Dave, J. - (1.) THIS is an Ijlas Khas appeal by the plaintiff against the judgment and decree of a Division Bench of the High Court of the former State of Jodhpur, dated the 6th of December 1948.
(2.) A few facts, which are no longer in dispute between the parties, may be briefly stated for proper appreciation of the case. Both the praties are residents of Mundwa village which is situated in Nagaur district. Appellant No. 1 Sitaram is an adopted son of Govindram and appellant No. 2 is his widowed mother. It is common ground between the parties that Govindram, adoptive father of appellant No. 1 and Heeralal, father of the respondent Hariprasad had monetary dealings prior to Samwat 1988. On Kartik Vad 9 Samwat 1988 an account was settled between them and a balance of Rs. 4700/- was found against the resopndent's father payable to Govindram. There were no further advances or payments from one side to the other after that date. The appellant's case in the trial court was that on Kartik Sud 1 Samvat 1997, the respondent's father executed a document (marked Ex. P. l) admitting his liability to pay Rs. 10,574/- on that date. The suit was based on this document and the plaintiff prayed for the recovery of Rs, 10,574/- principal and Rs. 4,265/4/- as interest on the said sum at the rate of -/12/- per cent per mensem, in all Rs. 14,839/4/ -. The respondent denied the execution of Ex. P. 1 by his father and further pleaded that the suit was barred by time. It may be pointed out here that the suit was originally filed in the court of the District Judge, Jodhpur, but later on it was transferred by the High Court to its own file and was tried by a learned single Judge of that court on the original side. On the pleadings of the parties, the following issues were framed: - (1) Was Ex. P-l executed by defendant's father Heeralal ? P. (2) (a) Is the suit within time on account of payment of Rs. 6/-in Samvat 1990 and Rs. 206/- in Samvat 1994 ? P. (b) Whether Heeralal admitted the debt from time to time within the period of limitation ? P. (3) Whether Ex. P.-l amounts to a new contract within the meaning of sec. 25 Marwar Contract Act ? P. (4) To what interest is the plaintiff entitled ? P. (5) Relief? P. The learned Judge decided issue No. 2 (1) issue No. 3 and issue No. 4 against the plaintiff, but since issue Nos. 1 and 2 (b) were decided in his favour, a decree for the principal amount of Rs. l0,574/-plus Rs. 2,491/12/ for interest at the rate of 6% from the date of the suit to the date of decree i. e. in all for Rs. 13,065/12/- with future interest at 6% was passed in the plaintiff's favour with proportionate costs. It was directed that the account be realized from the estate of Heeralal in the hands of the respondent. Against this decree dated 30th of July, 1948, the respondent went in appeal. The learned Judges of the first appellate court came to the conclusion that the appellants had failed to prove that Ex. P.-5 was executed by the respondent's father. They also found that Ex. P.-l was a mere acknowledgment and not an account-stated as held by the trial court. It was also held that the appellants had not based their suit on the basis of the accounts between the parties and were unable to prove the various acknowledgments alleged by them. The appeal was therefore allowed and the suit was dismissed with costs throughout. Being aggrieved by this decision, the plaintiffs filed an Ijlas Khas appeal which has come before us for decision. Learned counsel for appellants has urged that the first appellate court had committed error in holding that the execution of Ex. P.-l by Heeralal was not proved, and that the said document was not covered by the term "account-stated" as envisaged by Art. 64 of the Indian Limitation Act. The questions which, therefore, arise for our determination are: - (1) Whether the execution of Ex. P,-l by the respondent's father Heeralal has been proved by the appellants. (2) Whether the present suit has been based on "accounts-stated and Ex. P.-l falls within the ambit of that term. It may be pointed out that the question whether Ex. P.-l was executed by Heera Lal is one of fact and a second appeal would not lie on that point. Learned counsel for appellants has, however, urged that the first appellate court did not take into consideration the evidence of two witness Sitaram plaintiff and Ramratan P. W. 4. It was argued that the testimony of Sitaram was erroneously brushed aside by the learned Judges with the remark that he was an interested person and, therefore, naturally supported the case put forwarded by him. It was contended that a party in a civil case is a competent witness and that the first appellate court had committed an error of law in ignoring his evidence without proper scrutiny. In support of this argument, reliance was placed on Bhanwarlal Vaid vs. Bhanwarlal Agarwal (i ). It was argued that the lower appellate court had also erred in law in declining to consider the evidence of Ramratan, P. W. 4, on the ground that he had not said that he was familiar with the handwriting of Heeralal. It was contended that Ramratan had said in examination-in-chief that he was acquainted with the hand writing of the defendant's father Heera Lal, and it was for the defendant to elicit by cross-examination the source of such acquaintance and to demolish that testimony. It was further argued that the witness was not cross-examined as to how he became acquainted wish the hand-writing of Heera Lal, and therefore his testimony was erroneously executed from consideration. In support of this argument, learned