SREE RAJAH VASIREDDI BALACHANDRASEKHARA VARAPRASAD BAHADUR MANNE SULTAN GARU Vs. MALLELA LAKSHMINARASIMHAM

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the learned District Judge of Kistna in a suit upon a mortgage dated 19 September, 1929, executed by the first defendant for himself and as guardian of his son, the second defendant in favour of the plaintiff. The third defendant is another son of the first defendant born subsequent to the date of the mortgage. The mortgage was for a sum of Rs. 2,500 payable with compound interest at Re. 0-14-6 per cent, per month. The plaint alleged that there was a payment of Rs. 600 on 9 November, 1930 and that the said payment was made by one Kasibotla Suryanarayanamurti on behalf of the defendants. The defendants denied that the said sum of Rs. 600 was paid as alleged in the plaint and the first defendant pleaded; that he was not personally liable on the ground that the personal remedy was barred by limitation, the suit having been instituted on 16 March, 1936, more than six years from the date of the mortgage. Defendants 2 and 3 denied the truth and validity of the mortgage. Their case was that the amount was not borrowed for any family necessity or for payment of any antecedent debt but for conducting a business newly started by the first defendant himself. Another point taken was that even assuming the mortgage to be true, it was binding only on the mortgagor's share which must be deemed to be one-third and the third defendant though born subsequent to the date of the mortgage would be entitled also to a third share in the property mortgaged. The learned District Judge found the mortgage to be true but held that it was not binding on defendants 2 and 3 on the ground that the amount borrowed was for the purpose of a business started by the father and not for any antecedent debt or family necessity. He also found that Rs. 600 was paid by the said Suryanarayanamurti but he was not an agent duly authorized within the meaning of Section 20 of the Limitation Act and therefore the said payment would not save the bar of limitation in respect of the personal liability of the first defendant. He therefore held that the first defendant was not personally liable for the debt. In regard to the interest of the first defendant in the property he held that he was entitled to half a share in the suit property and that the third defendant cannot repudiate the alienation made before his birth. The plaintiff has preferred this appeal in so far as the decree is against him, that is, in so far as it negatived the personal liability of the first defendant. Defendants 2 and 3 have preferred a memorandum of objections raising the contention that the lower Court should have passed a decree only for a third share of the property and not for a half share.

(2.) Two questions therefore fall to be decided, namely, (1) whether the first defendant is personally liable for the debt and (2) what is the share of the first defendant in the property mortgaged which the plaintiff is entitled to sell in execution o? the decree in his favour. The first question turns on the determination of the issue whether the payment of Rs. 600 operates as an acknowledgment of debt within the meaning of Section 20 of the Limitation Act. The payment of Rs. 600 was apparently made towards the principal and was so treated by the plaintiff. In order that a part payment of a principal can be relied on for saving the bar of limitation within the meaning of Sec. 20 of the Limitation Act, it must fulfil three requisites: (1) the payment must be made by the debtor or his agent; (2) the agent must have been empowered specifically to make the said payment; and (3) there must be an acknowledgment of the said payment in the handwriting of or in a writing signed by the debtor or his agent, that is, if the payment was made by the debtor, in the handwriting of or in a writing signed by the debtor or if the payment was made by the agent, in the handwriting of or in a writing signed by the agent. The question is whether the view of the learned District Judge that K. Suryanarayanamurthi (P.W. 4) in making the payment was not the duly authorized agent of the defendants within the meaning of Section 20 is correct. P.W. 4 admits that he paid Rs. 600 in part payment of the debt. He acknowledges the fact of payment in a letter Ex. B signed by him and delivered to the plaintiff, which runs thus: Irusalnamah submitted by Kasibotla Ramayya Garu's son Suryanarayanamurti, resident of Challapalli, Divi Taluq: Out of the amount due under the hypothecation deed executed on 19th. September, 1929, in your favour by Mallela Venkatapayya Garu's adopted son Lakshmi Narasimharn, resident of Godugupeta, Bandar, a sum of Rs. 600 (in words, six hundred) has been sent to me to be credited towards the said deed and so I have sent the same to you. I shall get the said amount credited towards the said deed by the said Lakshmi Narasimham. (Sd.) Kasibotla Suryanarayanamurti,9 November, 1930.

(3.) Mr. Somasundaram on behalf of the defendants 2 and 3 does not dispute the fact of payment but contends that P.W. 4 was not an agent within the meaning of the section but only a mere messenger who made the payment and that Ex. B therefore cannot save limitation. On the evidence on record we are clearly of the opinion that P.W. 4 in making the payment was the duly authorized agent of the defendants within the meaning of the section. P.W. 4 is a close relation of the first defendant. It was P.W. 4 that arranged for the loan. Ex. B clearly says that the sum of Rs. 600 was sent to him for the express purpose of making the payment on his behalf and crediting the same towards the deed. No doubt P.W. 4 says in his evidence before the Court that the money was not sent by the first defendant but he had the money belonging to one Venkata Ramanamma and inasmuch as the plaintiff : pressed for the payment of the debt he paid the same on behalf of the first defendant. This story cannot possibly be believed in the face of the express recital in Ex. B. P.W. 4 says that he told the first defendant that he made the payment of a sum of Rs. 600 to the plaintiff and that first defendant told him that he would settle later. Though the first defendant as D.W. 1 denies P.W. 4 having told him that such a payment was made, we cannot accept this denial as true. Four months before the plaintiff filed the suit the plaintiff sent a registered letter Ex. E), dated 3 March, 1936 to the first defendant wherein the fact of payment of Rs. 600 on his behalf by Suryanarayanamurti was mentioned and no reply was sent thereto. Therefore the recital in Ex. B that Rs. 600 was sent by the first defendant must be true and there is no reason to think that P.W. 4 was making a false recital. It is very likely that that sum was sent to P.W. 4 as he was the person who arranged for the loan. The decision in Ramkumar Sewchand Roy v. Nanuram Poddar (1925) I.L.R. 53 Cal. 163, on which Mr. Somasundaram relies does not support him; on the other hand, as in this case, the payment was made by a friend of the debtor acting as his agent but he did not actually pay the money to the creditor but sent it through a messenger with a letter which was similar in terms to Ex. B. It was held that that was a valid acknowledgment within the meaning of Section 20 of the Limitation Act.