Mukh Narain Singh and Others vs Ramlochan Tiwari and Others

Agarwala, J.—This is an appeal by defendants first party. The predecessors-in-interest of defendants fourth party owned a fractional proprietary share in certain property.

In 1866 they executed a usufructuary mortgage of this share to Gopal Sahu and Ayodhya Prasad, now represented by defendants third party. The due date for repayment was May or June 1870. In 1890 defendants fourth party transferred 18 pies in the property to defendants first party and 6 pies to the plaintiffs and defendants second party. The mortgage was redeemed by defendants first party alone in 1903. The interest of defendants second party in the C pies share transferred to them and the plaintiffs by the defendants fourth party was conveyed by the defendants second party to the plaintiffs who thus became the owners of the 6 pies share in the equity of redemption. The original mortgage was for Rs. 1875. On 5th September 1930, the plaintiffs deposited in Court a sum of Rs. 447-8-0 to the credit of defendants first party in the present suit, which was instituted on 4th September 1933. The plaintiffs seek to redeem their G pies share of the mortgage by proportionate payment of the mortgage debt. The only question which arises for decision in this appeal is the question of limitation. It has not been contended that Article 148, Limitation Act, does not apply. The conflict between the parties is as to the date from which the limitation runs.

For a suit against a mortgagee of immovable pro-party to redeem the mortgage that article provides a period of 60 years from the date when the right to redeem accrues. The Court below held that the period in the present case runs from the date when the defendants first party redeemed the mortgage in 1905. On behalf of the defendants-appellants, it is contended that the period runs from the due date of the mortgage, that is to say, May or June 1870. If this contention be correct, this suit is barred by limitation as it was instituted more than 60 years from that date.

Before the amendment of the Transfer of Property Act in 1929, there was a divergence of judicial opinion as to the status and rights of a co-mortgagor who has redeemed the mortgage. The view taken in the Bombay High Court and in some of the Calcutta cases was that the charge created by Section 95 (before its amendment in 1929) in favour of a co-mortgagor who has redeemed the mortgage meant something less than the right of a mortgagee; that the period of limitation to enforce the charge was 12 years under Article 132, Limitation Act, and for a suit to redeem such charge was 12 years under Article 144, it being treated as a suit to recover possession and the date of redemption being treated as the starting point for limitation: see Vasudev Bhikaji v. Balaji Krishna 26 Bom. 500.

In Allahabad, on the other hand, a Full Bench in Ashfaq Ahmad v. Wazir Ali 14 All. 1 held that a co-mortgagor who has redeemed a mortgage is subrogated to the position of the mortgagee and that a suit against him by the other mortgagors for redemption is governed by Article 148 and time runs against the plaintiffs from the due date of the mortgage.

In Rajkumari Debi v. Mukundalal Bando Padhyaya AIR 1921 Cal. 166, the position of a co-mortgagor who has redeemed the mortgage was held to be that of an assignee of the mortgage, that is to say, he stood in the position of the original mortgagee. According to this view also, it follows that a suit against him for redemption by his co-mortgagor would be governed by Article 148.

In a litigation commenced before the amendment of 1929 the decision in this case was challenged in Umar Ali and Another Vs. Asmat Ali and Others, . The Full Bench held that the earlier case had been wrongly decided. But it is quite clear from the judgment of the learned Chief Justice who delivered the judgment in the case that it was only in respect of the law as laid down in Calcutta before the amendment of the Transfer of Property Act in 1929 that the Full Bench held that the earlier case had been wrongly decided, for he said:

It may here be observed that Section 95, T.P. Act has, by Act 20 of 1929, been amended in such a way that Sections 92 and 95, as they now stand, make it clear that the right of the co-mortgagor redeeming is the "same right as the mortgagee whose mortgage he redeems may have against the mortgagor." In effect therefore the decision in Rajkumari Debi v. Mukundalal Bando-Padhyaya AIR 1921 Cal. 166 is now statute law. The present case however must be dealt with upon the Act as it stood prior to the amendment of 1929.

By the amendment of the Transfer of Property Act in 1929, the Legislature has given statutory recognition to the view of the Allahabad Full Bench that a co-mortgagor who redeems the mortgage is subrogated to the position of the mortgagee.

In this Court, in Tika Sao v. Hari Lal AIR 1940 Pat. 385, decided on 12th April 1940, a Full Bench has taken the view that Section 92 merely gives statutory recognition to the law as it stood before the amendment of 1929. It has been contended on behalf of the plaintiffs-respondents that although a co-mortgagor who redeems a mortgage is subrogated to the position of the mortgagee it does not follow that the period of limitation commences from the due date of the original mortgage. I have already pointed out that the Full Bench of the Allahabad High Court held that the time ran from the due date of the original mortgage.

