Adiraja Ariga and Others vs K. Beeranna Rai

Krishnaswami Nayudu, J.—This Second Appeal arises out of a suit on a mortgage executed by defendants 1 to 3 in favour of the plaintiff on

9th June, 1941 (Ex. A-1). The suit properties belonged to one Padmayya Kottari and he mortgaged the properties with the predecessors-in-

interest of the plaintiff under Exhibit A-2 dated 12th April, 1927, for a sum of Rs. 5,000. The date of the death of Padmayya Kottari is not in

evidence but it is stated that he died some time between 1927 and 1941. He made a testamentary disposition of his properties by his last will and

testament Exhibit A-3 dated 9th July, 1925, giving defendants 1 to 3, his three sons, a life estate in the properties and the vested remainder

absolutely to his daughters, defendants 4, to 7. The plaintiff as the heir of one of the mortgagees under Exhibit A-2 became entitled to a moiety of

the mortgage amount and obtained the suit mortgage from defendants 1 to 3 and laid the suit on that mortgage.

The defence was that the suit mortgage was not supported by consideration since the consideration under Exhibit A-1 is a moiety of the amount

due under the earlier mortgage Exhibit A-2 and since on the date of the execution, of Exhibit A-1, namely, 9th June, 1941, Exhibit A-2 had

already become barred by time and that Section 25(3) of the Contract Act was not applicable since the claim under Exhibit A-2 was a debt which

defendants 1 to 3 were under no personal obligation to pay. The trial Court accepted the defendant''s contention and dismissed the action. In

appeal the learned District Judge held that Exhibit A-1 was not in renewal of a barred claim under Exhibit A-2 since on the date of Exhibit A-1,

Exhibit A-2 had not become unenforceable by reason of lapse of time under the law of limitation. He however did not consider the question

whether in any event Exhibit A-1 could be a fresh contract u/s 25(3) of the Contract Act.

It is now urged by learned Counsel for the defendants appellants that the period of limitation prescribed for a suit on a mortgage under Article

132 being 12 years when the money sued for becomes due and that 12 years from the date when the money had become payable under Exhibit

A-2 having expired, a period of two years being provided as the period for payment, on the date of Exhibit A-1 the claim had become barred. The

question for determination is whether it could be said that the claim under Exhibit A-2 had become barred under the law of limitation and had

become unenforceable and therefore Exhibit A-1 was in renewal of a barred debt? Section 3 of the Limitation Act provides that every suit

instituted, appeal preferred, and application made, after the period of limitation prescribed therefore by the First Schedule shall be dismissed,

although limitation has not been set up as a defence. The period of limitation prescribed in the First Schedule, in so far as the suit on a mortgage is

concerned, is 12 years under Article 132. There can be no doubt that in this case the 12 years'' period from the date when the mortgage amount

had become payable under Exhibit A-2 had expired on 12th April, 1941. The period of limitation prescribed for a suit had therefore expired on

the date of Exhibit A-1 which was 9th June, 1941. But the question that still remains to be considered is whether the claim under Exhibit A-2 had

become barred by the law of limitation. Section 4 provides that

where the period of limitation prescribed for any suit...expires on a day When the Court is closed, the suit...may be instituted...on the day that the

Court reopens.

It is found that the sub-Court in which the suit on Exhibit A-2 could ordinarily be instituted was closed on the date of the expiry of the period

which was on 12th April, 1941 and the reopening date was sometime after 9th June, 1941. It was therefore open to the mortgagees under Exhibit

A-2 to have enforced the mortgage claim by instituting the suit and in that view the debt could not he considered to have become barred on 9th

June, 1941, when Exhibit A-1 was executed. It is not the period of limitation that is prescribed under the First Schedule that will be relevant in

considering the present question but the fact or otherwise whether the mortgage debt had become barred on the date when the fresh document

Exhibit A-1 was executed. There can be no doubt that the claim had not become barred and there is no question of executing a document in

respect of a barred debt, and the question of absence of consideration does not therefore arise.

Reliance was placed on the decisions reported in N.A.S.T. Chidambaram Chettiar Vs. Venkatasubba Naik, and. Shivjiram Dhannalal v.

