Dliarmawardene v. Abeywardene.
Present: Keuneman and Wijeyewardene JJ.DHARMAWARDENE v. ABEYWARDENE.
294—D. C. Galle, 36,942.
Prescription—Mortgage bond—Part payment—Acknowledgment of debt andpromise to pay balance—Circumstances attending payment—Promiserebutted.
A part payment of a debt in order to prevent prescription from runningagainst the debt must be made in circumstances which indicate anacknowledgment of the debt and a promise to pay the balance.
The implied promise may be rebutted by special circumstances attend-ing the payment.
Arunasalam v. Ramasamy (17 N. L. R. 156) followed.
> (U90) 13 A.r. 223.
KEUNEMAN J.—Dharmawardene v. Abeywardene.
^ PPEAL from a judgment of the District Judge'of Galle.
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 bondNo. 2,118, dated November 6, 1925. The defendant had earlier beenappointed as legal representative of the estate of Don Noris Appu for thepurposes of this action. The action was filed on October 2, 1938. Totake his case out of prescription, the plaintiff averred that a sum ofRs. 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 thebond.
The defendant pleaded (1) that the claim was prescribed, and (2) thatthe full amount due to the plaintiff was paid.
The issues framed at the trial were: —
Is the bond prescribed ?
Has the amount due on the bond been settled by payment ?
In proof of the fact that part payment had been made to him, theplaintiff produced document P 1, signed by the defendant, which runs asfollows : —
“A part of the principal due on mortgage bond No. 2,118, attestedby H. L. M. Senaratna, Notary Public, from my father, M. W. NorisDharmawardene to Don Louis Abeyawardene of Haburugala was paidby me and the balance Rs. 325 is due which I agree to pay in instalmentsand thus promising sign this on a six cents stamp and got the completedischarge of the said bond ”.
(Sgd. in English)22.11.35 ”.
The plaintiff also produced letter P 2, signed by the defendant, whichruns as follows : —
“ Maramba, 22nd November, 1935.
That writing is herewith sent. If the same is not satisfactory whenI come on the first I respectfully submit that a writing in any manneryou want could be given.i
(Sgd. in English) ”.
KEUNEMAN J.—Dharmawardene v. Abeywardene.
After hearing the evidence for the plaintiff and the defendant, thelearned District Judge delivered judgment holding that the defendantmade certain payments and gave writing P 1 on November 22, 1935, thatthe defendant was one of several heirs of Don Noris Appu, and had'noauthority to represent the estate of Don Noris Appu. The plaintiff’saction against the defendant as representative of Don Noris Appu wasdismissed.
The District Judge, however, went further and held that so far as thedefendant himself was concerned, the writing and the payments made byhim operated to take the case out of prescription. He thought itunnecessary to refer the plaintiff to a separate action against the defendantpersonally, and entered mortgage decree for the plaintiff against thedefendant in his personal capacity for Rs. 325 and interest from November22, 1935, less Rs. 50 paid on November 7, 1936. The mortgage decreewas to bind the share of the property in question inherited by thedefendant from Noris.
Against this judgment the defendant appeals, and the plaintiff has alsogiven notice of objections under section 772 of the Civil Procedure Code.
As regards the defendant’s appeal it is contended that the learnedDistrict Judge was not justified in converting this action from one againstthe defendant as legal representative of Don Noris Appu into one againstthe defendant personally. On the issues before the Court, the liabilityof Don Noris Appu’s estate was alone in question, and the defendant hadnot been sued as an heir of Don Noris Appu. Had he been sued personallyother defences were open to him, which were not raised or decided at thetrial. The respondent’s Counsel found difficulty in supporting the findingof the District Judge, and I am of opinion that the order made by thelearned District Judge must be set aside.
Counsel for the respondent, however argued that the dismissal of theaction against the defendant in his representative capacity was wrong.He contended that a payment made by one out of several heirs of adeceased mortgagor prevented prescription from running against theestate of the deceased. He depended on section 13 of Ordinance No. 22of 1871, and especially on the words : —
“ Where there shall be two or more joint contractors, or heirs,executors, or administrators of any contractor, no such joint contractor,or heir, executor, or administrator shall lose the benefit of the saidenactments, or any of them, by reason of any written acknowledgmentor promise made by any other or others of them. Provided alwaysthat nothing herein contained shall alter or take away, or lessen theeffect of any payment of any principal or interest made by any personwhatsoever.”
Counsel for the respondent argued that the effect of a payment ofprincipal or interest was different from the effect of a written acknowledg-ment, and while in the latter case the acknowledgment was only operativeagainst the person who gave it, in the latter case the payment ensured tothe benefit of all the parties liable, and therefore prevented prescriptionfrom running against all the parties concerned.
KEUNEMAN J.—Dharmawardene v. Abeywardene.
It has undoubtedly been held by our Courts that h part payment of thedebt sued for prevents the statutory bar from attaching (cf. SathappaChetty v. Ramen Chetty ’). In this case it was held that the effect of theearlier Ordinance of 1834 was “ to place part payment of the debt sued foron the footing of an act from which the Court might and should infer that thedebt had not been satisfied, and an act taking the debt out of the limitingoperation of the Ordinance It was further held that the effect ofOrdinance No. 22 of 1871 was to “save in favour of part payments theireffect alike under the Ordinance of 1834, and under the Statute of James I.before the decision in Tanner v. Smart and Lord Tenterden’s ActFurther, it was laid down that it was the duty of “ the plaintiff who relieson payment as having the effect of preventing the statutory bar, to showthat it was made on account of the debt sued for and as a part-payment
Similarly, in Arunasalem v. Ramasamys, it was held that a paymenton account is necessarily an acknowledgment of the debt and implies apromise to pay the balance. This, however, may be affected by qualifyingcircumstances. “ The implication of a promise may be rebutted by anyspecial circumstances attending the payment, as where the payment isnot on account but purports to be in satisfaction of the entire demand, orwhere the debtor says he will not pay the balance, or where the payment iscompulsory under some legal proceeding” (per de Sampayo J.).
Now, it is necessary to consider the circumstances of this case and tosee whether the payment can be regarded as establishing a promise to paythe debt. We have to consider the effect of document P 1. The docu-ment is in Sinhalese, and a translation has been put in. The first part ofthe document contains a statement that a part of the principal due on themortgage bond No. 2,118 was paid, and that Rs. 325 is due. Thenfollows an agreement to pay this sum in instalments, and there follow thewords “ and thus promising sign this on a six cents stamp and got thecomplete discharge of the said bond ”.
The plaintiff in his evidence contended that the Sinhalese word“ ganimi ” and not “ gathimi ” was used, thus putting the discharge ofthe mortgage bond into the future and not into the past. It is clear,however, and it is admitted by Counsel that the actual word is “ gathimiIn any case the matter we are now investigating is not what the plaintiffunderstood of the circumstances, but the actual circumstances attendingthe payment by the defendant. It is true that in P 2 the defendantoffered to give a different writing, if the plaintiff was not satisfied with P 1.But no action whatever was taken by the plaintiff to obtain any otherform of document. From P 1 it appears that the defendant when hemade the part payment regarded the mortgage bond as extinguished.It is true that he promised to pay the balance sum of Rs. 325, but thiscannot be regarded as an acknowledgment of the existence of the bond,or of the liability of the defendant thereunder. The promise to payRs. 325 may amount to a novation of the contract, as a simple contract,and it may support an action against the defendant for that sum. f do1 S S. C. C. f.2.' X~ L- R- 1S6.
WIJEYEWARDENE J.— Selamma Achie v. Palavasom.
not think, however, I can regard P 1 or the payment made as anacknowledgment which keeps the mortgage bond alive.
I think this is a sufficient ground for the decision of this appeal. Asregards the further point whether a part payment by one heir of a deceasedcontractor can prevent prescription running against the estate of thedeceased contractor, no definite authority has been cited to us, and thematter is one of difficulty. Lightwood on Limitations (1909 ed., p. 360)sums up the law as follows: —“ It appears then that under each of thestatutes the payment may be made by any person who is liable, orinterested, or entitled to pay, or who is in such a relation to the debtorthat a payment by him operates as an admission by the debtor ”,Whether this correctly sets out the law applicable in Ceylon, and if so,whether the defendant falls within these terms must be left for determina-tion in a case where that point arises for express decision. In this caseany expression of opinion would be merely an obiter dictum.
The appeal is allowed with costs, and the plaintiff’s action is dismissedwith costs.
W ijeye w ah dene J.—I agree.
DHARMAWARDENE v. ABEYWARDENE