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Judgment
Venkataramana Rao, J.—This is an appeal from the judgment and decree of the learned District Judge of Kistna in a suit upon a mortgage
dated 19th September, 1929, executed by the first defendant for himself and as guardian of his son, the second defendant in favour of the plaintiff.
The third defendant is another son of the first defendant born subsequent to the date of the mortgage. The mortgage was for a sum of Rs. 2,500
payable with compound interest at Re. 0-14-6 per cent, per month. The plaint alleged that there was a payment of Rs. 600 on 9th November,
1930 and that the said payment was made by one Kasibotla Suryanarayanamurti on behalf of the defendants. The defendants denied that the said
sum of Rs. 600 was paid as alleged in the plaint and the first defendant pleaded; that he was not personally liable on the ground that the personal
remedy was barred by limitation, the suit having been instituted on 16th March, 1936, more than six years from the date of the mortgage.
Defendants 2 and 3 denied the truth and validity of the mortgage. Their case was that the amount was not borrowed for any family necessity or for
payment of any antecedent debt but for conducting a business newly started by the first defendant himself. Another point taken was that even
assuming the mortgage to be true, it was binding only on the mortgagor''s share which must be deemed to be one-third and the third defendant
though born subsequent to the date of the mortgage would be entitled also to a third share in the property mortgaged. The learned District Judge
found the mortgage to be true but held that it was not binding on defendants 2 and 3 on the ground that the amount borrowed was for the purpose
of a business started by the father and not for any antecedent debt or family necessity. He also found that Rs. 600 was paid by the said
Suryanarayanamurti but he was not an agent duly authorized within the meaning of Section 20 of the Limitation Act and therefore the said payment
would not save the bar of limitation in respect of the personal liability of the first defendant. He therefore held that the first defendant was not
personally liable for the debt. In regard to the interest of the first defendant in the property he held that he was entitled to half a share in the suit
property and that the third defendant cannot repudiate the alienation made before his birth. The plaintiff has preferred this appeal in so far as the
decree is against him, that is, in so far as it negatived the personal liability of the first defendant. Defendants 2 and 3 have preferred a memorandum
of objections raising the contention that the lower Court should have passed a decree only for a third share of the property and not for a half share.
Two questions therefore fall to be decided, namely, (1) whether the first defendant is personally liable for the debt and (2) what is the share of
the first defendant in the property mortgaged which the plaintiff is entitled to sell in execution o� the decree in his favour. The first question turns
on the determination of the issue whether the payment of Rs. 600 operates as an acknowledgment of debt within the meaning of Section 20 of the
Limitation Act. The payment of Rs. 600 was apparently made towards the principal and was so treated by the plaintiff. In order that a part
payment of a principal can be relied on for saving the bar of limitation within the meaning of Section 20 of the Limitation Act, it must fulfil three
requisites: (1) the payment must be made by the debtor or his agent; (2) the agent must have been empowered specifically to make the said
payment; and (3) there must be an acknowledgment of the said payment in the handwriting of or in a writing signed by the debtor or his agent, that
is, if the payment was made by the debtor, in the handwriting of or in a writing signed by the debtor or if the payment was made by the agent, in the
handwriting of or in a writing signed by the agent. The question is whether the view of the learned District Judge that K. Suryanarayanamurthi
(P.W. 4) in making the payment was not the duly authorized agent of the defendants within the meaning of Section 20 is correct. P.W. 4 admits
that he paid Rs. 600 in part payment of the debt. He acknowledges the fact of payment in a letter Ex. B signed by him and delivered to the plaintiff,
which runs thus:
Irusalnamah submitted by Kasibotla Ramayya Garu''s son Suryanarayanamurti, resident of Challapalli, Divi Taluq:
Out of the amount due under the hypothecation deed executed on 19th. September, 1929, in your favour by Mallela Venkatapayya Garu''s
adopted son Lakshmi Narasimharn, resident of Godugupeta, Bandar, a sum of Rs. 600 (in words, six hundred) has been sent to me to be credited
towards the said deed and so I have sent the same to you. I shall get the said amount credited towards the said deed by the said Lakshmi
Narasimham.
(Sd.) Kasibotla Suryanarayanamurti,
9th November, 1930.
