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Thayammal and ors. Vs. A. Muthukumaraswami Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1929Mad881; 121Ind.Cas.858
AppellantThayammal and ors.
RespondentA. Muthukumaraswami Chettiar
Cases ReferredHollingshead v. Webster
Excerpt:
evidence act (i of 1872), section 68 as amended by act xxxi of 1926 - amendment, whether retrospective--limitation act (ix of 1908), sections 20, 21--payment of interest by one of several mortgagors, whether saves limitation against rest--'chargeable' in section 21, meaning of--mortgage-decree--construction--personal decree as to costs against mortgagors--execution in respect of personal decree before sale, legality of. - 1. appeal no. 132 of 1927.2. in this appeal, defendants nos. 1 to 3 are the appellants before us. the plaintiff brought the suit on a mortgage bond, dated the 24th october, 1907. the present suit was filed on the 17th october, 1925. to save the bar of limitation, the plaintiff relied on a payment of rs. 10 towards interest on the 17th october, 1913, which purports to be endorsed on the mortgage bond and is exhibited as ex. a-l. the subordinate judge decreed the plaintiff's suit as framed, with further iuterest. hence this appeal.3. exhibit a 1, the endorsement, was signed by the 1st defendant and the 2nd defendant for himself and as guardian of his younger brother, the 4th defendant. it is said that the 3rd defendant was then absent at singapore and that the endorsement was signed on his.....
Judgment:

1. Appeal No. 132 of 1927.

2. In this appeal, defendants Nos. 1 to 3 are the appellants before us. The plaintiff brought the suit on a mortgage bond, dated the 24th October, 1907. The present suit was filed on the 17th October, 1925. To save the bar of limitation, the plaintiff relied on a payment of Rs. 10 towards interest on the 17th October, 1913, which purports to be endorsed on the mortgage bond and is exhibited as Ex. A-l. The Subordinate Judge decreed the plaintiff's suit as framed, with further iuterest. Hence this appeal.

3. Exhibit A 1, the endorsement, was signed by the 1st defendant and the 2nd defendant for himself and as guardian of his younger brother, the 4th defendant. It is said that the 3rd defendant was then absent at Singapore and that the endorsement was signed on his behalf also.but there is no signature which purports to be on his behalf. So far as the 1st and 2nd defendants are concerned, the main point that was argued for the appellants was that though the signatures on the endorsement are ge nuine, the endorsement was interpolated after the signatures were made, that there was in fact no payment on the 17th October, 1913, and that what was represented to the defendants was that an endorsement will be made, consisting of the earlier payments, which were really made. Beyond the bare suggestion, there is nothing to support this contention of the defendants. The 1st and 2nd defendants have not gone into the box to support this contention. On the other hand, the plaintiff has gone into the box and has sworn to a payment of Rs. 10 on that date. This payment appears in the plaintiffs dsy book, Ex. D, at page 515. The actual entry was written by one Venkatachala Ohetty and his writing is proved by his son P.W. No. 2. This contention on behalf of the appellants Nos. 1 and 2, therefore, fails.

4. Another contention raised on behalf of the appellants may also be disposed of. It is that Ex. A has not been duly proved. It bears the signatures of five attestors and the writer. All these are dead except one, namely, O. Vadivelu Pillai. It is argued that Vadivelu Pillai has not been called, as required by Section 68 of the Evidence Act. This section of the Evidence Act has been recently amended by Act XXXI of 1926. None of the defendants has denied the genuineness of the suit mortgage bond. The 1st defendant only said that it has not been duly attested and that the plaintiff should prove strictly the genuineness but admitted her own execution. The 2nd defendant never filed a written statement. The 3rd defendant also did not plead that he did not execute the bond. We think the amendment is a provision relating to processual law and not to substantive law and, therefore, must be taken to be retrospective in its operation. That being so, it is not necessary to call the only living attestor. This contention, therefore, also fails. The result is the appeal of defendants Nos. 1 and 2 should be dismissed with costs.

5. There remains the appeal of the 3rd defendant. His learned Advocate argues that the suit is barred by limitation as against him. The endorsement, dated 17th October, 1913, was not signed by him and there is nothing on record to show that those who signed the endorsement were specifically authorised for that purpose. The mere fact that the payment of the money enures for the benefit of all the defendants cannot constitute a specific authorisation to sign the endorsement on their behalf, within the meaning of Article 10 of the Limitation Act. There are certain later payments towards Ex. A, but these were not relied on in the plaint as saving limitation and even if we are inclined to look at them for this purpose, all that we have got is that the payment in 1915 and one payment in 1918 were made by Vadivelu Pillai the attestor above mentioned. Another payment in 1918 and another in 1919, do not appear to have been made by, any specific person. Another payment in 1920 was made by one Munuswami Padayachi. These facts appear from Ex. D, the, plaintiff's later day-book. There is no evidence that Vadivelu Pillai or Munuswami Padayachi was specifically authorised to pay the amounts on behalf of the 3rd defendant. It is true that there is evidence that Vadivelu Pillai had been managing the defendants' family affairs. He was permanently living and messing with the defendants in the same house and he was an inmate of the defendants' house even during his wife's lifetime and he was paying theerva on behalf of the defendants. But in our opinion all these do not constitute a specific authorisation, within the meaning of Section 20 of the Limitation Act. (Vide Vuppala Bapanna v. Pab-biaeptit, Bbemalingam 33 Ind. Cas. 986 : 3 L.W. 331; (1916) 1 M.W.N. 162.) We, therefore, hold that-there is no payment of interest as such by any person authorised by the, 3rd defendant to pay on his behalf.

