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Saroda Charan Chuckerbutty and ors. Vs. Durga Ram De Sinha - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.484
AppellantSaroda Charan Chuckerbutty and ors.
RespondentDurga Ram De Sinha
Cases ReferredKrishnaChandra Saha Sardar v. Bhairab ChandraSaha Sardar
Excerpt:
limitation act (xv of 1908), sections 19 and 20 - limitation act (ix of 1908), section 21--acknowledgment of debt--payment of interest--new period of limitation--payment by eldest brother for all brothers including minor brother--agent duly authorised--payment valid to create fresh starting point for limitation. - .....payment was made (we quote the necessary words only) was the defendant no. 1 the duly authorized agent of the defendants nos. 2-4 in paying the interest, or did he pay it on his own behalf alone? in our opinion, he was their agent within the meaning of section 20.6. the reported cases deal with various combinations of circumstances. in some cases, the authority of a guardian was discussed. in other cases, questions of legal necessity or of the debt being barred, arose.7. we proceed to notice the cases more directly in point as, also, the decision of the allahabad high court in ram charan das v. gaya prasad 30 a. 422 : 5 a.l.j. 375 : a.w.n. (1908) 175 : 4 m.l.t. 49 where the authorities have been collected.8. a full bench of the madras high court held in chinnaya nayadu v. gurunatham.....
Judgment:

1. On the 28th Aghan 1293, Mohesh Chandra Chuckerbutty, father of defendants Nos. 1-4 executed the mortgage bond in suit. On the 23th Chaitra 1305, the defendant No. 1 paid Rs. 5 towards interest due on the band. This he did to avert a suit about to be brought by the plaintiffs and an endorsement was duly made on the bond in the presence of a pleader, who arranged the matter between the parties. The, suit giving rise to this appeal was instituted on the 21th November 1905 and it is barred against the defendants Nos. 2-4 unless the payment of interest beheld to have given the plaintiff a fresh starting point as provided by Section 20 of the Limitation Act XV of 1877. It appears that the second defendant was of age when his brother paid the item of interest. The third and fourth defendants are still minors.

2. The Court of first instance gave a decree against the defendant No. 1 only. The lower appellate Court decreed the entire claim against all the defendants of whom the defendants Nos. 2-4 are the appellants before us.

3. It is urged (1) that the defendant No. 1 was sued as the guardian of his brothers, and not as the manager of their family property, and that he was not their guardian when he paid the interest. (2) that the defendant No. 1 did not make the payment either as guardian or as manager: (3) that the defendants No. 1 was not the duly authorized agent of his brothers in paying the interest: and (4) that the payment of interest was not for the benefit of the minors.

4. The suit was brought against all the defendants as heirs of the original debtor, the defendant No. 1 being treated as the manager of the joint family property, and the suit proceeded on that basis in the lower Courts. The payment of Rs. 5 averted the threatened suit, it was for the benefit of the younger brothers, including the minors of whose property the defendant No. 1 was, in fact, the guardian though he had not been appointed by the Civil Court. We, therefore, overrule the first, second and fourth contentions on the facts found.

5. The remaining argument leads to a consideration of the law arid authorities. Section 20 of the Limitation Act, XV of 1877, provides that when interest on a debt is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt, or by his agent duly authorized in this behalf: a new period of limitation shall be computed from the time when payment was made (we quote the necessary words only) Was the defendant No. 1 the duly authorized agent of the defendants Nos. 2-4 in paying the interest, or did he pay it on his own behalf alone? In our Opinion, he was their agent within the meaning of Section 20.

6. The reported cases deal with various combinations of circumstances. In some cases, the authority of a guardian was discussed. In other cases, questions of legal necessity or of the debt being barred, arose.

7. We proceed to notice the cases more directly in point as, also, the decision of the Allahabad High Court in Ram Charan Das v. Gaya Prasad 30 A. 422 : 5 A.L.J. 375 : A.W.N. (1908) 175 : 4 M.L.T. 49 where the authorities have been collected.

8. A Full Bench of the Madras High Court held in Chinnaya Nayadu v. Gurunatham Chetti 5 M. 169 that the manager of a Hindu joint family has the same authority to acknowledge as he has to create a debt, he would have like power to continue a liability, as by payment of interest, and, in so doing, he would not be the partner of the other members of the family, but their agent. The powers of the manager of a joint Hindu family as compared with those of an agent, are in regard to certain matters, wider while as regards others, they are of a mere limited character. The manager being the accredited agent of the family, is authorised to bind them for all necessary purposes within the scope of his agency. It was pointed out by Mr. Justice Banerjee, in Ram Charan Das v. Gaya Prasad 17 B. 512 that the manager of a joint Hindu family is something more than a mere agent, but that, under the Limitation Act, he must be regarded as an agent by operation of law for the purpose of acknowledgment of debts on behalf of minor members of the family.

9. The Full Bench decision of the Madras High Court was followed in Bhasker Tatya Shet v. Vijalal Nathu 17 B. 512 and in other cases. We are of opinion that the manager of a Hindu family is duly authorised to bind the members in continuing the existence of valid debts. That this is the correct view may be inferred from the terms of the amended Section 21 of the Limitation Act, IX of 1908.

10. The third contention, therefore, on behalfof the defendants-appellants, must fail. Butthe learned Vakil for the plaintiff-respondenthas called our attention to the case of KrishnaChandra Saha Sardar v. Bhairab ChandraSaha Sardar 32 C. 1077 : 9 C.W.N. 868, followed in Domi Lal Sahu v.Roshan Dubey 33 C. 278 : 11 C.W.N. 107 and he has argued that themortgage debt incurred by the father of thedefendants was binding on the family, anymember of which could acknowledge the obligation or make a payment, on behalf of all.We are disposed to accept this argument insupport of the judgment of the lowerappellate Court. The entire equity of redemption descended to the sons of the mortgagor: they were jointly liable for thy debt, not as co-mortgagors bat as representing the sole mortgagor their father. There is nothing in Section 20 of the Limitation Act to warrant the belief that the extended period of limitation is intended to operate only against the person making the payment.

11. The appeal is dismissed with costs.


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