Dharmawardene V. Abeywardene

1939     Present: Keuneman and Wijeyewardene JJ.

DHARMAWARDENE v. ABEYWARDENE.

294-D. C. Galle, 36,942. 

Prescription-Mortgage bond-Part payment-Acknowledgment of debt and promise to pay balance-Circumstances attending payment-Promise rebutted.

A part payment of a debt in order to prevent prescription from running against the debt must be made in circumstances which indicate an acknowledgment of the debt and a promise to pay the balance.

The implied promise may be rebutted by special circumstances attend­ing the payment.

Arunasalam v. Ramasamy (17 N. L. R. 156) followed. 

APPEAL from a judgment of the District Judge of Galle.

E. B. Wickremanayake (with him Stanley de Zoysa,) for defendant, appellant.

U. A. Jayasundere (with him Chandrasena), for plaintiff, respondent. 

Cur. adv. vult 

March 31, 1939. KEUNEMAN J.-

The plaintiff brought action against the defendant on mortgage bond No. 2,118, dated November 6, 1925. The defendant had earlier been appointed as legal representative of the estate of Don Noris Appu for the purposes of this action. The action was filed on October 2, 1938. To take his case out of prescription, the plaintiff averred that a sum of Rs. 150 out of the principal, and all interest due up to November 22, 1935, had been paid, and stated that a balance sum of Rs. 325 was due on the bond.

The defendant pleaded (1) that the claim was prescribed, and (2) that the full amount due to the plaintiff was paid.

The issues framed at the trial were: -

(1) Is the bond prescribed ?

(2) Has the amount due on the bond been settled by payment ?

In proof of the fact that part payment had been made to him, the plaintiff produced document P 1, signed by the defendant, which runs as follows : -

(Translation).

"A part of the principal due on mortgage bond No. 2,118, attested by H. L. M. Senaratna, Notary Public, from my father, M. W. Noris Dharmawardene to Don Louis Abeyawardene of Haburugala was paid by me and the balance Rs. 325 is due which I agree to pay in instalments and thus promising sign this on a six cents stamp and got the complete discharge of the said bond ".

(Sgd. in English)
 22.11.35".

The plaintiff also produced letter P 2, signed by the defendant, which runs as follows : -

 

" Maramba, 22nd November, 1935.

Respectfully submitted,

That writing is herewith sent. If the same is not satisfactory when I come on the first I respectfully submit that a writing in any  manner you want could be given.

Yours obediently,
(Sgd. in English) ". 

After hearing the evidence for the plaintiff and the defendant, the learned District Judge delivered judgment holding that the defendant made certain payments and gave writing P 1 on November 22, 1935, that the defendant was one of several heirs of Don Noris Appu, and had no authority to represent the estate of Don Noris Appu. The plaintiff's action against the defendant as representative of Don Noris Appu was dismissed.

The District Judge, however, went fur

Click Here to Read the rest of this document