6. In the plaint there is an allegation that the 3rd defendant 'ratified these payments. Paragraph 9-a of the plaint says that he 'agreed thereto' and 'acquiesced therein' and 'admitted it' and 'ratified it.' In proof of this So-called ratification, Ex. F was relied upon. The appellants object that this Was filed at a very late stage; but it' is unnecessary to go into this question, as Ex. F does not purport to ratify aay act done by bthers on behalf of the 3rd defendant. It is merely a letter praying for mote time. Assuming that it relates to the suit document, the letter being written On the 24th December, 1921, more hail 12 years after the date of the documentj it cahnot operate aB an acknowledgment; nor can it amount to a fresh promise;1 Exhibit P, therefore, does not avail the' plaintiff, so far as the 3rd defendant is concerned.

7. It is then contended for the respondent that under Section 20 of the Limitation Act, it is enough if the interest on the debt is paid as such by any person liable to pay the debt. It is true that the words 'the person liable to pay the debt' were construed to mean any person liable to pay the debt. [Vide Arkonam Sowcar v. Venkataswami Naidu 62 Ind. Cas. 393 : 44 M. 544 : 40 M.L.J. 218 : 13 L.W. 193 relying on Bolding v. Lane (1863) 1 De G.J. & S. 122 : 32 L.J. Ch. 219 : 1 N.R. 248 : 9 Jur. (N.S.) 506 : 7 L.T. 812 : 11 W.R. 386 : 137 R.R. 174 : 46 K.R. 47 and Chinery v. Evans (1864) 11 H.L.C. 115 : 10 Jur. (N.S.) 855 : 11 L.T. 68 : 13 W.R. 20 : 4 N.R.520 : 145 R.R. 79 : 11 E.R. 1274 But that was a case to which Section 21 of the Act would not apply and their could be no suggestion that toe operation of Section 20 was cut down by that of Section 21, Clause (2). In the Section 186 of several joint contractors, partners, executors or mortgagees, the operation of Section 20 seems to bi cut down or limited by Section 21 62 Ind. Cas. 393 : 44 M. 544 : 40 M.L.J. 218 : 13 L.W. 193 of the Aci. The decision, in Lewin v. Wilson (1886) 11 A.C. 639 : 55 L.J.P.C. 75, 55 L.T. 410 dojs not help the respondent. That was an appeal from New Brunswick and though Sections 29 and 30 of the New Brunswick Act are a reproduction of the corresponding sections in the English Statute, 7 William 4 and 1 Victoria c. 28 and tney correspond to our sp. 19 and 10, it does not appear that there is a section in the New Brunswick Act, corresponding to our Section 21 and if there is one what its exact terms are. It is then argued by Mr. Krishnaswami Aiyar, the learned Advocate for the respondent, that in Section 21 the word 'chargeable' means personally chargeable and-does not, affect chargeability as to property : and, therefore, where the main liability included liability as to property and a personal liability, while the personal liability is cut down by Section 21, the liability as to property remains en the construction of Section 20; only where the main liability itself is a personal liability, the result of Section 21 is to make the suit wholly barred. In support of this contention, Achola Sundari Debt v. Doman Sundari Debi : AIR1926Cal150 and Ibrahim v. Jagdish Prasad 99 Ind. Cas. 424 : A.I.R. 1927 All. 269 are the only Indian Cases referred to; but in those cases, the learned Judges have not adverted to Section 2L of the Limitation Act at all. They were confined merely to the interpretation of Section 20. Those decisions, therefore, do not help us. The learned Advocate then relied on a decision in In re Macdonald, Dick v. Eraser (1897) 2 Ch. 181 : 66 L.J. Ch. 630 : 76 L.T. 713 : 45 W.R. 628 a decision of Stirling, J., as he then was. It was a decision under Lord Tenterden's Act (1888) 37 Ch. D. 651 : 57 L.J. 400 : 58 L.L.758 : 36 W.R. 660 Geo. 4), Section 1. The question there was whether an acknowledgment made by one of several executors binds a testator's estate in the hands of the surviving excutore, the original liability being that of the testator. In the first place, that section and our Section 21 (2) are not identical Section 21 refers to 'partners' and also 'mortgagees,' but these are not mentioned in Lord Tenterden's Act. Whereas Section 21 refers generally to executors, Lord Tenterden's Act refers to executors of any contractor. Again Section 21 refers to both cases ef acknowledgment and payment, whereas Lord Tenterden's Act refers to acknowledgment or promise only and not to payment, It is unsafe to assume that the same result was iateaded in the two Acts, even in the case of joint contractors or executors, The case did not go to the Court of Appeal and the point has not since arisen. So far as executors are