1. Plaintiff I is the appellant. The circumstances leading to the institution of the suit giving rise to this second appeal, the nature of the claim made in the plaint in the suit and the defences raised are set out as follows in paragraphs 2, 3 and 4 of the lower appellate Court's judgment:

“The suit, which gives rise to this appeal, was filed by the 1st respondent for the recovery of Rs. 190 with interest thereon amounting to half the principal, by the sale of the plaint properties.

“The plaint property belonged to one Chirukandan who obtained it under a family partition deed. Exhibit B dated 2-10-1090. By the terms of that partition deed, Chirukandan was to pay to his sister Mani Ittooly Rs. 190 on the death of their mother Mani. Chirukandan executed Exhibit A sale deed dated 22-8-1094 for the plaint property in favour of the 1st defendant. It was for consideration of Br. Rs. 685. One item of consideration was Rs. 190 which was recited to be paid to Mani Ittooli. Mani Ittooli assigned her rights to the 1st plaintiff in this case. He filed O.S 428 of 1103 of the Parur Munsiff's Court for the recovery of the above amount against Chirukandan and the 1st defendant in this case and the plaint properties. The 1st defendant resisted the suit and contended that neither he nor the plaint properties are liable. That suit was ultimately decreed on 29-7-1104. Plaintiff was given a personal decree against Chirukandan. The other reliefs were denied. In execution of the above decree the right of Chirukandan to realise the unpaid purchase money from the 1st defendant was purchased by the plaintiff. Plaintiff is entitled to realise Rs. 190 with interest thereon as a charge on the plaint property. He claims it as an enforcement of the vendor's lien. This right has been hypothecated to the 2nd plaintiff. Hence the suit for the reliefs already stated.

“The 1st defendant raised the following contentions. Plaintiff has not obtained any right as he claims by the court sale in O.S 428 of 1103 and he has no cause of action either against the defendant or the plaint properties. Exhibit A never created any vendor's lien in favour of Chirukandan. Even if there is any vendor's lien, the suit is barred by limitation. There is no valid acknowledgment by the defendant. He therefore contended that the plaintiff is not entitled to any relief.”

2. The trial court found that the plaintiff 1 had become the purchaser of the rights of Chirukandan to enforce the vendor's lien arising out of the non-payment by defendant 1 of part of the consideration for the sale evidenced by Ext. A, that the plaintiff had a right to sue and that there was no limitation. The appellate court came to the opposite conclusion on all these points and hence this appeal by plaintiff 1. Two nice and interesting questions of law arise for decision in the second appeal. One is, whether when a purchaser of immovable property covenants, in consideration of the transfer of such property to him, to discharge certain liabilities of the vendor, the amount reserved for payment to the latter's creditor can be held to be ‘purchase money unpaid’ so that the vendor may have a charge for the money remaining unpaid to the creditor. Chirukandan sold the property to defendant 1 and as part of the consideration for the sale, the latter undertook to discharge the amounts due to Ittooli as per the terms of the partition deed. The money was payable on the death of Mani, the mother of Chirukandan and Ittooli. Mani died on 10-9-1101 and the present suit was brought only on 4-4-1115. Assuming that Chirukandan was entitled to a vendor's lien and the appellant acquired that right under the court sale in O.S 428 of 1103, the suit would be barred unless the acknowledgment relied upon by the plaintiff can be found to be true.

3. The second question arising in the appeal is whether Ext. C, the written statement defendant 1 filed in O.S 403 of 1103 contains an unequivocal admission of a subsisting debt, that is subsisting at the time of the acknowledgment. The written statement was filed on 16-8-1103 long before the expiration of twelve years after Mani's death. The suit would therefore, be in time, if it be found that Ext. C embodies an acknowledgment of a subsisting jural relationship of debtor and creditor between defendant 1 and Chirukandan on the date that document was filed in Court. The lower appellate court made a sad mistake in thinking that even without the acknowledgment the suit was in time as the twelve years' rule under Article 119 of the Travancore Limitation Act VI of 1100, applied to the case and not the three years' rule under the old Act of 1062. We have seen that, while Mani died in 1101, the suit was instituted only in 1115. Hence assuming the appellant is entitled to the benefit of the vendor's lien, the question, whether his suit was brought before it, was barred by limitation must depend upon the validity or otherwise of the acknowledgment referred to.

