Peri Ramasami and Others vs Chandra Kottaya

Devadoss, J.—These appeals arise out of two suits brought by the plaintiff on mortgage-bonds dated 4th November 1897 and 28th January

1902. The District Munsif dismissed the plaintiff''s suits. On appeal the Subordinate Judge passed decrees in favour of the plaintiff. Exhibit A dated

4th November 1897 was executed by the defendants Nos. 1 and 2 and their deceased father and brother in favour of the plaintiff and the 3rd.

defendant. Exhibit A(1) was executed on 28th January 1902 by defendants Nos. 1 and 2 and their deceased father in favour of the plaintiff and the

3rd defendant. On 28th June 1906 the defendants Nos. 1 and 2 and their father executed Ex. 1 in favour of the 3rd defendant undertaking to pay

the balance due in respect of Ex. A and Ex. A(1) during a period of 10 years from 15th March 1906. The first point urged for the appellant is that

Exs. A and A(1) were discharged by payment to the 3rd defendant; and reliance is placed upon two decisions of this Court reported as Barter

Maran v. Ramana Goundan 7 M.L.J. 269 : 7 Ind. Dec. 327 and Mannava Annapurnamma v. Uppala Alckayya 19 Ind. Cas. 12 . The

Subordinate Judge has declined to follow these rulings on the ground that the other High Courts have taken a different view and that one of the

Judges of this Court expressed his disapproval of the Full Bench ruling in Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12. We must

express our strong disapproval of the Subordinate Judge''s conduct in declining to follow the decision of this Court. A Court subordinate to the

High Court is bound to follow the ruling of the High Court and is not entitled to rely upon the decisions of the other High Courts and to decline to

follow the decision of this Court. The decision in Mannava Annapurnama v. Uppala Akkayya 19 Ind. Cas. 12: (1913) M.W.N. 328, is a Full

Bench ruling and even if it was not, it was not the function of a Subordinate Court to criticise the ruling. Coutts-Trotter, J., who expressed the

opinion that the decision in Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12 was opposed to the current authorities in England did

nevertheless follow the ruling in Mannava Annapurnamma v. Uppala. Akkayya 19 Ind. Cas. 12. The Subordinate Judge found that there was a

gross fraud on the part of the defendants Nos. 1, 2 and 3 and, therefore the payment to the 3rd defendant did not bind the plaintiff. The plaintiff did

not set up a case of fraud in the pleadings and no evidence was adduced as regards fraud in the First Court and the Subordinate Judge was not

justified in setting up a case of fraud when a case was not set up by the parties either in the leadings or in the evidence before the First Court. No

issue was taken as regards the questionof fraud andno opportunity was given to the defendants to show that there was no fraud. On the other hand

it is quite clear from Ex. 1, that defendants Nos. 1 and 2 and their father did acknowledge their liability not only to the 3rd defendant but also to the

plaintiff and, therefore, at that time there could not, have been any intention to defraud the plaintiff. The 3rd defendant and the plaintiff are the

adoptive mother and adopted son and the evidence is that they lived together for 20 years till 4 or 5 years ago and Ex. 1 was executed in 1906

evidently at the time when the 3rd defendant and the plaintiff were living together and there is no suggestion that at that time there was any intention

on the part of the 3rd defendant or of defendants Nos. 1 and 2 to defraud the plaintiff. The Subordinate Judge has, therefore, erred not only in

setting hp a new case of fraud not set up in the pleadings but also in coming to the conclusion that there was gross fraud when there was no

evidence to support the finding. In his anxiety, to get round the decisions in Barber Maran v. Ramana Goundan 7 M.L.J. 269 and Mannava

Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12, he has set up a case of fraud.

