Baby Nona v. Carolis Appuhamy.
1936Present: Abrahams CJ. and Fernando AJ.
BABY NONA v. CAROLIS APPUHAMY.
81—D. C. Colombo, 2,222.
Evidence—Action on mortgage bond—Endorsement on mortgage bond by deceasedmortgagee regarding payment of interest—Interruption of limitation—Entry not against interest and inadmissible—Ordinance No. 14 of 1895,s. 32 (3).
Where an undated endorsement, made by a deceased mortgagee on amortgage bond which was prescribed, in the following terms : —“ Paidone year’s interest, Rs. 40 ; afterwards received three years’ interest ”was relied upon to prevent the debt being barred,-—
Held, that the entry was inadmirsible as the endorsement cannot besaid to be against the interest of the deceased within the meaning ofsection 32 (3) of the Evidence Ordinance, in the absence of evidencedehors the instrument that the endorsement was made before the debtwas prescribed.
Semble, evidence dehors the instrument must mean evidence tosupport the inferences which can be drawn from the instrument itself.
HIS was an action instituted by the plaintiff as administratrix of theestate of her deceased husband for the recovery of a sum of Rs. 500
due upon a mortgage bond executed by the defendant on September 26,1923, in favour of the deceased. It was alleged in the plaint that a sumof Rs. 190 had been paid by the defendant on account of interest on thebond. The defendant denied any payment of interest and claimedthat the bond was prescribed. In proof of payment of interest an endorse-ment on the mortgage bond in pencil in the handwriting of the deceasedwas put in evidence. The learned District Judge held that no interestwas paid and that the action was prescribed.
ABRAHAMS C.J.—Baby Nona t>. Carolis Appuhamy.
H. V. Perera, for plaintiff, appellant.—The endorsement on the backof the mortgage bond is in the handwriting of the deceased. It isadmissible in evidence as the entry is against the pecuniary interest of theperson who made it. (Section 32 (3) Evidence Ordinance.) Further, noevidence was given by the defendant denying payment of the sums men-tioned in the endorsement. In these circumstances, the learned DistrictJudge ought to have held that the evidence of the chauffeur was verifiedby the pencilled endorsement, and that, in view of the fact that paymentwas made within the period of limitation, the learned Judge should haveheld that the bond was not prescribed. It can be inferred in all reason-able probability that the endorsement was made before the debt wasbarred by lapse of time, because in the first place the deceased was notlikely to have created evidence to support a claim which was to bemade after his death, and secondly, if he did make it in anticipation ofante-mortem proceedings he would have been hardly likely to haveomitted so important a circumstance as the date. Further it does notreally matter whether the endorsement was made before or after theperiod of limitation had expired, since a debt is never extinguished whileit is unpaid, but merely barred and that since a statute-barred debtcan be revived by acknowledgment that the money is due, the endorse-ment will preclude the creditor from taking action in respect of theamount mentioned in the endorsement and therefore to that extentthe entry was against the interest of the deceased.
N. Nadarajah (with him J. L. M. Fernando), for defendant, respondent.—The endorsement on the back of the bond is not admissible in evidencefor the reason that there is nothing to show at what time it was made.If it is to be admitted as being against the pecuniary interest of theperson making it, it must be shown by the party seeking to admit theevidence that it was against such pecuniary interest at the time of makingthe endorsement. To do this it will be necessary to lead evidence andprove the exact time the endorsement was made. Where there is noevidence as to the exact date of the making of the endorsement the evidenceof such endorsement cannot be admitted. Further, no evidence has beenled to show that the deceased made the endorsement except the opinionof a witness that the handwriting was that of the deceased. (Ameer Ali,p. 316.)
The claim is prescribed on the face of the plaint. The mere plea ofpayment will not entitle the Court to put the burden on the defence.The plaintiff must prove the payment to take the claim out of prescription.(Soysa v. Soysa*, Appuhami v. Perera*.)
September 1, 1936. Abrahams C.J.—
The plaintiff-appellant was the administratrix of the estate of herhusband who died in 1934, and in that capacity she sued the defendant-respondent for the recovery of a sum of Rs. 500, being principal Rs. 250and interest Rs. 250, due upon a mortgage bond executed on September
* 11 N. L. R. 118.
* 5 S.C. C. 32.
ABHAHAMS C.J.—Baby Nona v. Carolis Appnhamy.81
26, 1923, by the respondent in favour of the deceased. It was stated inthe plaint that the defendant had paid a sum of Rs. 190 on account ofinterest due on the said bond. The answer of the defendant was interalia a denial that he had paid Rs. 190 on account of interest; that aboutAugust, 1930, he actually settled the claim by payment of Rs. 450; andthat, finally, the plaintiff’s claim, if any, on the bond was prescribed.
At the trial the issues were as follows : —
Did the defendant pay a sum of Rs. 190 on account of interest
on or about August, 1930 ?
Did the defendant pay and discharge the mortgage bond ?