Mr. Somasundaram on behalf of the defendants 2 and 3 does not dispute the fact of payment but contends that P.W. 4 was not an agent within
the meaning of the section but only a mere messenger who made the payment and that Ex. B therefore cannot save limitation. On the evidence on
record we are clearly of the opinion that P.W. 4 in making the payment was the duly authorized agent of the defendants within the meaning of the
section. P.W. 4 is a close relation of the first defendant. It was P.W. 4 that arranged for the loan. Ex. B clearly says that the sum of Rs. 600 was
sent to him for the express purpose of making the payment on his behalf and crediting the same towards the deed. No doubt P.W. 4 says in his
evidence before the Court that the money was not sent by the first defendant but he had the money belonging to one Venkata Ramanamma and
inasmuch as the plaintiff : pressed for the payment of the debt he paid the same on behalf of the first defendant. This story cannot possibly be
believed in the face of the express recital in Ex. B. P.W. 4 says that he told the first defendant that he made the payment of a sum of Rs. 600 to the
plaintiff and that first defendant told him that he would settle later. Though the first defendant as D.W. 1 denies P.W. 4 having told him that such a
payment was made, we cannot accept this denial as true. Four months before the plaintiff filed the suit the plaintiff sent a registered letter Ex. E),
dated 3rd March, 1936 to the first defendant wherein the fact of payment of Rs. 600 on his behalf by Suryanarayanamurti was mentioned and no
reply was sent thereto. Therefore the recital in Ex. B that Rs. 600 was sent by the first defendant must be true and there is no reason to think that
P.W. 4 was making a false recital. It is very likely that that sum was sent to P.W. 4 as he was the person who arranged for the loan. The decision
in Ramkumar Sewchand Roy v. Nanuram Poddar I.L.R.(1925)Cal. 163, on which Mr. Somasundaram relies does not support him; on the other
hand, as in this case, the payment was made by a friend of the debtor acting as his agent but he did not actually pay the money to the creditor but
sent it through a messenger with a letter which was similar in terms to Ex. B. It was held that that was a valid acknowledgment within the meaning
of Section 20 of the Limitation Act.
The next question is whether the decree of the learned District Judge directing a sale of a half share of the first defendant is right. The contention
of Mr. Somasundaram is that an after-born son is entitled to question the alienation made by a father without any legal necessity when on the date
of the alienation there were other sons living who could object to the said alienation and as in this case, on the date of the alienation the second
defendant was born and in existence, it therefore follows from this that the 3rd defendant would be entitled to a third share and what would pass to
the alienee would only be a third share of the father an4 therefore the decree ought to have directed only a sale of the one-third share of the father
in the property mortgaged. In support of his contention Mr. Somasundaram relies on the decisions reported in Amirthalinga Thevan v. Arumuga
Ambalagaran (1928) 28 L.W. 634, Chandramani Prushti v. Jambeswara Rayagaru (1930) 34 L.W. 598, Muthukumara Sthapathiar Vs.
Sivanarayana Pillai (deceased) and Another, . Though in Chandramani Prushti v. Jambeswara Rayagaru (1930) 34 L.W. 598, it is stated as settled
law that if a son was born after the alienation of the family property by his father, if there were other members who had not consented to and
validated the alienation, it can be questioned by an after-born son, the proposition would seem to require reconsideration in view of the decision of
the Privy Council in Lal Bahadur v. Ambika Prasad ILR (1925)All. 795 : 52 I.A. 433 . The learned Editor of Mayne''s book on Hindu Law
comments on that decision in pages 511 and 512 thus:
An observation of the Privy Council in Lal Bahadur v. Ambikd Prasad I.L.R.(1925)All. 795 : L.R. 52 IndAp 433 , would seem to confine the right
to challenge alienations of family property to the coparceners alive at the date of the alienation and to deny such a right to a coparcener who though
born subsequent to the alienation acquires an interest in the coparcenery property before the death of the objecting or non-alienating coparceners.
The point was not considered and it may not be right to regard the observation as a decision on the question. It would be against the whole current
of Indian authorities which were neither referred to nor considered and cannot therefore be deemed to be overruled. If however the observation,
means that coparceners born in the family subsequent to an alienation before the death of the other coparceners who could challenge it, have no
right to the property and consequently no right to challenge the alienation, it, would conflict with what was said by the Board in Ramkrishore
Kedarnath v. Jainarayan (1913) 25 M.L.J. 512 : L.R. 40 IndAp 213 : ILR 40 Cal. 966, as well as with the cardinal principle of Hindu Law.
