An acknowledgment of present liability is necessary before the claim is barred by limitation, and an undertaking to pay the amount at some future date is not equivalent to payment. The court emphasized the authority of the Full Bench ruling in Annapurnamma v. Akkayya (1913) 36 Mad. 544.

Devadoss, J.

1. These appeals arise out of two suits brought by the plaintiff on mortgage bonds, dated 4th November, 1897 and 28th January, 1902. The District Muusiff dismissed the plaintiffs suits. On appeal the Subordinate Judge passed decrees in favour of the plaintiff. Exhibit A, dated 4th November 1897, was executed by the do fondants 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 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 Exhibit I in favour of the 3rd defendant undertaking to pay the balance due in respect of Exhibit A and Exhibit A (1) during a period of 10 years from 15th March, 1906. The first point urged for the appellant is that Exhibits A and A (1) were discharged by payment to the 3rd defendant; and reliance is placed upon two decisions of this Court reported in Barber Maran v. Ramana Goundan (1897) 20 Mad. 461 and Annapurnamma v. Akhayya (1913) 36 Mad. 544, 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 learned Judges of this Court expressed his disapproval of the Full Bench ruling in Annapurnnmma v. Akkayya (1913) 36 Mad. 544. We must express our strong disapproval of the Subordinate Judges 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 Annapurnamma v. Akkaya (1913) 36 Mad. 544 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 (1913) 36 Mad. 544 was opposed to the current of authorities in England, did nevertheless follow the ruling in Annapurnamma v. Akkaya (1913) 36 Mad. 544. 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 Exhibit I that defendants 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 Exhibit I 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 (1897) 20 Mad. 461 and Annapurnamma v. Akkayya (1913) 36 Mad. 544 he has set up a case of fraud.

2. It is next urged by the appellants that the suit is barred by limitation. Mr. Kama Rao who appears for the appellants contends that