Lekshmai Devakikunjamma v. Thomman Aipe — 1949 DIGILAW 46 (KER)

JUDGMENT : K.S. Govinda Pillai, J. The plaintiff is the appellant. The suit was for arrears of Pattom due from defendants 1 and 2. The properties in S. Nos. 127/6 A and 127/5 A were mortgaged by the 1st defendant and his father in favour of the plaintiff’s father’s deceased mother. The mortgagors continued to be in possession of the mortgaged properties on a Varam arrangement till 1105 when the defendants took the same on a pattom basis agreeing to pay 95 paras of paddy a year and one rupee towards Onakazhcha. The plaintiff stated that the pattom had been paid on this basis till the end of 1114. The pattom for the subsequent years is in arrears. The plaintiff is entitled to realise the arrears of Pattom. The suit was filed on 17.12.1119 and since the pattom due for 1115 had fallen in arrears more than three years before the date of the suit, the suit was barred by limitation. It was stated that on account of the two debt relief petitions filed by defendants 1 and 2, the liability to pay the Pattom of 1115 had been admitted by them and that the suit having been filed within three years of such acknowledgment was not barred by limitation. Both the defendants filed separate written statements. Their contentions were identical. 2. The defendants stated that under the partition deed in their family each of them had become liable to pay one half the mortgage amount and the Varam, that this arrangement had been accepted and acquiesced in by the plaintiff’s predecessor, that the alleged lease transaction of 1105 was not true, that the old Varam arrangement continued even now, that the right to claim Pattom for 1115 was barred by limitation, that the statements contained in the Debt Relief Act petition, were not sufficient or legal to constitute a valid acknowledgment, that the 1st defendant had paid a premium of Rs. 100, that he was therefore to pay only 40 paras of paddy as his share, that the price of paddy and rate of interest were excessive, that there was no provision for payment of Onakazhcha and that the plaintiff was entitled to a decree only as contended. They had also a contention that the arrangement under which the plaintiff’s father’s mother had advanced money was by a transaction in the nature of a hypothecation bond. They had also a contention that the arrangement under which the plaintiff’s father’s mother had advanced money was by a transaction in the nature of a hypothecation bond. The plaintiff had filed a replication denying the contentions of the defendants. 3. The court below found that the defendants were in possession of the property under the lease arrangement alleged by the plaintiff, that there was no evidence that the 1st defendant had paid a premium of Rs. 100, that the Pattom as mentioned in the plaint was due to the plaintiff, that the right to claim the Pattom for 1115 had become barred by limitation, that the acknowledgment relied on by the plaintiff was not sufficient to save limitation and that the plaintiff was entitled to a decree for the amount claimed in the plaint except the Pattom for 1115. The plaintiff’s claim for Onakazhcha was disallowed. 4. Though at the time of the argument the plaintiff claimed Onakazhcha also, it has to be mentioned that the same was not objected to in the memorandum of appeal filed in this court. No court fees had been paid for the amount claimed as Onakazhcha and so the plaintiff is not entitled to this sum. The appeal mainly related to the Pattom due for 1115 and the interest thereon till date of suit. The plaintiff stated that in 1115, defendants 1 and 2 had filed two separate petitions under S. 15 of the Debt Relief Act for determination of the amount due under the arrangement and for payment of the same in instalments as provided for in the Debt Relief Act. Ext. C is the copy of the petition filed by the 2nd defendant on 23.7.1116. This contained a clear admission of the defendant’s liability to pay interest or Varam on account of the amount borrowed from the plaintiff’s father’s mother by the 1st defendant and his father. It was true that they had stated that the arrangement evidenced only a hypothecation bond and that the Varam to be paid was only interest. Whatever that might be the liability to pay the Varam or the interest on account of the loan taken by them had been admitted by defendants 1 and 2 in their petitions. 5. It was true that they had stated that the arrangement evidenced only a hypothecation bond and that the Varam to be paid was only interest. Whatever that might be the liability to pay the Varam or the interest on account of the loan taken by them had been admitted by defendants 1 and 2 in their petitions. 