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PETITIONER: P.N. VEETI NARAYANI

       Vs.

RESPONDENT: PATHUMMA BEEVI AND ANOTHER

DATE OF JUDGMENT13/09/1990

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J)

CITATION:  1991 AIR  720            1990 SCR  Supl. (1) 433  1990 SCC  (4) 672        JT 1991 (5)   420  1990 SCALE  (2)481

ACT:     Limitation  Act: Sections 18, 19 and  20--Acknowledgment of debt--When saves limitation.     Muslim  Personal Law--Liability to discharge  debts  de- volves on heirs proportionate to their respective Shares  in the estate of the deceased.

HEADNOTE:     One  Vellappa  Rawther, deceased, had incurred  debt  by means  of two promissory notes for Rs.25,000 and  Rs.50,000. In the suits filed on the basis of the promissory notes, the Trial Court granted a decree against the estate of  Vellappa Rawther in the hands of defendants 2 to 10.     The High Court on appeal 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  re- maining  liability on the bar of limitation. Such  view  was taken  as the facts established that the liability  to  dis- charge  debts of Vellappa Rawther after his death was  indi- vidually  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  de- fendant-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.     Before  this  Court,  it was claimed on  behalf  of  the appellant  that under sections 18 and 19 of  the  Limitation Act the acknowledgment and partial payment 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. Dismissing the appeal, this Court,     HELD:  (1)  The  debt of the deceased  gets  divided  in shares by operation of Muslim Personal Law amongst the heirs proportionate  to their shares in the estate. The theory  of sanctity of the integrity of the 434 debt is apparently foreign in the case of a deceased  muslim leaving  debt and some estate both being  divisible  amongst his heirs. [247G]

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   Mohd.  Abdul  Qadeer v. Azamatullah Khan and  8  Others, [1974]  1 Andhra Weekly Reporter 98; Vasantam Sambasiva  Rao v. Sri Krishna Cement and Concrete Works, Tenali 1977 Andhra Law  Times  Reports at 528; N.K.  Mohammad  Sulaiman  v.N.C. Mohammad  Ismail  and Others, [1966] 1 SCR 935 at  940,  re- ferred to.     (2)  It would be right to treat it settled  that  muslim heirs are independent owners of their specific shares simul- taneously  in  the estate and debts of the  deceased,  their liability fixed under the personal law proportionate to  the extent of their shares. [248H]     Jafri  Begum  v. Amir Muhammad Khan, [1885] Vol.  7  ILR Allahabad series, referred to.     (3) The heirs of a muslim are by themselves  independent debtors;  the  debt having been split by operation  of  law. Inter  se, they have no jural relationship as co-debtors  or joint  debtors so as to fall within the shadow  of  contrac- tors,  partners, executors or mortgagees or in a class  akin to them. They succeed to the estate as tenants-in-common  in specific shares. [250D]     (4) Even a signed written acknowledgment by the  princi- pal  or through his agent would bind the principal  and  not anyone else standing in jural relationship with the  princi- pal in accordance with section 20(2) of the Limitation  Act. The Muslim heirs inter-se have no such relationship. [250E]     (5)  If the debt is one and indivisible, payment by  one will  interrupt  limitation against all the  debtors  unless they  come within the exception laid down in section  20(2). And if the debt is susceptible of division and though  seem- ingly one consists really of several distinct debts each one of  which is payable by one of the obligors  separately  and not by the rest, section 20 keeps alive his part of the debt which  has got to be discharged by the person who  has  made payment of interest. It cannot affect separate shares of the other debtors unless on the principal of agency, express  or implied,  the payment can be said to be a payment  on  their behalf also. [250H; 251A]     Abheswari  Dasya  and  Another v.  Baburali  Shaikh  and Others, AIR 1937 Cal. 191, referred to. 435     (6)  The property of the co-heirs supposedly in  posses- sion of defendant-respondent No. 2 cannot be touched direct- ly in his hand unless the co-heirs being parties to the suit are  held  liable to pay their share of the debt;  the  debt being recoverable. [251F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  229  of 1976.     From the Judgment and Order dated 6.9.1974 of the Kerala High Court in A.S. No. 76 of 1974.     S. Padmanabhan, K. Prasonthi and N. Sudha-Karan for  the Appellant.     Ms.  Shyamla Pappu, G. Vishwanathan lyer,  V.B.  Saharya and Mrs. Sarla Chandra for the Respondents. The Judgment of the Court was delivered by     PUNCHHI, J. This appeal by special leave is against  the judgment and decree dated 6.9. 1974 passed by the High Court of  Kerala  in A.S. No. 76 of 1974 whereby  the  High  Court reduced  the decree of the trial court to one fourth  disal- lowing  the  remaining three-fourth on the ground  that  the same  was  barred  by  limitation.  The  plaintiff-appellant hereinbefore  us  ventures to have the decree of  the  trial