With great respect to the learned Editor we are not inclined to agree with these remarks. We are inclined to think that the decision of the Privy
Council is a direct decision on the question. In that case the facts were as follows: Ram Din and his brother Pateshwari were two brothers. On 6th
August 1895, as managers of the family they mortgaged certain family property. They executed two mortgages, one simple and the other
usufructuary. On the date of the mortgage Ram Din had two sons Awadh Behari and Jantri Prasad, both of them minors. Long subsequent to the
date of the mortgages the plaintiffs were born to Awadti Behari. On 12th September, 1904, Pateshwari and Ram Din sold the property to the
usufructuary mortgagee in part satisfaction of his mortgage and for cash received for payment of the other debts. The suit was brought in 1919 to
set aside the sale when the plaintiff''s father was alive and his right to set it aside was barred by limitation. Dealing with the right of the plaintiffs to
question the mortgages their Lordships observed as follows:
The respondents, plaintiffs in the suit, are sons of Awadh Behari. In 1895 they were still unborn. This, as will later appear, is one of the most
important facts in the case. It follows from it that these two mortgage deeds have always been binding on the respondents. The only joint family
estate to an interest in which they succeeded was an estate which to the extent of these two mortgages had already been alienated.
These observations of their Lordships seem to be clear and there seems to be no ambiguity about them. If the matter had1 rested there, one
might have said that they were in the nature of an obiter. The learned Judicial Commissioner of Oudh has rested his decision on the ground that on
the date of the sale the,'' mortgages must be deemed to be antecedent debts and therefore the sale was justified. But their Lordships were not
inclined to rest their decision on this ground but expressly put it on the ground that the plaintiffs were not born on the date of the mortgage. This is
how they deal with the question at page 801:
The effect of that explanation the explanation of Sahu Ram''s case in the case of Brij Narain v. Mangal Prasad (1923) 46 M.L.J. 23 : L.R. 51
IndAp 129: ILR 46 All. 95 , in their Lordships'' judgment is to show that in the circumstances of this case both of the mortgages of 1895 were
''antecedent debts'' which would justify for their liquidation a sale of family property not otherwise improper. In the present case, however, it is not
in their Lordships'' judgment, necessary to invoke any such doctrine in order to counter the objection to the sale now being dealt with. Both
mortgages, as their Lordships observe once more, were binding upon the respondents. A sale of family property otherwise unobjectionable, which
resulted in the removal, from what remained of it of the burden pro tanto of these encumbrances, cannot be successfully attacked by those so
bound.
This decision is therefore a direct decision on the question whether an after-born son is entitled to impeach an alienation made before his birth.
And the case in Ramkishore Kedarnath v. Jainarayan (1913) 25 M.L.J. 512 : L.R. 40 IndAp 213 : ILR 40 Cal. 966, does not enunciate any
principle in conflict with this decision. In that case the facts were as follows: The plaintiffs were the four sons of one Kedarnath, who in October,
1898, made a disposition of a part of the family property by way of partition to Jainarayan who was alleged to be an adopted son of his undivided
brother''s widow. The suit was instituted, on 20th December, 1907, to set aside the said alienation. The first plaintiff was born on 20th December,
1886. The other plaintiffs were born between 1892 and 1894. The learned Judicial Commissioner held that as the first plaintiff instituted, the suit
within three years of attaining the age of 21, he was entitled to the benefit of Section 7 of the Limitation Act of 1877 and the suit was not barred as
against him, but he held that it was barred as against his younger brothers, who were born after the commencement of what he regarded as the
adverse possession of the defendant Jainarayan. Their Lordships dispose of the correctness of this view thus:
It was however conceded before this Board, and, as their Lordships think, rightly conceded, that if the first plaintiff succeeds in the suit his younger
brothers born before a partition of the estate will be entitled to share in the relief.
This does not lend countenance to the view that the younger sons are entitled to impeach the alienation. What wks meant by their Lordships was
that if the elder son recovers the estate the younger son would be entit4ed to share in it being joint family property recovered for the family.
Apparently in Visweswara Rao v. Surya Rao (1935) 70 M.L.J. 360 : ILR 59 Mad. 667, their Lordships Madhavan Nair and Stone, JJ., were not
inclined to agree with the view expressed in Chandramani Prushti v. Jambeswara Ray a Garu (1930) 34 L.W. 598, as settled law - vide
observations at page 687, because in that page the, learned Judges after a review of the case-law remarked thus:
Whether or not an afterborn son can effectively join with existing sons to attack or resist an alienation, the cause of action or the right to defend is a
cause or right that was in those members of the family that were alive at the time of the alienation and were not consenting.