This view has been followed in that Court since the amendment in Ahmad Zaman Khan Vs. Baldeo Das and Another . I can see no reason why, in the case of co-mortgagors, one should have a longer period than the other in a suit to redeem the mortgage. That, however, is implicit in the contention advanced on behalf of the plaintiffs-respondents in this case.

The only case in which the contrary view has been taken since the amendment of 1929 is the case Jairam v. Bhilagi AIR 1930 Nag. 300. That was a decision of a single Judge who on a careful consideration of the question agreed with the decision of the Allahabad Full Bench, but in the concluding paragraph of his judgment held that the period of limitation was twelve years under Article 132. Thus his final conclusion does not appear to follow from the reasoning, given in his judgment.

Another decision of this Court may be referred to, namely Sibanand Misra v. Jagmohan Lall AIR 1922 Pat. 499. That was a decision of 1922. There a puisne mortgagee and not a co-mortgagor had redeemed the prior mortgage. It was held that the rights of a puisne mortgagee are to enforce the prior encumbrance or to be reimbursed the amount paid off and limitation for the exorcise of the right to enforce the prior encumbrance begins to run from the date on which the money due under the prior encumbrance becomes due. Das J. who delivered the judgment said:

It may be that the right to enforce the security arises on the date of the assignment; but the limitation has already commenced to run and will not cease to operate just because the creditor has assigned the security to another person.

Here also time had begun to run against all the mortgagors from the time when the right to redeem accrued, that is to say, from the due date of the mortgage, and did not cease to run against the plaintiffs merely because the other co-mortgagors redeemed the mortgage, it was next contended on behalf of the plaintiffs-respondents that even if time began to run against the plaintiffs originally from the due date of the mortgage of 1866, there was a fresh terminus a quo at a later date on account of certain acknowledgments. The facts relating to this are that the original mortgagees assigned the mortgage in 1873 to one Manhgu in the name of Ramsaran, Manhgu''s son by his first wife. Subsequently, there was a partition between the sons of Manhgu''s two wives. The suit was instituted by the sons of Manhgu''s second wife. The plaint in that suit referred to the mortgage of 1866. This was in 1911.

In 1887 Dhyan Sahu son of Ram Saran, had executed a deed of assignment in favour of Bujhawan Ojha and Ayodhya Ojha of his half share in the mortgage. The deed of assignment admitted the existence of the mortgage of 1866. It is contended that the deed of assignment of 1887 and the plaint in the partition suit of 1911 contained an acknowledgment by all the persona interested in the mortgage and that this constitutes an acknowledgment u/s 19, Limitation Act, so as to provide a fresh starting point for the period of limitation. Section 19 provides:

Where, before the expiration of the period prescribed 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 some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

Nothing in this section, however, renders one of several mortgagees chargeable by reason only of a written acknowledgment signed by any other or others of them [Section 21(2)]. For the respondents it is contended that the deed of assignment of 1887 and the plaint of 1911 constitute an acknowledgment by all the mortgagees.

Reliance was placed on Hiralal Ichhalal v. Narsilal Chaturbhjdas 37 Bom. 326 and Motilal jadav v. Samal Bechar AIR 1930 Bom. 466. When the facts of these cases are examined, however, they do not, in my view, support the respondents'' contention. The facts of the former case were that a certain desaigiri dastur grant was the subject-matter of a usufructuary mortgage in the district of Broach. When that district came under British rule the grant was commuted into a fixed money allowance payable from the treasury. The mortgagees received that allowance in lieu of the original grant. The date of the original mortgage was 1793. The suit was instituted in 1901 considerably more than 60 years from the due date. The plaintiffs relied on an entry in a receipt book relating to the payment by the treasury to the mortgagees in 1843 of the allowances which had been substituted for the original grant. At that time the rights of the mortgagees were vested in unequal shares in two persons. The entry in the book stated that it was made to the two persons named and the amounts of the shares of each of them was set against their names. Against those shares the mortgagees had written their respective names in acknowledgment of the receipt of their shares of the allowances. The Privy Council held that this was clearly an acknowledgment by the mortgagees that they received those payments as being persons interested in the original mortgage, and that their interest in the property was that of mortgagees there under and this created a new period of limitation starting from 1843. It is obvious from the facts stated that all the mortgagees had signed the book evidencing the payments and that it is not a cane of an acknowledgment by one of several mortgagees.

