P.N. VEETI NARAYANIversusPATHUMMA BEEVL AND ANOTHER

                   P.N. VEETI NARAYAN!
                                                                              A
                             v.
              PATHUMMA BEEVl AND ANOTHER

                        SEPTEMBER 13, 1990

   [A.M. AHMADI AND MADAN MOHAN PUNCHHI, JJ.]                                 B

    · Limitation Act: Sections 18, 19 and 20---Acknowledgment of
debt-When saves limitation.

      Muslim Personal Law-Liability to discharge debts devolves on
heirs proportionate to their respective Shares in the estate of the
deceased.                                                                     c
       One Vellappa Rawther, deceased, had incurred debt by means of
two.promissory notes for Rs.25,000 and Rs.50,000; In the suits tiled on the
basis of the _promissory notes, the Trial Court granted a decree against
tite estate of Vellappa Rawther in the hands of defendants 2 to 10.           D

       The High Court on appeal modified the decree reducing it to one
fourth of the decreed sum and focussed the liabili~y on defendant-
Respondent No. 2 absoiving others of the remaining liability on the bar
of limitation. Such view was taken as the facts established that the
liability to discharge debts of Vellappa. Rawther .after his death was        E
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 hy 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 tile deceased.                        F
       Before this Court, it was ciaimed 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 pos-
 session of the estate lying joint.                                           G

      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    H

                                    433
    434         SUPREME COURT REPORTS                 [1990] Supp. 1 S.C.R.

    debt is apparently foreign in the case of a deceased muslim leaving debt
A
    and some estate both being divisible amongst his heirs. [247G]

         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
B   Reports at 528; N.K. Mohammad Sulaiman v. N.C. Mohammad Ismail
    and Others, [1966] 1 SCR 935 at 940, referred to.

         (2) It would be right to treat it settled that muslim heirs are inde-
    pendent 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. [248H]
c
         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;
D   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 contractors, partners, executors or mortgagees or in a class
    akin ' ' them. They succeed to the estate as tenants-in-common in
    specific shares. [250D l

E         (4) 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)
    of the Limitation Act. The Muslim heirs inter-se have no such relation-
    ship. [250E]

F         (5) If the debt is one and indivisible, payment by one will inter-
    rupt 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 seemingly 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
G   to be discharged by the person who has made payment of interest. It
    cannot affect separate shares of the other debtors unless on the princi-
    pal of agency, express or implied, the payment can be said to be a
    payment on their behalf also. [250H; 2SiAJ

         Abheswari Dasya and Another v. Baburali Shaikh and Others,
H   AIR 1937 Cal. 191, referred to.
         P.N.V. NARAYAN! v. PATHUMMA BEEVI [PUNCHHI, JI               435

      (6) The property of the co-heirs supposedly in possession of
                                                                             A
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, [251F)

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 229
of 1976.

     From the Judgment and Order dated 6.9.1974 of the K,eralaHigh
Court in A.S. No. 76 of 1974.

    S. Padmanabhan; K. Prasonthi and N. Sudha-Karan for the
Appellant.
                                                                             c
    Ms. Shyamla Pappu, G. Vishwanathan Iyer, V,B. Saharya and
Mrs. Sarla Chandra for the· Respondents.         ·

      The Judgment of the Court was delivered by
                                                                             D
        PUNCHHI, J, This appeal by special leave is against the judg-
 ment and decree dated 6.9.1974 passed by the High Court of Kerala iil
 A.S. No. 76 of 1974 whereby the High Court reduced the decree of the
 trial court to one fourth disallowing 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.   E
 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           F
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 disposed of by a common judgment on 11-9-1972. The
fourth appeal arising from O.S. No. 141of1965 was allowed granting
permission to the plaintiff-appellant herein to amend the plaint so as to    G
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          H
    436         SUPREME COURT REPORTS               [1990] Supp. 1 S.C.R.

    Vellappa Rawther in the hands of defendants 2 to 10; and another
A
    personal decree for a certain sum against the first defendant-respon-
    dent which presently is not in dispute. The High Court on appeal
    preferred by defendant-respondents No. 2 and 4-10 in Original Suit
    No. 141of1965 (the only one surviving) modified the decree reducing
    it to the one fourth of the decreed sum and focussed the liability on
B   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 Vellappa 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 propor-
    tionate to the extent of their share in the estate devolving on them and
c   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
D   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 pos-
    session of the estate lying joint, and thus the High Court was ln error
    in upsetting the decree of the trial court.
          It has been urged on behalf of the appellant that the integrity of
E   the two debts of Rs.25,000 and Rs.50,000 created 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 ack-
    nowledgment of liability made by defendant-respondent No. 2 would
F   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 representative, agent or partner on their behalf. Further, it
    has been urged on behalf uf 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 Mahome-
G   dan debtor. The view taken by a learned Single Judge of the Andhra
    Pradesh High Court in Mohd. Abdul Qadeerv. Azamatullah 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 estate, but so far as the ere-
H
         P.N.V. NARAYAN! v. PATHUMMA BEEVJ [PUNCHHI, J]              431

di tor is concerned, the identity and integrity of the debt remains unim-
paired by the death of the original promisor, and no several debts
                                                                            A
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 Vasantam
Sambasiva Rao v. Sri Krishna Cement and Concrete Works, Tenali,             B
[ 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
authorisation by one of the debtors or the other to make part-payment
towards debt due from them, and furthe~ that the concept of identity
and integrity of the debt due from several heirs was foreign to sections    c
19 and 20.

