H. K. DASAPPA SETTY v. VEDAVATHAMMA, VEDAMMA — 1972 DIGILAW 3 (KAR)

( 1 ) THE plaintiff is the appellant before this Court and respondent 1 to 3 were defendants 1 to 3 in the trial Court. The plaintiff filed a suit on 18-12-1963 to recover a sum of Rs 1570 due under three promissory notes executed by late K. R. Shama Rao, husband of defendant 1, and father of defendants 2 and 3 The case of the plaintiff was that Shama Rao, for his family necessity borrowed different amounts under the three promissory notes Exts P1 to P3, Shama Rao died on 26-5-1959 leaving the defendants as his legal representatives under the managership of the 1st defendant. At various times, defendants 1 and 2 wrote to the plaintiff promising to settle his dues as per Exte P4 to P9 and the various acknowledgments made by defendants 1 and 2, save limitation. As the defendants failed to pay the amount due, the plaintiff filed the suit, pravine for a decree against the assets of Shama Rac in the hands of the defendants. ( 2 ) THE defendants stated that they were not aware of Shama Rao borrowing the said amounts under the three promissory notes and put the plaintiff to strict proof of the same. Thev also denied that thev had acknowledged their liability to pay the suit debts As the plaintiff was threatening the defendants statins that some amounts were due to him by Shama Rao, the 2nd defendant might have written some letter stating that if any amount was due on verification he would pav the same under the law. They contended that in any case the debts were barred by time and prayed that the suit may be dismissed. ( 3 ) THE trial Court held that Shama Rao had executed the three suit promissory notes and they were supported by consideration. It also held that the defendants had acknowledged their liability to pay the suit amount and that the suit was in time and decreed the suit of the plaintiff the lower appellate Court allowed the appeal filed by the defendants and held that the suit was not in time It held that defendant 1. It also held that the defendants had acknowledged their liability to pay the suit amount and that the suit was in time and decreed the suit of the plaintiff the lower appellate Court allowed the appeal filed by the defendants and held that the suit was not in time It held that defendant 1. the widow of shama Rao, could not act as the manager of the family and had no power to acknowledge the debts and Ext P5, the post card dt 25-6-1959 written by her did not extend the time Tt further held that Exts P-6 to P9 writ ten bv defendant 2 were acknowledgments made after the period of limitation had expired and as such the suit was barred by time The learned civil Judge held that Ext P4, the application made by defendant 2 dated 25-12-1960 to the Land Mortgage Rank, was too vague and would not amount to an acknowledgment of debt and dismissed the suit of the plaintiff as barred by time In this second appeal the plaintiff challenges the the said decree and judgment passed by the lower appellate Court ( 4 ) SRI M A Gopalaswamy Ivenear. learned Counsel appearing on behalf of the appellant, has contended that Shama Rao died in 1959 after the Hindu Succession Act came into force in 1956 and as per the said Act, defendant 1, the widow of Shama Rao, was entitled to succeed to 1/3rd share of his property. Defendant 1 being the eldest member of the family was acting as the manager and in that capacity, acknowledged the liability as per Ext. P5, post card dt. 25-6-1959 written by her to the plaintiff. Defendant 1, being the eldest member, is deemed to be the manager and has implied authority to acknowledge the liability on behalf of the members of the family. The defendants have not challenged the statement made in the plaint that she was acting as the manager of the family and have not got into the box and denied the same. The trial Court has also held that defendant 1 was the de facto manager of the family. The lower appellate Court therefore erred in reversing the finding of the trial Court. Seshayya v. Subbadutt, AIR. 1930 Mad. 991. and AIR 1931 Patna 285, AIR. 1931 Pat. 285. The trial Court has also held that defendant 1 was the de facto manager of the family. The lower appellate Court therefore erred in reversing the finding of the trial Court. Seshayya v. Subbadutt, AIR. 1930 Mad. 991. and AIR 1931 Patna 285, AIR. 1931 Pat. 285. are cited in support of the contention that the Courts, in dealing with the question of limitation, should as far as possible place a construction favourable to the plaintiff. It is further contended that under the Hindu Law, a son is under pious obligation to discharge the