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Kale Gowda and ors. Vs. Marigowda and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 357 of 1948-49
Judge
Reported inAIR1952Kant107; AIR1952Mys107; ILR1952KAR331; (1953)31MysLJ14
ActsLimitation Act, 1908 - Sections 20, 20(1) and 21; Land Acquisition Act
AppellantKale Gowda and ors.
RespondentMarigowda and anr.
Appellant AdvocateS. Gundappa, Adv.
Respondent AdvocateVenkata Rao, R.V. Srinivasiah and ;H.K. Srinivasa Murthy, Advs.
Excerpt:
.....about the applicability of section 20(1) of the limitation act, 1908, in respect of liability of a person to pay debt. - prevention of insults to national honour act, 1971section 3; [anand byrareddy, j] offence under- playing instrumental version of the national anthem in the presidents function allegation that petitioner had intentionally avoided the singing of the national anthem at function organised by the petitioner to honour the president of india complaint against the petitioner whether the act of the petitioner amounts to causing insult and exhibiting dishonour to the national honour ? held, the president of india being the chief guest, the petitioner was required to follow the protocol that is mandatory at any place visited by the president of india. the petitioners..........was due by two brothers and on a partition between them it was allotted to one of them. it was held that payment of interest by such brother would not save limitation as against the other brother unless there was an implied or express authority conferred by the partition arrangement to make such payment or interest. the latter portion of the headnote which has been stated above clearly distinguishes that case from the present which was clearly a case of only a payment by one of joint contractors. the next case he has referred to is 'pangou-daya pillai v. uttandtya pillai', air 1938 mad 774. that case, however, merely lays down that a person who as manager of a family originally contracted a loan cannot keep it alive against the other members of the family even assuming that it is a.....
Judgment:

Vasudevamurthy, J.

1. The plaintiff brought a suit in the Court of the Munsiff at Hunsur for the recovery of Rs. 404/- due for principal and interest under a registered hypothecation bond dated 10-6-1926 executed by one Channegowda who is now dead. He left three sons Kalegowda, defendant 1, Boregowda, father of minor defendant 2 and another Lingegowda. Both Boregowda and Lingegowda are also dead. Lingegowda left behind him only his widow Narasamma who is also dead. Defendant 3 is the widow of Channegowda and defendant 4 is an alienee of a small portion of the mortgaged property from Narasamma.

2. Plaintiff's case is that at a family partition after the death of Channegowda between defendant 1 and his brothers the hypothecated proper-lies were shared equally by the three brothers but the responsibility lor paying the debt was to be borne by Lingegowda; and in accordance with this arrangement Lingegowda paid Rs. 144/- on 4-5-1930 towards interest and endorsed the same on the document. After his death, his widow and sole heir Narasamma sold a portion of her husband's property to one Devajamma and caused her to pay on 26-11-1934 Rs. 175/- towards interest and Rs. 95/-towards principal and similarly got an endorsement made on the document.

Defendants 1 to 3 denied knowledge of the payments and pleaded that the suit was barred by time. Defendant 4 similarly pleaded the bar of limitation and wanted that in the event of a decree being passed, the item of property sold to him may be proceeded against after the rest of the hypothecated properties were sold. The Munsiff held that the first payment towards interest made on4-5-30 and the endorsement Ex. A-1 evidencing it were true. He, however, held that the second payment towards principal and interest said to have been made on 26-11-34 and Ex. A-2 evidencing it were not proved to be true or genuine and that it was not shown that Narasamma had made that payment. He, therefore, dismissed the plaintiff's suit which was brought on 14-11-46 as barred by limitation.

On appeal, the Additional Subordinate Judge held that Ex. A-2 was genuine and evidenced payment towards principal and interest by Devajamma for and on behalf of Narasamma and that Narasam-ma's thumb impression had also been taken to that endorsement thereby strongly supporting the genuineness of Ex. A-2 and the payment. He, therefore, reversed the judgment of the learned Munsiff and passed a decree in favour of the plaintiff as prayed for. This second appeal has been filed by defendants 1 to 3.

3. Mr. Gundappa, learned Counsel for the Appellants, does not question the finding of the Subordinate Judge about the genuineness of Ex. A-2 and the payment it evidences by Narasamma. But he contends that the same did not operate to save the bar of limitation. He argues that the payment falls within Clause (2) of Section 21 as the same must be deemed to be by one of several joint contractors as referred to in that section. For this position he relies on a case reported in 'JIBAN KRISTA v. HARI NATH' : AIR1933Cal826 .

In that case the debt was due by two brothers and on a partition between them it was allotted to one of them. It was held that payment of interest by such brother would not save limitation as against the other brother unless there was an implied or express authority conferred by the partition arrangement to make such payment or interest. The latter portion of the headnote which has been stated above clearly distinguishes that case from the present which was clearly a case of only a payment by one of joint contractors.

