BHASKARUNI VENKATANARAYANA Vs. BHASKARUNI LAKSHMIBAYAMMA

JUDGEMENT

(1.) This appeal is against the judgment of Devadoss, J., in Second Appeal No. 1760 of 1923. The main facts are not disputed. By a partition suit decree, it was agreed between the plaintiff, defendant as legal representative of her husband, and other coparceners of defendant's husband that, if certain debts were recovered from one of the parties, the others were to be liable for contribution according to the proportion of their share and that this rateable contribution was to be a charge on the immovable property of each. Among these debts was a promissory note of 1912 executed by all the co-parceners. When it was about to expire in 1915 the coparceners, excluding the defendant's husband, renewed it. On the renewed note, the promisee sued, got a decree and executed it against the plaintiff who paid up the whole amount. The plaintiff sues the defendant as legal representative of her husband for contribution. The trial Court and the first appellate Court dismissed the suit holding apparently that the renewal of the promissory note converted the old debt into a new one to which the defendant's husband was no party and which was, therefore, not covered by the provision in the decree. The defendant was therefore held not liable for contribution. The learned Judge of this Court in second appeal took the view that, as the decree did not provide for one or more coparceners-debtors renewing or keeping alive the debt without the consent of the others, those who did so cannot, so to speak, by such a method force the debt upon the defendant and call upon her for contribution. He therefore dismissed the second appeal. Hence this Letters Patent appeal,

(2.) It seems to me that both these views are wrong. The renewal of the debt does not constitute a new debt. It cannot be reasonably contended, that the second promissory note was such a discharge of the original debt as the decree contract Contemplated. It merely changed the form of it. Until the debt was actually paid, it was not discharged, and until it was paid, the obligation to contribute, which was secured under the decree bound all the parties to a decree. Such a renewal is merely a sort of acknowledgment of the original debt.

(3.) If the renewal of the pro-note amounted to the discharge of the original debt, then the date of the cause of action would be the date of renewal but it is clear law that the cause of action dates from the actual payment of the debt : see Putti Narayanamurti Aiyar v. Marimuthu Pillai [1903] 26 Mad 322. Now, the original debt was not paid until the plaintiff himself paid it off, and, the contract between him and his coparceners was that, if and when he paid it off, all the coparceners would contribute. Nothing has put an end to that contract and it must be enforced, that contract being to contribute to the debt when it was realized, (see Ex. A), that is, actually paid.