter, defendant No. 1 again took Rs. 399-5-6 pies in cash and on the 23rd of August, 1945, he again checked and verified the account. He found that his liability had amounted to Rs. 8,506, and he admitted his liability in writing on the 23rd August, 1945, for the said sum of Rs. 8,506, Exhibit 1(a).
5. The plaintiffs, therefore, claimed Rs. 8,506 as principal and Rs. 2,994 as interest from the 24th of August, 1945 to the 20th of August, 1948. The total claim was thus, Rs. 11,500.
6. All the three defendants had filed separate written statements. The case of defendant No. 1, who is the sole appellant in this appeal, was substantially as follows. In paragraph 13 of his written statement he contended that he had never verifies any accounts and that he was merely informed by the plaintiffs that his father had taken loans from them from time to time, Defendant No. 1 being young and inexperienced at that time, believed the statement of the plaintiffs and made an endorsement that he checked the accounts and found them to be correct. Under these circumstances, be had made the endorsements relied upon by the plaintiffs. According to this defendant, the endorsement made and signed by him on the 12th of February, 1945, could not be construed as admission or acknowledgment of liability. With respect to the alleged acknowledgment of liability made on the 23rd of August, 1945, the case of defendant No. 1 was the same. He, however, admitted that he had taken Rs. 200-13-6 pies on the 8th and 10th September, 1944. A general defence was also taken that the suit was barred by time,
7. The defendant No. 1, no doubt, filed his written statement, but he did not contest the suit. The court below dismissed the suit as against defendants 2 and 3 and decreed it ex parte as against defendant No. 1. It is from this ex parte decree that the present appeal has been preferred by defendant No. 1 alone.
8. The first question which was pressed by Mr. Balbhadra Prasad Singh, who appeared for the appellant, was that the appellant had no knowledge of the suit, and, therefore, he could not appear at the time when the suit was called on for hearing, and, accordingly, it was urged that the ex parte decree should be set aside and the suit remanded and re-heard in his presence.
9. In order to decide the above question, it is necessary to state a few facts: The suit was instituted on the 31st of August, 1948. Defendant No. 1 appeared and filed his written statement
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