RAMASAMI AND 7 ORS Vs. CHANDRA KOTAYYA

JUDGEMENT

(1.) These appeals arise out of two suits brought by the plaintiff on mortgage bonds, dated 4 November 1897 and 28 January 1902. The District Munsif dismissed the plaintiff's suits. On appeal, the Subordinate Judge passed decrees in favour of the plaintiff. Exhibit A, dated 4 November 1897, was executed by the defendants Nos. 1 and 2 and their deceased father and brother in favour of the plaintiff and the third defendant. Exhibit A-1 was executed on 28 January 1902 by defendants 1 and 2 and their deceased father in favour of the plaintiff and the third defendant. On 28 June 1906 the defendants Nos. 1 and 2 and their father executed Exhibit 1 in favour of the third defendant undertaking to pay the balance due in respect of Exhibit A and Exhibit A-1 during a period of ten years from 15th March 1906. The first point urged for the appellant is that Exhibits A and A-1 were discharged by payment to the third defendant; and reliance is placed upon two decisions of this Court reported in Barber Maran V/s. Ramana Goundan (1897) I.L.R., 20 Mad., 461 and Annapurnamma V/s. Akkayya (1918) I.L.R., 36 Mad., 544 (F.B.). The Subordinate Judge has declined to follow these rulings on the ground that the other High Courts have taken a different view and that one of the learned Judges of this Court expressed his disapproval of the Full Bench ruling in Annapurnamma V/s. Akkayya (1918) I.L.R., 36 Mad., 544 (F.B.). We must express our strong disapproval of the Subordinate Judge's conduct in declining to follow the decision of this Court. A Court subordinate to the High Court is bound to follow the ruling of the High Court and is not entitled to rely upon the decisions of the other High Courts and to decline to follow the decision of this Court. The decision in Annapurnamma V/s. Akkayya (1918) I.L.R., 36 Mad., 544 (F.B.) is a Full Bench ruling and even if it was not, it was not the function of the Subordinate Court to criticise the ruling. Coutts Trotter, J., who expressed the opinion that the decision in Annapurnamma V/s. Akkayya (1913) I.L.R., 36 Mad., 544 (F.B.) was opposed to the current of authorities in England did nevertheless follow the ruling in Annapurnamma V/s. Akkayya (1913) I.L.R., 36 Mad., 544 (F.B.). The Subordinate Judge found that there was a gross fraud on the part of the defendants Nos. 1, 2 and 3 and therefore the payment to the third defendant did not bind the plaintiff. The plaintiff did not set up a case of fraud in the pleadings and no evidence was adduced as regards fraud in the first Court, and the Subordinate Judge was not justified in setting up a case of fraud when such a case was not set up by the parties either in the pleadings or in the evidence before the first Court. No issue was taken as regards the question of fraud and no opportunity was given to the defendants to show that there was no fraud. On the other hand it is quite clear ,from Exhibit I that defendants Nos. 1 and 2 and their father did acknowledge their liability not only to the third defendant but also to the plaintiff and therefore at that time there could not have been any intention to defraud the plaintiff. The third defendant and the plaintiff are the adoptive mother and adopted son and the evidence is that they lived together for twenty years till four or five years ago and Exhibit 1 was executed in 1906 evidently at the time when the third defendant and the plaintiff were living together and there is no suggestion that at that time there was any intention on the part of the third defendant or of defendants Nos. 1 and 2 to defraud the plaintiff. The Subordinate Judge has therefore erred not only in setting up a new case of fraud not set up in the pleadings but also in coming to the conclusion that there was gross fraud when there was no evidence to support the finding. In his anxiety to get round the decisions in Barber Maran V/s. Ramana Goundan (1897) I.L.R., 20 Mad., 461 and Anvapurnamma V/s. Akkayya (1913) I.L.R., 36 Mad., 544 (F.B.) he has set up a case of fraud.

(2.) It is next urged by the appellants that the suit is barred by limitation. Mr. Rama Rao who appears for the appellants contends that Exhibit 1 does not contain an acknowledgment of the liability of defendants Nos. 1 and 2 under Exhibits A and A-1. From a reading of the document it is quite clear that the executants of the document did acknowledge the liability not only to the third defendant but also to the plaintiff under the two documents. It is not necessary that there should be a promise to pay the amount due. All that is necessary under Section 19 of the Limitation Act is there should be an acknowledgment of the present liability before the claim is barred by limitation. There is no substance in this contention and we disallow it.

(3.) The Judgment of the lower Appellate Court can be supported on other grounds than that of fraud. Exhibit 1 is a mortgage-deed executed by defendants Nos. 1 and 2 and their father undertaking to pay the balance of the amounts due under Exhibits A and A-1. This document was afterwards sued on and money was realized. Exhibit 1 cannot be taken to be a discharge of Exhibits A and A-1. In Barber Maran V/s. Ramana Goundan (1897) I.L.R., 20 Mad., 461, it was held that a payment made to one of two joint mortgagees was a valid discharge of the mortgage liability. If money had been paid to the third defendant certainly that would have been a valid discharge of the liability under Exhibits A and A-1. But a mere undertaking to pay the amount at some future date is not equivalent to payment. It is quite clear from the decisions in Barber Maran V/s. Ramana Goundan (1897) I.L.R., 20 Mad., 461 and Annapurnamma V/s. Akkayya (1918) I.L.R., 36 Mad., 54 (F.B.), that it is only payment made to one of the joint promises that could give a discharge to the promisors, but where the promisor undertakes to pay the amount at some future date it is not equivalent to a discharge. Supposing in this case the defendants Nos. 1 and 2 had given a promissory note to third defendant for the amounts due under Exhibits A and A-1 and if she had negotiated it to a third person and that third person realized the amount sometime after, could it be said that the third defendant was paid the amount due under Exhibits A and A-1 ? It is open to the parties to a contract to supersede that Contract by another contract. But in order to do So, all the parties to the first contract must be parties to the second contract. Exhibit ] cannot he considered as a super session of the contracts evidenced by Exhibits A and A-1. It is only an undertaking by the promisors to pay the amount to one of the promises. We hold that in order to bring the case within the rulings in Barber Maran V/s. Ramana Goundan (1897) I.L.R., 20 Mad., 461 and Annapurnamma V/s. Akkayya (1918) I.L.R., 36 Mad., 54 (F.B.), there ought to be a payment of the amount due to one of the joint promisees in order to effect a discharge of the liability to the joint promisees Taking this view we hold that Exhibit 1 was not a discharge of Exhibits A and A-1 and the liability under the two mortgages remained on the date of Exhibit 1, and the plaintiff is therefore entitled to bring a suit for his share of the mortgage amounts. In the view we have taken, it is unnecessary to consider whether the decision in Annapurnamma T. Akkayya (1913) I.L.R., 36 Mad., 544 (F.B.) is good law or not. It was contended on behalf of the respondent that the decision of the Privy Council in Shrinivasdas Bavri V/s. Meherbai (1917) I.L.R., 41 Bom., 300 (P.C.) has considerably shaken the authority of the decision in Annapurnamma v. Akkayya (1913) I.L.R., 36 Mad., 544 (F.B.). It is unnecessary for us to express any opinion on this point.