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Velayudam Pillai Vs. Vaithialingam Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in17Ind.Cas.619; (1913)24MLJ66
AppellantVelayudam Pillai
RespondentVaithialingam Pillai and anr.
Cases ReferredSrinivasa Varadachariar v. Echamma
Excerpt:
- - the act of the 1st defendant may, therefore, be well held to bind her......interest on a debt or legacy is before the expiration of the prescribed period paid as such by the person liable to pay the debt or legacy...a fresh period of limitation shall be computed from the time when the payment was made.' the section requires that the payer should be one liable to pay the debt, and provides that the result of the payment would be to give the creditor a fresh period of limitation from the date of the* payment. it does not restrict the benefit accruing to the creditor with respect to his debt to his remedy against the payee alone. according to the language of the section the debt being kept alive, the result must be to make it enforceable against any one liable for it. in krishna chandra saha v. bahirab chandra saha i.l.r. (1905) c. 1077 maclean, c.j. and mitra j......
Judgment:

1. The petitioner in this Court instituted a Small Cause Suit in the Subordinate Judge's Court of Kumbakonam for the recovery of the amount due to him on a promissory note executed by the 1st defendant on the 22nd June 1902. The 2nd defendant was also sought to be made liable for the debt under section 128 of the Transfer of Property Act as a universal donee, she having received in gift from the 1st defendant, under an instrument, dated the 29th November 1903, a house which was the only property possessed by the latter. The 2nd defendant pleaded that as against her the suit was barred by limitation and that the payments made by the 1st defendant subsequent to the deed of gift and relied on as saving the suit from limitation could not keep the debt alive as against her. This plea was upheld by the lower court. It is contended before us that this view is wrong. We are of opinion that the contention must succeed. According to section 20 of the Limitation Act, ' where interest on a debt or legacy is before the expiration of the prescribed period paid as such by the person liable to pay the debt or legacy...a fresh period of limitation shall be computed from the time when the payment was made.' The section requires that the payer should be one liable to pay the debt, and provides that the result of the payment would be to give the creditor a fresh period of limitation from the date of the* payment. It does not restrict the benefit accruing to the creditor with respect to his debt to his remedy against the payee alone. According to the language of the section the debt being kept alive, the result must be to make it enforceable against any one liable for it. In Krishna Chandra Saha v. Bahirab Chandra Saha I.L.R. (1905) C. 1077 Maclean, C.J. and Mitra J. held that a payment made by a mortgagor and an acknowledgment by him after the sale of a portion of the mortgaged property would give the mortgagee a fresh period of limitation not only against the mortgagor but also the purchaser. The learned Chief Justice observed : 'In our opinion, having regard to the language of the section, we do not think the action is barred as against property No. 3. We may add that the principle to be deduced from the case of Maria Chinnery v. Eyre Evans (1864) 11 H.L.C. 115 is applicable to the present case, namely, that 'a mortgagee cannot by the act of the parties entitled only to the equity of redemption be deprived of his right to resort to any estate comprised in his mortgage so long as he has not released or given it up and so long as that mortgage is legally kept alive.' The learned Judge was of opinion that Section 21 was not applicable to the case. In Domi Lal Sahu v. Rosham Dobay I.L.R. (1906) C. 1278, the same view was taken by Maclean C.J. and Holmwood, J. Newbouli v. Smith (1886) 33 Ch. D. 127, which was relied on in support of the purchaser, was not followed. The learned Chief Justice observed that that case should not be followed in construing the words of Section 20 of the Indian Limitation Act. In Roddam v. Morley (1858) Deg. & J. p. 1, it was held that the expression 'party liable ' includes any person or persons against whom an action on the debt, could be brought whether liable originally or as representing or taking the estate, real or personal, of the obligor. In Howard v. Lightfood (1907) 1 Ch. 330, the question arose whether payment of interest by the specific devisee of part estate of a testator was sufficient to keep the mortgagee's right of action alive against the specific devisees of other parts of the real estate which were not subject to the mortgageThe Court of Appeal held that that it was sufficient. The question was considered at length and the principle enunciated in Roddam v. Morley (1858) Deg & J. p. 1 was followed. Vaughan Williams L.J., observed 'I think that in principle the decision in Roddam v. Morley (1858) Deg and J. p. 1, involves this: that payment made by a person who is not a stranger to the transaction in interest binds those who are interested in the payment to the extent of preventing the statute running.' Farwell, L.J., said: 'Roddam v. Morley (1858) Deg and J. p. 1, appears to me to rest upon the joint liability of a number of parsons standing in equal peril of suit and who all benefit by the discharge of all or any part of such liability.' It is unnecessary for us to discuss the question at length after the full exposition of that principle in the last case. Reliance is placed for the respondent on section 21 which lays down that payment or acknowledgment made by one of several joint contractors, partners executors or mortgagees shall not be available to prevent the statute running against any others of them. The present case does not come within this rule. It stands to reason that where several persons render themselves liable under one contract, an act done by one of them alone should not render the others liable. But the second defendant in this case derived her right from the first defendant and is in privity with him. The act of the 1st defendant may, therefore, be well held to bind her. See Section 19, which provides that an acknowledgment is sufficient if made by a person through whom the person charged has derived his right. The respondent argues that a part payment or acknowledgment is taken as evidence of a fresh promise to pay and should not therefore operate except against the person making the part payment or acknowledgment; but the Indian Statutes of Limitation have never proceeded on any such interpretation of the effect of a payment or acknowledgment; and although the implication of a promise to pay was the basis of the extension of the period of limitation in England under 21 Jac. I.C. 16 it is not so under 3 and 4 Will. IV. C. 42, and under the later Statutes according to which a part payment or acknowledgment is a withdrawal by virtue of the statute of the abrogation of the remedy and leaves the old debt still recoverable at law. See Howard v. Lightfood1, per Farwell, J. It is also argued that where there are several persons liable to pay a debt the expression 'the person liable to pay the debt' in Section 20 must be construed as meaning all the persons liable to pay, the singular being taken to include the plural. This contention is obviously untenable, as the result of such a construction would be to make the acknowledgment by one of several debtors alone useless even as against himself. The respondent's vakil has referred to Gopaul Daji v. Gopal Bin Sonu I.L.R. (1903) B. 248, where Jenkins, C.J., and Ashton, J., held that part payment of debt by a principal debtor would not prevent limitation running against the surety. In that case both the principal and the surety seem to have agreed to pay by the same contract. It may be that they were regarded as joint contractors. Jenkins, C.J., observed that principal's debt was distinct from that of the surety and that the principal was not the person liable to pay the debt of the surety. The decision is hardly in accordance with Allison v. Frisly (1889) 43 Ch. D. 106, although the learned Judge has observed that that case turned on a statute and considerations which have no place here. Abdur Rahim, J., followed Gopal Daji v. Gopal Bin Sanu I.L.R. (1903) B. 248, in Srinivasa Varadachariar v. Echamma : (1911)21MLJ455 , but the learned judge observed: ' The respondent's pleader has not attempted to argue that the exposition of the law in that case is not correct' The case before us is not one of principal and surety and is not governed by the above rulings. Justice requires that a parson who has received all the property of another without, it may be, the knowledge of his creditors should not be at liberty to plead the statute of Limitation against them, where as the donor has kept the debts alive by part payment or acknowledgment which may have been made even before the gift. In the result we modify the decree of the Subordinate Judge by awarding the plaintiff the amount claimed and costs against the 2nd defendant also to the extent of the property received by her from 1st defendant. The respondent will pay the petitioner's costs of this petition.


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