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Visvasankaranarayana Aiyar Vs. Kasi Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad453
AppellantVisvasankaranarayana Aiyar
RespondentKasi Aiyar
Cases Referred and Ramanoth Chhoturam v. Goturam Radhakisan
Excerpt:
- .....view, the lower appellate court is wrong and the munsifs decree must be restored, subject to modification if necessary, of the amount due under this particular debt.2. the respondent files a memorandum of objections, with reference to another debt, evidenced by ex. q. that is a mortgage died created in 3910. that would be still subsisting, at the date of the decree. but it is argued that in a very recent insolvency proceeding, the plaintiff, has admitted that this debt was discharged in 1913, and i am asked to receive in evidence this alleged admission. even assuming that this admission amounted to absolute proof, it would not help the respondent in any way; for, if the 2nd plaintiff did discharge) this debt in 1913, it was after the filing of this suit. this debt being a debt binding on.....
Judgment:

Phillips, J.

1. This is an appeal against the final decree, in a partition suit, which was filed so long ago as 1910. The case has been in this Court before, and in 1917 certain findings were accepted here and the suit was remanded for determining what were the debts in existence, legally recoverable against the family. This order was passed, in order to give the first defendant an opportunity of contributing his share for those debts and thus preventing the sale of the family lands for their discharge. The District Munsif has given a decree for the debts, contained in Schedules 2 and 5, except item 3. The lower Appellate Court has disallowed items 1 and 2 in Schedule 5. These two items are debts, due under promissory notes, Exs. P. 2 and P. 3. It has been found that these debts are binding on the family. After the suit was filed and before the first remand order of this Court, the promissory notes were discharged and the 2nd plaintiff executed fresh promissory notes, in favour of the person, who discharged these two debts. Subsequently, he executed yet another promissory note, in favour of Adivaraha Aiyar, who discharged the later notes. The Subordinate Judge, in accepting the validity of the debts, under P. 2 and P. 3 and apparently their discharge by the 2nd plaintiff, finds that his discharge is not sufficient to keep the original debts alive, as against the 1st defendant and will not enure to the benefit of the 2nd plaintiff. So far as the 1st part of the conclusion is concerned, it may be quite right; because, the defendant cannot be held liable under the promissory notes, executed by the 2nd plaintiff, after the family became divided in status. But inasmuch as the 2nd plaintiff has discharged debts duo by the family, this first defendant is in equity bound to contribute to the same : vide, Abraham Servai v. Raphial Muthirian (1915) 39 Mad. 288 and Ramanoth Chhoturam v. Goturam Radhakisan (1920) 44 Bom. 179. It is contended that the amount due to Adivaraha Aiyar is the same, as would be due to the plaintiff, if the amount paid by him in discharge of P. 2 and P. 3 were calculated with interest upto date of the decree. The other side contends that the former sum is greater. But this can easily be ascertained and I would only say that the amount for which the 1st defendant is liable, is the amount paid by the 2nd plaintiff for the discharge of P. 2 and P. 3, together with interest upto the date of the decree. In this view, the Lower Appellate Court is wrong and the Munsifs decree must be restored, subject to modification if necessary, of the amount due under this particular debt.

2. The respondent files a Memorandum of Objections, with reference to another debt, evidenced by Ex. Q. That is a mortgage died created in 3910. That would be still subsisting, at the date of the decree. But it is argued that in a very recent insolvency proceeding, the plaintiff, has admitted that this debt was discharged in 1913, and I am asked to receive in evidence this alleged admission. Even assuming that this admission amounted to absolute proof, it would not help the respondent in any way; for, if the 2nd plaintiff did discharge) this debt in 1913, it was after the filing of this suit. This debt being a debt binding on the family, he would be entitled to contribution from the list defendant. The Memorandum of Objections is dismissed with costs. As regards costs in the second appeal, the 2nd plaintiff bas not pressed his claim, in regard to one item and consequently he is only entitled to proportionate costs in this appeal.


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