Bagga Singh vs Lal Chand

Chopra, J.—This is a second appeal by the plaintiffs whose suit for redemption of a mortgage has been dismissed by the Courts below on the point of limitation. In the plaint it was alleged that the ancestors of the appellant had mortgaged 60 bighas of land with the ancestors of the respondent for Rs. 3,500/- and that in the year 1960 during the last Settlement the parties entered into an agreement that the money secured on 50 bighas 19 his was out of that land would be Rs. 300/-. This was alleged to be fresh mortgage which the plaintiffs sought to redeem. The defendants joined issue on the point of limitation alleging that the land was mortgaged with them since 1930 and that the suit brought after more than 70 years was hopelessly barred by time. When the issues were struck the plaintiffs appear to have changed their position and to have relied upon the agreement of 1960 as an acknowledgment of the existence of the previous mortgage, which gave them a fresh start of limitation. A specific issue on the point calling upon them to prove a valid and binding acknowledgment was, therefore, framed. Both the Courts below have found that the acknowledgment was not on behalf of all the mortgagees and that it did not, therefore, bind any of them and give a fresh start of limitation. The suit and the appeal were consequently, dismissed and this is plaintiff''s second appeal.

The facts that have been found to be proved and are not disputed are these: In 1934 Gopi Sardara and Bhagta mortgaged with possession 60 bighas of land with the ancestors of the defendants for Rs. 3,500/-. A document evidencing it was executed in the account book of the mortgagees on Magh Badi 8, 1934. The land was described as the one or the thoroughfare leading to village Todarpur. Originally the land was mortgaged for Rs. 3,100/- in the year 1930 and on a further advance of Rs. 400/- the amount increased to Rs. 3,500/- in 1934. No writing to prove the prior mortgage of 1930 has been produced but the fact is not denied by the defendants. During the settlement in the year 1960 mutation No. 16 was entered and an enquiry regarding the mortgage was made by the revenue authorities. As a result of the persons interested in the entry, the mutation was sanctioned and 51 bighas and 19 his was of land was entered as mortgaged with the defendants for Rs. 3,000/-. Hira, Ram Partap, and Bhagta sons of Gopi were shown as owners and motgagors of the land, while the mortgagees were Devi Dayal, Lal Chand and Dwarka Das sons of Kharita Ram in one half and Mt. Thakro, Gulab and Gaindi in the other half. The present suit for redemption was brought on 20-5-2001 by Bhagta and Malkiat Singh son of Ram Partap Hira and Buja the other mortgagors had died issueless.

The contention of Shri Dalip Chand, the learned counsel for the appellant, is that the parties entered into a new agreement in the year 1960 and a fresh mortgage was created by one of the plaintiffs himself and the father of the other. His argument is that while previously 60 bighas of land was mortgaged for Rs. 3,500/- there was a change in the area and the amount in 1960 and 51 bighas and 19 his was of land was mortgaged for Rs. 3,000/. The suit, according to him, being one for redemption of this new mortgage was within time. This position, though taken by the appellant in the plaint, was subsequently given up when the issues were struck and, as is clear from the judgments of the Courts below, it was not reverted to during the trial of the suit or in first appeal. The point stressed there was that the existence of the mortgage of 1934 was acknowledged by the mortgagees in 1960 when mutation No. 16 was sanctioned and that it gave another start of limitation. The mutation was not relied upon as a new mortgage or contract between the parties. We, however, allowed the appellant''s counsel to address us on the point and to satisfy us that the mutation created a new mortgage and gave a fresh cause of action. In that he has obviously failed. What actually happened in 1960 was that the Settlement Officers, who were to take measurements of all the agricultural land and prepare records rebating thereto for the first time, entered mutation No. 16 with respect to the land in suit and made enquiries from the interested persons for the purpose. The mutation, as it is clear from its column No. 13, was entered and sanctioned on the basis of the mortgage of 1934. The mortgagors in their statements recorded by the Tahsildar admitted that the land was mortgaged by their ancestors 50 years ago, but they expressed their ignorance as regards the amount for which it was mortgaged. Statements of Devi Dayal and Dwarka Das, two of the motgagees, were also recorded in which they averred that the land was in their possession as mortgagees since 1930 and that the amount secured was Rs. 3,500/-. The deed of 1934 was produced and its only marginal witness, then alive, was also examined. The land mortgaged was found to measure 51 bighas and 19 his was, and the two mortgagees expressed their willingness to reduce the mortgage money by Rs. 500/-. As result of the enquiries the mutation was sanctioned and the land was entered as mortgaged with Devi Dayal and others for Rs. 3,000/-. There is no evidence that the parties had entered into a new contract. The amount differed because two of the mortgagees accepted to take Rs. 500/- less, and the difference in the area was due to the actual measurement carried out during the settlement, in view of these facts it cannot be said that any new mortgage came into existence in the year 1960. The contention must, therefore, be repelled.

