JUUAXDHAUAN EINBRANTHIRI Vs. MARIAM AND ORS.
HIGH COURT OF KERALA
Mariam And Ors.
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Sankaran, J. -
(1.) THIS is an appeal by the additional 2nd Plaintiff, who was brought on record as the legal representative of the deceased 1st Plaintiff. The suit is for recovery of the money due under the simple mortgage evidenced by Ext. A dated 17 -l0 -1102. This document was executed by one Geervasis in favour of Seetharama Embranthiri their predecessor -in -interest of the original Plaintiff.
A sum of Rs. 1300/ - had been borrowed under Ext. A on the security of the plaint items. After the death of Seetharama Embranthiri the 1st Plaintiff obtained a probate on the basis of a will which Seetharaman Embranthiri had executed. Geervasis, the executant of Ext. A, acknowledged the 1st Plaintiff as the person entitled to recover the amount due under Ext. A, and on 4 -10 -1108 executed the puravaippa deed Ext. P in his favour for the interest that had accumulated after that date.
The Plaintiff sued on Ext. F and obtained the decree in O.S. No. 145 of 1110 on the Me of the Anjikaimal District Court. Ext. G is copy of that decree. The present suit is for the principal amount due under Ext. A together with the interest that has accumulated subsequent to 4 -10 -1108, which is the date of Ext. P. Since Geervasis had died prior to the date of the suit leaving his widow and brother as his legal representatives the suit is brought against them as Defendants 1 and 2.
Defendants 3 to 5 have been impleaded as persons claiming some interest in the plaint items. The apparent bar of limitation for the present suit is sought to be got over by the Plaintiff by placing reliance on the acknowledgments made in Exts. P, C and D by the executants of these documents.
(2.) THE suit was resisted by Defendants 2 to 5, their main contentions being that the suit is barred by limitation and that the documents relied on by the Plaintiff do not contain any proper and valid acknowledgments. The 2nd Defendant set up a plea of discharge also. The 3rd Defendant claimed a portion of the plaint property as belonging to him absolutely and maintained that no decree can be granted against that portion of the property.
Defendants 4 and 5 had set up certain special claims over the plaint items. The lower court fix -id that the special claims pleaded by Defendants 3 to 5 have not been made out by them. Accordingly these special claims were negatived. The plea of discharge set up by the 2nd Defendant was also found against for want of any evidence to substantiate the same. But the defence plea of limitation was upheld and the suit was dismissed as being time -barred.
Hence this appeal by the additional Plaintiff. The contesting Defendants have submitted to the trial court's decree negativing their special claims.
The plaint bond Ext. A is dated 17 -10 -1102 and the present suit was filed only on 8 -5 -1124. It is prima facie out of time, and hence the Plaintiff can get a decree only on making out that his right to enforce Ext. A has been kept alive by virtue of the acknowledgments relied on by him.
In fact, the only question argued in this appeal was about the existence or otherwise of any such valid acknowledgment and how far it would judgeable the Plaintiff to get a decree charging the shares of Defendants 1 and 2 in the plaint items.
(3.) THE first document relied on by the Plaintiff in this connection is the purvaippa deed Ext. F executed by Geervasis himself in favour of the 1st Plaintiff on 4 -10 -1108. This document makes specific reference to the mortgage deed Ext. A and also the subsisting liability under it.
It was after acknowledging such liability that the purviappa deed itself was executed for the interest that had accumulated up to the date of Ext. F. Ext. P therefore contains a clear acknowledgment of the liability under Ext. A and this position is not now challenged on behalf of the Respondents. But it is contended that the present suit having been instituted after the expiry of 12 years from the date of Ext. P, the acknowledgment contained therein is of no avail to the Plaintiff in saving the present suit from the bar of limitation.
This contention must prevail. But it has to be seen whether there has been any valid acknowledgment of the liability under Ext. A at any subsequent period within 12 years from the date of Ext. P. Ext. C, which is copy of a statement filed by the present 2nd Defendant in. Ext. Q case, is relied on by the Plaintiff for this purpose.
