NEW LAW REPORTS OF CEYLONVOLUME XIV.
Present: Hutchinson CJ. and Wood Renton J.
BACHO APPU v. RAMBLAN.
249, D. C., Baclulla, 2,399
Prescription —Part payment by widow after husband’s death does not
keep husband’s debt alive.
A, who had dealings with the plaintiff till December 14. 1908,died in January, 1909. On January 21, 1909, one R, who claimedto be A’s widow, paid plaintiff Rs. 118 on account of A’s debt.
Plaintiff instituted this action on January 12, 1910, againstthe administrator of A’s estate for the value of goods sold anddelivered ; the defendant pleaded prescription.
Held, that whether R was a mistress or lawful wife of A, shehod no power to bind the estate by any acknowledgment of thedebt or by any promise to pay it.
Part payment by a stranger does not have the effect of anacknowledgment of the balance of the debt and a promise topay if.
''jpHE facts are set out in the judgment of the Chief Justice.
Bartholomew, for the defendant, appellant.—Part paymentupon a simple contract debt saves the debt only when it is suchthat a promise to pay the debt can be implied. (Lightwood onthe Time Limit of Actions, p. 335.) This principle has beenfollowed by the Supreme Court in Murugupillai v. Muttalingam.1 Inthe present case the action is brought against the administratorof the deceased debtor. The plaintiff seeks to stop the statuteby proving a payment by the wife of the deceased debtor madeafter the latter's death. A promise to pay by the estate, cannot
1 (1X94) 3 C. L. H. 92.
(I.T. X. A 93348 (ll/icn
( 2 )
Aow‘_f'1910 ke implied from such a payment, ft is only a duly appointed legalBacho Ap/m representative who could bind the estate of the deceased. (2 Bv. Jtmuhian a/t(f c 23 ; I Barnewall and Adolphus 396 ; 17 Equity Cases 71.)
If payment by an heir could stop the statute as against the estateof an intestate, the position of administrators would be mostdifficult. An administrator after the lapse of many years maybe called upon to pay debts which he was perfectly justified inconsidering as prescribed.
H. A. Jayewardene (with him J. W. de Silva), for the respondent.—The wife in this case is in the position of a Muhammadan widow.The Supreme Court has held that a Muhammadan widow, who hasnot taken out'administration, can alienate lands in order to payoff a debt due by her husband. (Ibrahim Sayibu v. Mohamadu}See also Wijewardane v. Aponso?) These decisions clearly con-template the right of the widow to make payments on account ofa debt due by the husband.
Cur. adv. vult,
November 2,1910. Hutchinson C.J.—
The plaintiff sues for a debt of Rs. 669*25 due to him from thelate Abubakkar for goods sold and delivered. The defendant issued as the administrator of Abubakkar’s estate. He disputed theamount of the debt, and also pleaded that it was prescribed ; butthe only question argued before us is that of prescription.
The plaintiff says that the last day that he had dealings withAbubakkar was on December 14, 1908. This action was broughton January 12, 1910. He says, however, that when he heard ofAbubakkar’s death, which took place in January, 1909, he wentto his house, and that Abubakkar’s wife paid him Rs. 118 on accountof the debt, which then stood at Rs. 787*25. Rasammah, who saysthat she was Abubakkar’s lawful wife, confirms this, and says thatshe paid the plaintiff Rs. 118 two or three days after her husband'sdeath in reduction of the debt. She admits that the defendantdisputed the validity of her marriage, and that she knew when shepaid the Rs. 118 that the defendant was proposing to take outadministration to her husband’s estate, and she says that she con-sented to his doing so. She did not produce any marriagecertificate. The defendant obtained a grant of administration onAugust 26, 1909 ; he says that his daughter, now dead, had beenAbubakkar’s wife, and that Rasammah was his mistress.
The District Judge, without expressing any opinion as to whetherRasammah was the lawful wife of Abubakkar, held that the paymentof Rs. 118 by her, which he says was made on January 20. 1909,
1 (IMS) 3 A’. L. R. JJ6t
4 (1903) 7 N. L. n. m.
( 3 )
and so within a year before the commencement of this actionprevented the debt being barred. Me referred to the proviso insection 13 of Ordinance No. 22 of 1871 that “nothing hereincontained shall alter or take away or lessen the effect of anypayment of any principal or interest by any person whatsoever,” andsays, “ therefore, whether the payment was made by the womanirregularly or not, whether as legal heir or not, is of no effect tolessen the effect of the acknowledgment of the continuingcontract.” The effect of part payment by the debtor is that itimp'ies the acknowledgment of the existence of the balance of thedebt, and therefore a promise to pay it. But a stranger cannotbind the debtor by such an acknowledgment or promise, andtherefore part payment by a stranger has no such effect. TheCourt would hardly have been able to find on the evidence thatRnsammah was the lawful wife of Abubakkar. But even if shewere, she would have had no power to bind the estate by anyacknowledgment of the debt or any promise to pay it. I think theappeal should be allowed, and the action dismissed with costs inboth Courts.
Wood Renton J.—I agree.
Nov. 2, mo.
Bacho Appuv. Rnmblan
BACHO APPU v. RAMBLAN