Decided on September 13,1990


Cited Judgements :-



Punchhi, J. - (1.)This appeal by special leave is against thejudgment and decree dated 16-9-1974 passed by the High Court of Kerala.S. No. 76 of 1974 (reported in AIR 1975 Kerala 91) whereby the High Court reduced the decree of the trial court to one fourth disallowing the remaining three-fourth on the ground that the same was barred by limitation. The plaintiff-appellant herein before us ventures to have the decree of the trial court restored. Since defendant-respondent No. 2, Santu Mohammed Rawther is to meet the established liability, there is an effort on his behalf, though quite belated, to seek leave to cross- object to the partial decree of the suit.
(2.)The facts giving rise thereto were indeed diverse and varied which got involved in four suits disposed of by the trial court by a common judgment, in the first instance, in April, 1967. Four appeals, were filed by the aggrieved parties before the High Court out of which three were disposed of by a common judgment on 11-9-1972. The fourth appeal arising from O.S. No. 141 of 1965 was allowed granting permission to the plaintiff-appellant herein to amend the plaint so as to base his money suit on the basis of two promissory notes with the aid of acknowledgments contained in some documents. The trial court in pursuance of the order of remand granted a decree against the defendants for a sum of Rs. 56,769.80, with interest thereon at 61/4 per cent from 11- 11- 1964 till 31-7-1955 and thereafter at 6 per cent per annum till payment, with proportionate costs against the estate of Vellappa Rawther in the hands of defendants 2 to 10; and another personal decree fdr a certain sum against the first defendant-respondent which presently is not in dispute. The High Court on appeal preferred by defendant-respondents Nos. 2 and 4-10 in Original Suit No. 141 of 1965 (the only one surviving) modified the decree reducing it to one fourth of the decreed sum and focussed the liability on defendant-respondent No. 2 absolving others of the remaining liability on the bar of limitation. Such view was taken on the facts established that the liability to discharge debts of Vellappa Rawther deceased incurred by means of two promissory notes dated 23-11- 1960 and 5-1-1961 for Rs. 25,000/ - and Rs. 50,000/- respectively, after the death of Vellappa Rawther on 26-6-1962, was individually on his heirs proportionate to the extent of their share in the estate devolving on them and since the debt had become time barred, acknowledgment of the same by defendant respondent No. 2 as well as partial payment of the debt by him rendered him alone liable to meet liability to the extent of one fourth related to the share of the estate which as a Muslim heir he received from the deceased. In this appeal it is claimed on behalf of the plaintiff-appellant that the acknowledgment and partial payment afore-referred to saved limitation against all and thus the entire debt could be recovered from defendant-respondent No. 2, he being in possession of the estate lying joint, and thus the High Court was in error in upsetting the decree of the trial court.
(3.)It has been urged on behalf of the appellant that the integrity of the two debts of Rs. 25,000/ - and Rs. 50,000/ - created by wo promissory notes Exhibits B 14 and B 15 could not be broken on the footing that the liability to discharge those debts stood devolved on the heirs of the deceased debtor, proportionate to their shares known to Mahomedan Law. It has also been urged on behalf of the appellant that the acknowledgment of liability made by defendant-respondent No. 2 would u/ S. 18 of the Limitation Act save limitation not only against him but as against other heirs as well. as,supposed to have acted a, iesentative, agent or partner on their behalf. Further, it has been urged on behalf of the appellant that part payment made by defendant-respondent No. 2 would save limitation u/ S. 19 of the Limitation Act against the other co-heirs of the deceased Mahomedan debtor. The view taken by a learned single Judge of the Andhra Pradesh High- Court in Mohd. Abdul Qadeer v. Azamatullah Khan (1974) 1 Andh WR 98, has been pressed into service to contend that though under the Mahomedan Law each heir is liable for the debts of the deceased to the extent only of a.share of the debts, proportionate to his share of the estate, but so far as the creditor is concerned, the identity and integrity of the debt remains unimpaired by the death of the original promisor, and no several debts emerge in place of one debt.

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