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Pilla Venkatamma and ors. Vs. R.M. Chidambaram Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 30 of 1956
Judge
Reported inAIR1960Mad403
ActsLimitation Act - Sections 6, 9 and 20
AppellantPilla Venkatamma and ors.
RespondentR.M. Chidambaram Chettiar and ors.
Cases ReferredAnanthayya v. Hengsu
Excerpt:
property - period of limitation - sections 6, 9 and 20 of limitation act - for institution of suit on mortgage period of limitation to be reckoned under section 20 - person entitled to institute suit on mortgage was plaintiff who was minor - suit by him instituted within 3 years from date of his attaining majority would be in time under section 6 read with section 8 which limits extension granted under section 6 to 3 years after attainment of majority. - - 1 on 30-1-1932. the payment was endorsed on the promissory note and was signed by both these persons. 2. the payment was endorsed on the note, the endorsement was written by p. 1 the payment was endorsed on the note and the endorsement was written by p. 2. the payment was endorsed on the note. the payments which were made on..........in o. s. no. 9 of 1955 on his file.(2) the suit was to enforce a simple mortgage executed by one abdul karim. he died before the date of the institution of the suit. defendants 1 to 4 are his sons. in execution of a decree for money which had been obtained against abdul karim one rangappa had purchased the mortgaged properties in court auction. rangappa died before the institution of the suit. defendants 5 and 6 are his heirs.(3) on 7-2-1929 abdul karim and one of his sons, namely, the 2nd defendant, executed two promissory notes in favour of the plaintiff's grand-father chidambaram chettiar one for rs. 1000 and other for rs. 2000. on the same date, namely, 7-2-1929, abdul karim executed the mortgage deed ex. a. 4 in favour of chidambaram chettiar securing repayment of the debts.....
Judgment:

Subrahmanyam, J.

(1) Defendants 5 and 6 appeal from the judgment and decree of the learned District Judge of north Arcot dated 13-7-1956 in O. S. No. 9 of 1955 on his file.

(2) The suit was to enforce a simple mortgage executed by one Abdul Karim. He died before the date of the institution of the suit. Defendants 1 to 4 are his sons. In execution of a decree for money which had been obtained against Abdul Karim one Rangappa had purchased the mortgaged properties in court auction. Rangappa died before the institution of the suit. Defendants 5 and 6 are his heirs.

(3) On 7-2-1929 Abdul Karim and one of his sons, namely, the 2nd defendant, executed two promissory notes in favour of the plaintiff's grand-father Chidambaram Chettiar one for Rs. 1000 and other for Rs. 2000. On the same date, namely, 7-2-1929, Abdul Karim executed the mortgage deed Ex. A. 4 in favour of Chidambaram Chettiar securing repayment of the debts borrowed under the promissory notes, namely, Exs. A. 1 and A. 2 for Rs. 1000 and Rs. 2000; Chidambaram Chettiar died on 7-4-1931, leaving behind him his undivided son Ramanatha.

Ramanatha died on 25-5-1934 leaving behind him his undivided son the plaintiff. The suit, which has given rise to this appeal, was instituted on 26-11-1953. The plaintiff alleged that he was born on 28-11-1929 and attained majority on 28-11-1950. He pleaded payments and endorsements made on the promissory notes and on the mortgage deed as saving limitation.

(4) Defendants 1 to 4 did not appear in the lower court and do not appear in the appeal. Defendants 4 and 6 contested the suit. They pleaded that the suit was barred by limitation, and that they were entitled in any event to the benefits of Madras Act IV of 1938 and Madras Act I of 1955.

(5) The learned District Judge held that the suit was in time, that the defendants 5 and 6 were not entitled to the benefits of Madras Act IV of 1938, but that they are entitled to the benefits of Madras Act I of 1955. The learned Judge passed a preliminary decree for sale accordingly. Defendants 5 and 6 have preferred this appeal.

(6) The first point for determination in the appeal is whether the suit was in time. Ex. A. 1 is the promissory note executed by Abdul Karim and his son, the second defendant, on 7-2-1929 in favour of Chidambaram Chettiar for Rs. 1000. Ex. A. 2 is the promissory note executed by those two persons in favour of Chidambaram Chettiar on the same date for Rs. 2000. Ex. A. 4 is the mortgage executed buy Abdul Karim in favour of Chidambaram Chettiar on the same date securing repayment of the debts of Rs. 1000 and Rs. 2000 borrowed under Exs. A. 1 and A. 2 We accept the evidence of P.W. 1 and find that Abdul Karim and his son (the second defendant) executed the promissory notes Exs. A. 1 and A. 2 and borrowed Rs. 1000 and Rs. 2000 respectively from Chidambaram Chettiar, and that Abdul Karim executed the mortgage Ex. A. 4 on the same date.

