SOMALINGA SUBBAROYALU AYYAR Vs. ANNA MUTHULAKSHMI AMMAL AND ORS.
HIGH COURT OF MADRAS
Somalinga Subbaroyalu Ayyar
Anna Muthulakshmi Ammal And Ors.
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(1.) THE suit is upon a mortgage. Two questions are raised. One is whether the suit is barred by limitation and the other is whether the debt has been paid. On the question of discharge the lower,appellate Court has found' against discharge. A receipt is said to have been passed by the mortgagee on the date when the amount is said to have been paid. That receipt is not produced. The only witness examined in support of this plea of discharge is discredited by the lower appellate Court. I see no reason to interfere with that finding.
(2.) IT is then said that the suit is barred by limitation. The rnortgage was in 1916. It was exeeuted in fayour of the plaintiff's husband. A period of three years was fixed for payment of the amount. So ordinarily limitation would start in 1919 and the suit should have beeif filed within twelve years from that date. It is said on behalf of the plaintiff that after the death of the mortgagee which occurred ill 1920, the right devolved upon his son then a minor and that while he was a minor, there were two acknowledgments, one in 1924 and the other in 1927. Reading Sections 6 and 19 of the Limitation Act, together it is said that when an acfaiow -ledgment is made a fresh period of limitation is to be computed from the time when the acknowledgment was made and signed and that where a person entitled to institute a suit is at the time from which the period of limitation is to be reckoned, a minor, he may institute the suit within the same period after the disability has ceased. The lower Court has held that in 1924 the mortgagee's son, then a minor was the person entitled to bring the suit on the mortgage and that at that time he was admittedly a minor. When an acknowledgment is made a fresh period of limitation is to be computed under Section 19 and therefore the mortgagee's son was entitled to file the suit within three years after he attaoned majority, three years' period being the maximum provided under Section 8. The mortgagee's son died a minor and the plaintiff is his mother and she filed the suit within three years. Under Section 6(3) where the disability continues up to the death of the minor, his legal representative may institute a suit within the same period after the death as would otherwise have been allowed from the time so prescribed. So the plaintiff had from the date of the death of her son sufficient time to file this suit and she filed it in time. A very old decision of this Court in Venkataramdyyar v. Kojhanddramayyar, I.L.R. (1889) Mad. 135 supports the view taken by the lower appellate Court. That view has been followed by the Allahabad High Court in Chandrabhan v. : AIR1936All152 and Ramesh Chandra v. Krishiram : I.L.R. (1932) All. 1019 and also by the Bombay High Court in Shantaram Shankar v. Chintdman Rao Bhalchandra, I.L.R. (1942) Bom. 574. Mr. Viswanatha Aiyar has attempted to argue that the decision of this Court requires reconsideration and he asks me to refer this case to a Bench. After hearing his arguments, I do not think that this request ought to be granted. This decision has stood the test of time for over half a century and has been followed by other High Courts. The learned advocate has not been able to refer me to a single decision of this Court or any other High Court which throws any doubt on the correctness of the decision in Venkataramayyar v. Kothandaramayyar., I.L.R. (1889) Mad. 135.
(3.) ONLY one other point has been raised. It is said that the appellant, who was the eighth defendant in the lower Court, is entitled to a half of the mortgaged property, that the sixth defendant is entitled to the other half and that the plaintiff while making the eighth defendant a party has stated that she is unable to proceed against him for the reason that there was no acknowledgment by him. So far as the plaintiff is concerned, she is entitled to recover the entire amount from any portion of the mortgaged property and she is entitled therefore to a decree for the whole amount against the property in the possession of the eighth defendant. Whatever rights the eighth defendant may have by way of contribution against the sixth defendant it is unnecessary to go into in this suit and it cannot be gone into in this suit.
The second appeal fails and is dismissed with costs of the plaintiff (first respondent).;
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