Judgement Appeal from a decree of the Court of the Judicial Commissioner (October 23, 1903), affirming a decree of the Divisional Judge of the Nerbudda Division (October 22, 1902), which affirmed a decree of the Civil Judge of Khandwa (June 16, 1902). Two questions were involved in the appeal—(1.) whether a statement contained in a written statement filed by the respondent amounts to an acknowledgment of his liability in respect of the sum sued for within the meaning of s. 19 of the Indian Limitation Act, 1877; and (2.) whether the respondent intermeddled with the estate of his deceased creditor as executor, and if he did, whether his intermeddling with such estate saved the appellants right of suit from being barred by limitation. The suit was brought on September 5, 1901, under the circumstances stated in their Lordships judgment, by the appellant to recover principal and interest due by the respondent as shewn by the accounts of Motiram, the deceased creditor, who carried on business as a banker. The transactions between them terminated on May 12, 1898. The respondent pleaded the Statute . of Limitations, relying on art. 57 of the Second Schedule, which prescribes a three years period. The appellant replied that " the accounts between the parties are open and current accounts, and there has been also during the dealings reciprocal demands between them, who were both big bankers "; that " the defendant has also acknowledged his liability on September 28, 1899, and has again admitted his liability on July 4, 1901, and thereby has given fresh starting point for limitation if it is held that the dealings were not mutual, open and current account within the meaning of article 85 of the Limitation Act" ; and that the respondent having acted as executor of the will of Motiram Seth from the time of his death till the final rejection of the application for probate by the Judicial Commissioner, i.e., till November 30, 1900, stood in a fiduciary relation to the appellant, and could not claim to take advantage of his position, and the suit was saved by the provisions of s. 10 of the Limitation Act. Article 85 is as follows " For the balance due on a mutual, open and current account where there have been reciprocal demands between the parties—three years—the close of the year in which the last item admitted or proved is entered into the account; such year to be computed as in the account." Sect. 10 is as follows " Notwithstanding anything hereinbefore contained no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property shall be barred by any length of time." The Civil Judge was of (opinion that the cause of action in regard to each payment arose at the time the money was paid, and that the suit having been brought on September 5, 1901, i.e., more than three years after the date of the last payment, was barred by limitation under Act XV. of 1877, Sched. II., art. 57. He was also of opinion that the suit was not governed by art. 85 of the said schedule as being a suit " for the balance due on a mutual, open and current account where there have been reciprocal demands between the parties." He decided that the period of limitation could not be extended on any of the grounds on which the extension was claimed, finding that the statement in the petition dated September 28, 1899, was not an acknowledgment of liability; that the acknowledgment of liability contained in the deposition of Rupchand made on July 4, 1901, was not signed by him, and " that the defendant did not administer Motirams estate so as to enable the plaintiff to get an extension of the period of limitation for this suit." The first appellate Court affirmed this judgment, and the Court of the Judicial Commissioner concurred in the findings of the two Courts that the suit was barred by limitation. It further held that the respondent was not liable as a trustee under either s. 87 or s. 88 of the Indian Trusts Act (II. of 1882). De Gruyther, for the appellant, contended that the Courts in India had erred in holding that the suit was governed by art. 57 instead of art. 85 in the Second Schedule to the Limitation Act. of 1882). De Gruyther, for the appellant, contended that the Courts in India had erred in holding that the suit was governed by art. 57 instead of art. 85 in the Second Schedule to the Limitation Act. The suit was for the balance of a mutual and current account between the parties, and the cause of action arose on the last day of the year which contained the last item proved or admitted. The absence of a shifting balance was not conclusive as to the absence of mutuality in the account. Reference was made to Hajee Syud Mahomed v. Ashrufoonnissa (( 1880) I. L. R. 5 Calc. 759.) ; Velu Pillai v. Ghose Mahomed (( 1893) I. L. R. 17 Madr. 