concerned, its effect has been incorporated in the text books--vide, for example, Lightwood on Limitation of Actions--but such statements are confined to executors only. In the courselof, Stir ling, J.'s judgment; he relied on Gbitty, J.'s judgment in In re Hollingshead, Hollingshead v. Webster (1888) 37 Ch. D. 651 : 57 L.J. 400 : 58 L.L.758 : 36 W.R. 660 Where reference to a similar section, namely Section 14 of the Mercantile Law Amendment Act was made; in that case, the payment was made by a devisee for life and the question was whether it was sufficient acknowledgment to bind the remainderman. Chitty, J., relied on the general observations of Lord Cranworth in Roddam v. Morley (1857) 1 De G.& J. 1 : 26 L.J. Ch. 438 : 3 Jur. (N.S..) 449 : 5 W.R. 510 : 118 R.R. 1 : 44 E.R. 622 and held that it was a sufficient acknowledgment. This view is in consonance with the view since adopted by the Bouse of Lords in Chinery v. Evans (1864) 11 H.L.C. 115 : 10 Jur. (N.S.) 855 : 11 L.T. 68 : 13 W.R. 20 : 4 N.R. 520 : 145 R.R. 79 : 11 E.R. 1274 and Le-Win v. Wilson (1896) 11 A.C. 639 : 55 L.J.P.C. 75, 55 L.T. 410. In the course of the argument, Mr. Swinfen Eady (as he then was) said that the admission of a debt by an executrix will not take it out of the Statute, so as to enable a creditor to obtain payment out of the testator's real estate. What use he actually made of Section 14 of the Mercantile Law Airendment Act does not appear from the report; but Chitty J., in the course of the judgment, says that Mr. Swinfen Eady's argument was that the estate was not liable and that the executor who made the acknowledgment was personally liable, and he said that this argument was founded on Section 14 of the Mercantile Law Amendment Act. Chitty, J. then observed that that was an extraordinary result and he proceeded to observe that some reasonable interpretation should be put on the words 'so as to be chargea'ble.' The interpretation that he suggested waa that the co-executor who has not paid is not to be personally chargeable as for a devastavit. Thus it is seen that the interpretation of the word 'chargeable' did not actually arise in the case. The discussion about it arose only because Mr. Swinfen Eady tried to support his argument by the analogy of the case of two executors and his further argument as to who would be liable in their case. We think' it is unsafe to cut down the plain language of Section 21 by reason of these two cases in In re Macdonald, Dicky. Fraser (1897) 2 Ch. 181 : 66 L.J. Ch. 630 : 76 L.T. 713 : 45 W.R. 628 and In re Hollingshead, Hollingshead v. Webster (1888) 37 Ch. D. 651 : 57 L.J. 400 : 58 L.L.758 : 36 W.R. 660. The former related to the case of executors and in the latter the point did not actually arise. Whatever may be the law as, to executors, it is impossible to pay that of two joint contractors--which term has been held to include two mortgagors in this Court, hide Muthu Chettiar v, Muhammad Hussain 55 Ind. Cas.763] one con-. tractor is bound by the payments of the other. The word 'chargeable' in Section 21 must prima facie mean every kind of chargeability possible, by reason of Sections 19 and 20 of the Act, that is, every kind of chargeability under the original contract, and the term cannot be limited to personal liability only.

8. The result is, we think, that the sutt is barred, so far as the 3rd defendant is concerned. We allow this appeal and the suit is dismissed as against him with costs throughout. Half the Pleader's fee only is allowed. But the appeal of defendants Nos. 1 and 2 is dismissed with costs. Time for payment is extended to four months from this date.

9. C.M.A. No 336 of 1927.

10. This appeal relates to the construction of the decree in the main, case. The main decree made costs part of the mortgage money and provided for its payment on a date named and on default of payment for sale of the mort gaged properties and it proceeded to say that defendants Nos. 1 to 3 are perspnally liable in respect of costs only, but not as to the rest of the mortgage money. The object of the last clause is to enable the mortgagee decree-holder to proceed in further execution against the other properties of the defendants for costs, if they have not been recovered by the sale but its effect is not to enable him to take out execution against the other properties of the mortgagors, even before the sale of the mortgaged properties has been made. We think the order of the Subordinate Judge is right and the civil miscellaneous appeal is dismissed with costs.


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