Juuaxdhauan Einbranthiri vs Mariam and Others

Sankaran, J.—This is an appeal by the additional 2nd Plaintiff, who was brought on record as the legal representative of the deceased 1st Plaintiff. The suit is for recovery of the money due under the simple mortgage evidenced by Ext. A dated 17-l0-1102. This document was executed by one Geer-vasis in favour of Seetharama Embranthiri their predecessor-in-interest of the original Plaintiff.

A sum of Rs. 1300/- had been borrowed under Ext. A on the security of the plaint items. After the death of Seetharama Embranthiri the 1st Plaintiff obtained a probate on the basis of a will which Seetharaman Embranthiri had executed. Geervasis, the executant of Ext. A, acknowledged the 1st Plaintiff as the person entitled to recover the amount due under Ext. A, and on 4-10-1108 executed the puravaippa deed Ext. P in his favour for the interest that had accumulated after that date.

The Plaintiff sued on Ext. F and obtained the decree in O.S. No. 145 of 1110 on the Me of the Anjikaimal District Court. Ext. G is copy of that decree. The present suit is for the principal amount due under Ext. A together with the interest that has accumulated subsequent to 4-10-1108, which is the date of Ext. P. Since Geervasis had died prior to the date of the suit leaving his widow and brother as his legal representatives the suit is brought against them as Defendants 1 and 2.

Defendants 3 to 5 have been impleaded as persons claiming some interest in the plaint items. The apparent bar of limitation for the present suit is sought to be got over by the Plaintiff by placing reliance on the acknowledgments made in Exts. P, C and D by the executants of these documents.

The suit was resisted by Defendants 2 to 5, their main contentions being that the suit is barred by limitation and that the documents relied on by the Plaintiff do not contain any proper and valid acknowledgments. The 2nd Defendant set up a plea of discharge also. The 3rd Defendant claimed a portion of the plaint property as belonging to him absolutely and maintained that no decree can be granted against that portion of the property.

Defendants 4 and 5 had set up certain special claims over the plaint items. The lower court fix-id that the special claims pleaded by Defendants- 3 to 5 have not been made out by them. Accordingly these special claims were negatived. The plea of discharge set up by the 2nd Defendant was also found against for want of any evidence to substantiate the same. But the defence plea of limitation was upheld and the suit was dismissed as being time-barred.

Hence this appeal by the additional Plaintiff. The contesting Defendants have submitted to the trial court''s decree negativing their special claims.

The plaint bond Ext. A is dated 17-10-1102 and the present suit was filed only on 8-5-1124. It is prima facie out of time, and hence the Plaintiff can get a decree only on making out that his right to enforce Ext. A has been kept alive by virtue of the acknowledgments relied on liy him.

In fact, the only question argued in this appeal was about the existence or otherwise of any such valid acknowledgment and how far it would judgnable the Plaintiff to get a decree charging the } shares of Defendants 1 and 2 in the plaint items.

The first document relied on by the Plaintiff in this connection is the purvaippa deed Ext. \\F executed by Geervasis himself in favour of the 1st Plaintiff on 4-10-1108. This document makes specific reference to the mortgage deed Ext. A and also the subsisting liability under it.

It was after acknowledging such liability that the purviappa deed itself was executed for the interest that had accumulated up to the date of Ext. F. Ext. P therefore contains a clear acknowledgment of the liability under Ext. A and this position is not now challenged on behalf of the Respondents. But it is contended that the present suit having been instituted after the expiry of 12 years from the date of Ext. P, the acknowledgment contained therein is of no avail to the Plaintiff in saving "the present suit from the bar of limitation.

This contention must prevail. But it has to be seen whether there has been any valid acknowledgment of the liability under Ext. A at- any subsequent period within 12 years from the date of Ext. P. Ext. C, which is copy of a statement filed by the present 2nd Defendant in. Ext. Q case, is relied on by the Plaintiff for this purpose.

The signed statement Ext. C was filed in court on 22-7-1115, i.e., within 7 years from the date of Ext. P. The present 2nd Defendant had filed the statement in O.S. 145/1110 of the Anjikaimal District Court with the idea of getting a reduction in accordance with the Cochin Agriculturists'' Relief Act, Act XVIII of 1.114, in the amount of the debt payable by him.

In the opening portion of the statement Ext. C reference is made to the mortgage deed for Rs. 1300/- and to the puravaippa deed which followed it and also to the amount of interest calculated to 6 per cent, per annum from 1-1-1107 to 1-1-1115. There is no dispute that the documents referred to are Exts. A and F respectively.

The statement itself was filed in O.S. No. 145 of 1110 which was a suit based on Ext. F, the puravaippa deed executed for the accumulated amount of interest payable under Ext. A up to 4-10-1108. The lower court has taken the view that beyond a casual reference to the mortgage deed Ext. A the statement Ext. C does not import any subsisting liability under Ext. A and that the only liability that is acknowledged in Ext. O is in respect of the liability under the decree in O.S. 145 of 1110.