The facts of the Bombay case were peculiar. In 1839, one J mortgaged 7 acres 9 gunthas to V, the ancestor of defendants. On partition in the family of the mortgagee, v, 3 acres 20 gunthas was allotted to the branch of defendant 1 and the remainder to the other branch of the family. In 1878, the father of defendant 1 sub-mortgaged the 3 acres and 20 gunthas to the plaintiff''s father by a deed which acknowledged the existence of the mortgage of 1879. Plaintiff''s father subsequently acquired the right to the equity of redemption of all the property comprised in the original mortgage and in 1921 the plaintiff instituted a suit for redemption. Originally the plaintiff prayed for redemption of the whole of the property mortgaged in 1839, but there was an alternative prayer for redemption of 3 acres and 20 gunthas on payment of the whole of the consideration for the mortgage of 1839. To save the bar of limitation, the plaintiff relied upon the acknowledgment of the mortgage made by the father of defendant 1 in the deed of sub-mortgage of 1878. The trial Court decreed the suit with respect to 3 acres and 20 gunthas and. dismissed it in regard to the appellants.

On appeal, the District Court, following the decision of the Bombay High Court in Bhogilal v. Amritlal 17 Bom. 173 held that the whole suit was barred by limitation, and dismissed it. There was a second appeal to the High Court which was heard by the Chief Justice. The latter restored the decision of the trial Court. In an appeal under the Letters Patent, there was a difference of opinion between the two learned Judges who heard the appeal with the result that the opinion of the Senior Judge prevailed and the decree of the District Court was restored. From that decision there was a further appeal under the Letters Patent which was heard by three Judges. The question which these learned Judges decided was thus stated by Marten C. J.:

The actual question we have to decide in Suit No. 221 of 1921 is whether the plaintiff Jadhav Gopal is entitled to redeem 3 acres and 20 gunthas or thereabouts being part of the la/rid comprised in the mortgage of 9th June 1839, Ex. 19, as against defendant 1, Samal Bechar.

In the result they held that although the acknowledgment of the mortgage of 1839 in the sub-mortgage of 1878 was not in respect of the entire property of the original mortgage yet because there had been separation of the mortgaged property by partition in the mortgagee''s family and defendant l''s branch had been in exclusive possession of the property of 3 acres and 20 gunthas this was sufficient to save the bar of limitation in respect of the 3 acres and 20 gunthas. This case must be regarded as a decision on its own particular facts. The suit was treated not as a suit for redemption of the whole of the original mortgage but as one for redemption of a part only of the mortgaged property on payment of the consideration of the whole of the original mortgage. The case in Bhogilal v. Amritlal 17 Bom. 173, was distinguished and not dissented from.

In the present case, the plaintiffs do not seek to redeem the 6 pies by depositing the whole of the consideration money of the original mortgage but by payment of a proportionate part only. In my view, by reason of Section 19(2), Limitation Act, an acknowledgment by one of several co-mortgagees is insufficient to provide a fresh period of limitation and the admission contained in the deed of assignment of 1887 did not provide a fresh period of limitation from that date; nor did the plaint in the partition suit provide a fresh period from 1911.

There is, moreover, another reason why the plaintiffs must fail. Even if the admission in the deed of assignment of 1887 be an acknowledgment by one branch of the original mortgagee''s family of the existence of the original mortgage, there has, in my opinion, been no acknowledgment within the meaning of Section 19 by the other branch. The reason for this is that the alleged acknowledgment in the plaint in the partition suit was not an acknowledgment at all. It will be remembered that in 1905, the defendants first party had repaid the whole of the zarpeshgi money with the result that the original mortgagees had no further interest in the mortgage. The statement by them therefore in 1911, relating to the original mortgage, cannot be regarded as an acknowledgment of any liability or right. An acknowledgment, by its very nature, must be an admission of some present liability of the person making it, corresponding to a present right in some one else. In 1911, the plaintiffs in the partition suit had no liability whatsoever for they had been paid off.

Furthermore, although the suit as originally framed was prima facie barred by limitation and it was therefore the duty of the plaintiffs to state the facts on which they relied to save the bar of limitation, this was not done, with the result that evidence relating to the alleged acknowledgment was inadmissible. It was only in an appeal from the original decree that the question was raised and the appellate Court then remanded the case to afford the plaintiffs an opportunity of proving the acknowledgment. This should not have been done.

It is however contended on behalf of the respondents that the present appellants appealed against the order of remand and their appeal was dismissed and consequently they are not entitled to challenge the order of remand in the present appeal. The order of remand itself, however, was quite clearly an order u/s 151, Civil P.C., and was therefore not appealable. The rejection of their appeal therefore does not debar the present appellants from raising the matter now. In this view of the case, it is not open to the plaintiffs to rely on the alleged acknowledgment.

In the result I would allow the appeal of the defendants first party with costs throughout and dismiss the plaintiffs'' suit.

Rowland J.

I agree.