Gulabchand Kalooram ILR (1941) Nag. 144 : . In the first of these cases the question was as to whether the period of limitation prescribed in

Section 19 of the Limitation Act could also include the extension given by Section 4 for filing a suit and it was held that it does not so include as

Section 4 itself can come into Operation only after the period of limitation prescribed had already expired and the terms of Section 19 require the

acknowledgment to be made before the period prescribed had expired. The language of Section 19 is clear. It says that the acknowledgement of

the liability must be before the expiration of the period prescribed for a suit or application in respect of any property or right. The ""period

prescribed"" could only be the period prescribed in Schedule I and not the extended period by which institution of a suit may be made by virtue of

the application of Section 4 if the Courts are closed on the date the period of limitation expires. On the language of Section 19, there can be no

difficulty in holding that the period referred to in Section 19 could not include the extension given by Section 4 for filing a suit as if

acknowledgement had to be made before the expiration of the period prescribed. To similar effect is the decision in Shivjiram Dhannalal v.

Gulabchand Kalooram ILR (1941) Nag. 144 : AIR 1941 Nag. 100. That a claim does not become barred merely after the expiration of the

period of limitation provided in the First Schedule and could be considered barred only after the period of extension provided in Section 4 is also

the view taken by a Bench of his Court in Ghadiyam Subbareddi Vs. Tokala Venkatramayya and Another, . The learned District Judge was

therefore correct in observing that there was no question of the consideration for the suit mortgage being the revival of a barred debt and in such

circumstances the contention that Exhibit A-1 is not supported by consideration could not be sustained. In this view the learned District Judge

rightly observed the question of the application of the provisions of Section 25(3) of the Contract Act does not arise.

Since arguments were addressed on the other point also, it becomes necessary to express an opinion as to whether, assuming that the claim was

barred by limitation and became unenforceable on the date of Exhibit A-1, Exhibit A-1 could be supported u/s 25(3) of the Contract Act. Section

25 deals with agreements without consideration. If the debt under Exhibit A-2 had become barred when Exhibit A-1 was executed (the

consideration for Exhibit A-1, the suit mortgage, is the debt under Exhibit A-2) there can be no doubt that Exhibit A-1 must be considered to be

an agreement made without consideration, and such agreements are void u/s 25 unless they come within the exceptions under the section. Clause 3

of Section 25 provides that if it is a promise, made in writing and signed by the person to be charged therewith, or by his agent, generally or

specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law of limitation of

suits, it would not be void. That in the present case it is a promise made in writing and signed is conceded. But it is however urged that it is not

signed by the person to be charged therewith and is not a promise made in writing to pay the whole or in part a debt of which the creditor might

have enforced payment, and for the purpose of this argument the, debt must be deemed to have become unenforceable under the law of limitation.

Relying on Pestonji Manekji Mody Vs. Bai Meherbai, , it is urged that the debt must be one which the person who promises in writing must be

under an obligation to pay, that is, the debt must be one which could be enforced against him personally and if there is no personal liability it would

not come within the meaning of a debt and in the present case defendants 1 to 3 were not personally liable under Exhibit A-2 since it was a

document executed by Padmayya Kottari and there was no liability cast on defendants 1 to 3 to pay that mortgage debt. But the fact remains that

after1 the death of Padmayya Kottari under the will they had become entitled to an interest in the property which interest they accepted and also

took possession of the properties, had the patta transferred, been paying assessment and enjoying the property, as could be seen from the recitals

which were, made in the suit mortgage deed Exhibit A-1. Having accepted the legacy and having become the owners of the property, being in

possession and enjoyment of the same, and which property had already been charged with the liability of the mortgage amount under Exhibit A-2,

the only question that has to be examined is whether the fact that there was no personal obligation but the obligation to pay is derived by reason of

their accepting the legacy, is sufficient to take it away from the category of a debt u/s 25(3). The short point is whether the debt referred to in

Section 25(3) refers to a debt which the person agreeing to pay must have been personally liable or is a debt for which he may be proceeded

against in respect of his properties. In Pestonji Manekji Mody Vs. Bai Meherbai, , a single Judge of the Bombay High Court held that Section 25,

Exception (3) implies that the person making the promise is the person against whom the liability might have been enforced and a promise therefore

made by a person who is under no obligation to pay time-barred debts of another, is not within this exception to the general rule. The learned

Judge observes after extracting Clause (3) of Section 25 at page 542:

It seems to me that these words imply that the person making the promise is the person against whom the liability might have been enforced. And if

that is the case, a promise made by a person who is under no obligation to pay the debts of another, even though they are time-barred, is clearly

not within this exception to the general rule.

