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Alamuri Sitaramaswami Vs. Sreemath Prativadi Bhayankar Nam Annam Venkata Raghava-charyulu Iyyavarlum Garu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in67Ind.Cas.104
AppellantAlamuri Sitaramaswami
RespondentSreemath Prativadi Bhayankar Nam Annam Venkata Raghava-charyulu Iyyavarlum Garu and ors.
Cases ReferredGeneral v. Hawkins
Excerpt:
probate and administration act (v of 1881), section 92 executors - power to act alone--direction in the will--'several,' meaning of--renewal of barred debt--executor, competency of. - .....question raised by the appeal is more important. it is whether an executor is competent to renew a barred debt. we have, not been shown any ground, on which cases of renewal of a barred debt can be distinguished from cases of payment. authority on the latter class of cases are available: tillakchand hindumal v. jitamal sudaram 10 b.h.c.r. 206, administrator-general v. hawkins 1 m. 267; i ind. jur. 367 and samuel pillai v. ananthanatha pillai 6 m. 351 : 2 ind. dec. 525, the two last mentioned dealing with the competence, not of an executor, but of an administrator, although that is not relied on as affording ground for any distinction. on the other side gopal narain mozoomdar v. muddomutty 14 b.l.r. 21 has been cited; but we are unable to follow that decision in preference to those.....
Judgment:
ORDER

1. The question raised by this appeal is whether the plaintiff-appellant is entitled to recover on a pro-note, which is the third renewal of the pro-note originally executed by a deceased testator, those renewals having been given by two out of three executors appointed by his Will.

2. The first objection taken to the plaintiff's case is that two out of the three executors were not competent to act alone. That is negatived by Section 92, Probate and Administration Act, V of 1881, unless the defendants-respondents can show that the Will contains in the words of the section, 'a direction to the contrary.' We have read the Will, but cannot find any such direction in it, either express or implied.

3. It is then said that Section 92 deals only with several executors and that the word several' there means 'possessing powers to act severally.' We have been shown no authority whatever for this contention, which is inconsistent with the ordinary use of the word 'several' in ordinary parlance.

4. The third question raised by the appeal is more important. It is whether an executor is competent to renew a barred debt. We have, not been shown any ground, on which cases of renewal of a barred debt can be distinguished from cases of payment. Authority on the latter class of cases are available: Tillakchand Hindumal v. Jitamal Sudaram 10 B.H.C.R. 206, Administrator-General v. Hawkins 1 M. 267; I Ind. Jur. 367 and Samuel Pillai v. Ananthanatha Pillai 6 M. 351 : 2 Ind. Dec. 525, the two last mentioned dealing with the competence, not of an executor, but of an administrator, although that is not relied on as affording ground for any distinction. On the other side Gopal Narain Mozoomdar v. Muddomutty 14 B.L.R. 21 has been cited; but we are unable to follow that decision in preference to those already mentioned, two of which were given in this Court. It is true that all these decisions were given before the enactment of the Probate and Administration Act. But we find that in Jethibai v. Putlibai 17 Ind. Cas. 722 : 14 Bom. L.R. 1020, Beaman, J. stated obiter that an executor could renew a barred debt; and there is no reason for holding that the Probate and Administration Act should be read as superseding the previous law in virtue of its silence on a point of this importance. We have also considered whether the authorities above mentioned, which are based on Norton v. Frecker (1737) I Atk. 524 : 26 E.R. 330 and other English cases are open to question, because of the difference between the English and Indian Law of Limitation and the obligation of the Court under the latter to take objection founded on it. In Administrator-General v. Hawkins 1 M. 267; I Ind. Jur. 367 : 1 M.L.R. 343 : , however, this point wan expressly considered and was overruled. We have been referred to no later authority than those specified, but in the circumstances we see no reason for refusing to follow them. We, therefore, hold that the two executors were entitled to give the suit pro note in renewal of the previous note or notes which had become barred.

5. That is sufficient for the disposal of this petition and we need not deal with the further question raised by the plaintiff, whether another note not yet referred to by us and given by the testator's widow was binding on the estate and could afford a valid starting point for limitation.

6. In there circumstances, the petition must be allowed and the Agent must be directed to review his judgment and decree in the light of the foregoing. Costs throughout of the plaintiff and the first defendant, i.e., petitioner and first defendant, will follow the result and will be paid from the estate. It follows that the third respondent's memorandum of objections is dismissed with costs.


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