4. Exhibit D, an objection petition, defendant 1 filed during the course of the execution of the decree in O.S 428 of 1103, is said to contain another acknowledgment. That however was made only on 12-12-1113 beyond twelve years of Mani's death. If Exhibit C contains a valid acknowledgment there is no need to refer to Exhibit D at all, as the suit was brought before, hardly two years had elapsed after the date of that document. On the other hand, if Ext. C does not contain a valid acknowledgment Ext. D cannot serve any useful purpose as that document came into existence after twelve years had already expired from the date Mani died.

5. Of the two questions mentioned above as arising for decision, on the first one there is a sharp cleavage of judicial opinion between the Travancore and the Cochin High Courts. Were we able to persuade ourselves to agree with the learned Munsiff who dealt with the case in the trial court that Ext. C contains a valid acknowledgment we would have referred the case to a Full Bench to resolve the said conflict. On a careful consideration of the relevant passages in the written statement defendant 1 filed in the previous suit, we are unable to agree with the Munsiff's view, though we feel free to confess that at the first blush that view would seem to be correct. Upon a close examination of the two paragraphs in that written statement relied upon by the appellant's learned counsel and on reading the written statement as a whole, we are inclined to think that it would be a superficial view to hold that the written statement contains a clear and unequivocal admission of a subsisting liability or a jural relationship of debtor and creditor.

6. In view of this decision we propose to take on the question of acknowledgment, we shall for the purpose of this case assume that the appellant is entitled to claim a charge on the property Chirukandan sold to defendant 1 for the money the latter failed to pay Ittooli, pursuant to the undertaking in Ext. A. In other words, we proceed to examine the question relating to acknowledgment on the basis that the view consistently held by the Travancore High Court, that in circumstances similar to the present, the vendor is entitled to the unpaid vendor's lien for the consideration remaining unpaid, is the correct view. It is needless to repeat, we are not deciding it but only proceeding on that assumption.

7. The appellant's learned counsel contended, that paragraphs 3 and 6 of Ext. C, the written statement, in the former suit, contained clear and unequivocal admissions which amount to acknowledgments within the meaning of Section 19 of the Limitation Act, read with explanation I thereto. Explanation I, so far as is material, provides that for purposes of the section an acknowledgment may be sufficient though it avers that the time for payment has not yet come, or is coupled with a claim to a set off. Paragraph 3 sets out that though defendant 1 had purchased item 2 of the plaint from Chirukandan undertaking to discharge the latter's liability to Ittooli under the partition arrangement, regard being had to a suit instituted by another member of Chirukandan's family to set aside the partition as also the alienation in his favour of item 3, the liability to discharge the consideration reserved for payment cannot arise until after the final determination of that litigation in his favour and that in case the litigation went against him, he would not at all be liable for the amount.

8. The paragraph further adds that the decision of the first Court was in his favour but that an appeal preferred against it was pending before the District Court. If this paragraph in the written statement had stood alone, or rather, was not qualified by any subsequent statements, it cannot for a moment be doubted that it contained a proper acknowledgment which Explanation I would cover. The paragraph contains an affirmation of the covenant to pay Ittooli though it is stated that the time for payment is not yet come. We have, therefore, to see whether the subsequent averments in the written statement nullify the effect of the above acknowledgment.

9. Paragraph 6 while admitting that defendant 1 purchased item 2 of the plaint undertaking to pay Ittooli the amount due to her from Chirukandan under the partition arrangement, proceeds to state that by a subsequent agreement between the vendor and the vendee, the amount reserved with the latter for the said purpose was set off, (or agreed to be set off) towards amounts, due to the vendee as per a decree of the High Court and that the vendor had himself undertaken to pay off Ittooli. There was some controversy at the Bar whether this paragraph only referred to an agreement to set off at a future date or whether it spoke of a set off already effected.

10. Mr. P. Narayana Pillai, the learned Counsel for the appellant, argued that what the defendant claimed under that paragraph was a right to set of pursuant to a prior agreement and not an adjustment or set off already effected. There is no gainsaying that if Mr. Narayana Pillai's argument is sound the acknowledgment is covered by the Explanation referred to as one, coupled with a claim to a set oft. Reading that paragraph as a whole and giving (sic) to the latter portion which speaks of an undertaking by Chirukandan to discharge Ittooli's dues, we cannot help thinking that what was pleaded was an adjustment as a past event and not something to be done thereafter. In other words the true meaning of the paragraph is that while it admitted a past liability it also stated how that liability had been discharged.