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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.     The  facts giving rise thereto were indeed  diverse  and varied  which  got involved in four suits  disposed  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  dis- posed  of  by  a common judgment on  11-9-1972.  The  fourth appeal arising from O.S. No. 141 of 1965 was allowed  grant- ing  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 6-1/4  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 436 Vellappa  Rawther  in the hands of defendants 2 to  10;  and another personal decree for a certain sum against the  first defendant-respondent which presently is not in dispute.  The High Court on appeal preferred by defendant-respondents  No. 2  and 4-10 in Original Suit No. 141 of 1965 (the  only  one surviving) modified the decree reducing it to the 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 Vellap- pa  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.     It  has been urged on behalf of the appellant  that  the integrity of the two debts of Rs.25,000 and Rs.50,000 creat- ed by two 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 under section 18 of the  Limitation  Act  save limitation  not only against him but as against other  heirs as well, since he is supposed to have acted as a representa- tive, 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  under section 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

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Mohd. Abdul Qadeer v. Azarnatullah Khan and 8 Others, [1974] 1 Andhra Weekly Reporter 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  es- tate, but so far as the cre- 437 ditor  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.     However,  in  all  fairness it was in  the  next  breath pointed out to us that another Single Judge of the same High Court  in Vasantarn Sambasiva Rao v. Sri Krishna Cement  and Concrete  Works, Tenali, [1977] Andhra Law Times Reports  at 528 doubted the view in Mohd. Abdul Qadeer’s case (supra) on the basis of a division bench case of that Court taking  the view  that section 19 of the Limitation Act  emphasised  not the identity or integrity of the debt, but the due  authori- sation  by  one of the debtors or the other  to  make  part- payment  towards  debt due from them, and further  that  the concept  of  identity  and integrity of the  debt  due  from several heirs was foreign to sections 19 and 20.     Before  we proceed any further it would be  apposite  to clearly recapitulate and re-state the principles of  Mahome- dan Law on the subject. A five-judge bench of this Court  in N.K.  Mohammad Sulaiman v. N.C. Mohammad Ismail and  Others, [1966] 1 SCR 935 at page 940 culled out certain well-settled and well accepted principles. Some of these are as under: "The  estate of a muslim dying intestate devolves under  the Islamic Law upon his heirs at the moment of his death  i.e., the estates vests immediately in each heir in proportion  to the  share ordained by the personal law and the interest  of each  heir is separate and distinct. Each heir is under  the personal  law  liable to satisfy the debts of  the  deceased only to the extent of the share of the debt proportionate to his share in the estate."     It  is plain from the afore-quotation that the  debt  of the  deceased gets divided in shares by operation of  Muslim Personnal  Law  amongst  the heirs  proportionate  to  their shares in the estate. The theory of sanctity of the integri- ty  of the debt is apparently foreign in the case of  a  de- ceased muslim leaving debt and some estate both being divis- ible amongst his heirs.     A.A.A.  Fyzee  in his Outlines of  Muhammadan  Law  (4th Edition) at page 385 quotes Mulla to say: "Proceeding logically, the first principle to be borne in 438 mind  is that each heir is liable for the debts of  the  de- ceased in proportion to the share he receives of the inheri- tance. For instance, a Muslim dies leaving three heirs,  who divide  the  estate amongst themselves  in  accordance  with their  rights.  A creditor of the deceased sues two  of  the heirs  and  not the third; the two heirs sued will  each  be liable  to pay a part of the debt proportionate to  his  own share  of the inheritance, and they will not be made to  pay the whole of the debt, either jointly or severally (h)."     In  Principles of Mahomedan Law by Mulla, 17th  Edition, sections 43 and 46 provide:          "43.  Extent of liability of heirs for  debts--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 (d).          46. Suit by creditor against heirs--If there be  no executor or administrator, the creditor may proceed  against the  heirs  of  the deceased, and where the  estate  of  the

