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Bhaskaruni Venkatanarayana Vs. Bhaskaruni Lakshmibayamma - Court Judgment

LegalCrystal Citation
SubjectFamily ;Civil
CourtChennai
Decided On
Reported inAIR1929Mad309
AppellantBhaskaruni Venkatanarayana
RespondentBhaskaruni Lakshmibayamma
Cases ReferredP. Narayanamurti Aiyar v. Marimuthu Pillai. The
Excerpt:
- - 6. it is also clear to me that the contention that the suit is out of time must fail, since the cause of action arose on the date of actual payment, namely, 1st august 1919. 7. this judgment decides issues 1 and 4. we reverse the decision of the learned judge and remand the case to the trial court for disposal on the other issues. i think the appellant's (plaintiff's) claim against the respondent (defendant) for contribution is well founded and ought to be allowed and with all respect for the learned judge i think the grounds on which he has disallowed the claim are not sustainable......therefore, no foundation for the view that the promisors of the renewed note deliberately kept the debt alive against the consent of the defendant's husband or in violation of any contract between, them. i am clear that it does not matter from which of the co-promisors the promisee chooses to recover or get an acknowledgment or with whom he chooses to renew the promissory note. the coparceners' liability viz. vis-a-vis one* another on the original contract is not altered. their liability to pay is due on the decree contract and not on the right of the creditor to get payment from on(c) or more of them.6. it is also clear to me that the contention that the suit is out of time must fail, since the cause of action arose on the date of actual payment, namely, 1st august 1919.7. this judgment.....
Judgment:

Wallace, J.

1. This appeal is against the judgment of Devadoss, J., in Second Appeal No. 1760 of 1923. The main facts are not disputed. By a partition suit decree, it was agreed between the plaintiff, defendant as legal representative of her husband, and other coparceners of defendant's husband that, if certain debts were recovered from one of the parties, the others were to be liable for contribution according to the proportion of their share and that this rateable contribution was to be a charge on the immovable property of each. Among these debts was a promissory note of 1912 executed by all the co-parceners. When it was about to expire in 1915 the coparceners, excluding the defendant's husband, renewed it. On the renewed note, the promisee sued, got a decree and executed it against the plaintiff who paid up the whole amount. The plaintiff sues the defendant as legal representative of her husband for contribution. The trial Court and the first appellate Court dismissed the suit holding apparently that the renewal of the promissory note converted the old debt into a new one to which the defendant's husband was no party and which was, therefore, not covered by the provision in the decree. The defendant was therefore held not liable for contribution. The learned Judge of this Court in second appeal took the view that, as the decree did not provide for one or more coparceners-debtors renewing or keeping alive the debt without the consent of the others, those who did so cannot, so to speak, by such a method force the debt upon the defendant and call upon her for contribution. He therefore dismissed the second appeal. Hence this Letters Patent appeal,

2. It seems to me that both these views are wrong. The renewal of the debt does not constitute a new debt. It cannot be reasonably contended, that the second promissory note was such a discharge of the original debt as the decree contract Contemplated. It merely changed the form of it. Until the debt was actually paid, it was not discharged, and until it was paid, the obligation to contribute, which was secured under the decree bound all the parties to a decree. Such a renewal is merely a sort of acknowledgment of the original debt.

3. If the renewal of the pro-note amounted to the discharge of the original debt, then the date of the cause of action would be the date of renewal but it is clear law that the cause of action dates from the actual payment of the debt : see Putti Narayanamurti Aiyar v. Marimuthu Pillai [1903] 26 Mad 322. Now, the original debt was not paid until the plaintiff himself paid it off, and, the contract between him and his coparceners was that, if and when he paid it off, all the coparceners would contribute. Nothing has put an end to that contract and it must be enforced, that contract being to contribute to the debt when it was realized, (see Ex. A), that is, actually paid.

4. As to the decree contract not providing for renewals, such matters need not be made the matter of a specific agreement. They naturally follow the general law. An acknowledgment of debt by one of two co-promisors is sufficient to keep it alive as between themselves. Where one co-promisor had by payment kept alive a joint promissory note and his co-promisor was exonerated from liability on the note by the promisee, it was nevertheless held that he was not exempt from liability to his joint promisor: see Abraham Servai v. P. Muthirian [1916] 39 Mad. 288. The same principle applies to the renewal of a promissory note : see Visvasankaranarayna Aiyar v. Kasi Aiyar : AIR1925Mad453 .

