Mawasi Raje Ram vs Mst. Manbhari

A.N. Grover, J.—This is an appeal under Clause 10 of the Letters Patent against a judgment of a learned Single Judge decreeing a suit for possession by redemption in respect of the property held by Defendant Mawasi on payment of a sum of Rs. 360/-.

The facts leading up to the litigation may be shortly stated on 30th March 1890 the predecessor-in-interest of the Plaintiff. Mst. Manbhari mortgaged the suit land for Rs. 360/- to six persons, namely, Bhuiu, Blmp Singh, Aji Ram, Bahi Ram, Kanwa Singh (sic) (sic) Singh The mortgage was with possession. The Plaintiff as the legal representative of the original mortgagor instituted a suit for possession by redemption on payment of Rs. 360/- to the Defendant, Mowasi, who alone at present was the legal representative of all the original mortgagees. The suit was contested and the only question-which had to be determined was one of limitation The suit was apparently barred by time but it was claimed by the Plaintiff that there had been an acknowledgment by the mortgagees of the mortgage in question within the period of limitation and therefore, the suit was within time. The trial Court decreed the suit but the lower appellate Court dismissed it on the ground that the acknowledgment dated 12th January 1897 on which reliance was placed by the/Plaintiff which was contained in the document, Exhibit P. 3, made by Aji Ram mortgagee was not a legal and good acknowledgment u/s 19 of the Indian Limitation Act as it had not been made and signed by all the six joint mortgagees and their rights were indivisible. The suit was consequently dismissed as barred by time.

On second appeal, Shamsher Bahadur J. followed a decision of a Full Bench of the Bombay High Court in Motilal Jadav v. Samal Bechar AIR 1930 Bom 466 in which it was held that an acknowledgment made by one of the heirs of the mortgagee. who had divided the mortgaged property among themselves without the consent of the mortgagor was binding on him or his heirs and, therefore, the mortgagor could redeem that portion of the mortgaged property which was in the possession of the person making the acknowledgment on paying the whole amount of the mortgage money, and found that the acknowledgment made by Aji Ram on 12th January 1897 extended the period of limitation and the Plaintiff was entitled to redeem Aji Ram''s share in the mortgaged property which was "separate and distinguishable" on payment of the full mortgage money of Rs. 360/-.

Mr. M.S. Wasu, who appears for the Defendant-Appellant, has relied on Nadar Shah v. Ishar Das AIR 1920 Lah 516 and Ahmad Shah v. Kartar Singh AIR 3934 Lah 293(1) in which it was held that an acknowledgment of the right of redemption in order to save limitation should be made by all the-mortgagees and if it was not signed by all, it did not hold good even with regard to the shares of those who had signed it, the mortgage being indivisible. A Division Bench of the erstwhile Pepsu High Court in Bagga Singh v. Lal Chand AIR 1952 P&H 6 discussed the Lahore cases as also the Bombay case and came to the conclusion that where there was one single mortgage and even though each branch of the family of the mortgagees was recorded as having a definite share, it 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 Bombay case was distinguished on the ground that there a partition in the family of the mortgagees had taken place and certain area of land had been allotted to the branch of the family of one Defendant and the remainder to the other branch of the family. The Full Bench had 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''s propeity, that was sufficient to save the bar of limitation in respect of the share of Defendant No. 1 who had acknowledged the existence of the original mortgage.

Mr. Wasu points out that in the present case it was never pleaded that any division or partition had taken place among the mortgagees and neither any issue was framed on it nor was any finding invited from the trial Court or the lower appellate Court in that behalf. The only question that had been agitated was that it was not Aji Ram who had signed the acknowledgment dated 12th January, 1897. Before the lower appellate Court that very question was reagitated. The Lahore and the Bombay cases were also considered but no such argument appears to have been advanced that any division or partition had taken place amongst the mortgagees and that Aji Ram was in possession of his share after such a division or partition.

Mr. Seth, who appears for the Plaintiff-Respondent, contends that the revenue entries contained in Exhibit P. 3 show that such a division had taken place among the mortgagees and that Aji Ram was in possession of his own share on which he created a sub-mortgage in favour of one Baber Ali. As no such plea was taken at any previous stage, Mr. Seth cannot be allowed now to advance an argument which involves the question of fact which ought to have been pleaded and put into issue and decided by the Courts of fact. The learned Single Judge did not take this aspect into consideration and it appears that the Full Bench decision of the Bombay Court was followed without a proper appreciation of the distinction between the facts of that case and the present one. There can be no manner of doubt that the decision of the erstwhile Pepsu High Court in Bagga Singh''s case AIR 1952 P&H 6 is quite apposite so far, as the facts of the present case are concerned and respectfully following the same we allow this appeal, set aside the order of the learned Single Judge and restore that of the first appellate Court. In the circumstances, however, there will be no order as to costs.

D. Falshaw, C.J.

I agree.