Narinder Singh and Others vs Arjan Singh and Others

This second appeal has been filed by Narinder Singh, Sukhdarshan Singh and Shrimati Jaswant Kaur alias Harbans against the judgment and decree of the Addl. District Judge, Faridkot dated 22nd July, 1970 affirming those of the subordinate Judge Ist Class, Faridkot for redemption of the property of the plaintiffs on payment of Rupees 1,244/- .

Briefly, the case of the plaintiffs is that Boor Singh mortgaged the land in dispute with Partap Singh for a sum of Rs. 1,244/- vide registered mortgaged deed dated 8th of Sawan, 1967 B. K. The mutation of the mortgage was attested on 14th Phagan, 1972 B. K. It is further pleaded that if the mortgage be held to have been created earlier on Bhadon Shudi 9, 1961 B. K., vide entry in the bahi, the suit was within limitation, because of the acknowledgement of the mortgagee contained in the mutation dated 14th Phagan, 1972 B. K. Consequently, they prayed that the decree for redemption be passed in their favour regarding the property on payment of Rupees 1, 244/- .

The suit was contested by defendants number 2 and 3 who inter alia pleaded that they were not the heirs of Boor Singh mortgagor. They further pleaded that the mortgage was effected on Bhadon Shudi 9, 1961 B. K. vide bahi entry and thus, the suit was barred by limitation. They denied that any acknowledgement was made by Partap Singh, their predecessor-in-interest.

The learned trial Court held that the plaintiffs and defendant No. 8 were the heirs of Boor Singh mortgagor and that the suit was within limitation. Consequently, it decreed the suit. Narinder Singh etc., above named appellants, went up in appeal before the learned Additional District Judge, Faridkot who affirmed the judgment and decree of the trial Court and dismissed the same. They have now come up in second appeal to this Court.

It is vehemently contended by Shri Puri that the entry dated Phagan 14, 1972 B. K. in the mutation does not amount to an acknowledgement as contemplated by S. 18 of the Limitation Act, 1963(referred to as the Act). In support of his contention, he placed reliance on Shah Gur Saran and Another Vs. Shib Singh and Others, and Tilak Ram and Others Vs. Nathu and Others, .

I have heard the learned counsel for a consideration length, but regret my liability to accept the contention. There is no controversy about the facts of the case. Even if it be assumed that the mortgage was effected by Boor Singh in favour of Partap Singh vide Bahi entry dated Bhadon Shudi 9, 1961 B. K., the mortgagee made an acknowledgement regarding the mortgage in the mutation Ex. P 2. The mutation was entered at the instance of Partap Singh mortgagee. It is stated therein that Partap Singh mortgagee mentioned that Boor Singh mortgaged with possession his land measuring 51 Bighas 14 Biswas for a sum of Rs. 1,244/- wide Registry Nizamat Dewani, with him. The land revenue was paid by him. It was admitted by the mortgagor also. The above entry is signed by the Patwari, the mortgagee and bears the thumb-impression of the mortgagor. The question is, whether the abovesaid entry amounts to acknowledgement, or not.

Section 18 of the Act inter alia provides that where, before the expiration of the prescribed period for a suit or application in respect of any property or right; an acknowledgement 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 acknowledgement was so signed. As explanation has been added to it which says that for the purposes of the section, an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right. Section 19 of the Limitation Act, 1908 was couched in the same language in which the present section has been. While interpreting S. 10, the Supreme Court in Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, observed as follows (at p. 1238):--

"If the statement is fairly clear then the intention to admit the jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement."

The Bench further observed that generally, Court lean in favour of a liberal construction of such statements though it does not mean that where no admission is made, one should be inferred, or where statement was made clearly without intending to admit the existence of jural relationship, such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. The above view was followed in Tilak Ram and Others Vs. Nathu and Others, , referred to by the learned counsel for the appellants wherein similar observations were made. Similar matter again came up before the Supreme Court in Lakshmirattan Cotton Mills Co.Ltd. and Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd., wherein, after referring to the above two cases, Shelat, J., while speaking for the Court, observed thus (at p. 1485):--

"...........the statement on which the plea of acknowledgement is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act. It need not, however, amount to a promise to pay, for an acknowledgement does not create a new right of action but merely extends the period of limitation. The statement need not indicate the exact nature or the specific character of the liability. The words used in the statement in question, however, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor, and the intention to admit such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. Generally speaking a liberal construction of the statement in question should be given. That of course does not mean that where a statement is made without intending to admit the existence of jural relationship, such intention should be fastened on the person making the statement by an involved and far-fetched reasoning..................."

It is evident from the above said observations that it is not necessary that the statements should give the exact nature of liability. On the other hand it is sufficient if these relate to the existence of jural relationship between the parties. It is further clear that the statements should be given a liberal construction. Adverting to the facts of the present case, it is evident from the writing, reproduced above, that Pratap Singh mortgagee admitted the jural relationship between him and Boor Singh mortgagor regarding the property in dispute and the mortgagor amount. It is further evident that even the mortgagor was present when he admitted that fact. In my opinion, the above statement clearly amounts to an acknowledgement within the meaning of Section 18 of the Act. The aforesaid writing was made by the Patwari on Phagan 14, 1972 B. K. equivalent to March, 1915. The present suit was instituted on May 12, 1966. The period of limitation prescribed in the 1908 Act was 60 years. Thus, the suit is within limitation from the date of acknowledgement Shah Gur Saran and Another Vs. Shib Singh and Others, referred to by the learned counsel for the appellants is distinguishable. It is of no avail to him.

Shri Mittal also sought to urge that, in fact, the property was not mortgaged vide Bahi entry dated Bhadon Shudi 9, 1961 B. K., but, subsequently by a registered deed of mortgage dated Sawan 8, 1967, B. K. This fact is disputed by the learned counsel for the appellants. However, in view of the fact that I have held that the writing in mutation Ex. P. 2 amounts to acknowledgement, this fact need not to gone into.

For the foregoing reasons, I do not find any merit in the appeal and dismiss the same, with no order as to costs.

Appeal dismissed.