5. A further plea which the respondent attempted to advance here, namely, that there was a definite fresh agreement between the coparceners that only the signatories to the renewed promissory note should be liable for the debt and that the defendant was thus released from liability was never hinted at in the written statement, nor is there anything whatever in the evidence to support it : nor is the suggestion that defendant's husband was ready to pay at the time of the renewal of the promissory note either the whole of the debt or his share of it and that his generous offer was ignored both by his promisee and his copromisors at all credible, apart from the fact that there is nothing whatever in the pleadings or in the evidence to support it. There appears to me therefore, no foundation for the view that the promisors of the renewed note deliberately kept the debt alive against the consent of the defendant's husband or in violation of any contract between, them. I am clear that it does not matter from which of the co-promisors the promisee chooses to recover or get an acknowledgment or with whom he chooses to renew the promissory note. The coparceners' liability viz. vis-a-vis one* another on the original contract is not altered. Their liability to pay is due on the decree contract and not on the right of the creditor to get payment from on(c) or more of them.

6. It is also clear to me that the contention that the suit is out of time must fail, since the cause of action arose on the date of actual payment, namely, 1st August 1919.

7. This judgment decides issues 1 and 4. We reverse the decision of the learned Judge and remand the case to the trial Court for disposal on the other issues. The plaintiff will have his costs here and in the lower appellate Court, costs in the trial Court will abide the result. We allow certificate for refund of the Court fee paid on the memorandum of the Letters Patent Appeal.

Thiruvenkatachariar, J.

8. I am of the same opinion. I think the appellant's (plaintiff's) claim against the respondent (defendant) for contribution is well founded and ought to be allowed and with all respect for the learned Judge I think the grounds on which he has disallowed the claim are not sustainable. The material facts of the case are these: The plaintiff, the defendant's husband and three others who were members of a Hindu family, jointly executed a promissory note in favour of' one Kalava Narayya in 1912. At that time, a suit for partition of the family properties which had been instituted by the defendant's husband against his coparceners and certain alienees of the joint family properties was pending in the Sub-Court of Guntur. The plaintiff's husband died before the suit was disposed of and the defendant was as his legal representative brought on the record of the suit as plaintiff 2. By the final decree in that suit to which all the surviving executors of the aforesaid promissory note and the defendant were parties, it was declared with reference to that debt that plaintiff as representing her deceased husband and the other executants of the pro-note were all jointly liable to discharge that debt, plaintiff 2 the present defendant being liable for one half, defendants 1 and 3 i.e., the present plaintiff and his father for i and defendants 2 and 4 the remaining members of the coparcenary for J. The decree further provides that in the event of the debt being realised by the creditor from one or more of the parties jointly held liable, the others jointly liable for them do pay their shares to the persons from whom the said debt has been realised and the share of such others in the immovable properties allotted to them hereby shall stand charged with those amounts until payment. In 1915, the promissory note of 1912 was renewed in favour of the same creditor by all the persons declared liable under the aforesaid decree except the present defendant. There is nothing in the record to show why she did not also join in renewing the note. Kalava Narayya transferred the renewed promissory note (Ex. C) to one Kottayya. The latter sued the executants thereof and obtained a decree against them in O.S. 809 of 1918 on the file of the District Munsif's Court, Narasarao-pet. That decree was executed against the plaintiff alone and he fully discharged it and he has thereupon brought the present suit against the defendant in which he seeks to recover from her one half of the amount which was recovered from him by the decree-holder in O.S. 809 of 1918.

9. The main plea of the defendant was that as she was no party either to the decree in O.S. No. 809 of 1918 or to the pro-note on which that suit was brought, she is not liable to contribute in respect of the amount recovered from the plaintiff under the said decree. That plea has been upheld by both the lower Courts and also by the learned Judge of this Court who heard the second appeal. The lower appellate Court held that the renewed pro-note was a fresh contract and a new debt, to which the defendant was no party though it was executed in discharge of the old debt. So far as the decree in the partition suit is concerned it makes the defendant liable only for the debts mentioned therein and not for any fresh debt contracted after its date though such debt might have been contracted to discharge an old one. In that view, it disallowed the plaintiff's claim. In the second appeal preferred to this Court by the plaintiff, the learned Judge comes to the same conclusion but on somewhat different grounds. In his opinion the liability of the several parties to contribute for the debt has been determined by the terms of the partition decree itself. There is no provision therein for one of the parties to the decree renewing a note or keeping alive the debt for a number of years, and then pay it and then ask for contribution. On those grounds the learned Judge has dismissed the plaintiff's claim.