11. In this context we desire to refer to — ‘Badri Dass v. Manohar Dass’, 11 All LJ 601. The head note to that case, which correctly sets out the facts and the purport of the decision, is in these terms:

“The plaintiff purchased a certain debt due to. G, an insolvent, and gave notice to the defendants, who owed that debt, asking them to pay up. The defendants replied that they owed nothing as they had already discharged the debt partly by paying the amount of a certain Hundi drawn by G and partly by making a certain payment to the receiver. Held, that the defendant having directly and expressly repudiated the debt, only giving details of the manner in which it had been discharged, there was no acknowledgment, of the debt within the meaning of section IS of the Limitation Act nor was there an acknowledgment coupled with a claim to a set of within the meaning of Explanation (1) of that section.”

12. Richards, C.J, who delivered the judgment in that case after setting out the terms of the alleged acknowledgment, referred to the argument that there was an acknowledgment of the debt coupled with a claim to a set off which would be sufficient under Explanation (1) to section 19 said that the statement in question was not an acknowledgment coupled with a claim to set off, but that it was a direct and express repudiation of the debt, giving details of the manner in which it had been discharged. Notwithstanding, the rather inartistic language employed in paragraph 6 of Ext. C, we have understood the same in the above sense. That is after referring to a past liability it proceeded to state how the liability was adjusted.

13. We feel fortified in interpreting paragraph 6 in this manner by what Mellish L.J, said in — ‘Spargo's case’, (1873) 8 Ch. 407 at page 414 regarding the true meaning of a set off or a settlement in account. The relevant passage from the judgment of Mellish L.J is cited with approval by Lord Wright in — ‘Trinidad Lake Asphalt Operating Co. Ltd. v. Commrs. of Income Tax for Trinidad & Tobago’, AIR 1945 P.C 85 at p. 88 and it reads:

“Nothing is clearer than if parties account with each other and sums are stated to be due on the one side and sums of an equal amount due on the other side of that account, and those accounts are settled by both parties, it is exactly the same thing as if the sums due on each side had been paid. Indeed, it is a general rule of law that in every case where a transaction resolves itself into paying money by A to B, and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form or ceremony of handing the money backwards and forwards.”

14. Lord Wright observes that this statement gives a description of what is often called a settlement in account or a set off in the ordinary sense of the term. Great reliance was placed by the respondent's learned Counsel on Mellish L.J's description of what a settlement in account of a set off means and Lord Wright's comments thereupon. Paragraph 6 of the written statement makes it clear that the parties had met and decided upon to set one demand against the other. Nothing more remained to be done under that arrangement except the discharge by Chirukandan of the amount due to Ittooli, which arose as a result of the arranagements. The arrangement, if true, extinguished the liability of defendant 1 under Ext. A to pay Ittooli.

15. It is settled law that a statement in writing, which expressly or impliedly says that the debt has been discharged, will not amount to sufficient acknowledgment under Section 19 of the Limitation Act. See — ‘Rangaswami Chetti v. Thangavelu Chetti’, 42 Mad 637; — ‘Chaterdhari Mahto v. Nasib Singh’, AIR 1924 Pat. 806 and — ‘Karamdai Naicken v. R. Raju Pillai’, AIR 1949 Mad 401.

16. In construing a statement, as to whether it contains an acknowledgment of a subsisting liability, decided cases seek to draw a distinction between statements to the effect that even before the date thereof the liability had been discharged and statements which contain an admission of liability coupled with a declaration as regards the arrangement proposed for its satisfaction. With reference to the former class of statements, the view uniformly held is that no acknowledgment of liability can be spelled out from such statements but that they contain only repudiation of liability. Equally consistent is the view that statements, falling under the latter class, would satisfy the requirements of valid acknowledgments. This line of distinction is, if we may say so, with respect, well brought out in the decision of Varadachariar, J. (as he then was) in—‘Ramaswami v. Velayuthan’, AIR 1938 Mad 496. Our reading of paragraph 6 brings it within the former class of eases.

17. Before proceeding further, it may be observed that in O.S 423 of 1103, 1st defendant's plea as to set oil was found against. This does not however affect the question whether his statement contains sufficient acknowledgment or not. The Court is concerned only with the form of the acknowledgment and not with the truth of its contents. See — ‘Chaterdhari Mahto v. Nasib Singh’, AIR 1924 Pat 806; — ‘Sheik Meera Sahib & Co. v. Sheik Naina’, 25 Mad LJ 259 and — ‘Hiralal v. Kripalsingh’, AIR 1933 Nag 13.