Prima facie, such a view would appear to be correct, because there are no express words in Ext. C acknowledging the liability to pay the debt under Ext. A. But,, on a careful .scrutiny of Ext. C it is easy to find internal evidence in the statement itself that the, 2nd Defendant has clearly acknowledged in that statement that the liability under Ext. A was even then subsisting. In the first column of Ext. C a sum of Rs. 460/- is shown as the amount of interest calculated at 6 per cent. per annum for the period from 1-1-1107 to 1-1-1115.

If this figure of Rs. 468/- represents the amount of interest payable on the principal sum covered by Ext. F, it would have been possible to argue that the interest was being calculated on the amount covered by Ext. F. The principal amount under Ext. F is only Rs. 818 and interest thereon at 6 per cent, per annum from 1-1-1107 to 1-1-1115 would come to only Rs. 392-10-0. It is thus obvious that in the first column of Ext. C the present 2nd Defendant was not calculating interest for the amount under Ext. P.

This inference is strengthened by the fact that interest was being calculated from 1-1-1107, while as a matter of fact, Ext. P came into existence only on 4-10-1108. Necessarily, therefore, he must have been calculating interest on the amount which had become payable even before the date of Ext. F. This will ht in with Ext. A which is the other document referred to in Ext. C.

The significance of the date 1-1-1107 from which interest has been calculated by him, is also apparent by virtue of Section 8 (1) of the Agricul turists Relief Act. All interest prior to 1-1-1101 had to be deemed to have been discharged. Ey 4 &e same Act interest subsequent to 1-1-1107 was limited to 6 per cent, per annum. It is for these reasons that interest on Ext. A amount has been calculated in the first column of Ext. C from 1-1-1107 to 1-1-1115 at 6 per cent.

But the whole of such interest has not been shown against that column. The reason appears to be that interest for the period of two years covered by this period had already been satisfied by the execution of the puravaippa deed Ext. P. Thus the interest for the remaining period of six years up to 1-1-1115, had alone to be accounted for by the 2nd Defendant when he filed the statement Ext. O.

The interest at 6 per cent, due for this period of six years on the principal amount of Rs. 1300 covered, by Ext. A, was exactly the sum of Rs. 468 shown against column 1 in Ext. C. These facts make it abundantly clear that in subscribing to such a statement in Ext. C the present 2nd Defendant had clearly acknowledged a subsisting liability under Ext. A. In the second column of Ext. O he had claimed credit for 6 payments which he had made prior to the date of Ext. P.

This fact also goes to confirm the inference that he was calculating interest payable under Ext. A and was claiming a reduction on account of the payments which he had made towards such interest. It is because the lower court had not drawn its attention to these aspects relating to Ext. C that it happened to take the view that in Ext. C there is no valid acknowledgment of the liability subsisting under Ex. A.

We are clearly of the opinion that the statements contained in Ext. C amount to a clear and valid acknowledgment of the liability under Ext. A. Such an acknowledgment having been made within 12 years of Ext. P, which by itself gave a fresh starting point of limitation for enforcing the claim, under Ext. A, the Plaintiff is entitled to rely on Ext. C as giving a fresh starting point of limitation.

How far Ext. C saves the present suit from the bar of limitation, is the next aspect to be considered. Since the present suit has been instituted within 12 years from the date of Ext. C, the position taken up by the Plaintiff is that the claim as a whole is sustainable against the entire property in the hands of Defendants 1 and 2, who are the heirs of deceased Geervasis.

These Defendants are persons governed by the Christian Succession Act and hence their position in respect of the estate of Geervasis, which deyolved on them, is that tenants in common. The acknowledgment contained in Ext. C relied on by the Plaintiff was made by the 2nd Defendant alone, and for this reason the 1st Defendant has contended that Ext. O cannot save the suit from the bar of limitation as against the half share of the properties which has become vested in the 1st Defendant.

On behalf of the 2nd Defendant it is contended that the acknowledgment made by him cannot be deemed to be an acknowledgment made by the mortgagor and hence it is of no avail even as against the half share in the hands of the 2nd Defendant. We do not see any force in this latter contention. The debt due from Geervasis Is a debt charged on the plaint properties. After his death Defendants 1 and 2 have taken these properties subject to the liability to pay off that debt. The present suit is instituted against them; for enforcing that claim against the properties in, their hands. The position of these Defendants in relation to the plaint debt is, in law, the posUt tion of joint contractors. Section 19 of the Limi-1 tation Act states that when an acknowledgment of liability in respect of the property or the right involved in the suit, has been made in writing by, the party against whom such property or right'' is claimed, before the expiration of the period; fixed for the suit, a fresh period of limitation shall be computed from the time when the acknowledgment was made in writing and signed. , Section 20 states that when any payment is made on account of a debt or of interest due thereon by the person liable to pay the debt or by his duly authorised agent bcl''oio the cxpira--tion of the prescribed period of limitation, a fresh period of limitation will be computed from the, date of such payment. Who all would come within the expression ''agent duly authorised in this behalf as used in Sections 19 and 20, has been mad clear by Section 21.