293.); Ganesh v. Gyapu. (( 1897) I. L. R. 22 Bomb. 606.) Even if s. 85 applied, the period of limitation was extended by a valid acknowledgment of liability within the meaning of s. 19. The petition of September 28, 1899, was signed by the respondent, and contains a clear admission of open and concurrent accounts with the deceased. That is a sufficient acknowledgment of liability involving a promise to pay on settlement of the account, and satisfies s. 19 see the English authorities as to the effect of admitting a creditors right to have accounts taken—Prance v. Sympson (( 1854) 1 Kay, 678.) ; Banner v. Berridge (( 1881) 18 Ch. D. 254, 274.); In re River Steamer Co., Mitchells Case. (L. R. 6 Ch. Ap. 822, 828.) These cases have been followed in India and held applicable to the Indian Act see Sittaya v. Rangareddi (( 1887) I. L. R L 10 Madr. 259.) ; Fink v. Buldeo Dass (( 1899) I. L. R. 26 Calc. 715.); Vasudeo Anant v. Ram Krishna Rao Narayan. (( 1900) I. L, R, 24 Bomb. 394,) Besides, the respondent could not set up the bar of limitation, since he was trustee under his creditors will, and had acted in the administration of his estate either by virtue of a valid appointment or as executor de son tort see ss. 87 and 88 of the Trusts Act (II. of 1882). 394,) Besides, the respondent could not set up the bar of limitation, since he was trustee under his creditors will, and had acted in the administration of his estate either by virtue of a valid appointment or as executor de son tort see ss. 87 and 88 of the Trusts Act (II. of 1882). His petition contained an admission that he meddled in the management of the estate, and there are concurrent findings of fact to that effect, which, however, are not conclusive, for on examination they appear to be on mixed questions of law and fact. Reference was made to Ingle v. Richards (( 1860) 28 Beav. 366.); Moosabhai Mahomed Sajan v. Yacoobbhai Mahomed Sqjan (( 1904) I. L. R. 29 Bomb. 267, 283) ; Narayanasami Pillai v. Abhayi Sait. (( 1905) I. L. R. 28 Madr. 351.) C. W. Arathoon, for the respondent, contended that the findings of three Courts to the effect that the respondent did not intermeddle with Motirams estate were conclusive and binding see Massamat Durga Choudhrain v. Jiwahir Singh Choudhri. (( 1890) L, R, 17 Ind. Ap, 122, 127, 128) Sect. 87 of the Trusts Act did not apply, for probate had been refused, the Court holding that the respondent and others had not been legally appointed executors. Even if he had intermeddled, he did not do so to the extent of becoming an executor de son tort within the meaning of the Indian Succession Act, ss. 265-266, if those sections are applicable to the case of a Hindu see the exceptions there given. He referred to s. 9 of the Limitation Act, and contended that limitation had begun to run in Motirams lifetime, and was not at any time suspended by any act or omission of the respondent. The acknowledgment relied upon as being contained in the petition of September 28, 1899, was not within the meaning of s. 19 see Jogeshwar Roy v. Raj Narain Mitter (( 1903) I. L. R. 31 Cal. 195.) ; Hajee Syud Mahomed y. Ashrufoonnissa (I. L. R. 5 Calc. 759.) ; Velu Pillai v. Ghose Mahomed (I. L. R. 17 Madr. 293.); Ganesh v. Gyamu. (( 1897) I. L. R. 22 Bomb. 606.) There was no agreement express or implied that any accounts should be settled between the parties. 195.) ; Hajee Syud Mahomed y. Ashrufoonnissa (I. L. R. 5 Calc. 759.) ; Velu Pillai v. Ghose Mahomed (I. L. R. 17 Madr. 293.); Ganesh v. Gyamu. (( 1897) I. L. R. 22 Bomb. 606.) There was no agreement express or implied that any accounts should be settled between the parties. In fact there were no mutual and current accounts in the ordinary mercantile sense.] They consisted of items of advance by the deceased and of part payments by the respondent, who was always in debt on the account. There were no reciprocal demands between the parties, and accordingly art, 85 of the Limitation Act did not apply. He referred to art. 57. De Gruyther replied, citing Sukhamoni Chowdhrani v. Ishan Chunder Roy. (( 1898) L. R. 25 Ind. Ap. 95,) The judgment of their Lordships was delivered by SIR ALFRED WILLS. One Motiram, of whom the appellant (the plaintiff in the action) is the adopted son, and one Rupchand, the respondent and the defendant in the action, were mahajans or money-dealers, both residents of Burhanpur, in the Central Provinces. They had regular dealings with one another from July 21, 1895, to May 12, 1898, and at the close of these dealings the respondent owed Motiram Rs.5841. 9. 1 on account of principal and Rs.2801. 2. 