K GANAPATHY Vs. VAIDYALINGAM
HIGH COURT OF MADRAS
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(1.) THE plaintiff in O. S. No. 39 of 1964 on the file of the court of the Subordinate judge of Nagarcoil is the appellant before this court. The appellant and respondent are brothers and admittedly the respondent executed the suit promissory note, namely, Ex. A. 1 dated 9th December 1959 in favour of the appellant for Rs. 4,000 repayable with interest at 9 per cent. per annum from the date of the promissory note. Equally admittedly the promissory note was executed by the respondent in consideration of the share of the business he obtained under Ex. A. 2 dated 23-41135 (M. E.), a copy of the partition deed entered into between the respondent and the appellant. The suit itself was instituted on 10th October 1964 With reference to the date of promissory note, namely, 9th December 1959. certainly on 10th October 1964 the suit was barred by limitation. In order to escape from this bar of limitation, the appellant relied on the deposition of the respondent in O. S. No. 153 of 1961 on the file of the Court of the District Munsif, Nagarcoil, dated 24th July 1962, as constituting the acknowledgment of his liability under the suit promissory note. A copy of this deposition of the respondent has been marked as ex. A 3. The learned Subordinate judge, who tried the suit, accepted the case of the appellant and held that the statement contained in Ex. A 3 constituted an acknowledgment of liability on the part of the respondent herein and therefore the suit was in time and not barred by limitation. He accordingly decreed the suit. Against this judgment and decree, the respondent preferred an appeal to the learned District Judge of Kanyakumari at Nagarcoil, who, on 22nd June 1966 in as. No. 63 of 1965 on his file, reversed the conclusion of the learned Subordinate judge in this behalf and dismissed the suit. Hence the present second appeal by the plaintiff in the suit.
(2.) FROM the facts stated by me above, it will be clear that this appeals within a very narrow compass, the only question for decision being whether the statement relied on in the deposition of the respondent as contained in Ex. A. 3 can be said to constitute an acknowledgment under Section 19 of the Limitation Act, 1908.
(3.) O. S. No. 153 of 1961 on the file of the Court of the District Munsif at Nagarcoil itself was a suit instituted by the appellant's daughter against the respondent for recovery of certain sums of money. In that suit, the respondent herein who figured as the defendant gave evidence and the sentences in the deposition of the respondent on which reliance has been placed are the following two only:-
" i executed a promissory note to my brother towards the value of his share which I purchased. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ex. A. 5 is the promissory note by me to my brother. " before me, the learned counsel for the appellant solely relied on these two sentences as constituting an acknowledgment under Section 19 of the Limitation act. I am clearly of the view that these statements cannot constitute an acknowledgment of liability on the part of the respondent herein. Section 19 (1) of the Limitation Act, 1908, provides:-"where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is clamed, or by some person through whom her derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. " The section itself in express language contemplates an acknowledgment of liability. Therefore, it is prima facie clear that what the section contemplates and requires is definite and conscious acknowledgment of liability. The document alleged to contain an acknowledgment must clearly contain the meaning that the party acknowledges execution of an instrument but denies his liability thereunder, or contends that the liability which he has undertaken under the document has been already fulfilled or discharged. A mere acknowledgment of the execution of a document need not necessarily mean an acknowledgment of liability thereunder. An acknowledgment of execution of a document may constitute only a statement of fact as to what had happened in the past, without in any way indicating the admission of a subsisting liability thereunder. Even though an acknowledgment of execution of a document need not necessarily imply an acknowledgment of a subsisting liability thereunder, it may happen, in a particular case that in view of the surrounding circumstances, ac acknowledgment of liability itself can be inferred form the acknowledgment of execution of the document. As far as the present case is concerned, the only evidence available before the courts was the oral evidence of the appellant, the promissory note itself, Ex. A. 1; a copy of the partition deed, Ex. A. 2; and a copy of the deposition of the respondent in O. S. 153 of 1961 on the file of the court of the District Munsif of Nagarcoil. Ex. A. 3. Ex. A. 4 is the postal receipt for the notice sent to the respondent by the appellant and Ex. A. 5 is the notice sent to the respondent and returned refused. Exs. A. 4 and A. 5 and dated 1-10-1964 cannot throw any light on the nature of the acknowledgment contained in Ex. A. 3. Equally Exs. A. 1 and A. 2 also cannot throw any light on the nature of the acknowledgment contained in Ex. A. 3. Thus, in this case, there was no evidence of any surrounding circumstance with reference to which an acknowledgment of subsisting liability can be implied or inferred from the acknowledgment of execution of Ex. A. 1.;
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