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Lokandha Naiko and ors. Vs. Lokhono Naiko and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1930Mad738
AppellantLokandha Naiko and ors.
RespondentLokhono Naiko and ors.
Cases ReferredVelayudam Pillai v. Vaithyalingam Pillai
Excerpt:
- - section 19 only operates against the person making the acknowledgment while section 20 makes the part payment good in favour of any suit on that liability......may 1913, there was a payment of interest made by two members of the family, sombari naiko and ramo naiko, and it is argued that this payment would save limitation against those persons who were still bound by the mortgage. the contention of defendant 13, however, who is a brother of ramo naiko is that he was divided from the family at the time when this payment was made. the point has been taken that this plea was not the plea set up during the trial of the suit and it is true that it was not expressly alleged in the written statement, although para. 5 of that pleading states that even if any of the endorsements are true the signatories thereto have no power to make payment so as to bind defendants 13 and 14. this formed the foundation of issue 3, namely: whether the payments relied.....
Judgment:

Curgenven, J.

1. The suit out of which this second appeal arises was filed to enforce a mortgage bond executed on 4th June 1894 by two brothers Durlobo Naiko and Ratno Naiko. The defendants are various descendants of these two mortgagors. Defendant 15 is a purchaser from defendants 13 and 14. These last three persons alone deny liability for the debt and the only question I have to consider is whether, so far as they are concerned, it is time barred. On 19th May 1913, there was a payment of interest made by two members of the family, Sombari Naiko and Ramo Naiko, and it is argued that this payment would save limitation against those persons who were still bound by the mortgage. The contention of defendant 13, however, who is a brother of Ramo Naiko is that he was divided from the family at the time when this payment was made. The point has been taken that this plea was not the plea set up during the trial of the suit and it is true that it was not expressly alleged in the written statement, although para. 5 of that pleading states that even if any of the endorsements are true the signatories thereto have no power to make payment so as to bind defendants 13 and 14. This formed the foundation of issue 3, namely:

whether the payments relied on by the plaintiffs are true, valid and binding on defendants 13 and 14.

2. Inasmuch as both the lower Courts have tried the question of separate status I do not think there is much substance in this objection.

3. It is then said that the learned Subordinate Judge in reversing the judgment of the District Munsif on this point has misappreciated the evidence. He seems to have relied almost exclusively upon what he terms the admission of the plaintiffs' witness 1 that Ramo Naiko and defendant 13 were divided at the date of the payment, This so-called admission is to be found towards the close of the cross-examination where it is stated categorically that:

Ramo Naiko, Sombari Naiko, and, defendant 13 had been divided by that time

and from the context in which that sentence occurs it is quite reasonable I think to infer that the witness meant that division had taken place between Ramo Naiko and defendant 13. It is to be observed that there was no reexamination upon this point and I cannot accordingly say that the finding of the lower appellate Court proceeded upon lack or misconstruction of evidence.

4. The learned Subordinate Judge has inferred from the fact of division that the debt, so far as defendant 13 and those who claimed through him are concerned, became time barred, because the payment of interest referred to could not have bound them. In so finding, however, he has not considered the terms of Section 20, Lim. Act, which is relied upon before me as saving limitation even against these persons. The section states that:

Where interest on a debt or legacy is before the expiration of the prescribed period paid as such by the person liable to pay the debt or legacy, or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed.

5. In several cases arising in this Court and others this language has been construed to mean that subject to the provisions of Section 21 (2) of the Act, such a payment saves limitation as against all persons liable to pay the debt. In Venkatakrishniah v. Subbarayudu [1917] 40 Mad. 698, the distinction in this respect between Sections 19 and 20 is pointed out, namely that:

Section 19 only operates against the person making the acknowledgment while Section 20 makes the part payment good in favour of any suit on that liability.

6. The case in Askaram Sowkar v. Venkatasami Naidu A.I.R. 1921 Mad. 102 relates to the question whether a payment made by a purchaser of the equity of redemption bound the original mortgagors. The learned Judges, adverting to the similarity of the law in England to that in India, refer to the observations of Lord Westbury in Chinnery v. Evans [1864] 11 H.L. 115, where the principles underlying the extension of liability to a person other than the one making the payment have been explained. Several other cases relating to the construction to be placed upon Section 20 have been cited but I deem it unnecessary, to refer to them because it has not been strenuously argued that Section 20 by itself will not apply so much as that Section 21 (2) will take the case out of the prior section. As authority for this view, which depends upon giving a wide extension to the precise terms of Section 21 (2) Deferring as it does only to joint contractors, partners, executors, or mortgagees, I am referred to the judgment of a single Judge of the Calcutta High Court Arjun Ram Paul v. Rohima Banu [1912] 14 I.C. 128. The question there was whether a payment made by one heir would bind another. The learned Judge decided upon what he described as the analogy of Section 21 (2), Lim. Act, that it would not do so.

7. A different view has, however, been taken in, this Court. In a recent case Narasimha Rama Ayyar v. Ibrahim A.I.R.1929 mad. 419, Thiruvenkatachariar, J., had to deal with a debt upon a promissory note in respect of which interest was paid by one of several cohairs. The question was whether it bound the other coheirs and there as here the contention was raised that Section 21, Lim. Act, should be read as Covering the case. His view was, however, that the extension of the subsection by analogy to coheirs was not warranted and he accordingly dissented from the Calcutta decision which I have just cited. It is to be noted that case resembles the present one except with regard to the nature of the debt. Another case on the same point is Velayudam Pillai v. Vaithyalingam Pillai [19l2] 17 I.C. 619, where the executant of a promissory note made a payment after transferring the whole of his property to his universal donee. There are certain observations on p. 67 with reference to the principles underlying Section 20 of the Act. The learned Judges then go on to consider the applicability, of Section 21 holding that a case of that description does not come within it. Such authority as there is therefore in this High Court is against the View pressed upon me that the categories named in Section 21 (2) are merely illustrative and that cases relating to coheirs and other persons who derive their liability not from direct contract with the promisee may be brought within its scope. It must I think be laid upon the party who pleads the section to show that he can claim exemption under its terms. My conclusion is that the payment of interest is valid under Section 20 of the Act to keep alive the liability of defendants 13 to 15. I accordingly allow this second appeal, set aside the decree of the lower appellate Court and restore that of the District Munsif with costs to the plaintiff throughout.


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