0 on account of interest. No question has been raised as to the correctness of these amounts if the action be maintainable. The present suit was brought on September 5, 1901, to recover these amounts. There is no question that they were due. The respondent admitted in his pleading that they were so, and the only defence is that the action was barred by the lapse of time. Motiram died on October 6, 1898, leaving a will by which the respondent and four other persons were appointed trustees to administer the estate. Three of them, of whom the respondent was one, applied for probate. The application was opposed by the other two and by Kisandas, the natural father of the appellant. Their petition of objections is not in the record, but the reply, signed by the respondent and others, is set out, and from it there can be no doubt that amongst the objections was one on the ground that the respondent owed money to the estate. Their petition of objections is not in the record, but the reply, signed by the respondent and others, is set out, and from it there can be no doubt that amongst the objections was one on the ground that the respondent owed money to the estate. Paragraph 3 is as follows " The applicant Rupchand Nanabhai is a big Mahajan of Burhanpur paying Rs.106 as income tax. For the last five years he had open and current accounts with the deceased. The alleged indebtedness does not affect his right to apply for probate." This document is dated September 20, 1899. The application for probate failed on the ground that the applicants were not legally appointed executors. There was no application for letters of administration, but in 1901 Kisandas applied for a certificate of guardianship, an application which was opposed by the widow, and in the result Ranchordas, one of Motirams head agents, was appointed interim receiver of the estate until the question of a certificate of guardianship was disposed of. Ranchordas, as next friend of the infant plaintiff, instituted the present suit, and on December 4, 1901, Kisandas, having obtained the certificate of guardianship, was substituted for him. A question has been raised as to whether the dealings between the respondent and Motiram were mutual as well as open and current, and involved reciprocal demands between the parties so as to make art. 85 of the Indian Limitation Act (No. XV. of 1877), Sched. II., applicable. The dealings were certainly not the "ordinary ones of banker and customer, but rather in the nature of mutual accommodation, but the view which their Lordships take makes it unnecessary to consider this question, and for the purposes of this case the controversy may be treated as if the sum due to Motiram was a simple debt or series of debts none of which were incurred before September 28, 1896, since as late as January 24, 1897, Motiram, as appears by the summary of accounts appended to the judgment of the Civil Judge (the Court of First Instance), had drawn against the respondent for more than the respondent had drawn against him. The last item against the respondent in account between them is dated May 12, 1898, and the indebtedness for principal must therefore have been incurred between January 24, 1897, and May 12, 1898, and the periods of limitation applicable to the several components of the total demand for principal would expire at various dates between January 24, 1900, and May 12, 1901. And in the absence of a sufficient acknowledgment I before such periods had arrived the debt or debts would be barred. An acknowledgment according to the Indian Act must be signed by the party to be affected by it, and the only document which can be relied upon as an acknowledgment signed by the respondent is the statement filed by the respondent in the proceedings touching the application for probate, the material part of which has been already set out, but which it is convenient here to repeat. " For the last five years he " (the respondent) "had open and current accounts with the deceased." There can be no doubt that the five years spoken of are the five years before the death of Motiram, i.e., before October 6, 1898. On that date the whole of the indebtedness other than interest had been incurred, there having been no dealings since May 12, 1898. There is, therefore, a clear admission that there were open and current accounts between the parties at the death of Motiram. The legal consequence would be that at that date either of them had a right as against the other to an account. It follows equally that whoever on the account should be shewn to be the debtor to the other was bound to pay his debt to the other, and it appears to their Lordships that the inevitable deduction from this admission is that the respondent acknowledged his liability to pay his debt to Motiram or his representative if the balance should be ascertained to be against him. The question is whether this is sufficient by the Indian law to take the case