PAILY ABRAHAM Vs. KATHARU AVIRAN

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of money due under two hypothecation bonds The bonds were executed by defendant 1, and plaintiff sought to recover the amounts from both defendant 1 personally and the hypothecated properties. Exts. A and III are the two hypothecation bonds. Ext. A is a chitty hypothecation bond executed by defendant 1 on 9-1-1106 in favour of the Union Christian Bank, Kurupumpady, a partnership concern of which the plaintiff was the manager and which is not now in existence. The Union Christian Bank was conducting a chitty, and defendant 1, had subscribed a ticket in that chitty and prized the ticket on the 9th instalment. He received the prize amount and executed Ext. A hypothecating the plaint properties as security for payment of the subscriptions for the future instalments. The plaintiffs case was that defendant I had defaulted to pay the subscriptions from the 14th instalment which was on 25-4-1108 & that the Bank was entitled, under the terms of Ext A, to get a consolidated payment of the subscriptions for all the twelve instalments thereafter and interest on the consolidated amount from 25-4-1108. The suit was filed on 29-9-1123, and the plaintiff relied upon a payment of Rs. 8/- by defendant 1 on 21-12-1117 in partial discharge of the interest on the amount under Ext. A and the written acknowledgment (Ext. A1) of that payment signed by defendant 1, contained in Ext. A itself, to save the claim from limitation. Defendant 1 had executed another hypothecation bond also in respect of the plaint properties on 9-1-1106. Ext. III is that hypothecation bond. It was executed in favour of one Ahamed, who was a minor aged 3 years on the date of the hypothecation bond, and his grandmother, Aisa Umma. Under the terms of Ext. III the principal amount thereof, namely, Rs. 300/-, was to be paid to Ahamed after he attained majority and the annual interest was to be paid to his grandmother for and on his behalf till he attained majority. Sometime after the execution of Ext. III Ahamed died and after his death his sister, defendant 4, assigned Ext. III in favour of defendant 3, and the latter in his turn assigned the same to the Union Christian Bank. Ext. D dated 23-7-1117 is the assignment by defendant 4 in favour of defendant 3, and Ext. B dated 13-8-1117 is the assignment by defendant 3 in favour of the Bank According to the plaintiff, on 21-12-1117 defendant 1 paid Rs. 22 to the Bank in partial discharge of the interest on the amount under Ext III also and an acknowledgment (Ext. B1) of the payment was made in Ext. B and signed by him. So far as Ext. III was concerned, the plaintiffs case was that the cause of action in respect of the amount due thereunder arose only in 1121 when alone Ahamed would have attained majority if he had not died earlier. Plaintiff also relied upon the acknowledgment of payment, Ext. B1, as an acknowledgment saving the claim from limitation, if for any reason it was held that the cause of action in respect of Ext. III had arisen earlier. Claiming that he had been duly authorised by the Bank and the partners to realise the amounts due under the two hypothecation bonds, plaintiff brought the suit for recovery of the principal and interest due under Exts. A and III. A moiety of the principal was claimed in each case on account of arrears of interest. The suit was contested by defendant 2, who had taken a sale deed (Ext. IV) of the plaint properties from defendant 1 on 8-8-1111. His main contentions were that the plaintiff had no proper authority to file the suit, that the debt under Ext. III had been discharged and the Bank had waived its right to get the amount under Ext. A, that the cause of action in respect of Ext. III arose in 1110 when Ahamed had died, that the claims under both Exts. A and III were barred by limitation, and that the acknowledgments relied upon by the plaintiff to save the suit from limitation were not binding on him and the plaint properties as they were made by defendant 1 after he had executed Ext. IV in his favour and at a time when he (defendant 1) had no right to the plaint properties. The genuineness of the acknowledgments were also disputed by defendant 2.

(2.) The courts below concurrently found that the plaintiff had proper authority to file the suit, that the acknowledgments, Exts. A-1 and Bl, were genuine, that Ahamed died in 1115 and the cause of action in respect of Ext. III arose in 1115, and that the defendants plea of discharge of Ext. III and waiver of the rights under Ext. A were false. On the question of limitation, the first court held that the acknowledgments, Ext. Al and Bl, were valid and binding on defendant 2 and the plaint properties and that they would save the suit from limitation, and the lower appellate court held that they were insufficient to save the suit from limitation so far as the plaint properties were concerned as they were made by defendant 1 after he had parted with his rights in the plaint properties As a result of these findings, the first court decreed the plaintiffs suit in terms of the plaint with costs, and the lower appellate court reversed that decree and dismissed the suit so far as the plaint properties were concerned. Plaintiff has therefore filed this second appeal.

(3.) According to the plaintiff, the cause of action in respect of Ext. A arose on 25-4-1108. Since the suit has been filed only on 29-9-1123, more than twelve years after the cause of action arose, the claim under Ext. A would normally be barred by limitation. But the plaintiff relies upon Ext. A as an acknowledgment under S.21(1) of the Travancore Limitation Act, VI of 1100, for saving the claim from limitation. S.21(1) reads as follows: