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P. Ramaswami and ors. Vs. Chandra Kotayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad261
AppellantP. Ramaswami and ors.
RespondentChandra Kotayya
Cases ReferredShrinivasdas Bavri v. Meherbai A.I.R.
Excerpt:
- - 544. we must express our strong disapproval of the subordinate judge's conduct in declining to follow the decision of this court. if money bad been paid to the 3rd defendant certainly that would have been a valid discharge of the liability under exhibits a and a(1), but a mere undertaking to pay the amount at some future date is not equivalent to payment. 544, is good law or not. 4. in the result the second appeals fail and are dismissed with costs......it.3. the judgment of the lower appellate court can be supported on other grounds then that of fraud. exhibit i is a moitgage deed executed by defendants 1 and 2 and their father undertaking to pay the balance of the amounts due under exhibits a and a(1). this document was afterwards sued on and money was realised. exhibit i cannot be taken to be a discharge of exhibits a and a(1). in barber maran v. earnana goundan (1897) 20 mad. 461 it was held that a payment made to one of two joint mortgagees was a ivalid discharge of the mortgage liability. if money bad been paid to the 3rd defendant certainly that would have been a valid discharge of the liability under exhibits a and a(1), but a mere undertaking to pay the amount at some future date is not equivalent to payment. it is quite.....
Judgment:

Devadoss, J.

1. These appeals arise out of two suits brought by the plaintiff on mortgage bonds, dated 4th November, 1897 and 28th January, 1902. The District Muusiff dismissed the plaintiff's suits. On appeal the Subordinate Judge passed decrees in favour of the plaintiff. Exhibit A, dated 4th November 1897, was executed by the do fondants 1 and 2 and their deceased father and brother in favour of the plaintiff and the 3rd defendant. Exhibit A(1) was executed on 28th January, 1902, by defendants 1 and 2 and their deceased father in favour of the plaintiff and the 3rd defendant. On 28th June, 1906, the defendants 1 and 2 and their father executed Exhibit I in favour of the 3rd defendant undertaking to pay the balance due in respect of Exhibit A and Exhibit A (1) during a period of 10 years from 15th March, 1906. The first point urged for the appellant is that Exhibits A and A (1) were discharged by payment to the 3rd defendant; and reliance is placed upon two decisions of this Court reported in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 and Annapurnamma v. Akhayya (1913) 36 Mad. 544, The Subordinate Judge has declined to follow these rulings on the ground that the other High Courts have taken a different view and that one of learned Judges of this Court expressed his disapproval of the Full Bench ruling in Annapurnnmma v. Akkayya (1913) 36 Mad. 544. We must express our strong disapproval of the Subordinate Judge's conduct in declining to follow the decision of this Court. A Court Subordinate to the High Court is bound to follow the ruling of the High Court and is not entitled to rely upon the decisions of the other High Courts and to decline to follow the decision of this Court. The decision in Annapurnamma v. Akkaya (1913) 36 Mad. 544 is a Full Bench ruling and even if it was not, it was not the function of the Subordinate Court to criticise the ruling. Coutts-Trotter, J,, who expressed the opinion that the decision in Annapurnamma v. Akkayya (1913) 36 Mad. 544 was opposed to the current of authorities in England, did nevertheless follow the ruling in Annapurnamma v. Akkaya (1913) 36 Mad. 544. The Subordinate Judge found that there was a gross fraud on the part of the defendants 1, 2 and 3 and therefore the payment to the 3rd defendant did not bind the plaintiff. The plaintiff did not set up a case of fraud in the pleadings and no evidence was adduced as regards fraud in the first Court, and the Subordinate Judge was not justified in setting up a case of fraud when such a case was not set up by the parties either in the pleadings or in the evidence before the first Court. No issue was taken as regards the question of fraud and no opportunity was given to the defendants to show that there was no fraud. On the other hand, it is quite clear from Exhibit I that defendants 1 and 2 and their father did acknowledge their liability not only to the 3rd defendant but also to the plaintiff and therefore at that time there could not have been any intention to defraud the plaintiff. The 3rd defendant and the plaintiff are the adoptive mother and adopted son and the evidence is that they lived together for 20 years till 4 or 5 years ago and Exhibit I was executed in 1906 evidently at the time when the 3rd defendant and the plaintiff were living together and there is no suggestion that at that time there was any intention on the part of the 3rd defendant or of defendants 1 and 2 to defraud the plaintiff. The Subordinate Judge has therefore erred not only in setting up a new case of fraud not set up in the pleadings but also in coming to the conclusion that there was gross fraud when there was no evidence to support the finding. In his anxiety to get round the decisions in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 and Annapurnamma v. Akkayya (1913) 36 Mad. 544 he has set up a case of fraud.

