Anantakrishna Iyer, J.
1. The plaintiff and the defendant are brothers. The plaintiff obtained a lease for ten years from the Tiruppananthal Mutt agreeing to pay rent (partly in paddy and partly in money) every year. The paddy rent was to be paid in particular months, and cash rents in particular months; by instalments. A sum of Rs. 1,000 was paid as advance to the Mutt. The plaintiff gave the benefit of half the lease to the defendant who was to pay one-half of the rent due. The defendant had also paid Bs. 500 towards the advance as the advance of Rs. 1,000 was made from funds belonging to plaintiff and defendant. The terms of the contract between the parties have to be ascertained from Ex. A executed by the plaintiff to the mutt, and Ex. B executed between the plaintiff and the defendant. On the allegation that the defendant had not paid the rent due for the 9th year of the lease (Fasli 1328) the plaintiff filed a prior suit, O.S. No. 246 of 1919, to recover the same from the defendant; that claim was settled between the parties; but the plaintiff files O.S. No. 131 of 1923 against the defendant to recover the amount due in respect of the tenth or the last year of the lease (Fasli 1329) after giving credit to the defendant for the sum of Rs. 500, paid as advance as mentioned above. The defendant pleaded payment of 50 kalams of paddy, and also claimed credit to a sum of Rs. 105 for reasons mentioned in the written statement. Those pleas were found against him by both the lower Courts, and being questions of fact, are concluded by the said finding.
2. The defendant further pleaded that a portion of the plaintiff's claim was barred by limitation. Both the lower Courts overruled that contention. That is the main plea that has to be considered in this second appeal preferred by the defendant. The plaintiff stated that he had paid the Mutt and settled accounts with it regarding the lease.
3. The question arises in this way: 50 kalams of paddy became payable on 30th November, 1919, and a portion of the cash rent, namely, Rs. 105 became payable on 1st December, 1919. The suit was filed on 4th April, 1923, i.e., more than three years from those dates. The plaintiff's case was twofold:
1. That there was an agreement between the plaintiff and the defendant that the said paddy and money were paid along with the other instalments of paddy and money due in March and June, 1920, and as the suit was filed within three years from the latter dates (taking into account holidays) the suit was in time, and
2. That the plaintiff had the right to credit the advance amount of Rs. 500 towards the rent due, and having credited the said advance amount towards the rent due in November and December aforesaid, and having only claimed the balance rent in this suit, there was no question of limitation.
The defendant denied that there was any agreement regarding payment of the said rents as alleged by the plaintiff. He also denied the plaintiff's right to set off the same against the advance.
4. Both the lower Courts found as a fact that the agreement setup by the plaintiff was proved. They also held that the plaintiff was entitled to appropriate from the advance of Rs. 500 the rent due in November and December 1919. They accordingly overruled the above contentions of the defendant.
5. In second appeal the learned Advocate who appeared for the appellant raised the same contentions before me.
6. I propose to take up the second contention first. In para. 8 of the learned District Munsif's judgment he observed as follows: 'Even apart from any such agreement, the plaintiff is entitled to appropriate the Rs. 500 advance towards the paddy and cash rent for 1919 due from defendant. This is what has been done in the plaint.'
7. On appeal, the lower Appellate Court in para. 8 of the judgment disposed of the contention raised by the defendant in these words: 'I agree with the lower Court in finding that this agreement to give time was true and that the claim in respect of these two items is not time-barred. Besides, the respondent, with whom the appellant had deposited an advance amount of Rs. 500 was perfectly entitled in law and equity to appropriate these two items out of the advance amount in his hands.' It was contended that the plaintiff was not entitled to make the appropriation, and certain decisions were quoted before me to the effect that the amounts coming into the creditor's hands without reference to the debtor could not be appropriated by the creditor towards the debt due to him. A passage from the judgment of Bosanquet, J., in Waller v. Lacy (1840) 1 Man. & G. 54 : 133 E.R. 245 : 1 S.N.R. 186 : 8 D.P.C. 653 : 9 L.C.J. P. 217 : 4 Jur. 435 : 56 R.R. 291 was quoted. There the learned Judge observed as follows: 'The doctrine of appropriation cannot apply to the present case, where money has come to the plaintiff's hands, not by the act of the defendant, but by the act of a third party.' Similarly, Coltman J., observed: 'All the decisions in which this point has been considered have been cases where payments have been made by debtors to creditors; and it has been held that if the party making a payment neglects to direct its application, the right to appropriate it devolves on the party by whom it is received. But here there was no payment at all by the plaintiff to the defendant.' The decision in Waller v. Lacy (1840) 1 M. & G. 54 : 133 E.R. 245 : 1 S.N.R. 186 : 8 D.P.C. 653 : 9 L.C.J. P. 217 : 4 Jur. 435 : 56 R.R. 291 was to the following effect: 'An attorney who has several demands against of his client, some of which are barred by the statute of limitations, has no right to appropriate, in payment of the demands so barred, a sum received by him on account of his client for damages received in an action.' Section 59 of the Indian Contract Act lays down the rule to be applied as regards the appropriation of payments, 'where a debtor makes a payments to the creditor'. In the case before me, it is clear that the amount of Rs. 500 was paid by the defendant as advance for the last year's rent, i.e., for Fasli 1329.