(7) Abdul Karim and the 2nd defendant paid Rs. 100 towards the debt due on the promissory note Ex. A. 1 on 30-1-1932. The payment was endorsed on the promissory note and was signed by both these persons. The endorsement was written by P.W. 1. He had been a clerk under Chidambaram Chettiar, and after him under Ramanatha and was a clerk under the plaintiff when be gave evidence in the lower court. On the same date, namely, 30-1-1932, Abdul Karim and the 2nd defendant paid Rs. 100 towards the debt due on the promissory note Ex. A. 2. The payment was endorsed on the note, the endorsement was written by P.W. 1 and signed by Abdul Karim and his son (the second defendant) on 11-12-1934. Abdul Karim and the second defendant paid Rs. 5 towards the interest due on the promissory note Ex. A. 1

The payment was endorsed on the note and the endorsement was written by P.W. 1 and signed by Abdul Karim and the 2nd defendant. On the same date, namely, 11-12-1934, Abdul Karim and the 2nd defendant paid Rs. 10 towards the interest due on the promissory note Ex. A. 2. The payment was endorsed on the note. The endorsement was written by P.W. 1 and signed by Abdul Karim and the 2nd defendant. These facts we find proved on the evidence of P.W. 1.

(8) Section 20 of the Limitation Act enacts:

'Where payment on account of a debt................... is made before the expiration of the prescribed period by the person liable to pay the debt................. a fresh period of limitation shall be computed from the time when the payment was made............................... Provided that........................... an acknowledgment of the payment appears................... in a writing signed by the person making the payment.'

(9) The debt due under the mortgage Ex. A. 4 consisted of the debts due under the promissory notes Exs. A. 1 and 2. Payments made towards the debts due on the promissory notes were also payments made towards the debt payable on the mortgage. The payments which were made on 30-1-1932 and 11-12-1934 and which were endorsed on the promissory notes, Exs. A-1 and A, 2, were payments made towards the debt recoverable on the mortgage. Those payments appear in writing signed by the debtors, namely, Abdul Karim and the 2nd defendant. Abdul Karim was the mortgagor. The result is that, for the institution of a suit to enforce the mortgage a fresh period of limitation had to be reckoned from 11-12-1934.

(10) On 11-12-1934 the date from which such fresh period of limitation should be computed, the person entitled to sue on the mortgage was the plaintiff. His father and grandfather were dead, and he had become by survivorship the sole owner of the mortgage.

(10a) Section 6 of the Limitation Act enacts.

'Where a person entitled to institute a suit........... is, at the time from which the period of limitation is to be reckoned a minor............... he may institute the suit,....................... within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule.'

For the institution of a suit on the mortgage Ex. A. 4 the period of limitation had to be reckoned under S. 20 of the Limitation Act from 11-12-1934. the person entitled to institute the suit on the mortgage at that time was the plaintiff. He was then a minor. A suit by him instituted within 3 years from the date of his attaining majority would be in time under S. 6 of the Limitation Act read with S. 8, which limits the extension granted under S. 6 to three years after the attainment of majority.

(11) The rule of law on which the conclusion stated above is based was enunciated in Venkataramayyar v. Kothandaramayyar, ILR 13 Mad 135, and was reaffirmed in Somalinga v. Muthulakshmi, AIR 1945 Mad 149.

(12) The appellant's learned counsel contends that in order that a creditor may be entitled to an extension of the period of limitation by the combined application of S. 6 and S. 19 or S. 20 of the Act, it is necessary that he should have been in existence on the date on which the liability was initially incurred. There is neither principle nor authority in support of that contention. Sections 19 and 20 require a fresh period of limitation to be computed from the date of the acknowledgment of the payment which is acknowledged in writing singed by the debtor.

Where, on the date from which the period of limitation has to be reckoned, the creditor is a minor, Ss. 6 and 9 of the Limitation Act give him a right to institute the suit for the recovery of the debt within 3 years after attaining majority. We see no reason to import into the sections a qualification that the creditor who was a minor on the date with effect from which the period of limitation has to be reckoned under S. 19 or 20 of the Limitation Act should in order to be entitled to the benefit of S. 6 have been in existence on the date on which the liability was initially incurred.