The next case he has referred to is 'PANGOU-DAYA PILLAI v. UTTANDTYA PILLAI', AIR 1938 Mad 774. That case, however, merely lays down that a person who as manager of a family originally contracted a loan cannot keep it alive against the other members of the family even assuming that it is a debt binding on the family by making payments towards the loan after partition has been effected between himself and those other members subsequently. That case is obviously therefore not applicable to the present case.

4. In the present case, the finding of the lower Appellate Court with which we entirely agree is that Lingegowda was made responsible for the debt and was directed and authorized by the other members to pay it up and it was in pursuance of such a direction or authorization that he and after him his widow made the payments. Lingegowda as well as his widow were persons liable to pay the debt within the meaning of Section 20 of the Limitation Act. That section provides that where principal or interest on a debt is paid by a person liable to pay the debt or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment is made; and as has been pointed out by Sadasiva Ayyar, J. in 'GOVINDASWAMI PILLAI v. DESAI GOUNDAN', 44 Mad 971 in construing the words 'agent duly authorized' the Courts ought to be as liberal as possible provided the evidence of the payment is in writing binding the debtor.

In that case after a decree for sale on a mortgage was passed in 1912, a part of the hypothecated property was taken up under the Land Acquisition Act and the Government paid the amount of compensation into Court to the credit of the suit and the same was paid to the decree-holder subsequently. When the payment was made the Judge signed a paper showing that payment was made in his presence and through Court. On the decree-holder riling an application for execution of the decree later on the judgment-debtor pleaded the bar of limitation. It was then held that the Judge should be deemed to have been an agent duly authorized by the judgment-debtor to make the payment and that the signature of the Judge on the paper showing the payment satisfied the condition that the fact of payment should appear in the handwriting of the person making it as required by Section 20 of the Limitation Act and saved the execution application from the bar of limitation.

In 'PARTHASARATHI AYYANGAR v. EKAM-BARA', AIR 1938 Mad 579, one of the properties comprised in a mortgage deed was agreed to be sold by the mortgagor and it was stipulated that the purchaser should pay a certain sum to the mortgagee and have the mortgaged property released from the security. The mortgagee was a con- consenting party to this arrangement and simultaneously with the sale deed a release in respect of the property sold was executed by the mortgagee and the release deed recited that the amount of Rs. 1500/- had been received as interest. In a suit brought by the mortgagee to recover the rest of the amount due on the mortgage, he relied on the payment by the purchaser to save his claim from the bar of limitation. It was held by the Madras High Court that the transaction amounted in law to payment of interest within Section 20, that the purchaser was a person liable to pay the debt and the payment by him took the case out of the statute and that at any rate the purchaser could be regarded as the mortgagor's agent duly authorized to make the payment, and the payment by him saved the claim from the bar of limitation. For the latter position their Lordships referred to 'ASKARAM SOWCAR v. VENKATASWAMI NAIDU'. 44 Mad 544 with approval.

In 'NARASIMHA RAMA AIYAB v. IBRAHIM', 56 Mad LJ 630, the distinction between Section 19 and Section 20 of the Limitation Act is discussed and it is observed that co-heirs who become liable as such for the debt of a deceased do not come within the words of the section and that the extension of the sub-section by analogy to co-heirs is not warranted; see also in this connection 'C. K. KHUNJANDI v. CHINNAVAVA ROWTHER', AIR 1941 Mad 110 in which reference is made to this case and it has been held that where after the death of one of the joint contractors a payment is made by the other within the period of limitation, the payment does not save limitation against the heirs of the deceased joint contractor though a payment by an heir saves limitation against the other heirs. This last point does not fall for consideration in this case but has been referred to as Mr. Venkata Rao, learned Counsel for Respondent 1, has referred to an observation in it to the effect that reading Sections 20 and 21 together it would follow that a payment saves limitation against all the debtors unless the debtors are co-contractors. (5) Mr. Venkata Rao has referred to a case reported in 16 Mys LJ 198 where the distinction between Section 19 and Section 20 has been discussed and it has been held that while a fresh start of limitation accrues only against the person who makes the acknowledgment and his representative-in-interest and no others, in the case of a payment under Section 20, limitation is computed from the date of payment not only against the person who makes the payment but also against others who are liable to pay the debt.

6. As a result of the above discussion, we thinkthat the payments made towards interest and principal as evidenced by Ex. A-2 clearly save the suitfrom the bar of limitation and that the decisionof the learned Subordinate Judge is correct. Thisappeal, therefore, fails and is dismissed with costs.

7. Appeal dismissed.


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