debt of his father and a time-barred debt is a valid consideration. It is argued that as defendant 2 has made an unqualified promise to pay the debts, it would come within sub-sec. (3) of s. 25 of the Contract Act. Ranganna v. Mallikarjund Society, 1964 Mys. L. J. Supp. 290. Maniram v. Rupchand, ILR. 33 Cal. 1047 PC and Hiralal v. Badnkulal, AIR. 1953 SC. 225, are cited in support of the said contention. Tt is further argued that Ext. P4, the application dt. 25-12-1960 made by defendant 2 to the Land Mortgage Bank contains an unconditional promise to pay and this saves limitation and the suit filed by the plaintiff was in time. It is finally contended that by Ext. P5; post card dt. 25-6-1959 written by defendant 1, she had acknowledged her liability to pav the debts of Shama Rao and defendant 1's 1/3 share in the family properties would "be liable for the debts. The acknowledgement of liabilitv made by defendant 1 would be binding so far as her share of the properties is concerned and the subsequent acknowledgements of liabilitv made by defendant 2 as the manager of the family would keep alive the debts and in any case, a decree should have been passed bv the Court below against 1/3rd share of defendant 1 in the joint family properties. ( 5 ) THE defendants, though served, have not appeared before this court. ( 6 ) THERE is no force in the first contention urged by the learned counsel that defendant I was acting as the manager of the family and as such by Ext. P5 dt. 25-6-1959, she could extend the period of limitation. ( 5 ) THE defendants, though served, have not appeared before this court. ( 6 ) THERE is no force in the first contention urged by the learned counsel that defendant I was acting as the manager of the family and as such by Ext. P5 dt. 25-6-1959, she could extend the period of limitation. The lower appellate Court has negatived the said contention and has pointed out that a Hindu widow was not a coparcener and she cannot legally become the manager of a joint Hindu family. In Commr. of I. T. v. G. S. Mills, AIR. 1966 SC. 24. their Lordships of the Supreme Court have pointed out that under the Hindu Law, a widow is not a coparcener and she has no legal qualification to become a manager of a joint Hindu family. There is therefore no force in the said contention. ( 7 ) TAKING the second contention of Sri Gopalaswamy Iyengar, it may be pointed out that the letters written by defendant 2 to the plaintiff, that is, Exts P6 to P9 are not of anv use to the plaintiff as these are admittedly written after the period of limitation and as such will not serve as acknowledgement of liability under the three pronotes. It may be pointed out that as the endorsement made by Shama Rao in Exts. P2 and P3 are dt. 5-7-1956, the period of limitation expired on 5-7-1959. With regard to the other promissory note Ext. P1 dt. 30-6-1956, the period of limitation expired on 30-6-1959. ILR. 33 Cal 1047 and AIR. 1953 SC. 225 have no application, as acknowledgements of liability made therein were within the period of three years. ( 8 ) IT has been contended that Ext. P4, application dt. 25-12-1960 made by defendant 2 to the Land Mortgage Bank, would amount to a promise of payment under sub-sec. (3) of S. 25 of the Contract Act. 1953 SC. 225 have no application, as acknowledgements of liability made therein were within the period of three years. ( 8 ) IT has been contended that Ext. P4, application dt. 25-12-1960 made by defendant 2 to the Land Mortgage Bank, would amount to a promise of payment under sub-sec. (3) of S. 25 of the Contract Act. The contention is that in the said application, the 2nd defendant, as the manager of the family has acknowledged the debts due to the plaintiff under the three promissory notes and has asked for a loan to repay these amounts and has also stated in the said application that the Bank could pay the amounts due to the creditors directly; hence, this would clearly amount to an unqualified promise by defendant 2 to pay the amounts due to the plaintiff within sub-sec. (3) of S. 25 of the Contract Act. Strong reliance is placed on a decision of this Court in Ranaanna v. Mallikarjuna Society (3) in support of the said contention. ( 9 ) SUB-SEC. (3) of S. 25 of the Contract Act reads as follows:" 25. An agreement made without consideration is void, unless (1) * * * (2) * * * (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent "enerally or specifically authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract. " ( 10 ) SUB-SEC. (3) of S. 25 of the Contract Act is applicable only when there is fresh agreement or contract between creditor and debtor to pay a