The learned Judge does not proceed to consider the meaning of the word ""debt"" in Clause (3) but assumes that the promise must be by a

person who is under an obligation to pay the debts of another. The meaning of the word ""debt"" in Section 25(3) has however come up for

consideration, by this Court in P. Rama Pattar Vs. A. Viswanatha Patter, Lakshmi alias Ammu Ammal, V. Anantarama Patter and Parameswaran,

minor by guardian, . On a reference to Kumaraswami Sastri, J., Krishnan and Odgers, JJ., differring, it was held that a debt contracted by a Hindu

father for, the benefit of the joint family is nonetheless, a ""debt"" within Section 25(3) of the Indian Contract Act, binding on the son, because his

liability to pay his father''s debt is not personal but limited to the extent of the family assets. Krishnan J., took the view that ""debt"" is a sum payable

in respect of a liquidated money demand, recoverable by action, and there is no reason why a liability to have one''s joint property sold for a sum

due, could not be a debt within the meaning of Section 25(3). Odgers, J., however did not accept that view but observed that the debts not being

the debts of the sons, the case did not fall within Section 25(3) of the Contract Act. Kumaraswami Sastri, J., in dealing with the question stated as

follows:

A debt is nonetheless a debt because the remedies open to the creditor are circumscribed by the joint family assets. I can find no authority for the

view that the debt contemplated by Section 25 of the Contract Act is a debt which can be enforced against the person and properties of the

debtor. The test is whether at the time the promise to pay is made, the person making the promise could have been sued for the recovery of the

debt but for the law of limitation, however circumscribed the remedies for the recovery of the debt in execution may be owing to the personal law

governing the debtor.

The fact that the sons are not personally liable for the debts of the father but only to the extent of the joint family assets in their hands, would not

however prevent the creditor from proceeding against them for the recovery of the debt, though not personally but against the property in their

hands. The debt in the present case, being a mortgage debt, the persons who are in possession of the property having become the owners by

reason of the legacy which they obtained under the will, could be proceeded against for the recovery of the mortgage debt, though it could not be

recovered from them personally, but only out of the properties in their hands. I am in respectful agreement with the view of Kumaraswami Sastri,

J., of the meaning of the word ""debt"" in Section 25(3). The fact ''that that decision related to the liability of the members of a joint family, namely,

the sons in respect of debts of the father would hot make any difference since in either case the property is sought to be proceeded against and not

the person. If a person who is in possession of the property is liable to be proceeded against in an action, that would be sufficient to put him under

an obligation to pay the debt for the purposes of Section 25(3) of the Contract Act. The obligation therefore need not be personal but an

obligation in the sense of action being maintainable against the ''person in respect of the property in his hands.

The question would then arise as to whether the words ""the person to be charged therewith"" in Section 25(3) must necessarily mean a person

who is liable initially or would be wide enough to cover the case of a person who agrees for the payment of the debt due by another. It was held in

Puliyath Govinda Nair Vs. Parekalathil Achutan Nair, that it need not be limited to the person who was indebted from the beginning but it would

also cover the case of a person who agrees to become liable for the payment of the debt. The expression ""the person charged therewith"" must

necessarily be given a wider meaning and in this case the person by reason of becoming the owner of the property is a person who has become

liable to pay the debt on the mortgage becomes the person to be charged therewith. Therefore a ""person charged therewith"" in Section 25(3) need

not refer only to a person who was initially or originally liable but may refer alto to third parties who have undertaken the liability, though not

personally, but as in this case by reason of their owning the properties. Applying Section 25(3) on the assumption that the suit mortgage Exhibit A-

2 was in renewal of a barred debt, Exhibit A-1 it could be supported as a promise made in writing u/s 25(3) and therefore enforceable. In either

view the plaintiff must succeed. This Second Appeal is dismissed with costs. No leave.