out of the statute. It has been already pointed out that the acknowledgment was made before the statutory period had run out. Thus one requisite of s. 19 is complied with. The necessity of signature by the party to be charged is also complied with. The question is whether this is sufficient by the Indian law to take the case out of the statute. It has been already pointed out that the acknowledgment was made before the statutory period had run out. Thus one requisite of s. 19 is complied with. The necessity of signature by the party to be charged is also complied with. The acknowledgment is not addressed to the person entitled, but according to the " explanation " given in s. 19 this is not necessary. We have, therefore, the bare question of whether an acknowledgment of liability, if the balance on investigation should turn out to be against the person making the acknowledgment, is sufficient. Their Lordships can see no reason for drawing any distinction in this respect between the English and the Indian law. The question is whether a given state of circumstances falls within the natural meaning of a word which is not a word of art, but an ordinary word of the English language, and this question is clear of any extraneous complications imposed by the statute law of either England or India. In a case of very great weight, the authority of which has never been called in question, Mellish L.J. Laid it down that an acknowledgment to take the case out of the Statute of Limitations must be either one from which an absolute promise to pay can be inferred or, secondly, an unconditional promise to pay the specific debt, or, thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed In re River Steamer Co., Mitchells Claim. (L. R. 6 Ch. Ap. 822, 828) An unconditional acknowledgment has always been held to imply a promise to pay, because that is the natural inference if nothing is said to the contrary. It is what every honest man would mean to do. There can be no reason for giving a different meaning to an acknowledgment that there is a right to have the accounts settled, and no qualification of the natural inference that whoever is the creditor shall be paid when the condition is performed by the ascertainment of a balance in favour of the claimant. It is a case of the third proposition of Mellish L.J., a conditional promise to pay and the condition performed. It is a case of the third proposition of Mellish L.J., a conditional promise to pay and the condition performed. There was therefore on September 28, 1899, a sufficient acknowledgment to give a new period of limitation from the date of the acknowledgment, viz., September 28, 1899, and the present suit having been commenced on September 5, 1901, is within any period of limitation that can be applicable. The acknowledgment to which attention has been directed is followed in the same paragraph by the following sentence " The alleged indebtedness does not affect his" (the respondents) " right to apply for probate." Stress was Laid by the Civil Judge upon the word " alleged." He was of opinion that the word " had " in the sentence " for the last five years he had open and current accounts with the deceased" and the word "alleged" were fatal to the validity of the acknowledgment. Their Lordships cannot share this opinion. The first sentence shews that there were open accounts at the death of Motiram. If nothing further is alleged the natural presumption is that they continued unsettled at the time the statement was made. The sentence which follows is perfectly consistent with this admission. The meaning is " even if there is a balance against the respondent that does not disqualify him from fulfilling the duties of an executor," and it has been pointed out that what is relied upon here is an acknowledgment subject to the condition that an adverse balance really exists, and the condition is fulfilled in fact. The judgment in the Divisional Judges Court is also against the acknowledgment. The only reason given is that it would require a considerable stretch of the imagination to place upon it the meaning that there was a right to have the account taken, thereby implying a promise to pay. The judgment in the Divisional Judges Court is also against the acknowledgment. The only reason given is that it would require a considerable stretch of the imagination to place upon it the meaning that there was a right to have the account taken, thereby implying a promise to pay. It has not, however, been argued that there was a promise to pay in any event, and the learned judge does not seem to have considered the meaning, which appears to their Lordships to be the natural one, that the words import »an admission of liability if the balance should prove to be against the