1. This is an appeal by the ninth defendant, a puisne mortgagee, against the decree for sale passed in a prior mortgagee's suit. The prior mortgagee had two mortgages in his favour, Ex. A, a usufructuary mortgage of 1st September, 1891 and Ex. B, a simple mortgage of 4th September, 1897. In respect of Ex. A, the appellant contends that on its true construction, the mortgagee is bound to account for all the income from the properties of which he was put in possession, subject to a deduction of interest at 9 per cent, per annum on the mortgage amount and one or two other items of charges mentioned in the document. He insists that if accounts are taken on this footing it would be found that the mortgagee has realised the whole amount due to him under the mortgages. With reference to Ex. B, the appellant raises a plea of limitation. Incidentally, his learned Counsel also suggested the possibility of a claim for subrogation in respect of a fraction of the amount included in the mortgage in favour of the appellant, but he realised that in view of certain circumstances this claim could not be usefully pressed. It is therefore unnecessary to say anything further about this. The only other matter raised in the appeal relates to the direction of the lower Court for payment of costs by the ninth defendant and, the other members of his family.
2. On the first point, we are unable to accede to the contention of the appellant. Though incidentally there is a reference to interest at 9 per cent, per annum in Ex. A, the scheme of Ex. A is not to make the mortgage accountable for the realisations from the mortgage property except to a very limited extent.
[His Lordship dealt with the terms and effect of the document and concluded.]
3. This contention therefore fails.
4. With regard to the plea of limitation in regard to Ex. B, the question depends upon the extent to which a part-payment made on 25th April, 1912, is available to save limitation. The mortgage bond had been executed by two brothers Chinnayya-dora and Bhimandora, but this part-payment was made by the former alone and the endorsement relating thereto is signed only by him. The appellant contends that on a proper construction of Sections 20 and 21, Clause (2) of the Limitation Act, this part-payment can avail to save from the bar of limitation only the liability of Chinnayyadora's share and not that of Bhiman-dora's share. The argument was put on two grounds; one, that Section 20, contemplates that, where there is a plurality of persons liable in respect of a debt, all of them should join in making a part-payment; alternatively, it was contended, that, where they are liable as joint promissors, a payment by one of them alone will not avail against the others because of the express provisions of Section 21(2). The first contention is scarcely sustainable see Velayudam Pillai v. Vaithialingam Pillai (1912) 24 M.L.J. 66. In view of numerous cases decided in recent years in the various High Courts in India, the learned Advocate-General also admitted that, as held in the English decisions cf. Bolding v. Lane (1863) 1 De G.J. & S. 122 : 46 E.R. 47 Chinnery v. Evans (1864) 11 H.L.C. 115 : 11 E.R. 1274 and Lewin v. Wilson (1886) 11 A.C. 639 there is a difference between the effect of an acknowledgment and that of a part-payment and that a part-payment can avail not merely against the person making the payment or those deriving title under him subsequent to such payment but even against other persons liable in respect of the same debt. Even in respect of acknowledgments, this Court has recently held in Mu'thu Chettiyar v. Muthuswami Aiyangar I.L.R.(1932)Mad. 758 : 63 M.L.J. 111 that an acknowledgment will also avail to save limitation as against a person to whom the mortgagor making the acknowledgment has transferred the mortgage property prior to the date of the acknowledgment. The learned Advocate-General therefore pressed his contention mainly with reference to Section 21(2). As to the effect of this provision, there is considerable conflict amongst the several High Courts in this Country: what is the exact relation be, tween the restrictive provision in this clause and the general provision in Sections 19 and 20? The contention of the learned Advocate-General that, in the case of joint mortgagors, payment by one cannot save limitation as against the other co-mortgagors or their interest in the mortgaged property is supported by a dictum in Velayudam Pillai v. Vaithialingam Pillai (1912) 24 M.L.J. 66 and by two decisions of this Court in MuthuChettiar v. Muhammad Hussain (1919) 55 I.C. 763 and Thayammal v. Muthukumaraswami. Chettiar : (1929)57MLJ588 . But there are decisions of other Courts to the contrary. Reference may be made particularly to Parameshri Kunwar v. Dhuman Kunwar (1929) 119 I.C. 424, Jagwanti v. Bachan Singh (1926) 95 I.C. 774 and Ibrahim v. Jagdish Prasad (1926) 99 I.C. 424. A further point has sometimes been raised whether the restriction in Clause (2) of Section 21 applies only to the personal liability of the joint contractors or even to the liability of the mortgaged property. Difference of opinion is also traceable as to the effect of the word 'only' in that provision: cf. Rajtilak Narayan Sur v. Mufisuddi Topadar (1926) 98 I.C. 381, Veeranna v. Veerabhadraswami I.L.R. (1918)Mad. 427 : 34 M.L.J. 373 and Rangasami Aiyangar v. Somasundaram Chettiar (1927) 54 M.L.J. 150. If it were necessary to base bur decision in the case on this point, we should be bound to follow the decisions of this Court in Muthu Chettiar v. Muhammad Hussain (1919) 55 I.C. 763 and Thayammal v. Muthukumaraswami Chettiar : (1929)57MLJ588 or, refer the matter to a Full Bench. But as the plea of limitation can be disposed of on another ground, it seems to us unnecessary to do so.
