Karthikesu Et Al. V. Ponnachchy

Aug.17,1911     Present: Lascelles C.J. and Middleton J.

KARTHIKESU et al. v. PONNACHCHY.

215-D.C. Jaffna, 7,541.

Novation-New debtor a minor-Creditor may sue the original debtor.

Novation may take place, not only by express agreement, but also tacitly or by implication, the consent of the parties to the novation being implied from the circumstances and the conduct of the parties. In the latter event, however, the inference must be so probable and conclusive as to make it quite clear that the parties intended to recede from the original obligation and to replace it by another-in fact, it must be a necessary inference, the new obligation being inconsistent and incompatible with the continued existence of the original obligation.

Where a creditor with the animus novandi accepts a new debtor in lieu of another, and it turns out that the new debtor had no capacity to contract,-

Held, that the creditor could sue the original debtor.

THE facts are set out in the judgment of Lascelles C.J.

H. A. Jayewardene, for the defendant, appellant.-The learned District Judge has held that the execution of the second mortgage amounted to a novation. The effect of a novation is to extinguish the former debt. Novation has the same effect as actual payment. Van der Linden 268; Pothier, vol. I., p. 390; Kader Saibu v. Teverayan.1 Silva v. Silva2 does not apply to this case.

Tissaveerasinghe, for the plaintiffs, respondents.-If at the time of the delegation the person substituted was an insolvent, the creditor may, if the insolvency was unknown to him, sue the original debtor. Pothier, vol. I., p. 395 (sec. 568). The same principle would apply to this case.

The learned Judge was wrong in holding that the granting of the second mortgage by a person who had no capacity to grant it was a novation in law. There was, moreover, no declaration of an express intention to extinguish the old debt. Van der Linden 269. Silva v. Silva2 is an authority in point.

Jayewardene, in reply.-The section quoted by the counsel for the respondents clearly shows that the creditor could not sue the original debtor in the case of the insolvency of the person delegated.

Cur. adv. vult.

1 (1900) 4 N. L. R. 165.

2 (1909) 13 N. L. R. 33.

August 17, 1911. Lascelles C.J.-

The facts which have given rise to this appeal are the following. By mortgage bond No. 837 dated August 7, 1905, Velupillai Venasitamby and Ponnachchy mortgaged certain property to the plaintiffs to secure the payment of Rs. 1,000. By deed No. 1,245 dated November 28, 1906, Ponnachchy and her husband granted the mortgaged property by way of dower to their daughter Valliammai. On the same day Valliammai and her husband Ramalingam mortgaged the land comprised in the first mortgaged bond, and also a land belonging to Ramalingam, to the plaintiffs; a surety also joined in the bond. It was admitted that in another action, D. C. Jaffna, No. 6,878, it was held that, so far as Valliammai was concerned, the second mortgage was invalid, on the ground that Valliammai was a minor and unmarried. The plaintiffs now bring this action against Ponnachchy on the original mortgage.

The District Judge has held that this is a case of novation; that the second mortgage bond was given with the intention of discharging the first bond; but he has decided on equitable grounds and on the authority of Silva v. Silva1 that the plaintiffs are entitled in the circumstances to sue on the first mortgage bond. It has been contended that under the Roman-Dutch law the novation of a contract cannot be established, unless the assent of the creditor to the novation has been expressly declared, and a passage from Van der Linden (269) has been cited in support of this proposition. But the Constitution of Justinian (C. VIII., 41), which insisted upon an express declaration of the creditor's assent, does not appear to have been strictly followed in modern Roman-Dutch law. Grotius (G.

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