It is next urged that the statements of the two mortgagees recorded in 1960 amounted to acknowledgment u/s 19 of the Limitation Act and they gave a fresh start of limitation. The difficulty in the way of the appellant, however, is that the acknowledgment was not made by all the mortgagees. The mortgagees, other than the two who had acknowledged, were not bound by the acknowledgment and as provided by Section 21 (2) of the Act, it could not be used against them. To get over this difficulty Shri Dalip Chand argues that Devi Dayal and Dwarka Das should be presumed to have an implied authority on behalf of others to acknowledge the mortgage and that they should be taken to have acted as their agents. The contention is devoid of all force. There is not an iota of evidence to show that they acted as the agents of the other mortgagees or that they were authorized to make the acknowledgment on their behalf. No inference to that effect can be drawn from any of the facts brought on the record or the circumstances of the case. Two of the plaintiffs'' own witnesses and all those examined by the defendants, deposed that the mortgagees had since long separated and were living separately. It cannot, therefore, even be said that either of the two mortgagees was a Karta of the family or that he acted as an agent or on an implied authority from others. The acknowledgment under the circumstances cannot give a fresh start of limitation in a suit for redemption against those who did not join it.

The next question is whether the acknowledgment binds the makers thereof and can the appellants get their share in the property redeemed. My answer to this also must be in the negative. There was one single mortgage and the fact that each branch of the family of the mortgagees was recorded as having a definite share would not entitle the plaintiffs to sue each branch, or each mortgagee, separately for redemption. The integrity of the mortgage was not split up by any act of the mortgagees and the mortgage was still joint and indivisible. The plaintiff, therefore, were not entitled to get a part of the mortgage redeemed. In ''Nadar Shah v. Ishar Das'', 67 Ind Cas 463, Martineau, J., on almost similar facts, observed that an acknowledgment of the right of redemption, in order to save limitation should be made by all the mortgagees and if it is not signed by all mortgagees, it does not hold good even with regard to the shares of those who signed it. Following this decision Jai Lal J. In AIR 1934 293 (Lahore) held as follows:

An acknowledgment of liability to be redeemed made by one of several joint mortgagees is not sufficient to keep the right to redeem alive either as against the mortgagee who signed the acknowledgment or as against the rest.

The facts of Motilal Jadav Vs. Samal Bechar, the only case referred to and relied upon by Shri Dalip Chand, were distinguishable. In that case on a partition in the family of the mortgagees 3 acres and 20 gunthas of the land was allotted to the branch of the family of defendant No. 1 and the remainder to the other branch of the family. The father of defendant No. 1 sub-mortgaged the land that had fallen to his share, to the plaintiff''s father by a deed which acknowledged the existence of the original mortgage. The plaintiff''s father subsequently acquired that right of redemption of the property comprised in the mortgage, and the plaintiff instituted a suit for redemption for the whole of the property. In the alternative he prayed for redemption of 3 acres and 20 gunthas on payment of the whole consideration. To save the bar of limitation, the plaintiff relied upon the acknowledgment made by the father of defendant No. 1. The Full Bench before whom the case was finally placed, arrived at the conclusion that although the acknowledgment was not in respect of the entire property yet because there had been separation of the mortgagee''s family and defendant No. 1''s property this was sufficient to save the bar of limitation in respect of that share. This case must be taken to have been decided on its particular facts. In the present case the family of the mortgagees no doubt had separated, but there was no evidence that the mortgagee rights in question had also been partitioned. Devi Dayal and Dwarka Das have not been shown to be in possession of any land separately from their brother Lal Chand or the other mortgagees. The revenue records, on the other hand, clearly show that all the mortgagees are still jointly possessing the whole of the land. The general rule is that a mortgage is one and indivisible and so it remains unless and until it is split up. There is no evidence or even a suggestion to that effect in this case.

For all these reasons I do not see any ground to differ from the decision arrived at by the Courts below. The appeal is, consequently, dismissed with costs.''

Passey, J.

I agree.