Radha vs Kishan Lal

S.S. Sodhi, J.

The controversy in appeal here is with regard to the starting point of limitation for a suit for redemption of mortgage.

On March 26, 1925, Himta Ram mortgaged 104 Bighas and 5 Biswas of land for Rs. 10,000/ to Gheru Ram. Later, by a subsequent mortgage Exhibit P. 5 of May 12, 1951, the successorsininterest of Gheru Ram sold their mortgagee rights to Ram Karan. One set of defendants here are the successorsin interest of the said Ram Karan. The plaintiffs, who are the successorsin interest of the mortgagor Himta Ram, filed the present suit for redemption of the mortgage on May 11, 1981. If the starting point of limitation is taken to be the date of the original mortgage, that is, March 26, 1925, the suit would be clearly barred by time, but not so if the subsequent mortgage Exhibit P. 5 of May 12, 1951, is taken to be an acknowledgement of the mortgage in terms of Section 19 of the Limitation Act, 1963, so as to extend the period of limitation for the filing of the suit.

The law is wellsettled as laid down by the Supreme Court in Shapoor Fredoom Mazda v. Durga Prosad Chamaria, AIR 1961 S.C. 1236, that the statement on which a plea of acknowledgement is based must relate to a subsisting liability. Words used in the acknowledgement must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting that jural relationship.

In the later judgment of Tilak Ram and others v. Nathu and others, AIR 1967 S.C. 935, it was observed :

``The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence the intention to admit cannot be imposed on its maker by an involved or a far fetched process of reasoning.''''

This was later followed by our Court in Narinder Singh v. Arjan Singh, AIR 1983 P&H 337.

A reading of the subsequent mortgage deed Exhibit P. 5 would show that it no doubt records the existence of the original mortgage by Himta Ram in favour of Gheru Ram, but counsel for the plaintiffs when pointedly asked to do so could be specify any portion thereof or anything recorded therein which could be construed as indicative of a subsisting liability or existing jural relationship in terms of the rule laid down by the Supreme Court so as to bring forward the starting point of limitation to May 12, 1951. This being so, no exception can indeed be taken to the finding of the lower appellate Court that the suit of the plaintiffs was barred by time.

The judgment and decree of the lower appellate Court is accordingly hereby upheld and affirmed. The appeal is dismissed. There will, however, be no order as to costs.