PANGUDAYA PILLAI Vs. UTHANDIYA PILLAI

JUDGEMENT

(1.) The suit on which this second appeal arises was based on a promissory note executed by the first defendant. Second and third defendants - the present appellants - are the younger brothers of the first defendant. Plaintiff alleged that they were present when the money was lent and the note executed but this was not believed in the trial Court. Plaintiff further alleged that the first defendant was manager of the joint family consisting of himself and his brothers, the second and third defendants, that the note was to secure a loan which was contracted for the benefit of the family and that the three brothers continued undivided tip to the date of suit. It was found however at the trial that the family had become divided in 1920 the year after the execution of the note and further that the plaintiff had become aware of this change of status at least as early as 1924. Two main questions arose for decision: (1)Was the loan contracted for the benefit of the family? (2)Do the endorsements of part-payment made on the note by the first defendant avail to save the bar of limitation against the second and third defendants?

(2.) The learned District Munsiff found that out of the consideration of Rs. 700, Rs. 300 was expended on purchasing a small piece of land and Rs. 100 in discharging the balance of the price of a house site previously purchased. He did not find that these transactions were prima facie advantageous to the family but held that, since the land, which was purchased by first defendant alone for Rs. 300, was brought into hotchpot at the partition and divided amongst the brothers, second and third defendants were also liable to discharge the debt. On the point of limitation he held that the suit was barred against the second and third defendants. On appeal the learned District Judge agreed with the trial Court that the second and third defendants were liable for the debt and on the point of limitation he reversed the decision of the District Munsiff holding that the payments made by the first defendant after partition operated to extend the time for a suit as against the second and third defendants. Both of these adverse findings are now attacked and on both grounds we think this appeal should succeed.

(3.) The promissory note is as follows: The Promissory note executed on 23 April, 1919, by Arunachalam Pillai in favour of Sappania Pillai. Amount borrowed by me from you this day in cash on account of my urgency for purchasing land is Rs. 700. I shall pay this sum, etc.