Domhorst, for defendant, appellant.
Wendt, for plaintiff, respondent.
Cur. adv. vult.
January is.and 28.
29th January, 1895. Browne, A.J.—
Two questions arise for consideration, whether the- plaintsufficiently discloses a cause of action, and whether'the plaintiff 'can in 1898 maintain this .action on his bond of 1877.
The plaint, as finally amended, averred.the execution and termsof the bond for Rs. 300, payable on demand with 12£ per cent,interest; that by an agreement (it did not say whether notarialor not) made iff 1880 plaintiff entered into and held thereaftertill action possession of the mortgage land with the consent ofthe mortgagor and the defendants, and had cultivated it and taken-the produce in lieu of interest on the said sum; that the mort-gagor died intestate leaving as his heirs-at-law his children, thedefendants, who became entitled to all his property, and that therewas no necessity for administration; and “ that the defendants“ by heirship, possession, and interest represent the estate of the“ said deceased Dingirala.” This last averment was apparentlyintended to satisfy the requirements' of the decision in-d 8. C. C.13, the wording of which it exactly followed.
I agree in the contention for the defence that the plaint didnot sufficiently disclose a cause of action. In the first place, thereis no averment to be found that any sum at all is due for eitherprincipal or interest, and if any, what amount. I do not knowwhether it was intended to aver that the paddy was taken in lieuof all interest due from date of the bond in 1877, or from the date. of the alleged agreement of 1880 only.- And, secondly, I agreewith my brother Withers that it is not sufficient to aver theultimate conclusions of the salient features of establishing suffi-cient representation to small estates which the Court is asked toconclude to be existent, but that these should be averred in detail,of what are the relationship and the interest, and what is thenature’ and value of the property which could be possessed, andwho possessed the same. As to this last, it must be rememberedthat each heir is liable to the extent, and that only, of the value ofassets received by him (6 8. C. C. 14 and 7 8. C. C. 4), and theaction here prayed a personal decree against the defendants aswell as a mortgage decree, each of 'which might, be enforced if themortgage realized, say, only Rs. 100 in execution, and the childrenconjointly, or in separate holdings, possessed other-assets bf thefather of the value of Rs. 500.
(. 8&- )
1895.., On the second point, I hold still further that the plaint isJanuary 25 insufficient-in form as well as that the action fails. To discharge
the onus which section 44, Civil Procedure Code, casts on a plaintiff
Btownb, jq the position of the present respondent, it was needful he shouldaver that the giving and taking of any kind in an exact equivalentfor any coin was done by agreement, and that such agreementwas a valid one, i.e., that the variation in this respect of thenotarial mortgage was itself notarial. By the form of his plaintplaintiff acknowledges it would not suffice he should aver merely- that he had entered into possession and taken the crops and had-credited them, and was willing they should be credited as againstall claim for interest due under the bond. His taking of interestfrom his unwilling debtor would not prove the recognition of thecpntinuing subsistence of the obligation which a voluntary pay-ment evidences with the effect of prolonging the duration of theobligation; and so the plaintiff himself averred agreement and–.consent. .But as soon as the plaint did not specifically aver noreven schedule any notarial agreement of 1880, the requirement ofsection 44 was to my mind not complied with; and even if theplaint were not imperfect thereby, the proof that the necessaryagreement was merely oral- causes the necessary averment to fail.
1 agree that the-action should be dismissed. I am not satisfied,(assuming it be open to me1 to consider it) with the proof ofplaintiff’s possession. I would again point to the omission toschedule in the plaint the tax receipts as section 51 requires. Theywere the most material part of plaintiff’s evidence,. and had’ defendant been thus formally notified that they would be usedagainst him, he might have been prepared to sustain by proof hisaverments that plaintiff at first made the payments as his agent,and then fraudulently possessed himself of the vouchers to usethem. I therefore do not regret that the decision should be the. dismissal of this stale claim.
■ Withebs,. J.—
This is an action, in substance rather than in form, to obtainagainst the heirs-at-law of the estate of a man dying intestate(the estate being a. small one, under the value of Rs. 500) adeclaration that the deceased died indebted to the plaintiff in acertain sum of money, and a decree that certain property, speciallymortgaged by the deceased to secure the debt, be sold in; satisfac-tion of it.
■ It is alleged by the plaintiff that the debtor died intestate aboutseven years ago, leaving him surviving, as his heirs-at-law, hischildren, the defendants, who became, entitled to all his pro-perty, and – that the defendants by heirship, possession, and
I 8« )interest represent the estate oi the deceased debtor. As to the pro-perty specially mortgaged, it is averred in the. plaint that by anagreement -entered into between the plaintiff and the deceaseddebtor in 1880 the plaintiff entered into possession of the mortgagedproperty, and has-been since 1880, and still is, in possession thereof,with the consent of the deceased debtor-and defendants, culti-vating and taking the produce of same in lieu of interest on theprincipal sum which the deceased debtor-obliged himself to payby bond dated the 8th December, 1877.
It was made a point of law in the answer, and pressed upon usin appeal, that the plaint .discloses no cause of action against thedefendant.
