Cheedella Rosayya and Another vs Kommi Pitchayya and Another

Ramesam, J.—This appeal arises out of a suit on two mortgage bonds, dated 21st May, 1909, for Rs. 2,500 and Rs. 1,500 respectively.

The mortgage bonds were executed by one Subba Naidu, the father of defendants 1 and 2, for himself and as guardian of defendants 7 and 8, by

the present 3rd defendant for himself and as guardian of the 4th defendant and by defendants 5 and 6. The documents were presented for

registration on 9th September, 1909 and all the executants admitted execution before the Sub-Registrar. On 18th July, 1915, a payment was made

and the payment was signed by Subba Naidu and the 3rd defendant but not by the 6th defendant. On 7th July, 1921, there was again a payment

and endorsements were made and they were signed by all the parties. One of the issues raised before the Subordinate Judge was whether the

documents were not barred by limitation as against the defendants who were not parties to the endorsements of 1915. He held that the

endorsements of 1915 would be inoperative against those who were not parties to it, but as to defendants 5 and 7 he relied upon another

acknowledgment (Ex. E) and held that so far as they are concerned, the suit was not barred. As to defendants 6 and 8 he held that the suit was

barred. Against the other defendants he gave a decree. The plaintiffs have preferred this appeal.

In the plaint the age of the 8th defendant is given as 23 on the date of plaint (March, 1925) and so in 1915 the 8th defendant must have been

aged 13. In the written statement of defendants 5 to 8 there is no denial about the age of the 8th defendant as given in the plaint. But it was pleaded

that at the time of the endorsements in 1915, 7th and 8th defendants were majors. This no doubt indirectly involves a denial of the correctness of

the age as given in the plaint but the written statement does not proceed to state what the correct age of the 8th defendant is. On this pleading we

cannot accept an implied denial in the written statement as an adequate pleading. We must therefore take it that the age of the 8th defendant as

given in the plaint is correct, and if so, Subba Naidu, who was the guardian at the time of the execution of the document, properly acted as

guardian in acknowledging also in 1915. He was certainly a person authorised within the meaning of Section 21 of the Limitation Act. We think

therefore that so far as the 8th defendant is concerned, the acknowledgment of 1915 is binding on him and there ought to be a decree against him.

The next question is as to the 6th defendant. The learned advocate for the appellants contends that the admission of execution before the Sub-

Registrar amounts to an acknowledgment of liability within the meaning of Section 19 of the Limitation Act, and that being so the second

acknowledgment in July, 1921, would be within 12 years of the first acknowledgment, and the suit would not be barred. This point was raised

before the Subordinate Judge, but in considering it he relied on three decisions, Kandasami Reddi v. Suppammal I.L.R.(1921) 45 Mad. 443 : 42

M.L.J. 268 Muthukumara Mudaliar v. Chockalinga Mudaliar (1923) 17 L.W. 674 and Lallu Mal v. Reoti Ram I.L.R.(1923) All. 679 and held

that the admission of execution before the Sub-Registrar would not amount to an acknowledgment. Now in Kandasami Reddi v. Suppammal

I.L.R.(1921) Mad. 443 : 42 M.L.J. 208 it appeared that in a former suit for specific performance the plaintiffs admitted the execution of the

hypothecation deed which was the subject of the later suit and it was held that it was not an acknowledgment. The decision is not that such

admission should never be taken as an acknowledgment. All that it means is that while in some circumstances it may amount to an

acknowledgment, there may be other circumstances in which it may not amount to an acknowledgment. In that case a person admitted execution

of a document some years before and there was no occasion for saying whether the amount was paid or not, and it was therefore held that it was

not an acknowledgment. Muthukumara Mudaliar v. Chockalinga Mudaliar (1923) 17 L.W. 674 is a case in which the defendant admitted in a

deposition the execution of the bond in question but no further question was put as to whether any amount was due on it. In Lallu Mal v. Reoti

Ram I.L.R.(1923) All. 679 while execution of a document was admitted, it was pleaded that it was taken under undue influence, and in a prior suit

the execution was admitted. These are all cases in which from the circumstances in which admission of execution was made, it was impossible to

imply necessarily an acknowledgment of existing liability. On the other hand we have got Swaminatha Odayar Vs. Subbarama Aiyar and Another,

, a decision of Reilly, J., and one of us in which it was held that from the surrounding circumstances an acknowledgment of liability may be inferred.

In that case the anxiety of the party was to show that the transaction was real and that he was willing to pay on the note but for the unwillingness of

the other party to receive. The Subordinate Judge refers to another case, Labha Mal v. Imam Din (1923) 76 I.C. 751 which comes nearest to the

case before us. In that case there was an admission of execution before the Sub-Registrar but a question was put to the executant whether he

received consideration and he admitted the receipt of consideration also - a circumstance which does not appear in the case before us. Merely on

this ground the Subordinate Judge held that that case is distinguishable. We do not agree with that conclusion. Even if the receipt of consideration is

admitted, one may suggest that it was really a benami transaction, in which case the executant may not really mean to admit liability. Except where

a benami transaction is suggested, the admission of execution before a Sub-Registrar within 4 months after the execution of the document is to

make the document operative. It will be the strongest case where a man is anxious to admit his liability. Even in a benami transaction, for the

purpose of misleading the outside world, a person purports to admit liability at the time, whatever the truth of the matter may be. The circumstance

that there was an admission of receipt of consideration in Labha Mal v. Imam Din (1923) 76 I.C. 751 does not necessarily distinguish that case

from the case before us. In the present case, the contents of the documents show that the old accounts were looked into and a sum of Rs. 4,000

odd remained due, and for Rs. 4,000 out of this amount the mortgage deeds were executed. There was no new consideration to be received and

there was no necessity for putting any such question about receipt of consideration by the Sub-Registrar. When a document is presented for

registration, the executants not only admit the fact of its execution but admit the contents of the document, namely, their liability on it. In our opinion

this is a case where acknowledgment of liability is necessarily implied. It is not necessary to deal with possible cases where there may be some

difficulty in making such an implication. If admission of execution in such circumstances is an acknowledgment, it is admitted that the suit is not

barred. We allow the appeal against defendants 6 and 8 with costs throughout.