N SUBRAMONIAN Vs. S KALYANARAMA IYER

JUDGEMENT

(1.) This appeal arises out of a suit based on a lost promissory note and filed against the legal representatives of the alleged executant which has been decreed by the court below. The 3rd defendant who represents one-half the estate is the appellant.

(2.) The 1st plaintiff Lekshmi Ammal who is the payee under the disputed promissory note is the widow of A. R. Subramonia Iyer the executant, thereof. They had two sons; Kalyanarama Iyer, the 2nd defendant since transposed as the 2nd plaintiff and Narayana Iyer deceased, who was the father of the 3rd defendant Subramonian, minor, and husband of the 4th defendant O.S. Lekshmi Ammal. Subramonia Iyer had retired as Head Clerk of the Magistrates Court at Perinthalmanna and died on 26-8-1945. Some time before his death, i. e., on 4-3-1945 he made entries in his account books showing a borrowing of a sum of Rs. 14000 under a promissory note of even date executed by him in favour of the 1st plaintiff with provision for interest at 3 per cent per annum. Subsequently on 19-4-1945 he made further entries showing a payment of Rs. 7000 towards the principal and Rs. 52-8-0 towards interest till date and mentioning also the fact of an endorsement on the back of the promissory note of these payments then and there. These entries were however ignored as creating any liability as against the estate of A. R. Subramonia Iyer when suit O. S.55 of 1946 was filed after his death for partition of the 3rd defendants one-half share therein. So the 1st plaintiff applied for and obtained permission to institute suit against the Receiver in O. S.55 and laid this suit accordingly on 4-3-1948, viz., the last day of limitation reckoned on the basis of the promissory note date and making the Receiver the sole defendant and praying for the realisation of the balance principal of Rs. 7000 and the interest of Rs. 603-12-0 accrued thereon after 19-4-1945, amounting in all Rs. .7603-12-0. A few days after the suit was filed, i.e. on 13-3-1948, the lst plaintiff got the defendants 2 to 4 impleaded as supplemental defendants in the suit and also had the plaint suitably amended. The plaint averred that the 4th defendant was in a position to and did take away the promissory note from the receptacle where it had been kept and had suppressed the same with a view to selfish gain but this could not affect the 1st plaintiff as the account book entries were there to fully support her. The 2nd defendant pleaded ignorance of the promissory note but was willing that the estate should pay in view for the entries in the account books. The defendants 3 and 4 however denied that there was any borrowing or payment on account as appeared from the account entries and further repudiated the explanation attempted in the plaint as regards the non availability of the promissory note for purpose of production. They claimed on the other hand that the promissory note was insufficiently stamped and that accounted for the non production. They took the point also that the suit was barred by limitation. It should be added that the 1st plaintiff died during the course of the suit after making provision for the devolution of the plaint claim in favour of the 2nd defendant her elder son and his children. The 2nd defendant was accordingly transposed as the 2nd plaintiff and his children were brought on the plaintiffs array as additional plaintiffs 3 to 6. The subsequent contest in the case was carried on as between the plaintiffs 2 to 6 on the one side and the defendants 3 and 4 on the other. The court below found in favour of the plaintiffs that the suit promissory note was true, supported by consideration and valid and further it was in the defendants possession as alleged by the plaintiff. It found also that the suit was in time. In the result the suit was decreed as prayed for, against the estate of the deceased executant. Hence this appeal by the 3rd defendant as above said, to the extent he is affected.

(3.) Mr. Sundara Iyer, learned counsel for the 3rd defendant appellant has canvassed before us all the questions raised on his behalf in the court below. However, it seems to us unnecessary to deal with them all, as in our opinion the suit is liable to be dismissed on the single ground of limitation. Taking up then this aspect of limitation, we have first to observe that the institution of the suit within three years of the date of the promissory note could not avail the plaintiffs inasmuch as the estate was not sufficiently represented by the impleading of the receiver alone as party defendant. See Md. Kader Ali v. Govinda Bundhu, AIR 1946 Cal. 127 . By the time legal representatives were impleaded, the promissory note had become obviously barred and it was on this basis that the issue of limitation was pressed by the contesting defendants. The court below was aware of this difficulty but got over it by its finding, that there was an acknowledgment of liability within the meaning of S.20 of the Limitation Act, by virtue of the payment, on account of, the promissory note debt, before the expiration of the prescribed period of three years and the acknowledgment of such payment by the executant himself in his handwriting. The court below was in this connection, willing to overlook the omission in the plaint, formally to rely on the acknowledgment, as a ground of exception for saving limitation. For, the relevant facts had been made mention of there. Learned counsel for the appellant did not also want to object because the exemption was not claimed specifically. Indeed he cannot. Vide Raghunath v. Syed Samud, 12 C. W. N. 617. But he strongly contended that the acknowledgment was not sufficient in law because there was no real payment on account, either towards principal or interest, on the date mentioned or any other date and that the fact of entries in the accounts although made by A. R. Subramonia Iyer, did not by itself mean anything and he relied on Soudagar v. Joti Prasad, AIR 1937 All. 260. This case held that;