071-NLR-NLR-V-12-SUTHUKKUMMAH-v.-VACHCHIRAVAGEE-et-al.pdf
.( 280 )
Present: Mr. Justice Middleton.SUTHT7KKUMMAH v. VACHCHIRAVAGEE et al.
1909.
August 23.
C. R., BaUicaha. 5,904.
Prescription—Death of payee—Non-interruption—Grant of administra-tion—“ Bond ”—Prescription Ordinance (Ordinance No. 22 of1871), as. 6 and 7.
Where prescription has once begun to run against the payee onany instrument, it is not interrupted by the subsequent death ofthe payee, and the period between the death of the payee and thegrant of administration should not be deducted.
Kulendoeveloe v. Kandeperumal1 distinguished.
Where an instrument was duly stamped as a bond, but was notnotarially attested,—
Held, that such instrument was not a “bond” within themeaning of section 6 of Ordinance No. 22 of 1871.
A PPEAL by the defendant from a judgment of the Commissionerof Requests (6. W. Woodhouse, Esq.). .
The facts sufficiently appear in the judgment.
Sansoni (E. H. Prims with him), for the defendants, appellants.
Sampayo, K.C.. for the plaintiff, respondent.August 23, 1909. Middleton J.—
Cur. adv. wit.
This was an action on a document obligatory marked A anddated July 26, 1901, for Rs. 100, by the endorsee from the deceasedpayee’s administrator against the makers. The defence was pre-scription by a six- years’ limit under section 7 of Ordinance No. 3of 1871.
The Commissioner of Requests, on the admission of both partiesthat the document came within the terms of section 7 of OrdinanceNo. 21 of 1871, held that it was not prescribed, as he agreed withcounsel for the plaintiff that the period between the death of thepayee and the grant of letters of administration should be deducted,and on the authority of 9 N. L. R. 350, which he critically concededto be sound law, gave judgment for the plaintiff. It was contendedby counsel for the appellants that this decision was wrong, and itwas admitted to be so by the learned counsel for the respondent.
The Commissioner of Requests seems to have overlooked thefact that the prescription had begun to run before-the death of thepayee himself, and could not be interrupted by the payee’s death orthe non-appointment of an administrator to his estate. In the case
VOL.XII.
10
L
* (1905) 9 N. L. B. 350.
( 290 )
1909. relied on the cause of action arose after the death of the intestate.August 2$. it was contended, however, before me for the respondent thatMiddleton document in question did not come under section 7, but underJ- section 6 of the Ordinance, as a bond conditioned for the paymentof money, and would have a ten years’ limit. Counsel for theappellant referred me to Tiasera v. Tisaera,1 and counsel for therespondent to a case in Wendt's Reports, p. 297, and the StampOrdinance, No. 3 of 1890.
The document apparently is stamped as a bond not over Rs. 100with a twenty-five cent stamp, but it is not notarially executed.The amount mentioned in it was assigned by deed dated November6, 1908, notarially executed apparently as appearing from theendorsement.
I have looked unto the case of Suppramaniapillai v. KaUkutty,swhere I followed the case of Tiasera v. Tiasera,x and referred to thecase in Wendt's Reports as supporting my view there, that thedocument in question which was notarially executed was a bondwithin the meaning of section 6. The present document, in myopinion, does not fall within the category of a bond conditionedfor the payment of money, though it may have been stamped assuch as a matter of precaution.
In my view the document is a written agreement not fallingwithin the description of instruments set forth in section 6, and issubject to the terms of section 7 prescribable after the expirationof six years from the date of the breach of its terms, which wouldbe on Ootober 26, 1907.
In my opinion, therefore, the judgment of the Commissioner ofRequests must be set aside, and the action dismissed with costs inboth Courts.
Appeal allowed.
* (1896) 2 N. L. R. 23S.* (1908) 11 N. L. R. 71.