Peri Ramasami and Others vs Chandra Kottayya

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. Ex. A,

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

defendant. Ex, A (1) was executed on 28th January, 1902 by defendants 1 and 2 and their deceased father in favour of the plaintiff and the 3rd

defendant. On 28th June, 1906 the defendants 1 and 2 and their father executed Ex, I 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 in Maran

and Another Vs. Ramanna Goundan and Another, and Annapurnamma v. Akkayya ILR (1913) M 544 : 21 MLJ 333. 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 learned Judges of this

Court expressed his disapproval of the Full Bench ruling in Annapurnamma v. Akkayya ILR (1913) M 544 : 1913 21 MLJ 333. We must express

our strong disapproval of the Subordinate Judge''s conduct in declining to follow the decision of this Court. ACourt 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 Annapurnamma v. Akkayya ILR (1913) M 544 : 1913 21 MLJ 333 is a Full Bench ruling and even if it was

not, it was not the function of the Subordinate Court to criticise the ruling. Coutts-Trotter, J., who expressed the opinion that- the decision in

Annapurnamma v. Akkayya ILR (1913) M 544 : 1913 21 MLJ 333 was opposed to the current of authorities in England, did nevertheless follow

the ruling in Annapurnamma v. Akkayya ILR (1913) M 544 : 21 MLJ 333. The Subordinate Judge found that there was a gross fraud on the part

of the defendants 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 such a case was not set up by the parties either in the pleadings or in the evidence before the first Court. No issue was taken as

regards the question of fraud and no opportunity was given to the defendants to show that there was no fraud. On the other hand, it is quite clear

from Ex. I that defendants I 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 1 and 2 to defraud the plaintiff. The Subordinate Judge has therefore erred not only in setting up 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 ILR (1897) M 461 : 7 MLJ 269 and Annapurnamma v. Akkayya (1913) ILR 36

M 544 : 21 MLJ 333 (FB) 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 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. Ex. 1 is a mortgage deed executed by

defendants 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. Ex. I cannot be taken to be a discharge of Exs. A and A (I). In Maran and Another Vs. Ramanna Goundan and

Another, 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 Maran and Another Vs. Ramanna Goundan and

Another, and Annapurnamma v. Akkayya (1913) ILR 36 M 544: 1913 21 MLJ 333 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 1 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 the third person realised the amount some time after, could it be said that the 3rd defendant

has paid the amount due under Exs. A and 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. Ex.MIAnot be considered as a supercession of the

contracts evidenced by Exs. A and A (1). It is only an undertaking by the promisors to pay the amount to one of the promisees. We hold that in

order to bring the case within the rulings in Maran and Another Vs. Ramanna Goundan and Another, and Annapurnamma v. Akkayya ILR (1913)

M 544: 1913 21 MLJ 333 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 Annapurnamma v. Akkayya (1913) ILR 36 M 544: 1913 21 MLJ 333 is good law or not. It

was contended on behalf of the respondent that the decision of the Privy Council in Shrinivasdas Bavri v. Meherbai ILR (1916) B 300 has

considerably shaken the authority of the decision in Annapur-namma v. Akkayya ILR (1913) M 544: 21 MLJ 333. 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 1 should feel bound by the Full Bench ruling in Annapurnamma v. Akkayya ILR (1913) M 544 : 21

MLJ 333. In Shrinivasdas Bavri v. Meherbai ILR (1916) B 300 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 mortgagee deceased can only be evidence as against the parties to the deed.

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

Annapurnamma v. Akkayya ILR (1913) M 544 : 21 MLJ 333 was never raised in Shrinivasdas Bavri v. Meherbai ILR (1916) B 300.