18. To sum up what we have said so far concerning paragraphs 3 and 6 of defendant 1's written statement in O.S 428/1103 (Ext. C), paragraph 3 taken by itself contains an acknowledgment covered by Explanation 1 to Section 19 of the Limitation Act. But paragraph 6 contains no such acknowledgment. In our view, the latter paragraph far from being an admission of an existing liability on the date the written statement was filed, is in effect a plea of a set off or a settlement in account anterior to that date which had the effect of putting an end to the liability in respect of the original undertaking in the sale deed. It is a repudiation that any liability subsists on the date the written statement was filed. It is a well-known rule of construction of documents, that, to understand the true meaning of a document it has to be read as a whole and that effect cannot be given to a part giving the go-by to another part.

19. Reading paragraphs 3 and 6 together (the rest of the written statement relates to pleas unconnected with the present question), we have a plea repudiating the liability coupled with a plea in the alternative that time for payment has not come. Reading section 19 by itself or together with Explanation 1, a document, containing such admissions of past liability, cannot be held to contain a valid acknowledgment. The written statement contains only a denial of liability with a plea in the alternative that the time for payment has not, yet come. Explanation 1 can cover only admissions of liability coupled with a statement that the time for payment has not yet come. If we I may say so, we have here the antithesis of) what the section together with Explanation 1 requires.

20. It is well known that decisions bearing on acknowledgments are very often irreconcilable. A decision upon the facts of one case cannot be of much assistance to a Court in coming to a conclusion on another set of facts. In — ‘Spencer v. Hemmerade’, (1922) 2 A.C 507 Lord Atkinson observed at p. 519;

“I do not propose to read the words used herein the light of the words judicially interpreted elsewhere, for everybody agreed that comparison with the words of other debtors is of little use. Still less do I imagine it, to be possible to extract anything that deserves to be called a principle from the decisions of three centuries, which have been directed to what is after all the task of decorously disregarding an Act of Parliament.”

21. In that case at page 534, Lord Sumner said that the decisions on the exact meaning and effect of the precise words employed by generations of shifty debtors are, it is agreed on all hands, irreconcilable and Lord Wrenbury's comment (Page 536) was:

“Throughout the decisions, — and they are very numerous, I find little, if any, difference of opinion as to the principle and rule of law, yet the cases are often difficult to reconcile.”

22. Notwithstanding these sharp criticisms, that if would be unprofitable to search for precedents when a question of acknowledgment has to be determined, we think it useful to refer at some length to a case already referred to.

23. In — ‘Sheik Meera Sahib & Co. v. Sheik Naina’, 25 Mad LJ 259, the defendants stated: in 1909 in their written statement that there was an agreement in 1907 that the plaintiffs' firm should receive from the defendants 25 per cent of their dues in full satisfaction of their claims and that they were ready and willing to pay the same but that the plaintiffs made default. They also stated that the plaintiffs' firm had taken possession of goods belonging, to them, that they were liable to give credit, out of the value of those goods to the extent of 25 per cent of the claim and that in any event, the defendants' liability should be exonerated to the extent of the value of the goods. It was held that these statements were neither of then acknowledgments of liability in 1909 within the meaning of S. 19 of the Limitation. Act so as to save limitation whether as regards the whole or as regards the 25 per cent.

24. It was further held that the plea of accord and satisfaction of the debt by reason of an-agreement at an earlier date, could not operate-as an acknowledgment of a specific liability at the date the plea was put in. The decision, also held that, while acknowledgment of liability coupled with a claim to a set off, is a good acknowledgment under Section 19 of the Limitation Act, a denial of liability, with a claim by way of set off in the alternative, is not. There the alternative plea was a plea of set off after a denial of liability. Here, according to the construction we put on paragraph 6 there is a denial of any subsisting liability while paragraph 3 contains the alternative plea that the time for payment has not yet come. Explanation 1 puts both these pleas, that is the plea that the claim is premature and the plea that there is a right to set off, on the same footing when there is an admission of liability. The line of argument we have adopted in this case is practically the same as Sir Arnold White, J. (Oldfield, J. concurring) adopted in that case. The pleas set out in paragraphs 3 and 6 cannot stand together except as alternative pleas. In the result the. Second Appeal fails and we dismiss it, but we make no order for costs. The lower appellate Court, no doubt, gave a judgment in favour of defendant 1, but as mentioned already the question of acknowledgment was not even adverted to. It mistakenly thought that the suit was brought within twelve years of Mani's death. Equally Unsatisfactory is its decision on the question relating to the vendor's lien. That decision is clearly opposed to a long string of cases decided by the Travancore High Court which the learned Judge was bound to follow. These circumstances induce us to make no order for costs in this court.

25. Decree accordingly.

B/V.R.B

26. Appeal dismissed.