They express an opinion that if before the after-born son is born, the sons in existence were to die, the right is lost to the after-born son though
the right to set aside an alienation may be within the time from the date when the cause of action accrued to the sons in existence. This seems to be
in conflict with the view expressed in Mayne''s book at page 513 where it is stated that it is a right in every member of coparcenery for the time
being and as long as that right in the coparcenery exists if would be immaterial whether he was alive on the date of the alienation or born
subsequently. Much may be said in favour of either view and it may be that the view expressed in Mayne''s book is sounder. The scope and effect
of the Privy Council decision in Lal Bahadur v. Ambika Prasad (1925) L.R. 52 IndAp 433 : ILR 47 All. 795 , may require consideration. But we
think that in the view we are taking of the share which the father is entitled to, it is not necessary to decide the point. The question to what share he
is entitled is quite distinct from the question whether an after-born son is entitled to question the alienation or not. We will assume he can and deal
with the question of the father''s share on that footing. So far as our Presidency is concerned, it is accepted law that a coparcener is entitled to
alienate his share for value. What the alienee gets by virtue of such an alienation is not a bare right to partition but a vested interest, the extent of
which will have to be ascertained by a suit for partition. The Full Bench decision of our High Court in Chinnu Pillai by guardian Ramachandram
Pillai Vs. Kalimuthu Chetti, , has ruled that the interest which an alienee would get would be the share to which the alienor would be entitled at tine
time of the alienation undiminshed by any births or deaths in the family subsequent to the date of the alienation. The rule is thus stated by White,
C.J., in delivering the judgment of the Full Bench:
As pointed out by the Privy Council in (1879) L.R. 6 I.A. 88 (Privy Council) , an alienation by a coparcener of his joint interest in family property
is inconsistent with the strict theory of a joint and undivided Hindu family. But the doctrine recognising this right is well established in this
Presidency, and it seems to me to be only the logical development of this doctrine that, for the purpose of ascertaining the quantum of interest,
alienated, the test to apply should be the state of the family as regards the number of coparceners, at the time the alienation is made, and not the
state of the family when the owner of the interest seeks to reduce his interest into possession.
The learned Judges in Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu Chetti, , expressly dissented from the decision of the Full
Bench in Rangaswami v. Krishnayyan (1891) 1 M.L.J. 603 : ILR 14 Mad. 408 , which took the view that the interest of the alienor would be
diminished by births of subsequent members of the family. They in effect followed the view expressed by Bhashyam Ayyangar, J., in Ayyagiri
Venkataramayya v. Ayyagiri Ramayya ILR (1902) Mad. 690 , where the learned Judge took the view that the matter was concluded by the
decisions of the Privy Council. The learned Judge at p. 718 observes as follows:
A coparcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion
of the family property...or the whole of a specified portion of the family property.... The same thing may take place in the case of involuntary sales
also. In all these cases the sale operates upon the interest and share of the transferor as the same existed at the date of the transfer and the
transferee must work out the transfer by bringing a suit for ascertaining what the share and interest of the transferor was at the date of the
transfer.... When the transfer is of an undivided interest in the whole of the family property, the transferee will get whatever may be allotted to the
transferor''s share in a suit for partition. But if the transfer relates to any specified portion of the family property, there is the risk that it may turn out
that in a partition of the whole property it is impracticable or inequitable to allocate either the whole or a part of such specified portion to the share
of the transferor.
In giving expression to this view His Lordship was only following the decision of the Privy Council in (1879) L.R. 6 I.A. 88 (Privy Council) . In
that case the mortgage was executed by the father Adit Sahai and on the date of the mortgage he was entitled to a third share. The question was
what passed to the purchaser at the execution sale. In dealing with this contention their Lordships of the Judicial Committee observed thus:
On the other hand, if the law of the Presidency of Fort William were identical with that of Madras, the mortgage executed by Adit Sahai in his
lifetime as a security for the debt, might operate after his death as a valid charge upon Mouza Bussumbhurpore to the extent of his own then share.
In the present case at the date of the alienation the father was entitled to a half share in the joint family property and that interest which was
vested in him would pass to the mortgagee. The property which has been effectively carried away from the family was only a half and the other half
would still be the joint family property and it is only in that half and in the equity of redemption in the other half, the alienation being a mortgage, the
after-born son would be entitled to participate with the other son. This is in strict consonance with the principles of Hindu Law that in a Mitakshara
family a member acquires right by birth only in the property which was then in existence and not in the property which has been effectively carried
away from the family. In so far as the alienation of the father''s interest is concerned, it must be deemed to have been effectively carried away
because he is entitled to alienate it for value. If the view indicated in Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu Chetti, , namely,
that the alienee gets the interest which the father was entitled to on the date of the alienation is to be followed, the view taken by the learned District
Judge in this case that the father was entitled to a half share and the mortgagee is entitled to sell that share in execution of his decree is correct.
