Kuttan Sreedharan and Others vs Bhagyodayam Co. Ltd.

Nandana Menon, J.—Plaintiff''s in a redemption suit are the Appellants in this Second Appeal. The plaint schedule properties belonged originally to one Kalarlkkal Thommen. After his demise his heirs executed mortgage and puravaipa deeds An favour of one Avara Vareed, the last ot them being dated 3-1-1036. The rights of the mortgagors passed to the Plaintiffs and the rights ot the mortgagee passed to his children after his demise. When the present suit for redemption was brought contentions were raised by the heirs of Avara Vareed that the suit was barred by limitation. The Plaintiffs met this contention by saying that there were acknowledgments keeping alive the right of redemption and relied upon acknowledgments in written statements and depositions in prior suits for. redemption, namely, OtS. No. 301 of 1095 where the plaint was returned and 0. S. No. 721 of 1096 where, a decree was obtained but not executed. The trial Court held that the acknowledgments saved limitation only as against Maneek Vareed, one of the sons of Avara Vareed whose interests are now represented by Defendant l''s company and hence allowed redemption of items 1 and 2. In the appeal preferred by Defendant 1 the lower appellate Court held that though the statements relied upon satisfied the requirements of acknowledgment as contemplated u/s 19, Limitation Act as, the same was only by one of the heirs of the mortgagee it had not the effect of saving limitation as regards the right of redemption and hence refused the limited relief allowed by the trial Court and dismissed the suit. Hence the Plaintiffs have come here on appeal.

As both the lower Courts have held that there was effective acknowledgment by Maneek Vareed the only question to be considered is whether such an acknowledgment is of no avail in the present case as Maneek Vareed did not represent the entire interests of the mortgagee. What is urged on behalf of the Plaintiffs is that the acknowledgment is any way effective as regards the share of Maneek Vareed, the parties being Christians and as even before tyblate of acknowledgment in question his fathe/fthe mortgagee, had passed away and succesjjjdn had opened. With regard to the effect of aff acknowledgment by a co-mortgagor the lower appellate Court has relied upon ''Rama Varma Thaflipuran v. Kunjupennamma'', 1951 Ker LT 683: 1952 Ker 310) (A), in support of the posi-5h that an acknowledgment as the one in question ioV> not save limitation as regards the right of redemption. Counsel for the Plaintiffs urged that the s&dd decision is not applicable to the facts of this case as the main question in issue there was about the effect of an acknowledgment by a co-mortgagee in keeping alive a decree. A perusal of that decision shows that the point at issue here also came up for consideration there and the entire case law on the point has been dealt with and the principles applicable in case like this clearly laid down. The following observations there at page 623 (of Ker L T : (at p. 314 of A I R) may be pointed out:

We have next to consider whether the acknowledgment by Defendant would be effective to sustain an execution application against his share in the redemption decree. Unfortunately this aspect of the case did not receive at the Bar the attention it deserved. Based on the doctrine of the indivisibility of a mortgage we have come across several cases which held that an acknowledgment by one only of several mortgagees of the liability to be redeemed is not sufficient to keep the right to redeem alive even as regards the share of the party acknowledging. The question is seen discussed in Rustonjee''s Law of Limitation 5th (1936) Edn. Vol.1, pp. 425-426 and in Chltaley''s Commentaries to the Indian Limitation Act 2nd (1942) Edn. Vol. I, pp. 829-831. The reason given is that except in certain special circumstances the entire mortgage has to be treated as one indivisible unit and the redemption of a portion of a mortgage alone cannot be allowed under law.

Certain exceptions to this rule are also referred to in the same decision. Of them I need only refer to Motilal Jadav Vs. Samal Bechar, The facts of that case come nearest to those with which we are concerned. There also the acknowledgment relied upon was by one of the heirs of the original mortgagee. In the first decision of the High Court in the second appeal there on the basis of the said acknowledgment redemption of a divided half of the mortgaged property on payment of the entire mortgage money was allowed. In the Letters Patent Appeal preferred against this before a Division Bench Justice Mad-gavkar ''held that redemption cannot be allowed observing as follows at page 632 (of I L R Bom) (at p 467 of A I R.) of the aforesaid report:

The actual issue in the present case lies, in my opinion within a narrow compass. The general rule is that a mortgage is one and indivisible and so remains unless and until it is split up with the consent of both the mortgagor and the mortgagee. Neither the property nor the burden can be divided without the consent of both. An acknowledgment u/s 19 (1) of the Indian Limitation Act must be signed by the party against whom the right is claimed. Under S. 21, Clause (2), of that Act, in the case of a joint contract, an acknowledgment signed by one of several joint contractors cannot bind the others.

But Patkar J. differed observing as follows at page 641 (of I L R Bom) (at pp. 470.& 471 of A I R) after referring to the case law:

The principle of these cases would apply where the mortgage is a joint mortgage and incapable of being redeemed piecemeal, and under Clause (2) of Section 21 of the Indian Limitation Act of 1908, one of several joint mortgagees cannot be bound by an acknowledgment made by, or by the agent of, another co-mortgagee. In the present case the mortgage debt was split up by the mortgagee on account o� a partition between the heirs of the original mortgagee and three acres and eighteen gunthas were allotted to the share of Bechar.the father of Defendant No. 1, and the rest of the property was allotted to Bhukhan Bir-dhar, the ancestor of Defendants Nos. 2 to 4, So far as the mortgagee is concerned, there was an effective division not only of the mortgage-debt but also of the mortgaged lands.

In a further appeal under the Letters Patent before a Full Bench consisting of three Judges it was held that the share of the party who was bound by the acknowledgment could be redeemed in view of the physical division of the properties. effected between the heirs of the mortgagee. All this is fully referred to in 1951 Ker L T 683: (A I R 1952 Trav-Co 310) (A). So this decision is to the effect that an acknowledgment by one of the co-mortgagees will not be sufficient to save limitation even against his share unless there was a division by metes and bounds between the sharers and thus the party acknowledging having a specified divided share. In the present case it is clear that at the time of the acknowledgment relied upon though succession had opened and Defendant 1 had a definite share in the estate of his father there had not been a partition by metes and bounds. Without such a physical division it cannot be said that Defendant 1 had 2/3 share or any other definite fractional share in the mortgage security. His right was fixed only with regard to the estate of his father as a whole. In the family partition the sharers could have entirely excluded the mortgaged properties from the share allotted to Defendant 1. Under such circumstances it is not possible to hold that an acknowledgment by him as the one relied upon here is sufficient to save limitation as regards redemption of the share which is now definitely vested in him as a result of a subsequent partition. So the lower appellate Court''s finding on that point is quite correct and calls for no interference.

In the result, the second appeal is dismissed with costs.