The limitation on the effect of an acknow'' ledgment coming within the scope of Sections 19 an 20, made by one of several joint contractors, Ir also bean dealt with in Sub-Section 2 of Section 21 which runs as follows:

Nothing in the said sections renders one''o several joint contractors, partners, executors, or mortgagees chargeable by reason only of a written acknowledgment signed or of a paymen made by, or by the agent or, any odier or others of them.

Sub-Section 3 of Section 21 deals with the special powers of the manager of a joint Hindu famil to bind the entire family by making an acknow. ledgment or payment as contemplated by Sections l and 20. Even in other cases it is clear from such Section 2 of Section 21 that a written acknowledgment made or a payment made by one of several join'' contractors would be sufficient to give a fresh starting point of limitation for the enforcement of the claim as against him, though it may no, be of any avail as against the other joint contractors in the matter of keeping alive the claim, from the bar of limitation.

An exception to this general rule has been recognised in the case of co-mortgagees, the reason being that where the mortgage remains join and incapable of being redeemed in part, on mortgagee is not an agent of the other join mortgagees, and therefore an acknowledgment o the mortgagor''s title made and signed by on mortgagee only will not give a fresh startin point of limitation in respect of the mortgagor right to sue for redemption.

The same is the position in respect of an a knowledge made by one of several heirs o the original mortgagee. But the position woul be altered if the integrity of the mortgage, had been split up and such splitting up has been'' accepted by the co-mortgagees or by the heirs the original mortgagee. In such a situation acknowledgment made by any of the co-moorages or heirs of the original mortgagee will, sufficient to give a fresh starting point of U: tation for a suit for redemption of the mortg in respect of that portion of the property held? such party, but not in respect of the prop , held by the others. This position has becomes held in - ''Motilal v. Samal'' AIR 1930 Bom (PB) .

The rule of integrity of the mortg arises for consideration in a suit for redempt and not in suit by the mortgagee to enforce his claim for recovery of the mortgage debt. As between the mortgagor and the mortgagee the whole or any portion of the mortgaged property is liable for the entire debt and no question of contribution can arise.

The debt can therefore be enforced against any portion of the property in hands of a co-mortgagor "or in the hands of any of the heirs of a deceased mortgagor, having a distinct and separate interest in such property. The position of these persons in respect of the mortgage debt is that of joint contractors and an acknowledgment in writing and signed by any of them will be sufficient to keep alive the debt as against him though not against the other joint contractOrs. This position has been upheld in Gaya Prasad and Others Vs. Babu Ram and Another and in - ''Md. Taqi v. Raja Ram'' AIR 1036 All 820 The latter case was decided by a Pull Bench and the question whether an acknowledgment of liability by some only of the heirs of a mortgagor would be sufficient to keep alive the debt as against the other heirs was one of the two questions that had to be answered by the Pull Bench.

In that case the mortgage debt had become merged in a mortgage decree. In dealing with this question it was pointed out that.

at the time when the acknowledgment is made, or the debt is paid, the relation of joint contractors between the persons who are liable exists, and it matters little whether they are the original contractors or whether they are their legal representatives for the time being.

It was further pointed out that the Court has to see what is the relation that subsists between the heirs at the time when the acknowledgment is made, and not the relation which existed at the time of the transaction and that

if, at the time when the acknowledgment is made or the payment is made, there are more than one person in existence, who stand in relation to each other as joint contractor, partners, executors or motgagors, then the acknowledgment or payment made by one would save limitation as against that person and would be of no avail as against the others.

The decision of this Court in ''Rama Varma v. arvathi Kunju'' AIR 1952 Trav-Co 310 is also to the same effect.

Applying the principles, enunciated in the cases cited above to the facts of the present case, it is clear that the acknowledgment made in Ext. C by the 2nd Defendant is sufficient in law to keep alive the plaint debt and to give a fresh starting point of limitation for the suit to enforce that claim as against him, but not as against the 1st Defendant.

The property covered by the mortgage devolved on these two Defendants as co-tenants and as such each of them became entitled to a half share in the'' property. All the same, the entire debt could be enforced as against each of these shares or against the entire property. Since the claim for the enforcement of the debt against the half share in the hands of the 1st Defendant is barred by limitation, the suit must fail in respect of that half share.

This position was conceded by the learned Counsel for the Appellant at the time of hearing. But since such a concession was made only at the last stage, the learned advocate for the 1st Respondent has pressed for the costs of the 1st ''Respondent. We think that his claim for costs must prevail.

In the result this appeal is allowed to the extent indicated above and a decree is passed In favour of the Appellant Plaintiff for recovery of the plaint amount together with interest as claimed in the plaint and costs throughout, front the 2nd Respondents share in the plaint property. The Plaintiff will also get his costs throughout from the 2nd Respondent.

So far as the 1st Respondent''s share in the suit property is concerned, the decree of the court below is confirmed and to that extent the appeal is dismissed with costs to the 1st Respondent.