Kumaran Krishnan vs Krishnan Kaunihan

Subramania Iyer, J.—The Defendant is the Appellant before us. Only a short point of limitation arises in this second appeal. The following are the facts. Plaintiff and his mother executed a bond for money to Defendant''s father Krishnan Kumaran. Plaintiff made two payments to Wards that debt. The first was Rs. 315 on 17-3-U07 evidenced by Ex. B a receipt granted by the obligee Kumaran. The second payment, however, which was of an amount of Rs. 1.10 on 9-5-1108 was not made to Kumaran but to tire Defendant, his son. On receipt of that sum the Defendant passed the receipt, Ex. A to the Plaintiff. Ex. A recites; given by the Defendant on behalf of his father and that Rs. 110 had been received towards the bond. Kumaran sued on the bond, Section 1183 of 1108 without giving credit to the said two amounts. The plea of the de-t there who is the Plaintiff hero was partial charge to die extent of the said amounts of Rs. 3lS Vmd Rs. 110. Exs. A and 13 were Exts. II and I respectively in that suit.

Kuimiran denied the genuineness of both the receipts and the payments thereunder and further contended that assuming the payment alleged to have been made to his son is true it would not bind him because his son had no authority to receive money on his behalf. The trial court found against the, pica of discharge by its decree dated 22-1-1109, Ex. I, holding that neither of the receipts was true. The Defendant''s appeal to the District Judge succeeded as die learned Judge upheld the plea of discharge in respect of bodies dismiss.

It was found that the receipts were true, that the sums there under had been paid and that the payment made to the son was binding upon the father. Kumaran preferred a second appeal, No. 493/110 before the erstwhile Travancore High Court and he partially succeeded. Though the High Court found that both the receipts were genuine they could not find their way to upholding the conclusion of the District Judge as regards the binding character on Kumaran of the payment made to his son. On that ground the plea of discharge to that extent i.e., to the extent of the amount covered by Ex. A was negative. The judgment of the High Court is Ex. C which was rendered on 2-6-1115.

The suit out of which this second appeal arises was consequent upon the aforesaid final decision of the High Court and it was for the purpose of recovering from the Defendant the amount of Rs. 110 with interest and costs. The suit was fixed on 10-6-H17. The Defendant pleaded that Ex, A was not genuine. He pleaded also that the claim is bailed by time. On the question of the genuineness of "Ex. A the trial court found against the Plaintiff and dismissed the suit. Against that decree the Plaintiff preferred an appeal, A.S. 834 of ILLS, to the District Judge who reached a different conclusion upholding the genuineness of Ex. A.

The result was the decree of the trial court could not ''be supported which was, therefore, set aside and the case remanded to the trial court for consideration of the other issue of limitation raised in the case. No exception was taken by the Defendant "to the said order of remand. The Munsiff found that the claim was barred by limitation. According to the Munsiff the Article that applies is Article 84 of the Travancore Limitation Act corresponding to Article 97 of the Indian Act. The commencement of the period of three years there under was in his view from 22-1-1109, the date of the decree of the trial court, in O.S. 1183/1108 when the plea of discharge was found against.

The Plaintiff''s appeal to the District Judge succeeded. The learned judge was of the view that Article 84 applied, that limitation started from 22-1-1109 but the claim was nevertheless not barred because there was a suspension of the running or time on account of the decision of the District Judge in appeal, A.S. 281/09, Ex. D, dated 31-12-1109. The period between that date and the date of the decree of the High Court, namely, 2-6-1115 should in the view of the learned District Judge be excluded from computation under Article 84 and that if that period be excluded, the suit, was filed within three years and was not barred by time.

The only question before us is which is tire Article that applies and when does the start. On the facts it is clear that the consideration for the payment made by the Plaintiff to the Defendant as evidenced by Ext. A was his authority to receive the payment in discharge of the debt due to his father. He purported to execute the receipt as the alter ego of the father. That consideration failed only by the decision of the High court because though the trial court found against the plea of discharge that decree was subject to an appeal and second appeal where the decree is liable to be reversed and until the determination of the court of the last resort it cannot be said that the pretended authority of the Defendant has been found against.

We are clear that no cause of action arises on account of die failure of Consideration for the receipt except on the determination by the High Court on 2-8-1115 that Ex. A did not bind the Defendant''s father Kumaran. A similar question arose in the High Court of Allahabad in the case of Jumundus v. Najmui Nissa, ILR 28 All 466 In that case the husband of a Muhammadan lady negotiated for a transaction of mortgage of her properties with a creditor to whom the husband owed some money. In the consideration for the mortgage which was not executed by his wife by the husband the amount'' of the husband''s debt was included.

There was besides receipt'' by the husband of certain sum in cash which also formed part of the consideration for the mortgage. In the creditor''s-suit to enforce the mortgage the wife pleaded ignorance of the inclusion of the husband''s liability therein and payment of the cash received by the husband to her whose authority to receive on her behalf was repudiated. ''The trial court found in favour of the creditor which finding was upset by the-High Court in appeal.

The High Court took the view that the wife was really ignorant of the inclusion of the amount of the husband''s debt in the mortgage and that the husband had no authority to receive any cash payment from the creditor as consideration for the wife''s-mortgage. The result was that the creditor did not get relief in respect of the said two amounts. The mortgagee, therefore, instituted a suit for recovery of the said two sums and the question before their Lordships was as regards the applicatory article and-the time when limitation starts.

They held that the consideration for the creditor agreeing to include the husband''s debt in the wife''s mortgage giving up the husband''s liability and for the payment by the mortgagee of cash into the hands of the husband was a representation by the husband of the wife having agreed to shoulder the liability of the husband and the undertaking by the husband, to pay over the money to the wife, the-husband stating he had authority. The High Court reached the conclusion that the consideration for the mortgagee''s exonerating the husband from liability and accepting that of his wife under the mortgage and in paying the amount of cash to the hands of the husband failed on account of the determination of the High Court against the mortgagee and that, therefore, Article 97 applies and the time starts from the date of the decree of die High Court.

The case is parallel to the one on hand and we are, with great respect, in agreement with the view-taken therein and we hold that Article 84 of the Travancore Limitation Act corresponding to Article 97 of the Indian Act applies to the case and that, time starts from 2-6-1115. The result is that the decree appealed against is right, though not for the reason mentioned in the judgment of the court below.

The second appeal, therefore, fails and is dismissed with costs.