time-barred debt. In the instant case, it may be pointed out that Ext. P4 is not an agreement or contract made between the defendants and the plaintiff. Ext. P4 is only an application for loan made to a third party land Mortgage Bank for payment of dues to the plaintiff and other creditors. It may also be pointed out that the manager of a Hindu family has no power to revive a debt barred bv law of limitation. Ext. P4 is only an application for loan made to a third party land Mortgage Bank for payment of dues to the plaintiff and other creditors. It may also be pointed out that the manager of a Hindu family has no power to revive a debt barred bv law of limitation. At page 283, item 249 of Mulla's Hindu Law (13th Edition) it is stated as follows:" It is competent to a manager to acknowledge a debt, or to pay interest on a debt, or to make part payment of a debt, so as to extend the period of limitation, but he has no power to pass a promissory note so as to revive a debt barred by the law of limitation. " ( 11 ) I am of opinion that the decision of this Court in Ranganna v. Mallikarjuna Society (3) is of no assistance to the plaintiff. In the said case, after the claim became barred, the debtor wrote to the creditor asking him to furnish information so that he may make arrangements for payment of the sum due. In a case like that, the Court held that there was a fresh agreement or contract between the creditor and debtor even though the debt had become barred by time. As already pointed out, in the instant case, there is no such agreement or contract between the debtor and the creditor and Ext. P4, the application, was made by defendant 2 as manager to a third party and not to the plaintiff. I am therefore of opinion that sub-sec. (3) of S 25 of the Contract Act is not applicable to the instant case, and Ext. P4 cannot be construed as an agreement or contract to pay the time-barred debt between the defendants and the plaintiff. ( 12 ) I am of the opinion that there is force in the third contention urged by Sri Gopalaswamy lyengar on behalf of the appellant. In Ext. P5, post card dt. 25-6-59, defendant 1 Venkatamma widow of Shama Rao, wrote to the plaintiff promising to settle his dues shortly. The lower appellate Court has also held that amounts to an acknowledgement. Though defendant 1 is not the manager of the joint Hindu family, this acknowledgement of debt by her is binding so far as her share is concerned. Admittedly, she is entitled to 1/3rd share in the properties of Shama Rao. The lower appellate Court has also held that amounts to an acknowledgement. Though defendant 1 is not the manager of the joint Hindu family, this acknowledgement of debt by her is binding so far as her share is concerned. Admittedly, she is entitled to 1/3rd share in the properties of Shama Rao. She has acknowledged the liability on 25-6-1959, before the debts under the three promissory notes became time-barred. As the debts are kept alive by this acknowledgement so far as her 1/3 rd share is concerned, the subsequent acknowledgment of the liability by defendant 2, as the manager of the family as per Ext. P4 dt. 25-12-1960, saves limitation. The suit is filed within three years thereafter, i. e. on 12-12-1963. In Ext. P4, there is an unqualified promise by defendant 2 as the manager of the family to pay the debts due to the plaintiff. In fact defendant 2 has directed the bank even to pay the amount due to the plaintiff directly. Though Ext. P4 would not amount to an agreement or contract between the debtor and the creditor coming within sub-sec. (3) of S. 25 of the Contract Act, it undoubtedly amounts to an acknowledgement of the debts due to the plaintiff by defendant 2 as the manager of the family. The acknowledgement of the liability made by defendant 1 so far as her share is concerned, is kept alive by the acknowledgement of liability by defendant 2 as the manager of the said joint Hindu family. I am therefore of opinion that the lower appellate Court ought to have granted a decree to the plaintiff for the amount due as against the one-third share of defendant 1 out of the assets of the deceased Shama Rao. ( 13 ) IN the result, for the reasons mentioned above I allow the appeal and set aside the judgment and decree passed by the lower Appellate court. There will be a decree in favour of the plaintiff for the amount claimed in the plaint as against defendant 1. This amount is to be realised from the one-third share of defendant 1, out of the assets of deceased shama Rao, defendant 1 will pay the costs of the plaintiff in all the Courts. The suit against defendants 2 and 3 is dismissed. --- *** --- .