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Muthukumara Mudaliar Vs. Chockalinga Mudaliar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad634; 73Ind.Cas.952
AppellantMuthukumara Mudaliar
RespondentChockalinga Mudaliar
Cases ReferredSubramania Iyer v. Veerabadra Pillai
Excerpt:
limitation act (ix of 1908), section 19 - statement admitting execution of mortgage-bond--acknowledgment of liability. - 1. the statement which the courts below have taken to be an acknowledgment of liability sufficient to save limitation, is the statement made by the present and 2nd defendant, who was 3rd defendant in original suit no. 28 of 1911, when examined as 2nd witness for plaintiff, when he said, 'i am the 3rd defendant. i and the 2nd defendant purchased some land from the 1st defendant. for the balance of price due to her, exhibit a was executed.'2. we are unable to accept the view that this was an acknowledgment of a liability subsisting at the date when the witness deposed.3. the witness did not speak of the price as being still due to the 1st defendant at the time.4. we hold, following kamdasami reddi v. suppammal : air1922mad104 , ittappan kuthiravattat nayer v. manu sastri 26 m. 34 : 12.....
Judgment:

1. The statement which the Courts below have taken to be an acknowledgment of liability sufficient to save limitation, is the statement made by the present and 2nd defendant, who was 3rd defendant in Original Suit No. 28 of 1911, when examined as 2nd witness for plaintiff, when he said, 'I am the 3rd defendant. I and the 2nd defendant purchased some land from the 1st defendant. For the balance of price due to her, Exhibit A was executed.'

2. We are unable to accept the view that this was an acknowledgment of a liability subsisting at the date when the witness deposed.

3. The witness did not speak of the price as being still due to the 1st defendant at the time.

4. We hold, following Kamdasami Reddi v. Suppammal : AIR1922Mad104 , Ittappan Kuthiravattat Nayer v. Manu Sastri 26 M. 34 : 12 M.L.J. 101 and Venkata v. Parthasaradhi 16 M. 220 : 3 M.L.J. 35 : 5 Ind. Dec. 860, that no implied acknowledgment of liability can be spelt out of the mere statement that the witness on some prior date executed a mortgage-bond.

5. The witness was 3rd defendant in Original Suit, No. 2S of IQTI but did not defend that suit. At the time of giving evidence he had no necessity to mention anything about his liablity.

6. For the respondent reliance has been placed on Subramania Iyer v. Veerabadra Pillai : AIR1921Mad464 . In that case there were certain endorsements on the promissory note in question and the defendant stated as a witness in a criminal case when the promissory-note was shown to him that he executed it and that the contents of it were correct.

7. We are inclined to doubt whether that cases, as conectly decided but it is unnecessary to say more as the words in which the supposed admissions were made are different from the words used in this case.

8. We allow the second appeal and set aside the direction that plaintiff may have a personal remedy against appellant, with costs in the lower Appellate Co urt and here.


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