The signed statement Ext. C was filed in court on 22 -7 -1115, i.e., within 7 years from the date of Ext. P. The present 2nd Defendant had filed the statement in O.S. 145/1110 of the Anjikaimal District Court with the idea of getting a reduction in accordance with the Cochin Agriculturists' Relief Act, Act XVIII of 1114, in the amount of the debt payable by him.
In the opening portion of the statement Ext. C reference is made to the mortgage deed for Rs. 1300/ - and to the puravaippa deed which followed it and also to the amount of interest calculated to 6 per cent, per annum from 1 -1 -1107 to 1 -1 -1115. There is no dispute that the documents referred to are Exts. A and F respectively.
The statement itself was filed in O.S. No. 145 of 1110 which was a suit based on Ext. F, the puravaippa deed executed for the accumulated amount of interest payable under Ext. A up to 4 -10 -1108. The lower court has taken the view that beyond a casual reference to the mortgage deed Ext. A the statement Ext. C does not import any subsisting liability under Ext. A and that the only liability that is acknowledged in Ext. O is in respect of the liability under the decree in O.S. 145 of 1110.
Prima facie, such a view would appear to be correct, because there are no express words in Ext. C acknowledging the liability to pay the debt under Ext. A. But, on a careful scrutiny of Ext. C it is easy to find internal evidence in the statement itself that the, 2nd Defendant has clearly acknowledged in that statement that the liability under Ext. A was even then subsisting. In the first column of Ext. C a sum of Rs. 460/ - is shown as the amount of interest calculated at 6 per cent. per annum for the period from 1 -1 -1107 to 1 -1 -1115.
If this figure of Rs. 468/ - represents the amount of interest payable on the principal sum covered by Ext. F, it would have been possible to argue that the interest was being calculated on the amount covered by Ext. F. The principal amount under Ext. F is only Rs. 818 and interest thereon at 6 per cent, per annum from 1 -1 -1107 to 1 -1 -1115 would come to only Rs. 392 -10 -0. It is thus obvious that in the first column of Ext. C the present 2nd Defendant was not calculating interest for the amount under Ext. P.
This inference is strengthened by the fact that interest was being calculated from 1 -1 -1107, while as a matter of fact, Ext. P came into existence only on 4 -10 -1108. Necessarily, therefore, he must have been calculating interest on the amount which had become payable even before the date of Ext. F. This will be in with Ext. A which is the other document referred to in Ext. C.
The significance of the date 1 -1 -1107 from which interest has been calculated by him, is also apparent by virtue of Section 8(1) of the Agriculturists Relief Act. All interest prior to 1 -1 -1101 had to be deemed to have been discharged. Ey 4 &e same Act interest subsequent to 1 -1 -1107 was limited to 6 per cent, per annum. It is for these reasons that interest on Ext. A amount has been calculated in the first column of Ext. C from 1 -1 -1107 to 1 -1 -1115 at 6 per cent.
But the whole of such interest has not been shown against that column. The reason appears to be that interest for the period of two years covered by this period had already been satisfied by the execution of the puravaippa deed Ext. P. Thus the interest for the remaining period of six years up to 1 -1 -1115, had alone to be accounted for by the 2nd Defendant when he filed the statement Ext. O.
The interest at 6 per cent, due for this period of six years on the principal amount of Rs. 1300 covered, by Ext. A, was exactly the sum of Rs. 468 shown against column 1 in Ext. C. These facts make it abundantly clear that in subscribing to such a statement in Ext. C the present 2nd Defendant had clearly acknowledged a subsisting liability under Ext. A. In the second column of Ext. O he had claimed credit for 6 payments which he had made prior to the date of Ext. P.
This fact also goes to confirm the inference that he was calculating interest payable under Ext. A and was claiming a reduction on account of the payments which he had made towards such interest. It is because the lower court had not drawn its attention to these aspects relating to Ext. C that it happened to take the view that in Ext. C there is no valid acknowledgment of the liability subsisting under Ex. A.
We are clearly of the opinion that the statements contained in Ext. C amount to a clear and valid acknowledgment of the liability under Ext. A. Such an acknowledgment having been made within 12 years of Ext. P, which by itself gave a fresh starting point of limitation for enforcing the claim, under Ext. A, the Plaintiff is entitled to rely on Ext. C as giving a fresh starting point of limitation.;
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