There is only one reported decision which directly deals with this matter and that is a decision of our learned brother - Pandrang Row, J., reported
in Majeti Kasi Viswesra Rao Vs. Pulletikurti Varahanarasimham and Others, . In that case the father sold the property in 1919. On that date there
was only one son in existence and subsequently two sons were born. The alienation was not found to be such as to be binding on the sons. On the
date of suit there were the father and three sons. The question was to what share the alienee would be entitled. The, learned Subordinate Judge in
that case following Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : ILR 56 Mad. 534 , held that the father would only be entitled to a
fourth and the alienee would only get a fourth share. Pandrang Row, J., following Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu
Chetti, , held that the share which the father would get would be the share which he would be entitled to on the date of the alienation which would
be half and therefore he gave a decree for a half a share. The learned Judge declined to follow Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J.
66 : ILR 56 Mad. 534, and if we may say so with respect, rightly. The Full Bench in Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu
Chetti, case was constituted for the express purpose of considering the view expressed in Rangaswami v. Krishnayyan (1891) 1 M.L.J. 603 : ILR
14 Mad. 408 , that the share of the alienee should be determined not on the date of the alienation but on the date of suit and if subsequent to the
date of alienation more members were born the alienee would get a reduced share. At the time when the Full Bench was constituted and the
question was discussed, there were five Judges but at the time when the judgment was about to be delivered one of them ceased to be a judge of
the. High Court and the Full Bench was reconstituted with four Judges and the judgment was delivered dissenting from the said view in
Rangaswami v. Krishnayyan (1891) 1 M.L.J. 603 : ILR 14 Mad. 408 . The judgment was delivered in 1912 and so far as we know it was
accepted as sound law both by the Bench and the Bar and followed till Jackson, J. struck a dissenting note in Sthapathiar v. Sivanarayana Pillai
(1932) 64 M.L.J. 66 : ILR 56 Mad. 534, and declined to follow the view expressed in Chinnu Pillai by guardian Ramachandram Pillai Vs.
Kalimuthu Chetti, . Our own view is that the view expressed in Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu Chetti, is the sounder
view. In Amirthalinga Thevan v. Arumuga Ambalagaran (1928) 28 L.W. 634, though the question was not discussed it was the view that was
taken in Chinnu Pillai by guardian Ramachandram Pillai Vs. Kalimuthu Chetti, that was followed. This is clear from the following observations of
Tiruvenkatachari, J. in that case at page 640:
The only remaining point to be considered is whether the 6th defendant who was born after the alienation has any and if so what right in the plaint
properties which would entitle him to contest the suit, Under the sale deed Exhibit A the plaintiff acquired only the one-third share of the father
Mari Ambalagaran in the joint family properties. The remaining interest therein appertained to the joint family of the alienor; and it so remained at
the date of the 6th defendant''s birth with the result that he also acquired Jin interest in it by his birth.
The view that the father''s share was a third and it is only in the remaining interest, that is, in the two-thirds, the after-born son the 6th defendant
could be held to have acquired an interest by birth is in strict conformity with the view expressed in Chinnu Pillai by guardian Ramachandram Pillai
Vs. Kalimuthu Chetti, . In Chandramani, Prushti v. Jambeswara Rayagaru (1930) 34 L.W. 598, the question of share was not considered at all.
We are therefore of the opinion that the decree of the learned District Judge in directing a sale of a half share of the father is correct.
In the result we modify the decree of the learned District Judge by declaring that the father is personally liable to pay any balance that might
remain after the sale of his interest in the mortgaged property and the plaintiff will be entitled to apply for a decree for the said balance against the
father personally and against the joint family properties in the hands of defendants 1 to 3. The appellant will have half the costs of the appeal but
there will be no costs in the memorandum of objections.
Two applications (C.M.P. Nos. 500 and 484 of 1940) have been put in under the Madras Agriculturists Debt Relief Act IV of 1938, one by
Mr. A. Venkatachalam on behalf of the first respondent and the other by Mr. Somasundaram on behalf of respondents 2 and 3. The plaintiff will
have leave to file a counter-affidavit objecting to the reliefs sought in the said petitions. We direct these applications to be sent to the lower Court
for adjudication on the merits. The decree that we pass herein will be subject to any relief which the applicants may get in those petitions.