10. It seems to me, with all respect, that the effect of that decree has been misapprehended. The decree made a declaration with reference to a pre-existing debt that it was binding upon all the coparceners of the family and as between them it declared to what extent each was liable to contribute towards the discharge of their common obligation to the creditor. So far as the creditor is concerned, his rights are in no way affected by the decree. He can proceed against anyone or more of the executants of the pro-note in his favour and recover his debt from them or anyone of them exclusively. When a joint debt is recovered from or discharged by one of the debtors alone, he thereby becomes entitled to contribution from his co-debtors, the extent of the liability of each of the other co-debtors depending upon the facts of the particular case. Here all that the partition decree did was to declare to what extent each of the co-debtors was liable in respect of the debt and that would be the basis on which the amount to be contributed by each will depend. The decree then goes on to say that in the event of the debt being realized by the creditor from one or more of the parties jointly held liable, the others jointly liable for the debt are to pay their shares to the persons from whom the said debts have been realized. This provision, it may be observed, is only an express statement of what the law itself implies when one of several joint debtors has discharged more than his share of the common debt. As regards the debt being kept alive by anyone or more of the debtors or being renewed, the partition decree which declares their joint liability and the share of each of the co-debtors in their common obligation, does not deal with those matters any mere than the original promissory note itself and qua the creditor, the surviving executants of the note and the defendant as the legal representatives of the deceased executant stood in the same position in which they would have been if no decree had been passed. Their liability to him is on that pro-note, which makes them all jointly and severally liable to him for the debt secured thereby. It cannot be disputed that it is open to anyone of the executants of that note to keep alive the debt due on the note without reference to his co-obligors and if the creditor can obtain a decree against him alone, the claim against others being barred by limitation the debtor who is obliged to pay the entire debt can claim contribution from his co-debtors though the creditor's claim against them was unenforceable: see Abraham Servai v. V. Muthirian. This is conceded by the learned Judge himself.

11. In the present case instead of keeping alive the debt by acknowledgments or part payments it was renewed by a fresh pro-note executed by all the debtors except the defendant. This renewal, as rightly held by the learned Judge is a mere promise to pay and does not amount to the payment. It is not a new contract substituted for the old within the meaning of Section 62, Contract Act, as held by the District Judge, which contention the learned Counsel for the respondent pressed before us, because all the parties to the original contract were not parties to the new contract. Viewing the renewal in a light most favourable to the defendant all that can be said is that the creditor by accepting the fresh pro-note from some of the co-debtors only in supercession of the old pro-note released the defendant from her responsibility to contribute to her co-debtors towards the debt: see Sections 43 and 44, Contract Act. So far as the right of contribution is concerned, it makes no difference in substance whether the debtor from whom contribution is claimed has ceased to be legally liable so far as the creditor is concerned, owing to the operation of limitation or because he is released by the creditor from his obligation under the joint and several liability or the creditor has merely abstained from proceeding against him. Further, no substantial distinction can be drawn between keeping a debt alive by means of acknowledgments or part payments and keeping it alive by a fresh pro-note. The fresh pro-note amounts only to a promise to pay and not to payment, and the obligation incurred in it stands on the same footing as that incurred under the old note save only that it constitutes a fresh cause of action in respect of the same debt, and when the renewed note is paid off such payment is essentially a discharge of the obligation incurred under the old note: see Visvasankaranarayana Aiyar v. Kasi Aiyar; P. Narayanamurti Aiyar v. Marimuthu Pillai. The view taken by the learned Judge in this case is not reconcilable with what has been held in the cases referred to.

12. Even if the old pro-note had not been renewed by a fresh pro-note but merely kept alive by one or more of the co-obligors by acknowledgments or part payments and it was enforced against the person who so kept it alive, the claim against the others being then barred, the learned Judge would hold that the latter would not be liable to contribute because of there being no provision in the partition decree authorising any of the co-debtors to keep the decree alive for any number of years. Such a view reads into the clause of the decree which provides for contribution, a qualification which is not to be found there. While that clause says merely that in the event of the debt being realized from one of the debtors, the other co-debtors shall be bound to contribute in proportion to their shares, the construction put upon it by the learned Judge would make his right to demand contribution also depend upon his not having kept alive the debt by any acknowledgment or part payment. I respectfully think that there is no warrant for taking such a view and as I have already observed the only matters dealt with by the decree with regard to this joint debt due on the pro-note were to fix the proportionate liability of each of the co-debtors as between themselves for the purposes of contribution and to create a charge upon the immovable properties allotted to each share in respect of his or his contingent liability to contribute, if and when it arises. That being so, the question whether the right to claim contribution which prima facie arises even according to the terms of the decree when the debt is realized from the plaintiff must be disallowed because the plaintiff voluntarily kept it alive for a number of years or executed a fresh pro-note therefor is one the answer to which depends not upon the terms of the decree in the partition suit but upon his rights under the general law. Upon the authority of the cases already referred to, neither the fact that the debt was kept alive by acknowledgments nor by renewals would deprive the right of the plaintiff to claim contribution from his co-debtors. His cause of action arises when he is damnified by his paying more than his share of the common liability and not till then. The contention that the claim for contribution is barred by limitation which is raised in issue 4 should also be overruled, as the suit has been brought within time from the date of payment made by the plaintiff.

13. I therefore concur in the order proposed by my learned brother.


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