KRISHNASWAMI IYER Vs. NATESA IYER

JUDGEMENT

(1.) The plaintiff and the defendant are brothers. The plaintiff obtained a lease for ten years from the Tiruppananthal Mutt agreeing to pay rent (partly in paddy and partly in money) every year. The paddy rent was to be paid in particular months, and cash rents in particular months; by instalments. A sum of Rs. 1,000 was paid as advance to the Mutt. The plaintiff gave the benefit of half the lease to the defendant who was to pay one-half of the rent due. The defendant had also paid Bs. 500 towards the advance as the advance of Rs. 1,000 was made from funds belonging to plaintiff and defendant. The terms of the contract between the parties have to be ascertained from Ex. A executed by the plaintiff to the mutt, and Ex. B executed between the plaintiff and the defendant. On the allegation that the defendant had not paid the rent due for the 9 year of the lease (Fasli 1328) the plaintiff filed a prior suit, O.S. No. 246 of 1919, to recover the same from the defendant; that claim was settled between the parties; but the plaintiff files O.S. No. 131 of 1923 against the defendant to recover the amount due in respect of the tenth or the last year of the lease (Fasli 1329) after giving credit to the defendant for the sum of Rs. 500, paid as advance as mentioned above. The defendant pleaded payment of 50 kalams of paddy, and also claimed credit to a sum of Rs. 105 for reasons mentioned in the written statement. Those pleas were found against him by both the lower Courts, and being questions of fact, are concluded by the said finding.

(2.) The defendant further pleaded that a portion of the plaintiff's claim was barred by limitation. Both the lower Courts overruled that contention. That is the main plea that has to be considered in this second appeal preferred by the defendant. The plaintiff stated that he had paid the Mutt and settled accounts with it regarding the lease.

(3.) The question arises in this way: 50 kalams of paddy became payable on 30 November, 1919, and a portion of the cash rent, namely, Rs. 105 became payable on 1 December, 1919. The suit was filed on 4 April, 1923, i.e., more than three years from those dates. The plaintiff's case was twofold: 1. That there was an agreement between the plaintiff and the defendant that the said paddy and money were paid along with the other instalments of paddy and money due in March and June, 1920, and as the suit was filed within three years from the latter dates (taking into account holidays) the suit was in time, and 2. That the plaintiff had the right to credit the advance amount of Rs. 500 towards the rent due, and having credited the said advance amount towards the rent due in November a December, aforesaid, and having only claimed the balance rent in this suit, there was no question of limitation. The defendant denied that there was any agreement regarding payment of the said rents as alleged by the plaintiff. He also denied the plaintiff's right to set off the same against the advance.