1951 Supreme(Raj) 150
Rajasthan High Court
Wanchoo C.J. and Bapna, J.
Zorawarmal - Appellant
Versus
Sagarmal - Respondents
D.B. Regular Second Appeal No. 10 of 1950
Decided On : September 17, 1951
Ranchordas, for Appellants; Hukam Chand, for Respondents
Headnote:Limitation Act, s. 19 —Applicability.Limitation Act, (Marwar, 1927), s. 20--Hindi version— Word Hand-writing translated as Dastkhat.Limitation Act, s. 20—Payment of money without specification — Creditor appropriating to interest — Payment whether of interest as such.Limitation Act, s. 3—Limitation— Time barred claim—Burden is on plaintiff to show that his case falls within exceptions.
Where the endorsement does not refer to any previous debt at all, sec. 19 is not applicable.
In the "Hindi version of the Marwar Limitation Act, I927, which was published simultaneously with the English version, the word "handwriting" in sec. 20 was translated as Dastkhat which may mean both "signatures" or handwriting. There being nothing to show as to which version was more authoritative, it was held that signatures of the debtor who made the payment would be sufficient if the payment was towards the principal of the debt.
Where the debtor paid some money without specifying whether the payment was towards interest or towards principal, leaving it to the option of the creditor to appropriate it as he liked and the creditor appropriated it wholly towards interest due, it was held that there was neither a payment of interest as such or part payment of the principal within the meaning of sec. 20 of the Limitation Act.
It is the duty of the court to dismiss the claim as time barred if it is brought beyond the period prescribed in the schedule, but limitation may be saved if the plaintiff can bring himself within one of the exceptions. The burden, therefore, lies on the plaintiff to show that his case falls strictly within the scope of any such exception.
2. The respondents and their father Bhaniram, since deceased, sued the appellants and their father Shrichand for recovery of Rs. 2000/- on the basis of a Khata dated Asad Sudi, 13 Smt. 1988. It was alleged that the defendants were indebted to the joint family firm of the plantiffs and on Asad Sudi 13, Smt. 1988, a sum of Rs. 1183/11/9 remained due against the defendants. Thereafter interest was added for a period ending Asad Sudi 13, Smt. 1991 making the amount due Rs. 1403/12J6 in payment whereof Rs. 191/- were received and the entry of payment was signed by Shrichand leaving a balance of Rs. 1207/12/6. The plaintiffs claimed Rs. 792/3/6 as interest till the date of suit making the claim at Rs. 2000/-.
3. Shrichand admitted his signature on the balance of Rs. 1183/11/9 outstanding on Asad Sudi 13, Smt. 1988 and also under one item of Rs. 144/-/6 debited on account of interest for two years ending Asad Sudi 13 Smt. 1990. He also admitted that under the second debit item of Rs. 76/3/3 on account of interest for a period of one year till Asad Sudi 13 Smt. 1991, the signatures were those of his son Zorawar Mal, defendant. He denied having repaid Rs. 191/- on Asad Sudi 13 Smt. 1992 or having affixed his signatures on the entry of repayment appearing in the Khata. It was alleged that this was a bogus entry and the signatures were forged and only brought into existence to save limitation. Defendants Nos. 2 to 5 were sons of Shri Chand and did not file any separate written statement. Defendants Nos. 6 and 7 were co-sharers of the plaintiffs and made pro forma defendants.
4. The trial court after evidence found that the signatures of defendant No. 1 under the entry of repayment of Rs. 191/- on Asad Sudi 13, Smt. 1992, were not genuine and dismissed the suit as barred by limitation. On appeal, the learned District Judge came to a different conclusion and his finding was that those signatures were genuine. He held that the entry amounted to an acknowledgment which gave a fresh start of limitation and the suit which was filed on Asad Sudi 12, Smt. 1998, was within time. He accordingly decreed the plaintiffs suit with costs in both the courts.
5. In this appeal, the learned counsel for the defendants-appellants tried to argue that the finding as to the genuineness of the signatures of Shrichand, father of the appellants, on the entry of payment of Rs. 191/-dated Asad Sudi 13, Smt. 1992, was arrived at after a misreading of the evidence and was not correct. It was, however, found that there was no misreading of the evidence except perhaps an observation while dealing with the evidence of P. W. 2 Roop Chand. This observation related to his having correctly identified the writing of Shrichand on a different document on the same page of the Bahi on which the Khata of Smt. 1988 was executed. It had, however, not been proved that that particular document was in the handwriting of Shrichand. It was only an additional ground for believing Roopchand and even if that observation be dis-regarded, the learned District Judge had given other reasons for believing P. W. 2 Roopchand. The 1 arned District Judge has at great length discussed the evidence produced by the parties on the record before arriving at the finding as to the genuineness of signatures of Shrichand on the entry of payment and that finding cannot be disturbed because of an erroneous observation in regard to the evidence of one witness. The learned counsel then tried to argue that the finding was not arrived at after a judicial consideration of the evidence. This argument is of no force whatsoever as a bare perusal of the judgment clearly shows that the learned District Judge took great pains to discuss the entire evidence on record and the contention of the learned counsel for the appellants is nothing more than that the evidence