2. It is next urged by the appellants that the suit is barred by limitation. Mr. Kama Rao who appears for the appellants contends that Exhibit I does not contain an acknowledgment of the liability of defendants 1 and 2 under Exhibits A and A(1). From a reading of the document it is quite clear that the executants of the document did acknowledge the liability not only to the 3rd defendant but also to the plaintiff under the two documents. It is not necessary that there should be a promise to pay the amount due. All that is necessary under Section 19 of the Limitation Act is there should be an acknowledgment of the present liability before the claim is barred by limitation. There is no substance in this contention and we disallow it.

3. The Judgment of the lower Appellate Court can be supported on other grounds then that of fraud. Exhibit I is a moitgage deed executed by defendants 1 and 2 and their father undertaking to pay the balance of the amounts due under Exhibits A and A(1). This document was afterwards sued on and money was realised. Exhibit I cannot be taken to be a discharge of Exhibits A and A(1). In Barber Maran v. Earnana Goundan (1897) 20 Mad. 461 it was held that a payment made to one of two joint mortgagees was a ivalid discharge of the mortgage liability. If money bad been paid to the 3rd defendant certainly that would have been a valid discharge of the liability under Exhibits A and A(1), But a mere undertaking to pay the amount at some future date is not equivalent to payment. It is quite clear from the decisions in Barber Mar an v. Bamana Goundan (1897) 20 Mad. 461 and Annapurnamma v. Akkayga (1913) 36 Mad. 544 that it is only payment made to one of the joint promisees that could give a discharge to the promisers, but where the promiser undertakes to pay the amount at some future date it is not equivalent to a discharge. Supposing in this case the defendants 1 and 2 had given a promissory note to 3rd defendant for the amounts due under Exhibits A and A(1) and if she had negotiated it to a third person and the third person realised the amount some time after, could it be said that the 3rd defendant has paid the amount due under Exhibits A and A(1)? It is open to the parties to a contract to supersede that contract by another contract. But in order to do so, all the parties to the first contract, must be parties to the second contract Exhibit I cannot be considered as a supercession of the contracts evidenced by Exhibits A and A(1). It is only an undertaking by the promisers to pay the amount to one of the promisees. We hold that in order to bring the case within the rulings in Barber Maran v. Bamana Goundan (1897) 20 Mad. 461 and Annapurnamma v. Akkayya (1913) 36 Mad. 544 there ought to be a payment of the amount clue to one of the joint promisees in order to effect a discharge of the liability to the joint promisees. Taking this view we hold that Exhibit I was not a discbarge of Exhibits A and A(1) and the liability under the two mortgages remained on the date of Exhibit I and the plaintiff is therefore entitled to bring a suit for his share of the mortgago amounts. In the view we have taken, it is unnecessary to consider whether the decision in Annapurnamma v. Akkayya (1913) 36 Mad. 544, is good law or not. It was contended on behalf of the respondent that the decision of the Privy Council in 8hrinivasdas Bavri v. Meherbai A.I.R. 1916 P.C. 5 has considerably shaken the authority of the decision in Annapurnamma, v. Akkayya (1913) 36 Mad. 544. It is unnecessary for us to express any opinion on this point.

4. In the result the second appeals fail and are dismissed with costs.

Jackson, J.

5. I agree and will only add that in any case I should feel bound by the Full Banch ruling in Annapurnamma v. Akkayya (1913) 36 Mad. 544. In Shrinivasdas Bavri v. Meherbai A.I.R. 1916 P.C. 5 it is held that a release deed purporting to be by one of two mortgagees both in his own right, and also as heir and legal representative of the other mortgagee deceased can only be evidence as against the parties to the deed. The respondent did not thereupon proceed to argue that the discharge by one mortgagee alone would be in itself valid, so the point established in Annapurnamma v. Akkayya (1913) 36 Mad. 544 was never raised in Shrinivasdas Bavri v. Meherbai A.I.R. 1916 P.C. 5.


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