(13) The fact that the acknowledgment of the payments do not appear on the mortgage deed, but appears on the promissory note makes no difference to the applicability of S. 20 of the Limitation Act to the suit instituted to enforce the mortgage. It is not necessary for the applicability of S. 19 or S. 20 that the acknowledgment should appear on the document under which the debt is payable.

(14) The appellants' learned counsel contends next that there is no proof that the plaintiff was born on 28-11-1929. On that point, we accept the evidence of P.W. 1 and hold that Ex. A. 9 the extract from the Birth Register maintained by the Devakottai Municipality, relates to the birth of the plaintiff. P.W. 1 has been in service of the family from the time of the plaintiff's grandfather. He says that the plaintiff was the only child of his parents. We accept his evidence and find that Ex. A. 9 relates to the plaintiff, and that he was born on 28-11-1929. A guardian was appointed for him under the guardians and Wards Act. The plaintiff's minority ceased on 28-11-1950. The suit, which has given rise to this appeal was filed on 28-11-1953 within three years from the date on 28-11-1953 within three years from the date on which the plaintiff's minority ceased. We agree with the learned District Judge and find that the suit was in time.

(15) The next point for decision relates to the relief which the appellants claim under Madras Act IV of 1938. The appellants are the heirs of Rangappa who purchased the hypotheca in court auction in execution of a money decree. The only evidence relating to the time when Rangappa purchased the property is the evidence on P.W. 1 who says 'defendants 5 and 6 are the legal representatives of one Rangappa who purchased the suit properties in court auction made in or about 1942. Rangappa had no interest in the suit properties before that date.' We accept that evidence. Madras Act IV of 1938 came into force on 22-3-1938. The appellant's title to the property commenced on a date subsequent to the commencement of Madras Act IV of 1938.

(16) Relying on Kali Govindan v. Annamalai Chetti, 1943 2 MLJ 5631: AIR 1944 Mad 128, the learned District Judge held that, since the appellants derived their title to the suit property from the court auction sale held subsequent to the commencement of Act IV of 1938, the appellants were not entitled to claim the benefits of the Act. The learned Judge's attention does not appear to have been invited to the fact that that decision could not after the decision of the Supreme Court in Nageswaraswami v. Viswasundara : [1953]4SCR894 , be regarded as good law. Indeed, in Ananthayya v. Hengsu : AIR1956Mad293 , Govinda Menon and Ramaswami Gounder JJ, expressly stated that : AIR1944Mad128 , had been overruled by the decision of the Supreme Court in : [1953]4SCR894 . The learned counsel for the respondents, did not rely on : AIR1944Mad128 , but supported the lower court's decree on other grounds.

(17) It is not correct to say that a purchaser of the equity of redemption subsequent to the commencement of Madras Act IV of 1938 is in no case entitled to have the mortgage-debt scaled down under the Act. Where he is himself an agriculturist entitled to the benefits of the Act he would be entitled to have the debt scaled down in accordance with the provisions of the Act, if the mortgagor or the persons liable to pay the debt were agriculturists entitled to the benefits of the Act on the date of commencement of the Act namely, 22-3-1938 : [1953]4SCR894 , is clear authority for that proposition: In that case, the 6th defendant was the appellant in the Supreme Court. He purchased the property subsequent to the date of the commencement of the Act. He claimed the benefits of the Act. The question whether he was himself an agriculturist entitled to the benefits of the Act was left undecided. It was held that he could not be granted relief under the Act, because he had not proved that the mortgagors, who were liable to pay the debt on the date of the commencement of the Act, were agriculturists entitled to the benefits of the Act. Their Lordships stated,

'It may be that the mortgaged properties were agricultural lands but it is not known whether the mortgagor, did possess other estates which might bring them within the purview of any of the provisions attached to the definition. In these circumstances, the appellant must be deemed to have failed to show that there was in existence a debt payable by an agriculturist on 22-3-1938.'

That precisely, is the state of the evidence in this case as well. Defendants 5 and 6 did not plead in their written statement that either Abdul Karim or defendants 1 to 4 were agriculturists entitled to the benefits of the Act. Nor is there evidence that they were. It is true that the mortgaged properties were agricultural lands. But it is not known whether the mortgagor possessed other assets, or was engaged in a profession, or was in receipt of income, which might bring him within the purview of any of the provisos attached to the definition. In the circumstances, the appellant must be deemed to have failed to show that there was in existence a debt payable by an agriculturist on 22-3-1938. The learned Judge's decree refusing the appellants relief under Madras Act IV of 1938 is correct, though not for the reasons stated by him. The appeal is dismissed with costs.

(18) Appeal dismissed.


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