KALE GOWDA Vs. MARIGOWDA AND

JUDGEMENT

(1.) The plaintitt brought a suit in the Court of the Munsiff at Hunsur for the recovery of Rs. 404/due for principal and interest under a registered hypothecation bond dated 10-6-1926 executed by one Channegowda who is now dead. He left three sons Kalegowda, defendant 1, Boregowda, father of minor defendant 2 and another Lingegowda. Both Boregowda and Lingegowda are also dead. Lingegowda left behind him only his widow Narasamma who is also dead. Defendant 3 is the widow of Channegowda and defendant 4 is an alienee of a small portion of the mortgaged property from Narasamma.

(2.) Plaintiff's case is that at a family partition after the death of Channegowda between defendant 1 and his brothers the hypothecated proper-lies were shared equally by the three brothers but the responsibility lor paying the debt was to be borne by Lingegowda; and in accordance with this arrangement Lingegowda paid Rs. 144/- on 4-5-1930 towards interest and endorsed the same on the document. After his death, his widow and sole heir Narasamma sold a portion of her husband's property to one Devajamma and caused her to pay on 26-11-1934 Rs. 175/- towards interest and Rs. 95/-towards principal and similarly got an endorsement made on the document. Defendants 1 to 3 denied knowledge of the payments and pleaded that the suit was barred by time. Defendant 4 similarly pleaded the bar of limitation and wanted that in the event of a decree being passed, the item of property sold to him may be proceeded against after the rest of the hypothecated properties were sold. The Munsiff held that the first payment towards interest made on 4-5-30 and the endorsement Ex. A-1 evidencing it were true. He, however, held that the second payment towards principal and interest said to have been made on 26-11-34 and Ex. A-2 evidencing it were not proved to be true or genuine and that it was not shown that Narasamma had made that payment. He, therefore, dismissed the plaintiff's suit which was brought on 14-11-46 as barred by limitation. On appeal, the Additional Subordinate Judge held that Ex. A-2 was genuine and evidenced payment towards principal and interest by Devasamma for and on behalf of Narasamma and that Narasam-ma's thumb impression had also been taken to that endorsement thereby strongly supporting the genuineness of Ex. A-2 and the payment. He, therefore, reversed the judgment of the learned Munsiff and passed a decree in favour of the plaintiff as prayed for. This second appeal has been filed by defendants 1 to 3.

(3.) Mr. Gundappa, learned Counsel for the Appellants, does not question the finding of the Subordinate Judge about the genuineness of Ex. A-2 and the payment it evidences by Narasamma. But he contends that the same did not operate to save the bar of limitation. He argues that the payment falls within Clause (2) of Section 21 as the same must be deemed to be by one of several joint contractors as referred to in that section. For this position he relies on a case reported in 'JIBAN KRISTA v. HARI NATH', AIR 1933 Cal 826. In that case the debt was due by two brothers and on a partition between them it was allotted to one of them. It was held that payment of interest by such brother would not save limitation as against the other brother unless there was an implied or express authority conferred by the partition arrangement to make such payment or interest. The latter portion of the headnote which has been stated above clearly distinguishes that case from the present which was clearly a case of only a payment by one of joint contractors. The next case he has referred to is 'PANGOU-DAYA PILLAI v. UTTANDTYA PILLAI', AIR 1938 Mad 774. That case, however, merely lays down that a person who as manager of a family originally contracted a loan cannot keep it alive against the other members of the family even assuming that it is a debt binding on the family by making payments towards the loan after partition has been effected between himself and those other members subsequently. That case is obviously therefore not applicable to the present case.