1. ' This is a suit for recovery of a sum of Rs, 80,851.15 and arises under the following circumstances:
2. That on 19.2-1969, a sum of Rs, 50,000 was given as a loan to Late Mr. S. K. Mahmood, father of the defendant who also executed a promissory note for the said amount on the same date. The loan was given on interest at the rate of 4 per cent. Per annum over the published State Bank of Pakistan rate with a minimum of 9 per cent. Per annum with monthly rests. Late Mr. S. K. Mahmood died before liquidating the liability. On demand being made by the plaintiffs, the defendant by his letter dated the 8th July, 1972 acknowledged the liability and promised to pay the same. It is stated in Para. (4) of the plaint as follows t- "(4) That on 8-7-1972, the defendant, the son of the said Late- Mr. K. S. Mahmud acknowledged the liability and promised to repay the same from the assets of his late father. A Photostat copy of the letter is hereby attached as Annexure B."
2. ' The defendant did not deny in his written statement that he did not promise to pay the loan. What is stated in reply to the above in para. 4 of the written statement is : "(4) That the acknowledgment by the defendant referred to in para. 4 of the plaint is of no legal effect as the same was obtained by the plaintiffs without disclosing material facts and date and was based on inducement for advancing a further loan conditionally an execution thereof."
3. On the pleadings of the parties the following issues were framed by .Consent of the parties :- (1)Whether the suit is barred by time ?
4. (2)What is the effect of the acknowledgment contained in the letter dated 8th July, 1972 written by the defendant ?
5. (3)Whether the defendant wrote the letter dated 8th July, 1972 on the inducement of the plaintiff that they would advance further loan to the defendant, if so, what is the effect ?
6. (4)What is the effect of nom-joinder of the three daughters of the deceased on the suit ?
7. (5)To what relief, if any, the plaintiff is entitled to ?
8. ' The learned Advocates for the parties did not produce any evidence and also stated that they do not wish to lead any evidence.
9. ' I have heard Mr. A. M. Naqvi for the plaintiff and Mr. Imam Ali Kazi, Advocate for the defendant.
10. ' My decision on the issues is as follows !Issues Nos. 1 & 2- ' The loan was advanced on 19-2-1969, and the promissory note was executed on the same date.
11. The suit was filed on 4 h August, 1975, beyond three years and even on the basis of the acknowledgment contained in the letter dated the 8th July, 1972, it would be barred by time because the acknowledgment was made after three years. But the letter does not only contain an acknowledgment but it also contains a definite promise to pay the debt in the following words:- "The above loans will be repaid as soon as we are able to have these remittances released by the State Bank of Pakistan."
12. And therefore, the suit would not be barred by time in view of the provisions of section 25 (3) of the Contract Act, which are as follows - "It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits."
13. A son on the death of the father would be liable to pay the debt of the father to the extent of the estate of the deceased father in his hands o received by him. I therefore, hold that on the basis of the acknowledgment, the suit is barred by time but on the basis of promise the suit is within time because the promise was made on 8th July, 1972 and the suit was filed on 4th August, 1975, the date when the Court re-opened after Summer vacations and as the time of three years had expired during the vacations. However, on the basis of the promise the defendant shall be liable to the extent of the money of the deceased father received or to be received by him from the State Bank of Pakistan.
14. ' Issue No, 3- ' So far as issue No, 3 is concerned, there is no evidence whatever that the letter dated the 8th July, 1972 was written on the inducement of the plaintiffs that they would advance further loans to the defendant. The defendant has not chosen to give evidence in support of the allegations made in the written statement in this behalf. Therefore, I decide this issue against him.
15. ' Issue No, 4- ' Since the promise was made by the defendant himself to pay the debt of his father it was not necessary for the plaintiffs to join the three daughters of the deceased.
16. ' Issue No, 5- ' The loan was in the amount of Rs, 50,000 and the balance of Rs, 30,851,15 is on account of interest at the agreed rate. Therefore, the plaintiff is entitled to a decree for the total amount of Rs, 80,851.15 with future interest at 5 per cent. Per annum which is the minimum rate of interest for which the bank agreed to advance the loan to the defendant's father. The defendant shall also be liable to pay the costs of the suit. According to the promise the defendant would be liable to pay the decrial amount only if he has received the money from the State Bank of Pakistan or if he receives the same from the State Bank of Pakistan.