counsel relied on Pusaram vs. Man Mal (2 ). In that case, the view expressed in Shankerrao Gangadhar vs. Ramji Harjivan (3) was followed and it was held that when a witness had stated in his examination-in-chief that he was acquainted with the handwriting in dispute, it was for the defendants to show by cross-examination that the witness was really incompetent to testify under sec. 47 of the Evidence Act. It was urged that the lower court has given certain reasons for discarding the testimony of two other witnesses P. W. 5 Devilal and P. W. 8 Shivraj, but if that evidence is argumented by the testimony of Sitaram and Ram Ratan, the plaintiff cell reasonably claim a finding in his favour. The observations with which the evidence of these two witnesses was discarded by the first appellate court have not been happily worded. It is true that a plaintiff's or a defendant's statement cannot be excluded from consideration simply because he is a party to the case, and for that reason interested in the result of the suit. A party is a competent witness in civil cases under sec. 120 of the Indian Evidence Act, and his testi-mony is to be scrutinised and valued like that of any other witness in the case. We agree with the view taken in Bhanwar Lal vs. Bahanwar Lal (l) to which one of us was a party. We have, however, gone through the statement of Sitaram and have no hesitation in holding that his evidence is not reliable. The case made out by Sitaram was that the defendant had handed over the patta of his house in Svt. 1993 as a security tor the payment of the debt of Ex. P-l. It, however, became clear from his own statement that the defendant's father had given this patta to one Ghewar Chand Sonar as a security for as separate loan of Rs 200/- and the plaintiff himself personally got this patta from Ghewar Chand after paying off the said amount of Rs. 200/-, and this was a totally different transaction, quite unconnected with the dealings between his father Govindram and Heeralal. He wanted to show continuity of dealings between Heera Lal and Govindram by saying that the patta handed over to his father as a security for the debt of Ex. P.-l, but failed miserably in this attempt. The plaintiff appeared in the witness-box alter all other witnesses produced by him had already been examined. He must have come to know what his witnesses had deposed and it was at all difficult for him to attempt to fill up the gaps left by his witnesses. It is however clear from his statement that Ex. P.-l was not written in his presence nor did he get any change to see this document before the death of his father, and had no personal knowledge of the transaction. He did not take any active interest in the affairs of his father and stated that all the papers of the business of his father remained with his mother and such of them as were produced in the case had been handed over to him by his adoptive mother. His occasions for getting acquainted with the hand-writing of Heeralal were few according to his own statement. Hence his testimony as to identification of the hand-writing of Heeralal in respect of Ex. P.-l is not entitled to much weight. As to the statement of Ramratan, it may be observed that sec. 47 of the Indian Evidence Act lays down that when court has to form an opinion as to the person by whom any document is written or signed, the opinion of a person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. The explanation given under the section clarifies the competency of the person who may be said to be acquainted with the handwriting of another person. It says that a person may be said to be acquainted with the handwriting of another person if he fulfils at least one of the following three conditions namely (1) that he has send that person writ, or (2) that he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or (3) that in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. In the present case, the witness preferred to disclose how he became acquainted with the handwriting of Heeralal in his examination-in-chief. He stated that the appellant's father Govindram used to receive latters from respondent's father Heera Lal, and in such letters Heeralal used to write compliments to the witness and, therefore, Govindram on receipt of such letters used to show them to him and thus he was acquainted with his handwriting. As the witness restricted his source of becoming acquainted with the hand writing of Heeralal as above, the defendant's counsel very rightly directed his cross-examination on only this mode, and rightly did not put questions with reference to other modes of becoming acquainted with the handwriting of Heeralal. The decision in Pusamal vs. Manmal (2), is therefore distinguishable. Ramratan's mode of acquaintance with the handwriting of Heeralal is not covered by the first mode given in the explanation to sec. 47 set out above. His case would not be covered by the third mode because he referred only to two letters which were during the course of several years shown to him by Govindram. and, therefore, it could not be said that the documents purporting to be written by Heera Lal were habitually submitted to him. The conditions required by the second mode of getting acquainted are also not fulfilled for the witness did not say that the greetings scribed were in answer to any of his letters or that he wrote any letters in reply to those greetings. The endorsements of greeting also do not indicate that they were in answer to any letter by the witness. The law did not recognise any other mode of becoming acquainted with the handwriting, and the testimony of Ramratan was rightly held by the lower court to be inadmissible in evidence for the purpose of proving the handwriting of Heeralal in respect of Ex. P-l. The learned Judges have given good reasons whey the testimony of the other two witnesses P. W. 5 Devilal and P. W. 8 Shivraj should not be held to be reliable, and no question of law is involved in respect of the appreciation of their evidence. Learned counsel urged that the execution of Ex. P.