5. The plaintiffs relied upon this part-payment as saving limitation against both the mortgagors, on the ground that in making that part-payment Chinnayyadora acted as managing member of the family and as such was authorised to make the payment on behalf of Bhimandora as well. In the Court below reliance was placed for this purpose upon evidence showing that they were members of an undivided family of which Chinnayyadora was the manager; and reliance was also placed upon a letter, Ex. N which, it was contended, expressly authorized Chinnayyadora to make the said payment. The learned Subordinate Judge refused to accept Ex. N as a genuine letter, but he however came to the conclusion that the two brothers were undivided and that Chinnayyadora was the manager of the joint Hindu family and that therefore the payment was sufficient to save limitation as against both. The learned Advocate-General however contends that if Ex. N is excluded, the mere fact that Chinnayyadora was managing member of the family will not suffice to save limitation against Bhimandora, because in the present case the contract was entered into not by Chinnayyadora alone as managing member of the family but by both the brothers and therefore the case is in terms governed by the provisions of Section 21(2). In support of this argument, he relies upon certain observations of the Division Bench in Narayana Aiyar v. Venkataramana Aiyar I.L.R. (1902) M. 220 The facts of that case show that those observations were obiter, because the court came to the conclusion that the payments relied on were not true and that the entries were merely collusive. These observations have been dissented from in Bajrangi Prasad Singh v. Kesho Singh I.L.R. (1927)Pat. 811 and the learned Judges suggest that, at any rate, they must be confined to the facts of that case. But even in Narayana Aiyar v. Venkataramana Aiyar I.L.R. (1902)M. 220 he learned,' Judges recognise that it may be possible to infer from the circumstances that the payment was made by the managing member on behalf of the other members as well and that in that connection the very fact of his being a managing member would itself be a factor of importance. This view receives corroboration from the way in which Section 21(2) has been interpreted by the Full Bench in Veerdnna v. Veerabhadraszvami I.L.R. (1918) Mad. 427 : 34 M.L.J. 373 and in Rangasami Aiyangar v. Soma-sundaram Chettiar (1927) 54 M.L.J. 150. The extent to which this theory of. implied agency could be-carried under similar circumstances is illustrated by a recent judgment of the Privy Council. See National Bank of Upper India v. Bansidhar . Besides the fact that Chinnayyadora was the managing member, we have also an important document in this case, namely, Ex. T1, dated 8th March, 1912. Its genuineness is proved by the writer himself who was examined as P.W. 4. and.he has not been cross-examined about it. That letter clearly shows that the mortgagee was pressing both the debtors for payment and Bhimandora says that Chinnayyadora was going about making collections for the purpose of making payment to the mortgagee. When, following upon this, after a short interval, we find Chinnayyadora actually making the payment, it seems reasonable to infer that Chinnayyadora who was undoubtedly the family manager must have been acting on behalf of both and that, therefore this is clearly a case of implied agency within the meaning of the decisions.
6. A further point has been raised by the learned Advocate-General that, because the entry of payment on Ex. B does not purport to say whether it is for interest or principal it is not sufficient to save limitation. This question maybe material if the matter rested on oral evidence as to payment of interest: but where the payment is evidenced by a writing which is signed by the person making the payment, it makes no difference whether the payment is held to be for interest or for principal or for both. See Hem Chandra Biswas v. Puma Chandra Mukherj I.L.R. (1916) Cal. 567 and Soumia Narayana Aiyangar v. Alagirisami Aiyangar (1912) M.W.N. 754. In these circumstances we agree with the lower Court that the suit is not, to any extent, barred by limitation.
7. As regards the direction for costs in the lower Court's decree, it is no doubt true that in mortgage suits the amount of costs is usually directed to form part of the mortgage money to be realised by sale of the mortgaged property; but when one of the defendants disputes the right of the mortgagee or raises other contentions calculated to negative his right to maintain the suit, this rule cannot be insisted on. In this case the 9th defendant pleaded that the suit must fail in whole or in part for various reasons; and when these pleas have failed, the lower Court was right in directing that he and those who sided with him must pay the costs of the plaintiffs.
8. The appeal fails and is dismissed with costs of the plaintiffs-respondents.