C. Veerabahu Pattar vs P. Eswara Pillai

V. Ramaswami, J.—The plaintiff is the appellant. The suit was filed for redemption of a mortgage dated 12-3-1079 M.E. executed by one

Subramania Nambiar, son of Pichan Nambiar, in favour of one Velayudharn Pillai, for a sum of 5.000 Fs. The plaintiff claims to be a successor-in-

interest of the eauitv of redemption. In execution of a decree against the mortgagee Velayudham Pillai, his rights as a mortgagee in the suit property

were brought to sale and purchased by the decree-holder in 1926 in Court auction. The decree-holder auction purchaser sold his rights under Ex.

A-1, on 8-2-1102 M. E. in favour Of one Sakkiamma Pillai, the maternal grandmother of the defendant.

The only point that survives for consideration in this second appeal is one of limitation. The defendant contended that the mortgage executed on

12-3-1079 M.E. (year 1963) is barred by limitation. The plaintiff contended that Ex. A-l dated 8-2-1102 M. E. executed by the Court auction

purchaser in favour of Sakkiarnma Pillai amounts to an acknowledgment and. therefore, the suit is in time. There is no dispute that if Ex. A-1

amounts to an acknowledgment, the suit would be in time. But the question for consideration is whether Ex. A-1 amounts to an acknowledgment

of liability to be redeemed. The deed is styled as a deed of sale of othi rights executed by the Court auction purchaser in favour of Sakkiamma

Pillai, to whom the defendant claims to be the legal heir. The document is in Malayalam, and translation of the same reads as follows:

The patta for the schedule property is in the name of Pichan Subramania Nambiar. The pattadar''s family has got karanmai rights over the

schedule property. The property including the melwaram right of 5/8 kottas 6 nazhis of paddy was othied to Velayudham Pillai. son of Sivasankara

Pillai, by Subramaniam Nambiar under document No. 612 of the Nagarcoil Registrar Office and dated 10th Alpasi 1079. The right as per the said

othi document was devolved on me. who is the plaintiff in O.S. 155 of 1913 as per Court sale on O.S. 155 of 1915 on the file of the Principal

District Munsif Court. Nagarcoil. The sale was made absolute on 14th Kanni 1094. I got the sale certificate and I obtained delivery on 21st

Thulam 1094 and accordingly I am in enjoyment and I am paying tax. As such I assign by way of sale, of my othi right of 5,000 Fs. which I have

over this property as described above, without recourse for a sum of 9,000 Fs received as under-1, 1284/4 Fs. reserved to be paid to

Subramania Pillai to whom I have given the property on lease. 4. 387-1/4 Fs received as ready cash.

Therefore the said person shall enjoy the property from this date as a sale of othi right. She shall directly receive the pattom from Subramania Pillai.

She shall pay the arrears of tax from 1102. The othi deed in respect of this property, the sale certificate and the delivery list are handed over. Five

sheets of certified copy of execution proceedings in O.S. 155 of 1913, three sheets of the said othi document No. 512 of 1079. 3 receipts for the

tax paid by me for the period of 1094 to 1101 tax receipt book I are handed over.

I have not created any encumbrance over the said othi right."" Section 18 of the Limitation Act is to the effect-

(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of

liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any

person through whom he derives his title, or liability a fresh period of limitation shall be computed from the time when the acknowledgment was so

signed.

It is not in dispute in this case that Ex. A-1 was executed within the period prescribed in the suit for redemption. It is also not in dispute that if

that document amounted to an acknowledgment of liability, the acknowledgment was by a person competent to make that acknowledgment. The

only dispute between the parties was whether it amounted to an acknowledgment of a subsisting mortgage with a liability to redeem. The lower

appellate Court held, differing from that of the trial Court, that the references to the original mortgage and the purchase of the mortgagee''s right in

Court auction and the transfer of the mortgagee''s rights under the document are only descriptive of the right conveyed, and did not amount to an

acknowledgment of the liability. The learned counsel for the respondent in this case supported this view of the lower appellate Court. But the

learned counsel for the appellant contended that on the date of sale, the vendor had only a othi right and that she conveyed only that right under

that document, and that therefore, the document amounted to an acknowledgment of liability. Before dealing with the specific recitals in this

document itself, it would be useful to refer to the decisions cited by the Bar. which considered the effect of similar documents.

In Sidhari Ram v. Gargi Din AIR 1924 All 458 also the question for consideration was whether the assignment of the mortgagee''s rights amount

to an acknowledgment of the liability of the original mortgage. In that case, under a document, the mortgagee purported to sell his rights as

mortgagee to the defendants in that suit and that sale deed was relied on as an acknowledgment in the suit filed for redemption. A Division Bench

of the Allahabad High Court held that the verv fact of the mortgagee''s selling his mortgage rights was an express acknowledgment of the existence

of a subsisting mortgage and of subsisting rights which he was competent to sell. and the fact that the purchaser also purchased only that

mortgagee''s right was an acceptance on his behalf of an existing mortgage, and it would amount to an acknowledgment, which would save the suit

from the bar of limitation.

