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1987 Supreme(Ker) 543
Judges : PAREED PILLAY
Gopala mannadiar - Appellant
Versus
Tulasi Ammal - Respondent
Case No : S.A. No. 569 of 1982
Decided On : 11/11/1987
Advocates Appeared :
C.M. Devan; For Appellant P. Krishnan; For Respondents
The recitals in the will acknowledging the liability under the promissory note amounted to an acknowledgment to save the period of limitation.
Headnote:
Limitation Act - Acknowledgment - Promissory Note - The court considered whether the recitals in a will would amount to an acknowledgment to save the period of limitation under Section 18 of the Limitation Act. The court held that the recitals in the will acknowledging the liability under the promissory note amounted to an acknowledgment, and therefore, the suit was not dismissed based on limitation.
Fact of the Case:
Plaintiff's suit on the strength of a promissory note was decreed by the trial court, reversed by the lower appellate court. The promissory note was alleged to have been executed by the 1st defendant and his deceased wife in favor of the plaintiff. The trial court decreed the suit based on the averment in a will acknowledging the promissory note, despite finding that the evidence regarding the endorsement had not been satisfactorily proved.
Finding of the Court:
The court found that the recitals in the will acknowledging the liability under the promissory note amounted to an acknowledgment, and therefore, the suit was not dismissed based on limitation. The judgment and decree of the Sub Judge were set aside, and the second appeal was allowed with costs throughout.
Issues: The main issue was whether the recitals in the will acknowledging the liability under the promissory note would amount to an acknowledgment to save the period of limitation.
Ratio Decidendi: The court held that the recitals in the will acknowledging the liability under the promissory note amounted to an acknowledgment, and therefore, the suit was not dismissed based on limitation.
Final Decision: The judgment and decree of the Sub Judge were set aside, and the second appeal was allowed with costs throughout.
1. Plaintiff is the appellant. Plaintiff's suit on the strength of a promissory note was decreed by the trial court and reversed by the lower appellate court. The promissory note is alleged to have been executed by the 1st defendant and his deceased wife Kaliyammal Koundachi in favour of the plaintiff. Kaliyammal Koundachi's legal heirs are the other defendants. Defendants 1 and 6 filed written statement supporting the suit claim. Defendants 2 to 5 filed written statement denying the execution of the promissory note. Besides Ext. A2 acknowledgment plaintiff relied on the endorsement in Ext. Al promissory note to save limitation. The trial court held that the evidence regarding the endorsement has not been satisfactorily proved. Despite that finding the trial Court decreed the suit on the basis of the averment in Ext. A2 Will executed by Kaliammal Koundachi acknowledging the promissory note. The finding that the endorsement in the pronote has not been satisfactorily proved has become final as the plaintiff did not file any cross objection when the contesting defendants filed AS 80 of 1980 before the Sub-Court, Palghat. The Sub-Judge held that the recitals in Ext. A2 will not save limitation and accordingly dismissed the suit.
2. Whether the recitals in Ext. A2 of the liability under Ext. Al pronote will amount to acknowledgement to save the period of limitation is the moot point to be considered. The term acknowledgment in S.18 of the Limitation Act connotes:
(i) an acknowledgment of liability;
(ii) it must relate to some existing debt or other obligation to some property or right;
(iii) the aforesaid liability must be existing on the date of acknowledgment;
(iv) it must be in writing and signed by the person against whom such property or right is claimed or by some person through whom he derives his title or liability;
(v) the acknowledgment must be made before the expiry of the period prescribed for a suit or application in respect of such property or right.
The acknowledgment may well be a recital in a document executed in favour of a stranger. It need not necessarily be addressed to the creditor or the person entitled to sue. It is necessary that the acknowledgment must relate to an existing liability. The jural relationship between the debtor and creditor roust be clear and the acknowledgment should have been made with the intention of admitting the jural relationship. The recitals in Ext. A2 of the liability to pay the debt due under the promissory note certainly amounts to an acknowledgment.
3. The promissory note is dated 5-2-1973. As there is acknowledgment evidenced by Ext. A2 before the expiry of the period of limitation to institute the suit the Sub Judge was not justified in dismissing the suit. The judgment and decree of the Sub Judge are set aside. Second appeal is allowed with costs throughout. Judgment and decree of the trial Court stand confirmed.
