Arunachalam vs Kanakambigal Ammal

S.S. Subramani, J.—Plaintiff in O.S. No. 919 of 1978, on the file of the Additional District Munsifs Court, Kulithalai, is the appellant. Suit

filed by him was one for recovery of money, alleging that respondent''s husband - late Rajagopal Pillai had borrowed amounts from the plaintiff on

30-1-1970 and 23-4-1970. It is also contended that the defendant acknowledged the liability of debt by part payment on both promissory notes

dated 27-1-1973 and 27-3-1973. It is also contended that there was a Moratorium in filing suits and the plaintiff also bona fide believed that the

defendant was entitled to various Debt Reliefs Act, he filed the suit after the Moratorium period is over.

In the written statement filed by the defendant, she denied the entire transaction. She also denied the acknowledgements.

The trial Court after taking into consideration the entire evidence, as per Judgment dated 20-6-1981, decreed the suit as prayed for. The trial

Court was of the view that the part payment made, by the defendant amounts to acknowledgement of liability and within a period of three years

from the date of such acknowledgement, the Moratorium Acts came into force and immediately after the moratorium period was over, the plaintiff

has filed the suit. It was held to be within time, and decree was granted against the defendant and permitting the plaintiff to recover the amount from

the assets of late Raja Gopal Pillai, which are in possession of the defendant.

Against the said Judgment, defendant preferred A.S. No. 133 of 1981, on the file of Subordinate Judge, Karur. The lower Appellate Court has

held that the promissory notes are genuine, but acknowledgements made by the defendant, while her husband was alive are not valid

acknowledgement and the same will not save limitation. The Moratorium. Acts came into force only in the year 1975 and long before that, the

claim has become barred, and therefore, the plaintiff cannot claim the benefit of either the acknowledgements or the Moratorium Acts. The appeal

was allowed and the suit was dismissed.

It is against the said Judgment, the plaintiff has preferred this Second Appeal, on the following substantial question of law:-

Whether the lower appellate court is in error in holding that the suit claim is barred by limitation merely on the ground that there is no specific pica

of applicability of debt laws in the plaint us originally filed, even though such a specific plea was raised when the plaint was represented.

In the plaint, the appellant has no case that the defendant is a constituted agent, for acknowledging the liability. He only said that there is an

acknowledgement of liability of two debts by making part payment. Even according to the plaintiff, the acknowledgements were made by the

defendant, when the debtor, her husband was alive. It is to over-come this difficulty, when the plaintiff was examined, it was stated that during the

relevant time, her husband was in the hospital, and therefore, his wife acknowledged the liability. The question is what is the effect of that

acknowledgement.

u/s 18 of the Limitation Act, an acknowledgement of liability has to be made in writing, signed by the party against whom such property or right

is claimed or by any person through whom he derives title or liability.

In Explanation (b) to Section 18 of the Act, it is further said that the word �signed"" means signed either personally or by an agent duly authorised

in this behalf. Admittedly, there is no pleading as contemplated in Explanation (b) to Sec. 18 of the Limitation Act. Even though the agent''s

authority need not necessarily be in writing and the same could also be proved by oral evidence, there should be a basis to prove the same. It is

settled law that where the acknowledgement is alleged to have been made by an agent, the authority to make the acknowledgement must be

proved and the onus is only on the plaintiff to prove that the agent had that authority. In this case, the plaintiff has miserably failed to prove the

same.

The only circumstance that has been brought to the notice of this Court is the oral evidence of P.W.1, who has stated that at the time when the

acknowledgement was made, the husband was in the hospital, and therefore, the acknowledgement by the wife who admittedly came into

possession of her husband''s property will be sufficient. I do not think that the said submission is correct.

In an early decision of a Division Bench of this Court, reported in Gomathi Ammal Vs. Avu Ammal, where the husband was a debtor, who

became insane and the wife wanted herself to be appointed as guardian, and she filed an application under the Indian Lunacy Act. The debts

incurred by the husband were also stated in that application and payable to various creditors. But the wife was not appointed as guardian. In a suit

filed by the Creditor, he relied on the statement made in the application filed under the Lunacy Act, as acknowledgement. Considering the same,

the Division Bench held that ""an admission made by her in the petition, as to a debt due by her husband, was not a valid acknowledgement within

the meaning of Ss. 19 and 20 as she was not an agent duly authorised in that behalf and that her admission did not save limitation. "" In that case the

Division Bench, had referred to an earlier decision of this Court, reported in AIR 1928 Madras 226 (2) (Ramaswamy Pillai and others v.

Kasinatha Iyer and others), wherein it was held that ""a de facto guardian under Hindu Law has no authority to keep alive a debt so as to bind a

minor''"". An argument was also put forward before the Division Bench in that case, that wife due to illness of her husband becomes an agent of

necessity. This contention was rejected by the Division Bench, and it was held thus:-

It is true that a wife has an implied authority to pledge the credit of her husband for necessaries and that this implied authority is not taken away or

diminished by reason of her husband''s insanity. But it is a limited authority and limited only to necessaries. But it is contended on behalf of the

respondent that as it was necessary for the defendant to put in a petition to get herself appointed guardian and manager under the Indian Lunacy

Act, and as it, was necessary for that purpose to set out the assets and liabilities of her insane husband, the admission she is alleged to have made

was a necessary one and that she was in fact an agent of necessity. But I do not think that she was an agent of necessity or that it follows that she

had any implied authority to acknowledge the debt on behalf of her insane husband.

In AIR 1952 Travancore-Cochin 255 (Kavukutty Amma v. Kaliani Amma and others), the question came up for consideration was whether

the husband was a duly constituted agent of his wife who acknowledged the debt. In that case, it was held thus:-

To give validity either to an acknowledgement or to a part payment not made by the debtor, the person who makes the part payment or the

acknowledgement must within the said relevant provisions of the Limitation Act, be proved to have been acting as an agent duly authorised in that

behalf. According to the matrimonial law applicable to the Nair community no agency exists as between spouses. The fact of marital relationship,

therefore, will not lend to any implication as to the existence of an agency or of an authority to either of the spouses to act on behalf of the other in

any transaction. Hence an acknowledgement or part-payment made by the husband towards a chitty bond executed by wife will not save limitation

for a suit on the bond, in the absence of proof that the husband acted as agent duly authorised to act on behalf of the wife.

Husband will not be made liable for the debt of his wife merely because he has written to the creditor that he will see that the money is paid.

I do not think that any ground has been made out for interference u/s 100 of Code of Civil Procedure, when the legal position is very much settled.

Consequently, the Second Appeal is dismissed. No costs.