     Before we proceed any further it would be apposite to clearly
recapitulate and re-state the principles of Mahomedan Law on the
subject. A five-judge bench of this Court in N.K. Mohammad                  D
Su/aiman 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.,     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."                          -                F

      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 integrity of the debt is apparently foreign in the case of
a deceased muslim leaving debt and some estate both being divisible G
amongst his heirs.

      A.A.A. Fyzee in his Outlines of Muhammadan Law (4th Edi-
tion) at page 385 quotes Mulla to say:

            "Proceeding logically, the first principle to be borne m        H
    438         SUPREME COURT REPORTS                 [1990] Supp. I S.C.R.

                mind is that each heir is liable for the debts of the deceased
A
                in proportion to the share he receives of the inheritance.
                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
B               part of the debt proportionate to his own share of the inheri-
                tance, and they will not be ·made to pay the whole of the
                debt, either jointly or severally (h) ..,

          In Principles ot Mahomedan Law by Mulla, 17th Edition, sec-
    tions 43 and 46 provide:
c                     "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).

D                     46. Suit by creditor against heirs-If there be no ex-
                ecutor 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
E               heirs inter se (h)."

          The question whether the ownership of a Muhammadan intestate
    devolves immediately on his heirs, and such devolution is not contin-
    gent upon, and suspended till, payment of such debts was answered
    authoritatively almost a century ago by a Full Bench of the Allahabad
F   High Court in lafri Begam v. Amir Muhammad Khan, [1885] Vol. 7
    !LR-Allahabad Series in the negative. Rather it was authoritatively
    settled (see page 843 of the Report) that Muhammadan heirs are inde-
    pendent 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.
G
          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
H   Personal Law proportionate to the extent of their shares. In this state
-            P.N.V. NARAYAN! v. PATHUMMA BEEVI (PUNCHHI, JJ

    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
                                                                          439

                                                                                 A
    many heirs, as are defending this cause, there are debts in that
    number.

           Now it is time to advert to Exhibits B7 and BS 1. Exhibit B7 is a
    letter by defendant-respondent-No. 2 to the plaintiff-appellant stating      B
    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 ack-
    nowledgment of the debt. The High Court agreed with that finding
    that the document contained an acknowledgment in writing. Practi-
    cally nothing was said against this finding before the High Court. Then
    we have Exhibit BS I which is styled as a consent-deed, executed by
    defendant-respondent No. 2 authorising the first defendant-respondent        c
    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 BIS aforesaid. The trial court found that Exhibit BS I
    created an agency in favour of defendant-respondent No. I within the
    meaning of section 19 of the Limitation Act. The High Court agreed           D
    with the view of the trial court and came to the conclusion that the
    deed Exhibit BS 1 contained an acknowledgment and the two endorse-
    ments made on the respective promissory notes Exhibit B 14 and BIS
    coupled by a payments of sums towards the debt by the duly
    authorised agent of defendant-respondent No. 2 could well be regar-
    ded as payments attracting extension of limitation under section 19 of       E
    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 nega-
    tive. The conclusion is that acknowledgment Exhibit B7 and endorse-
    ments on Exhibits B 14 and BIS on tlie authority of Exhibit BS I were
    held to have extended the period of limitation only against defendant-       F
    respondent 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 undisturbed denying ourselves treading in the field of
    facts.
                                                                                 G
          Sub-seciion (I) of section 18 of the Limitation Act (correspond-
    ing section 19 of the repealed Act IX of 1908} provides as follows:

                "Where, be.fore 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       H
         440         SUPREME COURT REPORTS                 [1990) Supp. 1 S.C.R.

                     right has been made in writing signed by the party against
     A
                     whonrsuch 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."

     B         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 ack-
         nowledgment signed by, or of a payment made by, or by the agent of,
         any other or others of them.
     c         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 inde-
         pendent debtors; the debt having been split by operation of law. Inter
     D   se they have no jural relationship as co-debtor. or joint debtors so as to
         fall within the shadow of contractors, partners, executors or mortga-
         gees 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 accor-
     E   dance with section 20(2). The Muslim heirs inter-se have no such rela-
         tionship. 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.

11   F         Section 19 of the Limitation Act, (corresponding to section 20 of
'!
1:       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
A
         in this behalf, a fresh period of limitation shall be computed from the
     G   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
     H   one consists really of several distinct debts each one of which is pay-
              P.N.V. NARAYAN! v. PATHUMMA BEEVI [PUNCHHI, J]                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
                                                                                   A
     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. See in this connection Abheswari Dasya and Another v. Baburali
     Shaikh and Others, AIR 1937 Cal. 191. The payment made on account             B
     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"fespondent No. 2, proportionate to his share of the estate          c
     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     D
     though the debts of the deceased be taken to be divisible and devolving
     se.parately on the heirs in proportion 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           E
     bf law made by the Allahabad High Court iri" 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    F
     are held liable to pay their share of the debt; the debt being recover-
     able. 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
     cour_t below: We decline to take up this issue at this stage.

           For the reasons afo~esaid we find no merit in this appeal and           G
      dismiss it. We equally find no merit in the belated cross-objection of
      defendant-respondent No. 2,, leave of which was s?ught during the
     .course of the hearing of the appeal. We decline to entertain the
     ~quest. There shall be no orde-ras to costs.

     R.S.S.                                                 Appeal dismissed.
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