It is next urged by the appellants, that the suit is barred by limitation. Mr. Rama Rao who appears for the appellants contends that Ex. 1 does

not contain an acknowledgment of the liability of defendants Nos. 1 and 2 under Exs. A and A(1). From a reading of the document, it is quite clear

that the executants of the document did acknowledge the liability not only to the 3rd defendant but also to the plaintiff under the two documents. It

is not necessary that there should be a promise to pay the amount due. All that is necessary u/s 19 of the Limitation Act is there should be an

acknowledgment of the present liability before the claim is barred by limitation. There is no substance in this contention and we disallow it.

The judgment of the lower Appellate Court can be supported on other, grounds than that of fraud. Exhibit 1 is a mortgage-deed executed by

defendants Nos. 1 and 2 and their father undertaking to pay the balance of the amounts due under Exs. A and A(1). This document was

afterwards sued on and money was realised. Exhibit 1 cannot be taken to be a discharge of Exs. A and A.(1). In Barber Maran v. Ramana

Goundan 13 M.L.T. 268: 24 M.L.J. 333, it was held that a payment made to one of two joint-mortgagees was a valid discharge of the mortgage

liability. If money had been paid to the 3rd defendant certainly that would have been a valid discharge of the liability under Exs. A and A(1). But a

mere undertaking to pay the amount at some future date is not equivalent to payment. It is quite clear from the decisions in Barber Maran v.

Ramana Goundan 36 MA. 544 : (1913) M.W.N. 328 and Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12: (1913) M.W.N. 328

that it is only payment made to one of the joint promisees that could give a discharge to the promisors, but where the promisor undertakes to pay

the amount at some future date it is not equivalent to a discharge. Supposing in this case the defendants Nos. I and 2 had given a promissory-note

to 3rd defendant for the amounts due under Exs. A and A(1) and if she had negotiated it to a third person and third person realised the amount

sometime after, could it be said that the 3rd defendant was paid the amount due under Exs. A and Ex. A(1)? It is open to the parties to a contract

to supersede that contract by another contract. But in order to do so, all the parties to the first contract must be parties to the second contract.

Exhibit 1 cannot be considered as a supersession of the contracts evidenced by Exs. A and A(1). It is only an undertaking by the promisors to pay

the amount to one the promisees. We hold that in order to bring the case within the rulings in Barber Maran v. Ramana Goundan 13 M.L.T.

268and Mannava Annapurnamma v. Uppala Akkayya 19 Ind. Cas. 12 there ought to be a payment of the amount due to one of the joint

promisees in order to effect a discharge of the liability to the joint promisees. Taking this view, we hold that Ex. 1 was not a discharge of Exs. A

and A(1) and the liability under the two mortgages remained on the date of Ex. 1 and the plaintiff is, therefore, entitled to bring a suit for his share

of the mortgage amounts. In the view we have taken, it is unnecessary to consider whether the decision in Mannava Annapurnamma v. Uppala

Akkayya 19 Ind. Cas. 12 is good law or not. It was contended on behalf of the respondent that the decision of the Privy Council in Shrinivasdas

Bavri v. Meherhai 39 Ind. Cas. 627 has considerably shaken the authority of the decision in Mannava Annapurnamma v. Uppaln Akkaya 19 Ind.

Cas. 12: (1913) M.W.N. 328. It is unnecessary for us to express any opinion on this point.

In the result the second appeals fail and are dismissed with costs.

Jackson, J.

I agree and will only add that in any case I should feel bound by a Full Bench ruling in Mannava Annapurnamma v. Uppala Akkaya 19 Ind.

Cas. 12. In Shrinivasdas Bavri v. Meherbai 39 Ind. Cas. 627, it is held that a release deed purporting to be by one of two mortgagees both in his

own right, and also as heir and legal representative of the other mortgagees deceased can only be evidence as against the parties to the deed. The

respondent did not thereupon proceed-to argue that this discharge by one mortgagee alone would be in itself valid, so the point established by

Mannava Annapurnamma v. Uppala Akkayya 13 M.L.T. 268 was never raised in Shrinivasdas Bavri v. Meherbai 39 Ind. Cas. 627.