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Rakkiyappa thevan Vs. Nataraja thevan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad219
AppellantRakkiyappa thevan
RespondentNataraja thevan
Cases ReferredHannu Ram v. Jhanda Singh A.I.R.
Excerpt:
- .....any presumption that the mortgagor by the acknowledgment contained in the mortgage bond made an implied promise to the creditor is negatived by the circumstance in which it was made. the debtor made arrangements for the payment of the debt by somebody else. it is impossible to hold that at the same time the debtor promised to pay the debt himself. i think accordingly there are no grounds lor interfering with the finding of the lower court that section 25, clause 3, contract act, will not apply to circumstances such as this. there is no other point which can properly be taken in revision. the civil revision petition is dismissed with costs.
Judgment:

Curgenven, J.

1. The point taken is that a recital in a mortgage bond executed by the mother of defendant 1 amounted to a promise within the definition of that term in the Contract Act and which was accordingly binding upon defendant 1 and sufficient to make him liable for the amount of the promissory note. It must no doubt be accepted that an acknowledgment even when it is not made to the creditor may, if unconditional, amount to a promise. That has been held by the Privy Council in Maniram Seth v. Seth Rupchand [1906]33 Cal.1047 and it has been followed in such a case as Hannu Ram v. Jhanda Singh A.I.R. 1929 Lah. 591. But in adopting that very extended meaning of the term 'promise' I think it is highly necessary to examine the circumstances of each case to see that there is nothing in it in conflict with such an inference. In this case, defendant 1's guardian executed a mortgage bond, one of the terms of which was that the mortgagee should retain a portion of the consideration in order to pay the debt. He did not in fact do so, but the fact remains that as between himself and his mortgagor he assumed responsibility for doing so, and he himself made a promise to that effect to the mortgagor. It appears to me that in such circumstances any presumption that the mortgagor by the acknowledgment contained in the mortgage bond made an implied promise to the creditor is negatived by the circumstance in which it was made. The debtor made arrangements for the payment of the debt by somebody else. It is impossible to hold that at the same time the debtor promised to pay the debt himself. I think accordingly there are no grounds lor interfering with the finding of the lower Court that Section 25, Clause 3, Contract Act, will not apply to circumstances such as this. There is no other point which can properly be taken in revision. The civil revision petition is dismissed with costs.


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