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

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