RANGASWAMI AIYANGAR Vs. SIVAPRAKASAM PILLAI

JUDGEMENT

(1.) The question which falls for decision in this appeal is whether a payment made after partition by a member of a Hindu family of interest due on a promissory, note which was executed by the managing member when the family was joint starts a fresh period of limitation against the other members of the family, the payment having been duly, acknowledged by the person who made it, There are conflicting decisions of this Court and it is for this reason that this appeal has been placed before a Full Bench for decision.

(2.) The facts present no complication. On the 12 March, 1925, the appellant's father, one Thiruvenkatachariar, and his youngest son Srinivasachariar, executed a promissory note for Rs. 2,384 in favour of one Gnanatnbal Achi. Thiruvenkatachariar had three sons, and at the time of the execution of the promissory note the family was joint. It is common ground that the debt was incurred for a family necessity. On the 25 March, 1925, the father died. Payments towards interest were made subsequently by Srinivasachariar on behalf of himself and his brothers. On the 13 June, 1930, the brothers separated. It was then agreed between them that Srinivasachariar should be responsible for the repayment of the debt due on this promissory note. In deciding what properties should be taken by Srinivasachariar as his share due allowance was made for his obligation to discharge the debt. On the 10 June, 1933, Srinivasachariar paid a sum of Rs. 55 on account of interest due on the promissory note and made an endorsement on it recording the fact that he had made the payment. On the 24th July, 1935, the first respondent, who has died during the pendency of the appeal and is now represented by the second respondent, instituted in the Court of the District Munsif of Shiyali the present suit to recover the balance due on the promissory note, it having been bequeathed to him by his mother in her will. All the sons of Thiruvenkatachariar were made defendants. The District Munsif held that the payment made by Srinivasachariar operated to extend the period of limitation against his brothers as well as against himself. Accordingly he granted a personal decree against Srinivasachariar as an executant of the promissory note and a decree against his brothers, limited to their shares in the family properties. The appellant appealed to the Subordinate Judge of Mayavaram, who concurred in the judgment of the District Munsif and consequently dismissed the appeal. The present appeal is from the decree passed by the Subordinate Judge. The plaint has not been printed but it has been accepted for the purpose of the appeal that the plaintiff sued on the debt as well as on the instrument.

(3.) A payment of interest made by the person liable to pay the debt, or by his agent duly authorised in this behalf extends the period of limitation, provided that an acknowledgment of the payment appears in the handwriting of or in a writing signed by the person making it. This is one of the provisions of Section 20 of the Limitation Act. Sub-section (2) of Section 21 however says that nothing in Section 20 renders one of several joint contractors, partners, executors or mortgagees chargeable by a payment made by one of them or his agent, and Clause (b) of Sub-section 3 of Section 21 makes it clear that where a liability is incurred by, or on behalf of, a Hindu undivided family, only the manager of the family or his duly authorised agent can make a payment which will have the effect of extending the time against all the members of the family. This clause was inserted by the Indian Limitation (Amendment) Act, 1927. As long ago as 1882 this Court held that the manager of a Hindu family had the same authority to acknowledge as he had to create debts, but without special authority he could not revive a claim against the family already time-barred. See Chinnaya V/s. Gurunatham (1882) I.L.R, 5 Mad., 169 (F.B.). Some other High Courts did not share the opinion that the manager could acknowledge liability and the amendment was made in order to put an end to the controversy.