5. The defendants’ learned Advocate contended that under S. 19 of the Limitation Act the acknowledgment of the liability in respect of any property or right must be the property or right on the basis of which the suit was instituted. He stated that what was admitted in Exts. A and C was the existence of a hypothecation bond with a liability to pay the interest thereon, and that since the present suit was based on an alleged mortgage and a lease transaction there could not be any acknowledgment of the liability to pay pattom. There is no force in this argument. In Exts. A and C defendants had admitted their liability to pay certain amounts to the plaintiff. The defendants say that it was on account of rent. Whether it is rent or interest it is a liability which the defendants had to meet on account of the admitted prior transaction and that liability had been in clear and unmistakable terms admitted in Exts. A and C. There is therefore clear acknowledgment of the liability to the plaintiff’s due of 1115 in the petitions Exts. A and C. That is a sufficient acknowledgment under S. 19 of the Limitation Act. But the said acknowledgement would not be sufficient for Ext. A was on 15.7.1116 and Ext. C on 23.7.1116. The present suit had not been filed within three years of any of these dates. The suit had been filed only on 17.12.1119. In order to get over this difficulty the plaintiff had produced Exts. E and D two statements filed in the proceedings under Exts. A and C where there are further admissions of the liability. If these documents contained an acknowledgement as contended then the suit so far as the claim for Pattom of 1115 would be within time. Ext. E was filed on 15.10.1117 and Ext. D on 14.12.1118. Ext. E is copy of a statement filed by the 1st defendant’s Advocate in Ext. A case. In paragraph 4 of Ext. A it had been stated that Ext. Ext. E was filed on 15.10.1117 and Ext. D on 14.12.1118. Ext. E is copy of a statement filed by the 1st defendant’s Advocate in Ext. A case. In paragraph 4 of Ext. A it had been stated that Ext. A petition was filed to cover the Pattom for 1117 also. Further down it was stated that court fees had been paid for the value of 47 1/2 paras of paddy on account of the rent for 13 months ending with 31.1.1116. It was therefore abundantly clear that the rent thus referred to covered the Pattom due to the plaintiff in 1115. This statement in Ext. E is a clear admission of the liability. This would save the limitation for the claim for 1115. This statement had been signed only by the 1st defendant’s pleader. Such a statement filed by the pleader in the course of his duties on behalf of his client would certainly bind the 1st defendant as an acknowledgement of the liability under S. 19 of the Limitation Act. As held in Chaganal Shivlal v. Bonderbal Run Chand (A.I.R. 1934 Bom. 186). The pleader would in such cases be the duly authorised agent of the client within the meaning of S. 19. The decisions in Jagernath Gir v. Rajman Gir (A.I.R. 1919 Pat. 244), Thimmanaianim v. Venkatappa Nayanim (A.I.R. 1928 Mad. 713), Kamta Rai v. Rani Jarajkumari (A.I.R. 1931 All. 398), would also support the above principle. 6. Thus the admission of the liability in Ext. E by the 1st defendant’s pleader would be binding on the 1st defendant as an acknowledgement of the liability under the lease transaction. Ext. D is an affidavit filed by the 2nd defendant in Ext. C proceedings. In paragraph 2 he acknowledges the liability in more details than in his petition Ext. C. There is a clear acknowledgment made by the 2nd defendant and so that would also save limitation so far as the claim for the pattom of 1115 is concerned. There is therefore a valid and subsisting acknowledgement of the liability for the pattom 1115 and there is no reason to disallow the plaintiff the amount thus claimed. We allow the same. 7. Another point raised in appeal relates to the proportionate costs disallowed to the plaintiff. In view of the findings recorded by us above it would be seen that the plaintiff is entitled to her full costs. We allow the same. 7. Another point raised in appeal relates to the proportionate costs disallowed to the plaintiff. In view of the findings recorded by us above it would be seen that the plaintiff is entitled to her full costs. In the result therefore the decree of the lower court is modified by allowing the plaintiff the pattom for 1115 as claimed in the plaint along with the interest thereon. The paddy will be valued at the Government rate prevailing on the date of the suit. The plaintiff is allowed costs of the suit in both the courts. The appeal is allowed as indicated above with costs. Decree modified.