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(Cadapalli) Yagnanarayana and anr. Vs. Kaja Venkata Krishna Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad1108
Appellant(Cadapalli) Yagnanarayana and anr.
RespondentKaja Venkata Krishna Rao and ors.
Cases ReferredKananoor Velayuda Beddi v. Reddyvari Narasimha Reddi
Excerpt:
- .....alive, the date when the debt is demand-able is changed from the date mentioned exhibit a to the date of exhibit b. it cannot be 8 and that the keeping of the security alive involves necessarily the proposition that the date when the debt can be demanded continues to be the old date. after the execution of exhibit b, the twelve years' period of limitation cannot be calculated from the date mentioned in exhibit a. i agree with the decision in kananoor velayuda beddi v. reddyvari narasimha reddi : (1917)32mlj263 and the manner in which mahomed ibrahim hossem khan sr. ambika prasad singh (1912) 39 cal. 527 was distinguished in it. in the latter case the only date available for calculating limitation against the plaintiff, claiming by right of subrogation, is the date fixed for payment......
Judgment:

1. The defendants Nos. 1 and 2 executed a mortgage bond Exhibit A, on 5th August, 1892 in favour of plaintiff's father, under which several items of property were mortgaged. On 25th August, 1895, one of these items, viz., item No. 6, was sold to the predecessor-in-title of the 7th defendant under Exhibit I, and he sold it to the predecessor-in-title of the 11th defendant under Exhibit II. On 15th August 1905, the mortgage-bond Exhibit A, was renewed by Exhibit B and item No. 6 was again included in the properties charged.

2. The present suit was filed on 8th August, 1917. The plaintiff contends that the charge over item No. 6 that he had obtained under Exhibit A was kept alive by Exhibit B and cannot be affected by the intermediate conveyance (under Exhibit I) behind his back without his consent. The appellant concedes this, but argues that the suit is barred by limitation.

3. If the only point that has to be decided is whether Exhibit B regarded only as an acknowledgment in 1905 of the debt due under Exhibit A, will save the suit from being barred against defendants Nos. 7 and 11, it must be decided against plaintiff. The observations in Lewirt v. Wilson (1886) 11 A.C. 639 are conclusive on the point. At page 645 Lord' Hobbouse after citing Bolding v. Lane (1863) De. G.J. & Sect 122 points out the difference between an acknowledgment under Section 29 of the Statute of New Brunswick (corresponding to Section 19 of the Indian Limitation Act) and a part payment under Section 30 of the same Statute (corresponding to Section 20 of the Limitation Act). A person who was a party to the mortgage contract can make an acknowledgment even after his interest in the properties had ceased, but the acknowledgment binds only him or persons claiming through him, i.e., assignees from him after the acknowledgmentThis is the view taken by Mookerjee. J., in Surgiram Marwari v. Berhamdeo Persad (1905) 1 C.L.J. 337.

4. In the decision in Krisna Chandra Saha v. Bhairat Chandra Saha (1905) 32 Cal. 1077 a different view seems to have been taken of Section 19. But no objection can be taken to the actual decision as the whole judgment might have rested on a part payment under Section 20. In our view the decision in Chinnery v. Evans (1864) 11 H.L.C 115 applies only to part payments and cannot be extended to acknowledgments. See also Govindasami Pillai v. Desai Goundan A.I.R 1921 Mad. 704. The respondent relies on Arbindakeb Bai v. Jageshar Bai (1919) 17 A.L.J. 763 and Lakshmanan Chetty v. Muthaya Chetty (1921) 40 M.L.J. 763 but it does not appear whether the case in Lewin v. Wilson (1886) 11 A.C. 639 was brought to the notice of the Court in either of them. Walsh, J., who delivered the judgment in the former case, and Sadasiva Aiyar, J., in the latter case, were content to follow Krishna Chandra Saha v. Bhairab Chandra Saha (1905) 32 Cal. 1077. Sadasiva Aiyar, J., also adds that the English cases relied on by the vakil for the respondent cannot be of help as, according to the Indian Act, acknowledgment is not evidence of a new promise to pay, which it seems to be under the English Law. But Section 29 of the New Brunswick Statute merely requires that 'Some acknowledgment of the right thereto shall have been given in Writing sighed, etc., and the decision in Lewin v. Wilson (1886) 11 A.C. 639 does not tarn on any theory as to whether an acknowledgment is not evidence of ft new promise to pay.

5. In none of the cases above referred to was there a renewal of the original bond. In this respect, the case before us resembles Kananoor Velayuda Reddi v. Beddyvari Narasimha Reddi : (1917)32MLJ263 Where there is a new promise to pay by the original mortgagor, the question is not whether it operates as an acknowledgment to save the bar of limitation as against the intermediate alienee. We have here a new covenant substituted for the old covenant and not a mere acknowledgment. The observations of the Privy Council in Lewin v. Wilson (1886) 11 A.C. 639 do not cover such a case. The effect of Exhibit B is twofold. While on the one hand, the mortgagee shows his intention not to surrender the security of item No, 6, which he had obtained by Exhibit A, and which cannot be affected by the conveyance under Exhibit I behind his back and thus the security is kept alive, the date when the debt is demand-able is changed from the date mentioned Exhibit A to the date of Exhibit B. It cannot be 8 and that the keeping of the security alive involves necessarily the proposition that the date when the debt can be demanded continues to be the Old date. After the execution of Exhibit B, the twelve years' period of limitation cannot be calculated from the date mentioned in Exhibit A. I agree with the decision in Kananoor Velayuda Beddi v. Reddyvari Narasimha Reddi : (1917)32MLJ263 and the manner in which Mahomed Ibrahim HosseM Khan sr. Ambika Prasad Singh (1912) 39 Cal. 527 was distinguished in it. In the latter case the only date available for calculating limitation against the plaintiff, claiming by right Of subrogation, is the date fixed for payment. The effect of the new covenant is more analogous to a part payment under Section 20 and is not merely that of an acknowledgment. The vendee under Exhibit I knew that he purchased Only the equity of redemption and that there was a still outstanding transfer in favour of the plaintiff, and as to this, the conveyance is subject to any new covenants made between the original mortgagor and mortgagee just as it is subject to the consequence of any part payment by the mortgagor. The result is the second appeal is dismissed with costs.


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