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Pamulapati Venkatakrishniah Being Minor by Mother and Next Friend Mangamma and ors. Vs. Kondamudi Subbrayudu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.240
AppellantPamulapati Venkatakrishniah Being Minor by Mother and Next Friend Mangamma and ors.
RespondentKondamudi Subbrayudu and ors.
Cases Referred and Lewin v. Wilson
Excerpt:
limitation act (ix of 1908), sections 19, 20 - bond-endorsement of part-payment of principal--endorsement signed but not written by debtor--acknowledgment--saving of limitation. - .....is different from the operation of part-payments under section i.0. the distinction between the effect of acknowledgments and part-payments has often been pointed out in england: see bolding v. lane 1 do g.j. & s. 122 : 46 e.r. 47 : 32 l.j. ch. 219 : 9 jur. 508 : 11 w.r. 386 and lewin v. wilson (1886) 11 a.c. 639 : 55 l.t. 410 and the same distinction appears to have been made in the enactment of sections 19 and 20. at any rate, it is impossible not to give effect to an acknowledgment which fulfils the requirements of section 19, though it may also be an ineffectual part-payment 3f principal under section 20. the two sections deal with two different matters; they can be read together, and there is no inconsistency. i think, therefore, that the appeal must be allowed and the suit.....
Judgment:

Napier, J.

1. I adhere to the opinion expressed by me in the case reported as Jaganadha Sahu v. Rama Sahu 27 Ind. Cas. 747 : 17 M.L.T. 80 on the same words as are in this document, I have no doubt that there is, in this endorsement, an acknowledgment. I cannot accept the argument that Section 20 of the Limitation Act (IX of 1908) prevents the operation of Section 19. It is argued that this is a special provision limiting the application of Section 19 and taking part-payments out of Section 19. I cannot treat these sections as being one general and the other special. Section 19 only operates as against the person making the acknowledgment, while Section 20 makes the part-payment good in favour of any suit on that liability. The second difference is that an acknowledgment need not be addressed to the person entitled: while under Section 20, the payment is of course not a payment unless made to the person entitled. It is clear, therefore, that Section 20 has a wider operation and that would account for the Legislature requiring actual handwriting before giving full effect to the language; but where there is not the handwriting but only the signature, its operation is limited.

2. The appeal is allowed and the case is remanded for disposal.

3. Costs in this case will be costs in the cause.

Srinivasa Aiyengar, J.

4. The short question in this appeal is, whether the plaintiffs' suit is barred by limitation. The suit is one to enforce a simple mortgage by sale of the security, and it is admitted that unless a payment of Rs. 400 in 1905 which is endorsed on the mortgage instrument saves the bar, the action will be barred. The payment is admitted to have been made for principal. Although the endorsement is signed by the debtor, the writing is not that of the debtor but that of the creditor. It is, therefore, clear that the payment is ineffective to give a fresh period of limitation under Section 20 of the Limitation Act. But it is argued for the appellant that although the payment as part-payment of principal is useless to save the bar under Section 20, the endorsement by the debtor on the bond signed by him is an acknowledgment under Section 19. In a case exactly similar to this reported as Jaganadha Sahu v. Rama Sahu 27 Ind. Cas. 747, my learned brother and Mr. Justice Sadasiva Aiyar held that such an endorsement, if it complied with the requisites of Section 19, may be good as an acknowledgment. I respectfully agree. I have no doubt that the terms of the endorsement in this case amount to an acknowledgment of liability. The debtor states in terms that he pays Rs. 378 towards the amount due on the bond and on the same day made another payment of Rs. 22 and made another endorsement. I construe the endorsement as meaning that the debtor made a part-payment of the amount due on the bond (on that day over Rs. 1,500 was due as shown on the face of the bond), which is certainly an acknowledgment that more money was due.

5. It is contended by the learned Pleader for the respondents that Sections 19 and 20 are mutually exclusive, that Section 20 is a special section dealing with a particular species of acknowledgment (that is, by part-payment) and in such cases, unlessit complies with Section 20, the acknowledgment has no effect. I am unable to agree with this contention.

6. Acknowledgments under Section 19 have an operation which is different from the operation of part-payments under section i.0. The distinction between the effect of acknowledgments and part-payments has often been pointed out in England: see Bolding v. Lane 1 Do G.J. & S. 122 : 46 E.R. 47 : 32 L.J. Ch. 219 : 9 Jur. 508 : 11 W.R. 386 and Lewin v. Wilson (1886) 11 A.C. 639 : 55 L.T. 410 and the same distinction appears to have been made in the enactment of Sections 19 and 20. At any rate, it is impossible not to give effect to an acknowledgment which fulfils the requirements of Section 19, though it may also be an ineffectual part-payment 3f principal under Section 20. The two sections deal with two different matters; they can be read together, and there is no inconsistency. I think, therefore, that the appeal must be allowed and the suit remanded to the first Court for a trial of the other issues.


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