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deceased  has not been distributed between the heirs, he  is entitled  to  execute the decree against the property  as  a whole  without regard to the extent of the liability of  the heirs inter se (h)."     The  question  whether  the ownership  of  a  Muhammadan intestate devolves immediately on his heirs, and such  devo- lution  is not contingent upon, and suspended till,  payment of such debts was answered authoritatively almost a  century ago  by  a Full Bench of the Allahabad High Court  in  Jafri Begam  v. Amir Muhammad Khan, [1885] Vol.  7  ILR--Allahabad Series  in the negative. Rather it was authoritatively  set- tled (see page 843 of the Report) that Muhammadan heirs  are independent  owners  of their specific shares, and  if  they take their shares subject to the charge of the debts of  the deceased, their liability is in proportion to the extent  of their shares.     These  observations  in Jafri Begam’s case  (supra)  are prime roots of the theory as to the divisibility of the debt in the hands of heirs of a Muslim intestate. So it would  be right to treat it settled that muslim heirs are  independent owners of their specific shares simultaneously in the estate and  debts of the deceased, their liability fixed under  the Personal Law proportionate to the extent of their shares. In this state 439 of  law it would be unnecessary to refer to other  decisions of  various High Courts touching the subject. So we  proceed on  the  footing that as many heirs, as are  defending  this cause, there are debts in that number.     Now it is time to advert to Exhibits B7 and B51. Exhibit B7  is a letter by defendant-respondent No. 2 to the  plain- tiff-appellant stating that he will pay off all the  amounts due to the plaintiff and to everyone else within two months. The  trial court construed this to be an  acknowledgment  of the  debt. The High Court agreed with that finding that  the document contained an acknowledgment in writing. Practically nothing was said against this finding before the High Court. Then we have Exhibit B51 which is styled as a  consent-deed, executed by defendant-respondent No. 2 authorising the first defendant-respondent to dispose of two motor cars for a  sum of Rs. 13,000 and discharge the liabilities of his  deceased father arising out of the two promissory notes Exhibit B  14 and  B 15 aforesaid. The trial court found that Exhibit  B51 created  an  agency in favour of  defendant-respondent  No.1 within the meaning of section 19 of the Limitation Act.  The High Court agreed with the view of the trial court and  came to  the  conclusion that the deed Exhibit B51  contained  an acknowledgment and the two endorsements made on the  respec- tive  promissory  notes Exhibit B 14 and B 15 coupled  by  a payments  of  sums towards the debt by the  duly  authorised agent  of defendant-respondent No. 2 could well be  regarded as payments attracting extension of limitation under section 19  of the Limitation Act. Having recorded that finding  the High Court directed itself to the question whether  payments thus made would extend limitation as against the other heirs also  and held in the negative. The conclusion is  that  ac- knowledgment  Exhibit B7 and endorsements on Exhibits  B  14 and  B 15 on the authority of Exhibit B51 were held to  have extended the period of limitation only against defendant re- spondent  No.  2. Though we have been addressed  to  take  a contrary  view on reinterpretation of these  documents  but, having heard learned counsel in that behalf we are  inclined to  agree  with the High Court and leave the  matter  undis- turbed denying ourselves treading in the field of facts.     Sub-section  (1)  of section 18 of  the  Limitation  Act

