LODHA, J. - (1.) THE only point calling for determination in this appeal by the plaintiffs is whether the payments of interest made by Madanlal on the promissory-note in suit admittedly within limitation would extend the limitation against the co-promisor Sohanlal also, who is admittedly the brother of Madanlal?
(2.) THE trial court held that Madanlal was duly authorised by Sohanlal to make these payments and consequently it held the suit to be within limitation against Sohanlal also and decreed it against him, whereas the learned District Judge, Jodhpur has held that Madanlal was not proved to be a duly authorised agent to make payments of interest towards the promissory note on behalf of the co-promisor Sohanlal and consequently he dismissed the suit against Sohanlal. In these circumstances the plaintiffs have come in second appeal to this Court. There are three entries of payment of interest by Madanlal on the promissory-note and none by Sohanlal. Learned counsel for the appellants, however, urges that Madanlal had express authority from Sohanlal to make the payments in question and at any rate the learned District Judge should have inferred an implied authority in the facts and circumstances of the present case. So far as express authority is concerned, admittedly there is nothing in writing. The plaintiffs produced P. Ws. Roopram, Narayandas, and Sohanraj to prove express authority. It may be observed in this connection that no express authority was pleaded by the plaintiff in the plaint. As a matter of fact the allegation regarding authority is most ambiguous and vague. All that has been pleaded in para No. 2 of the plaint is that Madanlal, the younger brother made payments of interest on behalf of his elder brother Sohanlal. Apart from that, the oral evidence led by the plaintiffs in this connection has not been believed by the learned District Judge and in my opinion rightly so. P. W. Roopram's (Plaintiff) statement is most unconvincing. In the first instance he has stated that he and Akheyram were present at the time when the verbal authority was given by Sohanlal to Madanlal. for making payments on his behalf, towards the amount due on the promissory-note. He, however, was unable to give the date when this authority was given and later on he stated that the authority was given on the next day of the execution of the promissory note. Narayandas (P. W. 3) does not make mention of giving any such authority by Sohanlal to Madanlal on the next day but states that the authority was given at the very time the promissory note was executed. Akhey Raj who is alleged to be present at the time of delegation of the authority in question has not been examined at all and the presence of Sohanraj the scribe of the promissory-note at the time of delegation of the authority has not been deposed to by the plaintiff Roopram himself. Learned counsel for the appellants read out the statements of these witnesses from his brief and was not able to show that the learned District Judge had in any way misread the same. I am, therefore, of the opinion that the appreciation of the evidence of these witnesses by the learned District Judge cannot be said to be erroneous and it has been rightly held by him that the plaintiffs have failed to prove any express authority by Sohanlal to Madanlal for making payments towards the promissory-note in the suit. Coming to the question of implied authority learned counsel for the appellants had relied on Jiban Krista vs. Rai Hari Nath Ghose Bahadur (1), Dev Shanker v. Fernandez (2) Sukhdeo vs. Sahdeo Singh (3) and Kesar Chand vs. Bulaqi Ram (4 ). I have looked into these rulings and find that they are distinguishable on facts. In Jiban Krista vs. Rai Harinath Ghose Bahadur (1) it was held that where a debt is due by two brothers and on a partition between them, it is allotted to one of them, payment of interest by such brother will not save limitation as against the other brother, unless there is an implied or express authority conferred by the partition arrangement to make such payment of interest, and it was further held that no case of authorised agency was made out in the plaint nor there was any such representation or conduct which may lend the plaintiffs to suppose that the other defendant was authorised to make payments. Dev Shanker Fernandez (2) is a case of payment by the wife on behalf of the husband and the finding therein is based on the observations made in Annamalai Pattar vs. Natesa Iyer (5 and Ramgaswami Aiyangar vs. Somosundaram Ghettair (6 ). It is necessary to point out that the earlier cases of the Madras High Court relied on by the learned Judge were of series of payments made by both co-promisors from which it was inferred that there was ratification by both the defendants of each other's payments. In Sukhdeo vs. Sahadeo Singh (3) it was observed that it is not necessary that a written authority should be given in order to constitute a duly authorised agent as contemplated by sec. 20 of the Limitation Act, and that such authority could be inferred from the conduct of the parties as to whether there was any authority to make payments on behalf of the person liable to pay the debt. This was not a case of joint debtors at all, but the son of the defendant had made several payments from time to time and in the circumstances of the case it was considered inconcei-vable that the son had made the payment without the authority of his father. In Kesar Chand vs. Bulaqi Ram (4) which was relied upon in the Oudh case cited above, it was held that where the debtor sends the amount for payment to the creditor through his son the latter must be deemed to be his authorised agent within the meaning of sec. 20 for the purpose of making the payment. Learned counsel for the appellants has submitted that in all the entries of payments it has been recited that payments were being made by Madan Lal on his own behalf as well as on behalf of his brother Sohanlal. Madanlal has, however, not come in evidence and any thing written by him in the endorsement cannot bind Sohanlal. The next circumstance relied upon by the learned counsel for the appellant is that before filing the suit the plaintiffs had given a notice for repayment of the suit amount to Sohanlal wherein it had been mentioned that certain payment of interest had been made by Madanlal in respect of the promissory note on behalf of himself as well as Sohanlal. It is submitted that since Sohanlal did not make any reply to the notice and thus did not controvert the allegation made in the notice, he must be deemed to have admitted the correctness of its contents. The lower court did not consider this fact at all sufficient to draw an inference against Sohan Lal and in my opinion rightly so. In the first place Sohanlal has denied having received the notice Moreover mere omission on the part of Sohanlal to reply to the notice cannot raise, in the circumstances of the case, any presumption against him to the effect that he had authorised Madanlal to make payment of interest on his behalf towards the promissory note. Apart from that there is nothing on the record to show that Sohanlal and Madanlal constituted a joint Hindu family and assuming for the sake of arguments that they were members of a joint Hindu family it is well established that a member of a joint Hindu family cannot keep a debt alive against the other member of the family by making payments on his behalf unless it is shown that he had express or implied authority to do so. There is also nothing to show that it was a joint family debt. Admittedly Madanlal was a younger brother and consequently he cannot be deemed to be the manager of the family either, unless there is evidence to that effect. I am, therefore, of opinion that the learned District Judge was right in his conclusion that the plaintiff's had failed to prove that Madanlal had express or implied authority to make payments of interest on behalf of the joint promisor Sohanlal towards the promissory note with the result that the suit against Sohanlal was rightly held to be barred by limitation. The result is that there is no force in this appeal and the same is hereby dismissed. But in the circumstances of the case the parties are left to bear their own cons.
(3.) LEARNED counsel for the appellant prays for leave to appeal to Division Bench, However, I do not consider it a fit case for grant of leave. The prayer is declined. .;