respondent coupled with the fulfilment of that condition—a state of things which in all reason and sound sense places the acknowledgment upon the same footing as an acknowledgment unconditional in the first instance, from which, in English law, a promise to pay has always been inferred. The Indian Limitation Act, s. 19, however, says nothing about a promise to pay, and requires only a definite admission of liability, as to which there can be no reason for departing from the English principle that an unqualified admission and an admission qualified by a condition which is fulfilled stand upon precisely the same footing. The view taken by the Judicial Commissioner is again one with which their Lordships are unable to agree. He refers to a case of Sitayya v. Rangareddi and Others (I. L. R. 10 Madr. 259.), in which it was held that an acknowledgment of the plaintiffs right to have accounts taken and of the defendants liability to pay any balance (if such there should be) against him was held to satisfy s. 19 of the Limitation Act. But this decision appeared to him to be either erroneous or inapplicable, because it is based . upon two English cases, Prance v. Sympson (1 Kay, 678.) and Banner v. Berridge (18 Ch. D. 254.), in which similar acknowledgments were held to satisfy the English law upon the subject, the acknowledgment in Prance v. Sympson (1) being undistinguishable from that relied upon in the present case. upon two English cases, Prance v. Sympson (1 Kay, 678.) and Banner v. Berridge (18 Ch. D. 254.), in which similar acknowledgments were held to satisfy the English law upon the subject, the acknowledgment in Prance v. Sympson (1) being undistinguishable from that relied upon in the present case. He goes on to give as his reason for considering that the English cases do not apply in the present case the fact that the English law requires words from which a promise to pay may be inferred, whereas the Indian Act requires words from which an admission of liability may be inferred. But in English law it is the acknowledgment of liability which is the ground upon which a promise to pay is inferred, so that the requirements of English law are, if anything, more, and not less, stringent than those of Indian law, which seems to be a bad reason for holding that the English cases have no application to the present inquiry. The learned Judicial Commissioner further agrees with the Civil Judge in holding that the expression " alleged indebtedness " is a stumbling block in the way of the appellant, a view upon which their Lordships have already expressed their opinion. In the opinion of their Lordships, therefore, the acknowledgment of September 28, 1899, is sufficient to prevent the claim of the appellant from being barred by the Limitation Act. It is, therefore, unnecessary to discuss the other grounds upon which the appellant has relied. Their Lordships would notice only one point in connection with them. The appellant contended that the respondent, whether appointed executor by the will or not, had intermeddled with the property of the deceased, and was at all events executor de son tort, and therefore not entitled to the benefit of the Limitation Act. The respondent has in this suit admitted in the most definite manner that he did so. In spite of this admission each of the three Courts below has held that he did not, and the respondents counsel claimed that this was a decision of a matter of fact, and that however erroneous it might be, it would be contrary to the practice of the Judicial Committee to entertain the question of its reversal. In spite of this admission each of the three Courts below has held that he did not, and the respondents counsel claimed that this was a decision of a matter of fact, and that however erroneous it might be, it would be contrary to the practice of the Judicial Committee to entertain the question of its reversal. A careful perusal of the judgments, however, makes it perfectly clear that the only reason for the view taken by the Courts below was that they thought the respondent had not been duly) appointed executor, and therefore could not have intermeddled with the estate so as to make himself responsible as executor. Their decision was therefore really one of law, and not of fact, and is open to reconsideration. Their Lordships will humbly advise His Majesty that the judgments appealed against be reversed and judgment entered for the appellant for the principal claimed, with interest at the rate of 7 annas 9 pie per cent, per mensem to date of suit, and thereafter at the rate of 6 per cent, per annum till payment, and that the respondent be ordered to pay the costs of the appellant in each of the Courts below. The respondent will also pay the costs of this appeal.