-l was proved the following by circumstantial evidence which had been relied on by the trial court, but which was not taken into consideration by the first appellate court: (1) That Ex P.-l was supported by an entry in the bahi of Govindram. (2) That the respondent admitted that his father owed Rs. 4. 700/- to the appellant's father in Svt. 1988. (3) Accounts were sent by Govindram to Heeralal and he acknowledged their correctness from time to time and Govind Ram made a note of receipt of such acknowledgments in his bahi. (4) That the appellant was in possession of patta Ex. P.-8. The learned Judges have rightly held that an entry in the bahi of Govindram that an acknowledgment was received could not prove that Ex. P.-l was that acknowledgment. Similarly the fact that the respondent admitted that his father owed Rs. 4700/- in Svt. 1988 would not prove the execution of Ex. P-l in Svt. 1997. The acknowledgments alleged to have been received between Svt. 1988 and Svt. 1997 have not been 'produced by the plaintiff and it is said that they were lost. The note made by Govindram cannot prove what was contained in them. The possession of the patta by the appellant was under a different transaction. It is obvious that the circumstances related above could not prove the execution of Ex. P.-l and the first appellate court was right in holding that Ex. P.-l had not been proved to have been executed by Heeralal. The respondent and his witnesses admitted the genuineness of certain other letters written by Heeralal and, therefore, the standard handwriting of Heeralal was not in dispute. The appellant had chance to get the writing of Ex. P.-l compared with the writing of the standard document by a hand-writing expert, but this was not done. Learned counsel urged that this Court should make a comparison of the hand-writing of Ex. P.-l with the handwriting of Heeralal on admitted documents. Ex. P.-l is not written in Devnagri, but in Marwari characters which are not easily intelligible and without the aid of a handwriting expert, it is not possible for this Court to arrive at any conclusion by a mere comparison of the hand-writing. The finding on Ex. P.-l being against the appellant on issue No. 1, this appeal cannot succeed and must be dismissed.
(3.) LEARNED counsel for both sides have addressed arguments on the next point as well, and in deference to their lengthy arguments we propose to deal with that question also. Even if it were proved that Ex. P.-l was executed by Heeralal, the next question which would arise for our determination is whether the suit could be based upon it. The trial court considered it to be accounts stated, while in the opinion of the first appellate court, it was only an acknowledgment. Learned counsel for appellants has urged that this document purports to have been executed by Heeralal after he had received accounts sent by Govindram and after he had verified their accuracy and therefore, it should be considered to be an 'account stated'. In support of his arguments he has referred to (Elvira Rodrigues) Siqueira vs. Noranha (4) and Prosanna Kumari Mozumdar vs. Tripura Charan Chowdhury (5 ). Learned counsel for respondent has, on the other band, urged that on the appellant's own admission, there was no transaction between his father and the respondent's father after the Samvat year 1988, that the appellant's father had only added interest from Svt. 1988 to 1997, that the transaction between them was not bilateral but only unilateral and, therefore, Ex. P.-l was not a real accounts stated but merely an acknowledgment, it is further urged that this acknowledgment could only serve to extend the period of limitation, but it could not form the basis of the suit and, therefore, the claim was rightly dismissed by the first appellate court. It is urged that the remarks made by their Lordships of the Privy Counsel in Siqueira vs. Naronha (4) were explained in Bishnu Chand vs. Girdhari Lal (6) which support the stand taken by him. In the case of Siqueira vs. Noronha (4), it was observed by their Lordships as follows - "their Lordships think that what has been forgotten is that there are two forms of account stated. An account stated may only take the form of a mere acknowledgment of a debt,and in those circumstances, though it is quit true it amounts to a promise and the existence of a debt may be inferred, that can be rebutted, and it may very well turn out that there is no real debt at all, and in those circumstances there would be no consideration and no binding promise. But on the other hand, there is another form of account stated which is a very usual form as between merchants in business in which the account stated is an account which contains entries on both sides, and in which the parties who have stated the account between them have agreed that the items on the side should be set against the items upon the other side and the balance only should be paid; the items on the smaller side are set off and deemed to be paid by the items on the larger side,and there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described. " Learned