1. The petition relates to a suit upon a promissory note executed by defendant 1 who is the elder brother of defendants 2 and 3. The promissory note is dated 16th July 1928 and the suit was filed on 22nd October 1934. To save limitation two part payments were relied on: one on 10th September 1930 and the other on 25th December 1931. Both these payments were endorsed on the promissory note as part payments towards interest and the endorsements were in the handwriting of and signed by defendant 1. Both part payments were made after a partition between the brothers. It was alleged that the suit debt was one binding on defendants 2 and 3 and the suit was brought by the assignee of the promissory note. I am considering this question on the assumption that defendant 1 executed the promissory note as family manager on behalf of the family for a purpose binding on the family, although the lower Court has not considered this question, having decided as a preliminary issue that the part payments by defendant 1 after the date of the partition did not save limitation as against the other two defendants. The question of the binding nature of the debt and whether the promissory note was executed by defendant 1 as family manager on behalf of the family is one which need only be considered if I disagree with the lower Court's conclusion on the question of limitation. Dealing with the case on the assumption already stated, the question is whether defendant 1's part payments after partition save the bar of limitation as against the other defendants. This question has been very fully and very ably argued by learned counsel on both sides, the respondents' case being argued by Mr. Ranganatha Sastri as amicus curiae, and I am much indebted to him for his great assistance.
2. Mr. C.K. Viswanatha Iyer for the petitioner, amongst other cases, relied upon Muniswami v. Kutti Moopan AIR 1933 Mad 708, a judgment of mine when sitting with Bardswell, J. In that case before partition, a Hindu father executed a promissory note and after partition made payments towards principal or interest. The question was whether these payments saved the suit from the bar of limitation, his sons having been made parties to the suit. The point there was very similar to the one here except that the part payment was made by the father and not as in the present case by the elder brother or the managing member. It was held that although the part payment was after partition, the father still had authority from his sons to keep alive during the period of limitation the debt incurred by him before partition and that such a case must be distinguished from a case where the father after partition takes a renewal of a debt as it is another matter altogether to wipe out the original debt and substitute there for another debt. Reference was made in that judgment to the Full Bench case of Subramania v. Sabapathi AIR 1928 Mad 657, where it was held that a simple money creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition between the father and the sons, and the observations of Anantakrishna Ayyar, J. at p. 410 of the report are relied upon in my judgment; and that decision and mine are cited in support of the petitioner's argument and it is contended that no distinction can be drawn between a Hindu father and a managing member and that part payments or acknowledgments by either after partition have the same result, namely of preventing the bar of limitation as regards his other family members. In Muniswami v. Kutti Moopan AIR 1933 Mad 708 I was considering the authority of a Hindu father to make acknowledgments or part payments on behalf of himself and his sons and not that of a managing member; and in the Full Bench case the debt was the father's debt, that is to say, incurred by the father and no question of limitation there arose. The question there was merely:
Whether a simple money creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a bona fide partition has taken place between the father and the sons,
and it seems to me that the decision was based upon the pious obligation of the sons to pay the debts incurred by their father not for an illegal or immoral purpose. Jackson, J. on p. 376 refers to the rulings in Bamachandra Padayachi v. Kondayya Chetti (1901) 24 Mad 555; Kameswaramma v. Venkatasubba Rao AIR 1914 Mad 328 and Jagannatha Rao v. Visvesam AIR 1924 Mad 682, and is of the opinion that they do establish a distinct trend of opinion that the son is under a pious obligation notwithstanding partition to discharge the not immoral debts of his father incurred before partition. The decision in that case really is that where before partition the Hindu father has incurred a debt which by reason of the pious obligations his sons are under a liability to pay, the creditor's rights are not defeated by a bona fide partition and that the liability of the sons still continues after partition, but I may add, subject to the law of limitation; and it was not necessary in that case to proceed beyond the point already indicated although Ananthakrishna Ayyar, J. has discussed the question of acknowledgments made by a Hindu father after partition as distinguished from a renewal after partition of a pre-partition promissory note; and that is the distinction which is made in Muniswami v. Kutti Moopan AIR 1933 Mad 708. But some support is certainly given to the petitioner's contention that there is no distinction between the acts of the Hindu father and the managing member in this connection by the observations of Anathakrishna Ayyar, J. on p. 416; but in my view that learned Judge was not then considering post-partition acknowledgments of the pre. partition debts incurred by the Hindu father or by the managing member; and I do not take the Full Bench case as any authority at all in support of the petitioner's contention here; Rangayya Chetti v. Thanikachalla Mudali (1896) 19 Mad 74 and Official Receiver, Anantapur v. Ramaohandrappa AIR 1929 Mad 166, were cited by Mr. C.K. Vis. wanatha Iyer in order to show that the powers of the managing member of a Hindu family are the same as those of the Hindu father, but these cases again do not discuss their respective authorities to keep pre-partition debts alive after partition as against the members of the family or relate at all to questions of limitation.
3. Duraiswami Ayyar v. Krishnier AIR 1920 Mad 352 does, however, relate to acknowledgments by the manager of a joint Hindu family as extending the period of limitation against other members of the family. There the others members of the family were also parties to the original con. tract and, for that reason, it was held that in the absence of special circumstances, acknowledgments by the manager of the Hindu family could not extend the period of limitation as against the other members of the family. This case draws a distinction between the effect of such acknowledgment where the other members of the family are also the original contracting parties and where they are not. But this case also is not exactly in point because, as I understand the facts of it, the decision related to an acknowledgment made whilst the family was still undivided and not after it has become divided and that is of course an important distinction because after partition the person who makes the part payment or acknowledgment must be some one who has direct or implied authority to do so from the divided members. If it is proved that he has done so as their agent or with their authority, then that will be sufficient. The original debt here was incurred by the managing member. If he had acknowledged the debt before partition, then clearly such acknowledgment would be binding on the other members of the family and during the period of limitation they would be equally bound to pay such a debt even after partition; but in my opinion it is quite different where, but for an acknowledgment after partition, the debt would be barred by limitation. Clause (b), Sub-section (3) to Section 21, Limitation Act, makes the position clear; Sub-section (3) is an amendment inserted by Act 1 of 1927 and Clause (b) reads as follows: Where a liability has been incurred by, or on[ behalf, of a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorized agent of, the manager of the family for the time being shall be deemed to have' been made on behalf of the whole family.
4. After a partition there is no undivided family and therefore no managing member of it; and unless there is authority to acknowledge the debt or make a part payment the other members of the family will not be bound by the acknowledgment or part payment of one member alone. This question was considered by Curgenven, J. in C.R.P. No. 623 of 1933. There, there was a partition between the defendant and his brother and the suit which was upon a promissory note would have been barred against the defendant himself but for a part payment made after a partition. Curgenven, J. held that this payment being made after partition was not made by the manager for the time being as required by Section 21(3)(b), Limitation Act, and did not therefore save limitation against the defendant's brother. I am satisfied that this is the plain meaning of the section and that Curgenven, J. took the correct view. The suit as against defendants 2 and 3 here was barred by limitation and the lower Court's decree-dismissing the suit against them with costs was correct. This C.R.P. is therefore dismissed.