1. The plaintiff is the appellant in this appeal. The facts which are now not in dispute are as follows: Samadani Begum borrowed a sum of Rs. 30,000/- from the plaintiff and executed a promissory note Ex. A.1 dated 20-12-1958 in favour of the plaintiff. She also gave a receipt Ex. A.2 for the same amount. The receipt was attested by Abu Mohammad Abdur Rahman husband of Samdani Begum, Samdani Begum died issueless on 20-6-1959. On her death, her heirs were her husband Abu Mohammed Abdur Rahman and her other kindred, defendant 1 to 5. The husband was entitled to a half share of her estate and was liable to pay, under Mohammadan Law, half the debt due to the plaintiff. Defendants 1 to 5 were similarly entitled to half the estate of Samdani Begum and were liable to pay half the debt due to the plaintiff. On 3-10-1961 Abu Mohammad Abdur Rahman made a part payment of a sum of Rs. 1000/- to the plaintiff. An endorsement of part payment was made on the promissory note and a separate document Ex. A.14 was also executed by which Abu Mohammed Abdur Rahman acknowledges the debt due to the plaintiff Abu Mohammad Abdur Rahman died on 12-2-1962. Defendants 6 to 8 are his heirs. The bungalow which belonged to Samadani Begum and which was her only property was partitioned on 21-3-1964 between defendants 3 to 8. The present suit to recover the sum due under the promissory note was filed on 21-9-1964. The learned Second Additional Judge. City Civil Court foiled that Samadani Begum borrowed a sum of Rs. 30,000/- from the plaintiff and executed the Suit promissory note and the receipt. He found that the part payment made on 3-10-1961 and the acknowledgment of the debt by Abu Mohammed Abdur Rahman saved limitation against defendants 6 to 8 but not against defendants 3 to 5. He was of the view that apart payment or acknowledgment by one of several co-heirs would not save limitation against the other co-heirs. On that view, he decreed the suit in a sum of Rs. 14,000/- against defendants 6 to 8, Rs. 14,000/- being the half share of the debt which they were liable to pay after giving credit to the part payment of Rs. 1,000/- made by Abdur Rahman, and dismissed the suit against defendants 1 to 5. In this appeal the plaintiff claims that he is entitled to a decree against defendants 1 to 5 for the remaining amount of Rs. 15,000/-. Though in the grounds of appeal it is mentioned that the lower court should have granted a decree against defendants 6 to 8 for the entire suit amount that ground is not pressed before me.
2. The only question for consideration in this appeal is whether the part payment of Rs. 1000/- or the acknowledgment of the debt by Abu Mohmmad Abdur Rahman on 3-10-1961 saves limitation against defendants 1 to 5 also.
3. Sri Mohammad Jahangir Ali, learned counsel for the appellant urges that while the acknowledgment by one co-heir may not save limitation against other co-heirs, part payment by one co-heir saves limitation against other co-heirs. He points out the difference in language between sections 18 and 19 of the Limitation Act, 1963 (which correspond to Sections 19 and 20 of the Limitation Act of 1908). Under Section 18 of the present Limitation Act an acknowledgment of liability, in order to save limitation, has to be made by the party against whom the claim is made, whereas under S. 19 part payment may be made by the person liable to pay the debt. The difference is between the party against whom the right is claimed and ‘the person liable to pay the debt.’ Thus acknowledgment by a person liable to pay the debt will save limitation against him only and not against others who are also liable to pay the debt. Whereas part payment will save limitation even against the others. That this was the effect of Sections 19 and 20 of the Limitation Act of 1908 (which correspond to Sections 18 and 19 of the Present Act) was held in Velayudan Pillai v. Vaithaialingam Pillai . XXIV M.L.J 66.. Benson and Sundara Aiyar JJ., observed.
“According to Section 20 of the Limitation Act, where interest on a debt or legacy is before the expiration of the prescribed period paid as such by the person liable to pay the debt or legacy………….. a fresh period of limitation shall be computed from the time when the payment was made. The Section requires that the payer should be one liable to pay the debt, and provides that the result of the payment would be to give the creditor a fresh period of limitation from the date of the payment. It does not restrict the benefit accruing to the creditor with respect to his debt to his remedy against the payee alone. According to the language of the Section the debt being kept alive the result must be to make it enforceable against any one liable for it”.
