Case: Sant Lal Mahton Vs. Kamala Prasad

written and engrossed at the plaintiffs house at village Chakla Maulanagur and the date which the document bears is 21st Chaitra 1334 Fasli corresponding to 8th April, 1927. Obviously, it was attesting witnesses whose names appears in the deed, to wit, Sunderlal, Matukdhari Prasad, Dwarka Prasad and Nanak Prasad the last named person being also the scribe of the document -and all of them were residents of Chakla Maulanagur which is the place of residence of the mortgagees. The mortgagors, on the other hand are inhabitants of a different village, namely, Chandpur, Nanak Chand, the scribe, was not alive at the time when the suit came up for hearing and out of the remaining three witnesses two were examined on behalf of the plaintiffs. They are Sunderlal and Matukdhari Prasad. Sunderlal, who is P. W. 1, states when cross-examined on behalf of some of the defendants""I signed the bond at the plaintiffs house, as did the attesting witness."The attestation of the bond was on the same day that it was written."The other attesting witness, Matukdhari Prasad, during cross-examination said as follows :"The bond was written, signed by the executants and attested by the witnesses on the same date."The documents shows that all the three executants put their signatures to it on 12th of April, 1927, and on the same day it was presented for registration before the Registration Officer at Katihar. Katihar is at some distance from the plaintiffs village and a part of the journey has to be covered by train. The evidence of the two attesting witnesses makes it clear that the documents was attested on the same day as it was document was attested on the same day as it was written. As the document was written on the 8th but actually executed on the 12th, the Subordinate Judge was of opinion that the attesting witnesses must have signed the deed before it was executed and this was no attestation in the eye of law. The High court, on the other hand, has held that the vernacular equivalent of the word "written" as used by the attesting witnesses might mean execution as well and the Subordinate Judge, who was not familiar with the language of the witness might have committed the mistake of taking the word "written" in the sense of mere engrossing or scribing of the deed, although the word could be interpreted to mean execution as well. We do not think that this assumption on the part of the learned Judges of the High Court is justified. In the first place, Matukdhari Prasad, the plaintiffs own witness, is quite precise in his statement and makes a distinction between the writing of a document and its signing or execution. According to him, the bond was written, executed and attested on the same day. But what is more important for our purpose is the place of the execution of the document. If it was executed at the plaintiffs house, where it was admittedly written, the date of execution would naturally be the date when the deed was scribed or engrossed. This is exactly the suggestion which the plaintiffs lawyers made to defendant No. 1 Sant Lall when he was being cross- examined. He was asked as to whether the document was executed at the plaintiffs village or at Katihar, where it was taken for registration. The witness persisted in saying that he and the other executants put their signatures not at the place of the plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the morning. This story seems to fit in with the circumstances and probabilities of the case. The document was certainly taken to Katihar on the 12th of April, 1927, and the executants were all present there on that day and admitted execution of the document by putting their signatures before the Registering Officer. The signatures by way of execution of the document also bear the same date. From these circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1 to3. Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.10.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two conditions are essential : first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the prayer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, there fore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (1).But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegation made therein. The legislature has expressly declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided there fore in the first schedule to the Limitation Act. If the plaintiffs right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the court might not hold the bond to be properly attested. In these circumstances, they prayed for an amendment of the plaint which was cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph the following words were addedsuit is saved from limitation so far as the personal remedy is concerned and the payments were made by the defendants on different dates as mentioned Schedule Aamendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment nor proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in thisthese circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.