Is the mortgage bond sued upon prescribed ?
The learned District Judge held that as on the face of the plaint thebond was prescribed, the onus was on the plaintiff to prove the contrary.To discharge this onus, one Jayasundera, who was called, stated that inAugust, 1930, he was chauffeur of the deceased. The mortgage bond wasshown to him, and he purported to recognize as the handwriting of hislate master this endorsement in pencil, “ Paid one year’s interest Rs. 40,afterwards received three years’ interest ”, and he said that, by thedirection of his master, in August, 1930, he added these words in ink,
After that received Rs. 30 in lieu of interest ”. He said that on theday that he wrote these words the defendant came and paid the deceasedRs. 30, and that the pencil endorsement was already on the mortgagebond. The learned District Judge rejected this evidence on groundswhich do not appear to me to be unreasonable, and he came to theconclusion that the Rs. 190 had not been paid and that the bond wasprescribed. He made no reference whatsoever in his judgment to thepencil endorsement.
The appellant now contends that this endorsement, being in thehandwriting of the deceased, was admissible in evidence as being againstthe pecuniary interest of the person making it (section 32 (3) of theEvidence Ordinance), and that as no evidence was given by the defendantin denial of the payment of those sums mentioned in the endorsement,the learned District Judge ought to have held that the evidence of thechauffeur was verified by the pencilled endorsement, and that, therefore,payment having been made within the limitation period, the bond shouldhave been held not to have been prescribed.
The question therefore is, is the pencilled endorsement a statementagainst the pecuniary interest of the person making it ? It is objected onbehalf of the respondent that there is nothing to show, on the face of it,when this writing was actually put upon the bond. It might have beenbefore the period of limitation had expired or it might have been after, inwhich latter event it clearly could not have been against the interest ofthe deceased person to have written the endorsement. It was arguedfor the appellant that it can be inferred in all reasonable probability thatit was written before the debt was barred by lapse of time, because, inthe first-place, the deceased was hardly likely to have created evidence tosupport a claim which was to be made after his death, and secondly, if he
82ABRAHAMS C.J.—Baby Nona v. Carolis Appuhamy.
did make it in anticipation of ante-mortem proceedings, he would havebeen hardly likely to have omitted so important a circumstance as thedate. I think the answer to that is that the date must appear on the faceof the instrument. It is quite impossible to say what was in the deceasedperson’s mind when he omitted to insert it. The fact of the date oughtto be proved by the instrument itself and not by an uncertaininference.
It is then said that it does not matter whether the endorsement wasmade either before or after the period of limitation had expired, since adebt is never extinguished while it is unpaid but merely barred, and thatsince the remedy in respect of the debt which has become statute barredcan be revived by an acknowledgment that the money is due, theendorsement would preclude the creditor from taking action in respect ofthe amount mentioned in the endorsement and therefore to that extentthe entry was against his interest. This argument is more attractivethan effective, for an entry against interest, means an entry againstinterest at the time it was made. It cannot be said that if a debt wasstatute barred it was against the interest of the creditor to make it,because at some subsequent date a contingency which might never arisewould make the entry against his interest. In fact the entry is primdfacie in his interest, not against it. So much for the logic of the argument.As regards the law, the following extract from Woodroffe and Ameer Ali’sLaw of Evidence (1921 ed.), p. 316, on the interpretation of theenactment in question, makes the matter perfectly clear. It rims asfollows: —
A class of statements which may be admissible under this Clause areendorsements or entries in respect of the payment of interest due onbonds and similar instruments. Such endorsements or entries, if madebefore the claim became barred by the law of Limitation, would beagainst the interest of the payee, inasmuch as they are admissions ofpayment; but if they are made after the claim became so barred theywould be for and not against the creditors’ interest, inasmuch as bythe admission of a small payment he would be enabled to recover thelarger remaining portion of the debt, such payment having the effect ofpreventing the claim to the capital sum from being barred. Whetherthen the endorsement or entry is admissible, as an entry againstinterest, depends upon the question whether it was bona fide madebefore the claim became barred by Limitation, and it ought not to beadmitted until it be shown by evidence dehors the instrument that itwas made at a time when it was against the interest of the creditor tomake it.
This extract repeats in condensed form the views expressed in Taylor onEvidence, section 696.
I do not think it was argued that the date of the endorsement can beproved by evidence outside the instrument itself, in this case by that ofthe chauffeur. I think if it had been so obvious, the answer is that beforeany outside evidence can be admitted it must be apparent on the face ofthe entry itself that it was made on the date contended for. I think the
AKBAR SJPJ".—Siripina v. Somasunderam Chettiar.
rule relating to evidence dehors the instrument must mean evidence tosupport the inferences which can be drawn from the instrument itself.But in any event the learned District Judge refused to treat the chauffeuras a credible witness.
I would dismiss the appeal with costs in both Courts.
Fernando A.J.—I agree.
BABY NONA v. CAROLIS APPUHAMY