8. The lower Appellate Court specifically finds that 'the appellant had deposited an advance of Rs. 500 with the respondent' (para. 8 oil its judgment). The present is therefore, not a case where moneys belonging to the defendant came into the hands of the plaintiff without reference to the defendant which was the case in Waller v. Lacy (1840) 1 M. & G. 54 : 133 E.R. 245 : 1 S.N.R. 186 : 8 D.P.C. 653 : 9 L.C.J. P. 217 : 4 Jur. 435 : 56 R.R. 291. Here the defendant himself paid this advance. That is the finding and the circumstances appearing in the case support the finding. Therefore, the decision quoted by the learned Advocate for the appellant does not apply to the present case. When an advance amount is paid by the tenant to the landlord on a stipulation that the same is to be applied towards the last year's rent due under the tenancy, (that, I think, is the effect of Exs. A and B), the landlord is entitled to appropriate the same towards the rent due for the instalments due for the final year, though a suit for rent due in respect of such instalments might be barred by limitation. The circumstance that at the date of the suit the instalments of rent for the final year in respect of which the landlord appropriated the advance were barred by limitation is no bar for the landlord in doing so. In the present case the plaintiff has given credit to the sum of Rs. 500 towards the rent due for Fasli 1329 in October and November 1912, and as the sued rent did not exhaust the whole of the Rs. 500 he has appropriated the remaining portion of Rs. 500 towards the rent due in March and June, 1920, and it is only for the balance of rent due for Fasli 1329 that the suit has been decreed by the lower Court. I think the landlord was perfectly right in having done so, and, therefore, no question of limitation arises in the present case.
9. In this view it is not necessary to discuss the other ground mentioned by the lower Courts in support of their view that the claim for rent which fell due in October, 1919, was not barred by limitation.
10. The lower Appellate Court found, that the time for payment of the said rent was extended by agreement between the parties and the said portion of the rent was to be paid along with the other portion of the rent payable in the months of March and June, 1920. It was argued by the Advocate for the appellant that mere extension of time for payment does not give a fresh starting point of limitation when the agreement was not in writing but was only an oral one. The provisions of Section 19 of the Limitation Act (and in fact the policy of the law) it was urged, would be against such a view. On behalf of the respondent it was argued that there was a fresh agreement entered into between, the parties in lieu of the original agreement.
11. In this connection the following cases were cited in the course of the argument: Hirada Karibasappa v. Gadigi Muddappa 6 M.H.C.R. 197, Dagdusa Tilakchand v. Shamad 8 B. 542, Amuthu v. Muthayya 16 M. 339, Bollapragada Ramamurthy v. Thammanna Gopayya 35 Ind. Cas. 575 : 40 M. 701 : 4 L.W. 48 : 20 M.L.T. 129 : 31 M.L.J. 231, Marimuthu v. Saminatha Pillai 21 M. 366, Aiyasami Chetty v. Chinnia Nainar 34 Ind. Cas. 431 : 3 L.W. 338, Chinnasami Naidu v. Venkatasimi Naidu 6 Ind. Cas. 719 : 7 M.L.T. 372, Shrinivas v. Raghunath 4 Bom. L.R. 50, Ganga Prasad v. Ram Dyal 23 A. 502 A.W.N. (1901) 150 and Ibrahim Mallick v. Lalit Mohan Roy : AIR1924Cal388 .
12. This raises a rather interesting question of law as to how far such an agreement could be said to be a new agreement in substitution of the old agreement, arid whether such new agreement would be supported by legal consideration as required by law.
13. As I have found that the appeal should fail on the first point discussed by me above, I do not think it necessary to discuss the second question raised by the learned Advocate for the appellant. The finding of the lower Appellate Court is not clear whether, in the present case, there was only an extension of time granted by consent of parties, or whether there was a fresh contract in substitution of the prior one. The question whether there was' consideration for the second contract has also not been discussed by the lower Appellate Court. I could not discuss the question of law in the absence of the necessary findings which should form the basis for the discussion of the question of law.
14. In these circumstances I do not propose to discuss this second question raised by the learned Advocate for the appellant.
15. As I have overruled the first contention raised in the appeal, it follows that the second appeal should fail.
16. Two other minor matters were discussed before me, one relating to the price of paddy and the Other relating to the rate of interest awarded by the lower Appellate Court. The former is a question of fact; and though both the appellant, and also respondent in his memorandum of objections, questioned the rate of interest allowed by the lower Appellate Court, I think, I should not, in the circumstances, interfere with the said rate of interest. I must accept the lower Appellate Court's finding that a sum of Bs. 500 was paid to the mutt by the defendant in 1920 and pleaded by him, and not in 1925 as pleaded by the plaintiff. I see no reason to interfere with the rate of interest allowed by it.
17. The result is that both the second appeal and the memorandum of objections are dismissed with costs.