T S DURAISWAMI AIYAR Vs. KRISHNIER

JUDGEMENT

(1.) The short point regarding limitation which is raised with reference to the liability of the 2nd defendant, the son of the 1st defendant, is this. Both the father and the son executed a promissory note, Exhibit A, in renewal of certain other promissory notes executed by the father alone. Exhibit A is dated 27th April 1914 and the suit is instituted on 10th September 1917. Limitation is sought to be saved by a payment of Rs. 740 made on 6th November 1914 towards principal and interest due on Exhibit A The payment was actually made by one Khadir Moideen Taraganar on behalf of Aiyaswami Pillai. This Aiyasami Pillai had obtained a mortgage on the family property of defendants Nos. 1 and 2 on the 26th October 1914 and one item of consideration for it was the sum of Rs. 740, which he undertook to pay to Krishnaiar, the person in whose favour Exhibit A was executed. The mortgage Exhibit M was written by the 2nd defendant, who also attested it. The respondent s contention is that the 2nd defendant must be taken to have authorised his father to make the payment of Rs. 740 towards principal and interest due under Exhibit A. We think that is the proper interpretation to be put on what took place. He must have known, having written the document, that Rs. 740 was to be paid towards Exhibit A, and it follows, in the absence of any evidence to the contrary, that he must have authorised his father to make this payment. If this view of the matter is correct, then it is brought within the exception to the rule laid down in Section 21 of the Limitation Act as interpreted in Narayana Ayyar v. Venkataramana Ayyar 25 M. 220 at 234. There the learned Judges of the Full Bench lay down: "But it seems clear that, when a creditor deals, not with the managing member only of a family, but with all the members of the undivided family as co :. obligors and on that footing enters into a transaction, thereby avoiding any question as to whether the translation was really for the benefit of the family, he cannot rely upon an acknowledgment of the liability, made by one of them, as an acknowledgment duly made on behalf of all the co- obligors, by reason only that the person acknowledging is in fact the managing member of the family consisting of the co obligors." Then they add "it may well be, however, that, in particular cases, this circumstance, coupled with the conduct of the joint contactors, may warrant a conclusion that as a matter of fact he was duly authorised to make the acknowledgment on behalf of all." This ruling has been followed by the Calcutta High Court in Baikunta Gui v. Lal Chand Samanta 26 Ind. Cas. 511. Our attention was drawn to an observation in Indar Pal Singh v. Mewa Lal 23 Ind. Cas. 429 : 36 A. 264. : 12 A.L.J. 374 to the effect that an acknowledgment by the manager of a Hindu joint family, whether other members joined in it or not, would bind the other members also notwithstanding Section 21 of the Limitation Act. But Indar Pal Singh v. Mewa Lal. 23 Ind. Cas. 429 : 36 A. 264. : 12 A.L.J. 374 and Saroda Charan Chuckerbutty v. Durga Ram Dey Sinha 5 Ind. Cas. 484 : 37 C 461 : 14 C.W.N. 741 : 11 C.L.J. 484 also relied on by the learned District Judge, are cot cases within Clause (2) of Section 21 of the Limitation Act. We are, however, bound by the ruling of this Court in Narayana Ayyar v. Venkataramana Ayyar 25 M. 220 at 234 and the present case comes within the exception enunciated therein.

(2.) Then it was argued that the payment not being made by the 1st defendant himself does not come within the meaning of Section 20 of the Limitation Act. The section says that payment must be either by the debtor or by his agent duly authorized in that behalf, but we do not think that the Legislature could have intended that, if the agent made the payment through the hands of a servant or friend, that would not be payment by the agent on behalf of the principal within the meaning of Section 20. We bold that the suit is not barred against the 2nd defendant so far as his liability under Exhibit A is concerned.

(3.) As regards his liability under Exhibit C that was not disputed before us.