4. In Lakshmi Naidu v. Gunnamma ILRL VIII Madras 418.. Varadachariar and Burn JJ., observed:
“The argument was put on two grounds: one, that section 20 contemplates that, where there is a plurality of persons liable in respect of a debt, all of them should join in making a part payment alternatively, it was contended that, where they are liable as joint promisers, payment by one of them alone will not avail against, the others because of the express provisions of Section 21(2). The first contention is scarcely sustainable; See Velayudam Pillai v. Vaithialingam Pillai. In view of numerous cases decided in recent years in the various High Courts in India, the learned Advocate General, also admitted that, as held in the English decisions (Cf. Bolding v. Lane; Channery v. Evane and Lowin v. Wilson), there is a difference between the effect of an acknowledgment and that of a part payment, and that a part payment can avail not merely against the person making the payment or those deriving title under him subsequent to such payment but even against other persons liable in respect of the same debt.”
5. In Narasimha Rama Aiyar v. Ibrahim . A.I.R 1929 Madras 419. the question directly arose whether part payment by one off the co-heirs of a deceased Mohammadan was sufficient to save limitation against other co-heirs also. Thiruvenkatachariar J., held that it was sufficient. He observed:
“It seems to me that apart from the authorities which were referred to on both sides the material difference between the words of Sec. 19 and 20 strongly supports the petitioner's contention. In the case of acknowledgment it must have been made by the person against whom the right is claimed, but in the case of a payment for interest or principal all that is required is that it should have been made by a person liable to pay the debt. I am therefore of opinion that upon the construction of Ss. 19, 20, 21 alone, payments for interest made by mother who was a person liable to pay the debt will save limitation as against her co-heirs also. It does not matter that they took the property as tenants-in-common and that their interests are several. The payment made by one of the co-heirs is so far as the creditor is concerned payment made on behalf of the estate and it enures to the benefit of all the co-heirs.”
6. The decisions in Velayudam Pillai v. Vaithilangam Pillai and Narasimha Rama Aiyar v. Ibrahim were followed by Curgenven J. in Lokandha Naiko v. Lokhono Naiko . 127 I.C 641. Curgenven J., also referred to the decision in Venkatakrishnaiah v. Subbarayudu . ILR 40 Madras 698. where the distinction between Sec. 19 and 20 was pointed out and it was observed:
“Section 19 only operates against the person making the acknowledgment white section 20 makes the part-payment good in favour of any suit on that liability.”
7. The lower court relied on the decisions in Raja Rama v. Fakruddin Sahib . AIR 1930 Madras 218.. Md. Taqi v. Raja Ram . AIR 1936 Allahabad 820. and Fida Ali v. Bhuneswari Kuar . AIR 1942 Patna 73.. It is sufficient to say that those cases are cases of acknowledgment and not part payment. I have already pointed out the distinction between an acknowledgment and a part payment made by one co-heir.
8. Sri Y.B Sahgal, learned counsel for the respondents 3 to 5 argues that under Mohammadan 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 and, therefore, a part-payment by one ??? heir cannot save limitation against other co-heirs. I do not agree with this submission which is clearly opposed to the decision in Narasimha Rama Aiyar v. Ibrahim. So far as the creditor is concerned, the identity and the integrity of the debt remains unimpaired by the death of the original promissor. It may be that the several heirs are liable to pay the debt in proportion to their shares. But that does not mean that the integrity of the debt is broken and that there are several debts instead of one debt. The debt continues to be the same and each of the co-heirs is liable to pay a part of the debt. That is enough to attract Section 19 of the present Act. I am, therefore, of the view that the suit was not barred by limitation against defendants 1 to 5. The appeal is, therefore, allowed against defendants 1 to 5 and there will be a decree against defendants 1 to 5 for a sum of Rs. 15,000/- to the extent of their half share of House No. 5-8-594 and out-houses 5-8-505/1 and 5-8-505/2. Defendants 1 to 5 will pay the costs of the appeal and also half the costs of the suit. The appeal is dismissed against defendants 6 to 8.