T S P L S TINNAPPA CHETTIAR, BY HIS AUTHORISED AGENT, A S ARUNACHALAM CHETTIAR Vs. PUTTI KRISHNA RAO, MINOR BY GUARDIAN AND MOTHER PADMAVATI AMMAL

JUDGEMENT

(1.) The question for decision in this appeal is whether the plaintiff's suit is barred by limitation. The relevant facts are few and not in dispute. One Jaya Rao since deceased executed a deed of mortgage to one Sundaram Aiyar on 18 June, 1919. In execution of a decree against the said Sundaram Aiyar the plaintiff on 10 April, 1935, purchased the rights under the said mortgage-deed. After giving credit to certain payments received towards interest and principal, the plaintiff sues for recovery of the balance due thereunder. The amount due on the date of the plaint was Rs. 9,432. The plaintiff waived Rs. 432 and claimed only Rs. 9,000. Defendants 1 to 3 are the sons of the mortgagor Jaya Rao; the fourth defendant is a divided brother of Jaya Rao and defendants 5 to 8 are alienees from Jaya Rao of some of the properties claiming under alienations subsequent to the date of the mortgage. The main defence was one of limitation. To save limitation the plaintiff relied on the five following payments endorsed on the deed of mortgage: Rs. 400 on 15 July, 1922 (Ex. A-2); Rs. 700 on 20 May, 1923 (Ex. A-3); Rs. 150 on 4 June, 1923 (Ex. A-4); Rs. 125 on 20th April, 1924 (Ex. A-5); and Rs. 5 on 16 December, 1935 (Ex. A-6). The first four payments were made and signed by the fourth defendant and the last payment was by Jaya Rao and signed by him. The case for the plaintiff is that three years after the date of the said mortgage Jaya Rao sold certain property-belonging to him but not comprised in the deed of mortgage to the fourth defendant and another by a sale deed dated 23 June, 1922 (Ex. C) and directed him to pay and discharge the said mortgage, that the payments were made and signed by the fourth defendant in pursuance of Ex. C, that the last payment made by Jaya Rao was within twelve years of the last payment made by the fourth defendant and therefore the suit is within time. The case for the defendants is that the payments and at any rate the payment of Rs. 150 on 4 June, 1923 (Ex. A-4) was not a payment of interest as such, that none of the payments were by a person liable to pay the interest or by the debtor or his agent and therefore would not save limitation. The learned Subordinate Judge took the view that the payments were towards interest as such but the fourth defendant was not the duly authorised agent of Jaya Rao or a person liable to pay the debt within the meaning of Section 20 of the Limitation Act and that none of the payments made by him could save limitation and the endorsement of payment by Jaya Rao was made long after the claim under the mortgage was barred. There was another contention raised on behalf of the plaintiff that even assuming that the fourth defendant had no authority to make the payment, Jaya Rao must be deemed to have ratified it by his endorsement in Ex. A-6. The Subordinate Judge negatived this contention also holding that the fourth defendant did not purport to act on behalf of Jaya Rao in making the payment, that the alleged ratification was after Jaya Rao sold and mortgaged the properties to defendants 5 to 8 and so far as they are concerned, the alleged ratification could not be valid. On these facts the learned Subordinate Judge dismissed the suit. The plaintiff has preferred this appeal.

(2.) Mr. Sitarama Rao on his Behalf raises the following contentions: (1) By virtue of Ex. C, the fourth defendant became liable to pay Jaya Rao the debt and therefore the fourth defendant was a person liable to pay the debt within the meaning of Section 20 of the Limitation Act. (2) The fourth defendant was an agent to make the part payments within the meaning of the section. (3) There was a valid ratification by Jaya Rao of the payments made by the fourth defendant.

(3.) Mr. Muthukrishna Aiyar on behalf of the alienee-defendants in answer contended thus: fourth defendant was a stranger to the mortgage contract and further he was not interested in the mortgaged property; the person liable to pay the debt within the meaning of Section 20 of the Limitation Act must be one who was either a party to the contract or his legal representatives or a person deriving title from him and who could have been sued by the mortgagee; fourth defendant would pot come under any of these categories; he was at best an agent empowered to discharge the debt and not to keep it alive by a part payment; the alleged ratification is not valid as it would operate to the prejudice of his clients. Before dealing with these contentions, it is necessary to find the relationship of the vendees under Ex. C and therefore of the fourth defendant to Jaya Rao, the mortgagor. Ex. C, so far as is material for the purpose of the present discussion, runs thus: Deed of absolute sale executed, on 9 Ani of Thunthubi, corresponding to the 23rd June, 1922, to you, namely, (1) Putti K. Sethu Rao and (2) Putti Dasu Rao...by Putti Jaya Rao...the under mentioned property has, this day, been sold to you and the amount received is Rs. 4,000. Particulars of receipt of this sum of rupees four thousand: As I have directed you to pay and discharge the amount of principal and interest due under the mortgage deed for Rs. 3,000 executed by me in favour of Sundaram Aiyar, residing at Karur, amount paid to me is Rs. 3,400. As I have directed you to pay and discharge the amount due by me to the Cooperative Credit Bank at Andankoil, amount paid to me is Rs. 600. As in all Rupees four thousand was paid to me as aforesaid, you shall yourselves hold and enjoy the undermentioned nanja lands from this date hereditarily from son to grandson and so on in succession with powers of alienation by way of gift, exchange, sale.