This decision was followed in Padamanabha v. Lakshmi. AIR 1953 TC 244, which also considered the deed of assignment by a mortgagee of

existing mortgage rights and held that such a deed of assignment would constitute a valid acknowledgment and save the suit from the bar of

limitation.

It is not necessary to refer in particular to the facts in Nilamma Pillai v. Raman Pillai, (1932) 22 TLJ 1095 and Padmanabha v. Krishna Pillai.

(1937) 27 TLJ 961. Suffice it to say that these two decisions also dealt with the assignment of the mortgagee''s rights and those assignments were

considered to be acknowledgments of the mortgage and the liability to be redeemed.

The scope of Section 19 of the Limitation Act. 1908, itself was considered by the Supreme Court in Khan Bahadur Shapoor Fredoom Mazda

Vs. Durga Prosad Chamaria and Others, and Lakshmirattan Cotton Mills Co.Ltd. and Behari Lal Ram Charan Vs. The Aluminium Corporation of

India Ltd., . It was held in these decisions that a statement on which a plea of acknowledgment is based must relate to a present subsisting liability,

though the exact nature of or the specific character of the said liability mav not be indicated in words, and words used in the acknowledgment

must, however, indicate the existence of lural relationship between the parties such as that of debtor and creditor, and it must appear that the

statement is made with the intention to admit such lural relationship. They also added that such intention can be inferred by implication from the

nature of the admission, and need not be expressed in words, and if the statement is fairly clear, then the intention to admit jural relationship may be

implied from it.

In Tilak Ram and Others Vs. Nathu and Others, , the Supreme Court considered all the earlier decisions with reference to the assignment of the

mortgages. Shortly stated, with reference to the assignment of the mortgagee''s rights (which was considered in that judgment), the facts were

these: One Taja Hazari mortgaged certain properties in favour of one Dharmadas to secure the repayment of an aggregate sum of Rs. 1.290. The

mortgagee died, leaving him surviving his son Parameshwardas, who sold under a document dated 16-8-1902 in favour of one Hira Singh and

others his mortgage rights. The deed recited the mortgages executed by the said Taia Hazari in favour of Dharamadas, the fact of Para-meswardas

being in possession as the suc-cessor-in-title of Dharmadas, the sub-mortgage executed by Parameshwardas on 8-4-1902, and the fact by the

said deed dated 16-8-1902, he was selling his mortgage rights for Rs. 1.290. Considering the question as to whether these statements in the

document amounted to an acknowledgment of subsisting mortgages executed by Taja Hazari, the Supreme Court observed-

These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this

document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors, and, therefore, of

his subsisting liability as the mortgagee thereunder of being redeemed.

This decision is strongly relied on by the learned counsel for the respondent. It appears to me that this decision is on all fours to the facts of the

present case. Though the document now under consideration specifically referred to the original mortgage executed by Subramania Mudaliar, the

recitals about the fact of purchase of the mortgagee''s rights in Court auction by the vendor under that document and the reference to the

assignment by way of sale of the vendor''s othi right of 3.000 Fs. would only be descriptive of the interest assigned and would not amount to an

acknowledgment of the liability of the subsisting mortgage to be redeemed. Mere transfer of the right in the mortgage is not enough to conclude that

it would amount to an acknowledgment of liability. The learned counsel for the appellant submitted that the legal consequence of the statement of

the vendor that she has got only a othi right will be that she has the right to redeem, and this legal consequence need not be stated in express words

in the document itself. But the learned counsel was unable to show as to how the document would have recited if the parties deliberately did not

want to make it an acknowledgment of liability, but wanted to convey only that much of a right which the vendor had. In all assignments of

mortgages, the mortgagee could only convey the right title and interest which he had. If the argument of the learned counsel is to be accepted, all

cases of assignment of mortgages, if they had been made before the expiry of the period of limitation, would amount to an acknowledgment of the

liability, though there was no intention on the part of the parties to admit the jural relationship in that regard. The decision of the Supreme Court is

clearly against this proposition of the learned counsel.

The only other distinction which the learned counsel could point out from the decision of the Supreme Court is that at the end of the document

we find a recital to the effect that the vendor had not created any encumbrance over the said othi rights. I do not consider that this will in any wav

distinguish the case from the one decided by the Supreme Court in Tilak Ram and Others Vs. Nathu and Others, . In fact, even in that case, there

was a sub-mortgage executed by the original mortgagee, which was referred to in that document in order to show that the transferor had created

an encumbrance over the same. In this case, the transferor states that she had not encumbered the othi rights. It follows, therefore, that the sale

deed Ex. A-1 does not amount to an acknowledgment of liability.

In the result, the judgment and decree of the lower appellate Court are confirmed, and the second appeal is dismissed. There will be no order

as to costs. No leave.