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(corresponding  section 19 of the repealed Act IX  of  1908) provides as follows: "Where, before the expiration of the prescribed period of  a suit or application in respect of any property or right,  an acknowledgment of liability in respect of such property or 440 right  has been made in writing signed by the party  against whom  such  property or right is claimed, or by  any  person through  whom  he derives his title or  liability,  a  fresh period  of limitation shall be computed from the  time  when the acknowledgment was so signed."     Sub-section (2) of section 20 (corresponding to  section 21 of the repealed Act IX of 1908) says that nothing in  the said  sections  (being sections 18 and 19)  renders  one  of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed by,  or of a payment made by, or by the agent of, any  other or others of them.     The heirs of a muslim dying intestate on whom falls  the liability  to  discharge the debt,  proportionate  to  their respective  shares  in the estate devolved,  can  hardly  be classified  as  joint contractors,  partners,  executors  or mortgagees. As held above they are by themselves independent debtors;  the  debt having been split by operation  of  law. Inter  se they have no jural relationship as  co-debtors  or joint  debtors so as to fail within the shadow  of  contrac- tors,  partners, executors or mortgagees or in a class  akin to them. They succeed to the estate as tenants  in-common-in specific shares. Even a signed written acknowledgment by the principal or through his agent would bind the principal  and not  anyone  else standing in jural  relationship  with  the principal in accordance with section 20(2). The Muslim heirs inter-se  have  no such relationship. In this  view  of  the matter,  we take the view that the High Court was  right  in confining the acknowledgment of the debts only to respondent No. 2 and not extending the acknowledgment to the other  co- heirs for their independent position.     Section  19  of the Limitation  Act,  (corresponding  to section  20  of the repealed Act IX of 1908). so far  as  is relevant  for  our purpose, provides that where  payment  on account  of debt or of interest on a legacy is  made  before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be  computed from the time when the payment was made.     In  the  context, if the debt is  one  and  indivisible, payment  by  one will interrupt limitation against  all  the debtors  unless they come within the exception laid down  in section  20(2) which has been taken note of earlier. And  if the debt is susceptible of division and though seemingly one consists really of several distinct debts each one of  which is pay- 441 able by one of the obligors separately and not by the  rest, section 20 keeps alive his part of the debt which has got to be  discharged by the person who has made payment of  inter- est.  It cannot affect separate shares of the other  debtors unless  on the principal of agency, express or implied,  the payment  can be said to be a payment on their  behalf  also. See in this connection Abheswari Dasva and Another v.  Babu- rali Shaikh and Others, AIR 1937 Cal. 191. The payment  made on  account  of  debt by defendant-respondent No.  2  as  an independent debtor, and not as an agent, express or implied, on  behalf  of  other co-heirs could hardly,  in  the  facts established,  here be said to be a payment on behalf of  all

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so as to extend period of limitation as against all. We  are thus of the considered view that the High Court was right in confining  the extension of limitation on payment of a  part of debt only against defendant-respondent No. 2, proportion- ate to his share of the estate devolved on him which was one fourth.  We are further of the view that the High Court  was right  in  holding  the suit against other  co-heirs  to  be barred by limitation relating to their shares of the debt.     Lastly it was urged by learned counsel for the appellant that  even though the debts of the deceased be taken  to  be divisible  and devolving separately on the heirs in  propor- tion  to their shares, the plaintiff still could proceed  to recover  the  entire debt from  defendant-respondent  No.  2 since  he was still continuing in possession of  the  estate and  had  not parted with it by means of  partition  to  the other co-heirs. This argument cannot sustain for a moment in view  of  the clear statement of law made by  the  Allahabad High  Court in Jafri Begam’s case (supra) at  pages  841-42. Such  a  question has been driven therein to  the  realm  of procedural  law and held to be not part of  substantive  law constituting  any rule of inheritance. The property  of  the co-heirs  supposedly in possession  of  defendant-respondent No. 2 cannot be touched directly in his hand unless the  co- heirs being parties to the suit are held liable to pay their share  of the debt; the debt being recoverable. But here  it involves  a  factual  aspect on which there  is  not  enough material on the record or the matter having been examined by the  court below. We decline to take up this issue  at  this stage.     For  the  reasons  aforesaid we find no  merit  in  this appeal  and  dismiss  it. We equally find no  merit  in  the belated cross-objection of defendant-respondent No. 2, leave of which was sought during the course of the hearing of  the appeal. We decline to entertain the request. There shall  be no order as to costs. R.S.S.                                 Appeal dismissed. 442