In my opinion this is a good defence. Before the heirs-it-lawof a small estate can be sued for a debt against the assets of thatestate, it must be averred and proved that they possessed them-selves of the-estate for the purpose of administration. But suchan averment is incomplete,if so nakedly stated as the present one.The plaintiff must indicate what asset_or assets an heir-at-law haspossessed himself of for the purpose of administration: nonconstat in this case, that the debtor left any property behind himother than the mortgaged property, which the plaintiff says he isiii possession of.
From the staleness of this claim J. should be disposed to inferthat the defendants had no assets of any sort in their hands. Bethat as it may, I think the plaint is so defective as to disclose nocause of action.
7 fc was further contended that the issue raised as to theprescriptidh of the mortgage bond should have been decided infavour of the defendant. The bond is dated 18th December, 1877.The obligor therein binds himself to pay a sum of Rs. 300, ondemand,, with interest thereon till payment in full, at the rate of■!2£ cents per Rs. 10 per month. It is admitted that no part of theprincipal has been paid, in any sense of the word, and that no.part of the interest in money has ever been paid; so then thebond, on the face of it, is prescribed, and no action can be maintained on it under the provisions of section 6 of Ordinance No. 22
of 1871.
Plaintiff, however, pretends to release his bond from theprovisions of that section by virtue of the agreement set up inthe third paragraph of this plaint, which I have already recited.
I conceive it to be good law that the breach of even a notarialcontract for payment of interest in money may be satisfied bydelivery and acceptance of goods, or other consideration equivalentto money in satisfaction of the interest.
January 25and 20.
Withebs, J.
( 90 )
January 2.Withers, J.
I consider that proposition to be good low because ttie effect ofsuoh payment does not contradict or vary the notarial, contract,but satisfies the breach of it. That is not the case here.. It is notalleged or proved that so much of interest due under the bondwas discharged by delivery and acceptance of an equivalent of thesum due.
What is alleged is that three years after the execution of thebond the plaintiff, by agreement with the debtor, entered intopossession of the property, of which he was to take the fruits inlieu of the interest in money payable under the bond.
Now, to my mind such an agreement went to establish aninterest in or encumbrance on land, and was of no force or avail inlaw, inasmuch as it was not notarial. This agreement was nodoubt not used here to enforce such an interest or encumbrance.It was used to prove an agreement to substitute one sort ofpayment for another; but the provision of section 6 of OrdinanceNo. 7 of 1840 prohibits the use, to my mind, of this agreement for •.even a collateral purpose.
The conclusion I come to is that the judgment is wrong, andthat the action should be dismissed with costs.
Lawbee, A.C.J.—
I have the misfortune to dissent from the judgments justdelivered. I agree with the learned District Judge that theplaintiff has proved that in 1877 Dingirala executed the mortgagebond sued on, that about three years afterwards Dingirala beingunable to pay in money the interest stipulated in the'bond, themortgagee entered into possession of the field mortgaged and hadthe use and occupation of it for the next twelve or thirteen years,until shortly before the institution of this action.
Dingirala died some years ago, survived by three children, ofwhom two were minors at the date of action.
The interest stipulated in the bond is 12J per cent, per-annum.It is admitted that that interest in money was never paid. Wasit relevant to aver that although no money payment was madeand received, there was an equivalent in the possession -by thecreditor of the land, and a reception by him of fruits which hewas in equity bound (and which he is willing) to attribute as pay-ment of interest ?
I am of opinion that that averment was relevant, and that, asthe proof has been considered by the District Judge sufficient,there has been payment of interest which satisfies the require-ments of the Ordinance, and takes the bond out of prescription.
( 91 )
I do not lay stress on the- alleged agreement between theplftintiffi and Dingirala that' the former should possess in lieu of.interest. I am of the opinion that such an agreement was (ifmade) of no binding effect, because it was not evidenced by. anotarial deed. I take the case' as one in which the plaintiff hasfailed to prove how he got into possession: it is the fact of hishaving taken the fruits of his debtor’s land which impresses me.He would have been bound to have given credit to his debtor forthese fruits if he had sued for interest, and I am unable to see thathe is not able to plead that possession and reception as a seriesof payments of interest (acquiesced in by his debtor) which preventthe bond from being prescribed. ,
The plaintiff asks for a judgment and decree against thedefendants (the children of the mortgagor) personally and for-a. mortgage decree. The plaint contains no averments on which thedefendants can be made personally liable; this was conceded byMr. Wendt for the plaintiff.
To obtain a mortgage decree the proper course would have been(as the estate is under Es. 1,000) for the learned Judge to haveappointed a representative of the estate under the latter partof section 642; but as the Judge did not consider that to benecessary, this action for a hypothecary decree was, I think,rightly brought against the owners of the land mortgaged. Thedefendants admit that they are the owners,—they succeeded to the-field on their father’s death. In any action by the mortgagee forthe realization of the mortgage these new owners must necessarilybe made parties. They may not have made themselves liable fortheir father’s debt, but their own land could not be sold for thatdebt without making them defendants, and so giving them theoption of redeeming. I am, for that reason, of opinion that thedecree should be re-formed and be limited to a hypothecary decree,and that so much of it as makes the defendants liable personallyshould be deleted.
I would make the defendants to pay so much of the costs of the’plaintiff as were caused by their unsuccessful and, I think,unwarranted defence that their father did not make the mortgagebond. I would give no costs in appeal because success has here,been divided.
January 2-LaWBUS,.