counsel for appellants relies on the remark occurring in the first paragraph which has been marked as 'a' for future reference. In the next case Bishun Chand vs. Girdhari Lal (6) their Lordships referred to the first case and made the following observations which is relied upon by the respondent's learned advocate: - "indeed, the essence of an account stated is not the character of the items on one side or the other, but the fact that there are cross items of account and that the parties mutually agree the several amounts of each and, by treating the items so agreed on the one side as discharging the items on the other side protanto, go on to agree that the balance only is payable. Such a transaction is in truth bilateral, and creates a new debt and a new cause of action. . . . . . . . . Indeed, it follows from the idea of an account stated that whether the consideration for each item, every item must appear in terms of money, since what is being-agreed is matter of account : it is also clear that in that great class of cases, where the whole dealings between the items of account can only be in terms of money and can only consist of payments of one to the other and vice versa. It seems that the rule adopted by the Court in the decision appealed from would exclude from the category of legally valid "accounts stated" all such financial accounts. Nor can it be material, as it seems, in determining whether there can be an account stated, whether the balance of indebtedness is throughout, as it must be at the end, in favour of one side. Equally it seems irrelevant whether the debt in favour of the final creditor was created at the outset by one large payment or consisted of several sums of principal and several sums of interest; nor can it matter, in this connection, whether the only payments made on the order side were simply payments in reduction of such indebtedness or were payment made in respect of other dealings. In any event, items must in the same way be ascertained and "agreed on each side before the balance can be struck and settled. " Now with regard to the observation of their Lordships appearing at 'a', it may be mentioned, in the first instance, that their Lordships of the Privy Council themselves had given a caution in Quinn vs. Leathern (7) that every judgment must be read as applicable to the particular facts proved and the generality of the expressions which may be found there are not to be treated as an exposition of the whole law but governed and qualified by particular fact of the case in which such expressions are to be found. The same observation is also found in the case of Punjab Co-operative Bank Ltd. vs. Commissioner of Income-tax (8), We should, therefore, see in what circumstances the observation 'a' was made by their Lordships. In the case of Siqueir vs. Noronha. The plaintiff Noronha had brought a suit for a sum of money which was due to him on account of his salary. He was employed by the defendant in 1913, but at that time his salary was not definitely settled. He, however, kept on withdrawing moneys on his own account from time to time during the course of fifteen years. Thereafter in March, 1928, Mr. Rodrigues, who was the managing partner of the defendant's firm, gave him a document in which the accounts were stated. On the one side his salary was calculated and the amount due was shown. On the other side, the amounts drawn by him from time to time were also shown and taken into account. The document then ended as follows: - "by balance in your favour on 31. 12. 1927 ; 42,458,84. " It would thus appear that there was a detailed account which on the one side showed the amount of salary which accrued to the plaintiff during all the fifteen years and on the other side, it mentioned all the items relating to the withdrawals which were made by him from time to time. It was this document which was in view of their Lordships when the observations at 'a' were made. The note appended to the document was a mere acknowledgment, but that acknowledgment appeared on an account which contained cross items on either side and it was probably on that account that their Lordships made the observation that an account stated may take the form of only an acknowledgment of a debt. Their Lordships did not mean to wipe out the difference between a mere acknowledgment and an account stated. If a mere acknowledgment is made the basis of the suit, then sec. 19 of the Indian Limitation Act would become meaningless. The observation appearing at 'a' should not therefore, be read detached from the context of facts of that case. In the next case Bishun Chand vs. Girdhari Lal (6) their Lordships again referred to the case of Siqueira vs. Noronha (4) and explained what was the essence of an account stated. The observation appearing at 'b' is a later observation of their Lordships which was made after considering their observation in the first case. A careful reading of both the cases leads to the conclusion that in order to bring the document within the ambit of the term "account stated", the account should contain items on both the credit and the debit side and then there should be a balance struck and acknowledged. It is immaterial whether the balance of transactions is throughout in favour of one side or whether the debt is incurred in the beginning by one big amount of loan and there are only repayments on the other side in reduction of such debt, but in any event, there must be items on both the sides and the transaction should be bilateral and not unilateral. ;