ivil Appeal No 229 of 1976
From the Judgment and Order dated 691974 of the Kerala High Court in AS No 76 of 1974
section Padmanabhan K Prasonthi and N Sudha Karan for the Appellant
Ms Shyamla Pappu G Vishwanathan lyer VB 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 69
1974 passed by the High Court of Kerala in AS 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 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 OS 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 Rs5676980 with interest thereon at 6 14 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 Rs25000 and Rs50000 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 Rs25000 and Rs50000 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 Mohd Abdul Qadeer vs 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 vs 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 NK Mohammad Sulaiman vs NC Mohammad Ismail and Others 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 ie 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
AAA 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
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 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 vs 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 13000 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 No1 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 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 202
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 202 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 vs 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 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
RSS Appeal dismissed


Summary:
Respondent Nos 4 to 6 sold their 35th share of the ancestral land to the appellant for Rs14000 as the ven dors left their village and wanted to settle elsewhere where they purchased 80 kanals of Nehri land
Respondents Nos 1 to 3 filed a declaratory suit in the court of Sub Judge Ludhiana seeking a declaration that the sale of the suit land would not affect their reversionary rights after the death of respondents 4 to 6
They pleaded that the land was ancestral and according to the custom governing the parties it could not be alienated they also asserted that the land was sold without any consideration and legal necessity
The appellant defendant No 1 contended that the sale was an act of good management on the part of the alienors and that the same was not without considerationthe vendors having decided to settle elsewhere
The trial court held that the sale was an act of prudent management and was not without consideration
As regards the custom it held that the parties were governed by custom whereunder ancestral land could not be alienated except for legal necessity or as an act of good management
The suit was accordingly dismissed and the first appeal preferred against that decision failed
Respondents 1 to 3 thereafter preferred Regular Second Appeal before the High Court
The High Court allowed the appeal set aside the sale holding that it was neither for any legal necessity nor could it be justified as an act of good management
The suit was accordingly decreed
Hence this appeal by the appellant defendant No 1 by special leave
418 Before this Court the appellant contended that the sale was or was not an act of good management having been a question of fact the trial court as also the first appel late court having arrived at a concurrent finding that it was an act of good management the High Court should not have interfered with that finding
On the other hand the respondents contended that the sale was not an act of good management
Allowing the appeal this Court HELD The custom is that the ancestral immovable proper ty is ordinarily inalienable specially amongst Jats residing in the Central Districts of Punjab except for necessity and the other permissible reasons
All alienation as a bona fide act of good management has been treated as one of necessity and hence valid
233B In the instant case the vendee proved the ingredients of good management and the concurrent finding of the Trial Court and the first appellate court was that the impugned sale was an act of good management and it was essentially a finding of fact
234F The High Court was therefore in error in setting aside the concurrent finding of fact in the facts and circum stances of the case in Second Appeal
Gujar vs Sham Das 107 PR 1887 Mohammad Chiragh and Ors
vs Fatta  Ors AIR 1934 Lahore 452 Abdul Rafi Khan vs
P Lakshmi Chand and Ors AIR 1934 Lahore 998 Dial Singh vs Surain Singh AIR 1937 Lahore 493 Gujjan Singh and Ors
vs Atma Singh 1968 PLR Vol
70 195