Santhakumari Kunjamma and Others vs Narayanankutty Martha and Other

S. Padmanabhan, J.—The sole question to be decided in these two second appeals, filed by the plaintiffs in two suits, is whether the courts below were correct in dismissing the suits as barred by limitation. The decision rests on the controversy whether two documents pleaded contain acknowledgments saving limitation. Both suits are or redemption of one-half share of the property covered by Ext A1 mortgage of 16-9-1103. Acknowledgments pleaded are those contained in Ext A2 assignment deed dated 17-7-1118 and Ext A4 assignment dated 26-3-1959. Suits were filed on 13-10-1977.

In both the suits, the mortgagee did not contest because they are not in possession Contest is by their lessees whose claim for fixity of tenure was found against by the Land Tribunal on the ground that they are only lessees of the mortgagees. The suits for redemption are far beyond the period of limitation and even if Ext.A2 is accepted as containing an acknowledgement, the suit will not be within time. Ext. A4 alone could save limitation. Respondents say that what is contained in Ext. A4 is only descriptive and it cannot be accepted as acknowledgment. They further say that Ext. A.4 contain assignment of something more than the mortgage right and hence the period of limitation is only 12 years from that date under Article 61 (b) of the limitation Act corresponding to old Article 134.

The last argument is devoid of any merit. The transfer for a valuable consideration contemplated in Article 61(b) is something, other-than an express transfer of the original mortgagee in derogation of the title of the mortgagor. It contemplates a transfers by the mortgagee purporting to transfer a larger interest than that given by the mortgage or, at any rate, an interest unencumbered by the mortgage ( AIR 1929 158 (Privy Council) ). In such cases, time runs from the date when the transfer became known to the plaintiff. That provision is intended to protect the transferees for value who purchased from the mortgagee an interest larger then what he had and have been allowed to remain in possession and enjoyment of such larger interest for a period of 12 years even after such interest became known to the plaintiff. It is also to give a warning to the plaintiff and compel him to watch and cut down the estate by intervening. For the applicability of the article, it is not necessary that transfer by the mortgagee should be an absolute estate. But it is necessary that it should be a larger interest that the mortgagee did not have and which is likely affect the rights of the mortgagor if allowed to continue. By Ext. A4 that is transferred is only the mortgage right. Nothing more is claimed or transferred. The argument was based on a statement containing a direction to the assignee that he should enjoy. It is claimed to be a direction to enjoy in derogation of the mortgage. It can only be a mistake for "(??)". A different interpretation is not possible at all because no such claim is there. Normal inference is that direction was to enjoy subject to the mortgage. Therefore, Article 61(b) has no application.

Equally I do not find any force in the contention of the appellants that the plea of limitation is barred by constructive res-judicata. The argument was that while claiming fixity of tenure before the Land Tribunal, the respondents did not plea that Ext. A1 is barred by limitation and for that reason they are entitled to fixity even though they are only lessees of the motgagees. The question whether the mortgage is barred by limitation or not was not a contention that might and ought to have been raised before the Land Tribunal when redeem-ability of the mortgage was not an issue at all. The question of limitation for redeeming the mortgage will arise only when the mortgage is sought to be redeemed or the question of redemption otherwise arises for consideration. In such cases, even without a contention, it is the duty of court to see whether the suit is within time. Such a plea of constructive res judicata was not raised in the pleadings.

Executant of Ext. A4 was only the mortgagee. He was only assigning his mortgage right. For the purpose of assignment a description of the right and its origin are necessary. They are only descriptive because he was only describing his right which is necessary for execution of the document. There was no necessity or occasion for him to admit or acknowledge a subsisting liability to be redeemed. u/s 18 corresponding to old Section 19 of the Limitation Act what is required is that before the expiration of the prescribed period for a suit or application, there must be an acknowledgment of liability respect of the property or right. Then only a fresh period of limitation shall be computed. The explanation makes it clear that omission to specify the exact nature of the property or right or averment that time has not yet come is immaterial. But there must be an admission of the subsisting jural relationship with the intention of admitting the same (Bank of India v. James Fernandez - 1987 (2) K. L. T. 236).

It is true that acknowledgment merely renews the debt and does not create a new right of action ( Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, ). Though it need not be accompanied by a promise to pay even impliedly it must acknowledge a liability. Intention to admit the subsisting jural relationship itself need not be express and it can also be by implication from the nature of the admission. Though oral evidence is excluded in construing the words used in the statement, surrounding circumstances could always be considered. It is also true that, generally speaking, courts lean in favour of liberal construction of the statement. That does not mean that when no admission is made, one should be inferred Lakshmirattan Cotton Mills Co.Ltd. and Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd., .

There was difference of opinion regarding the interpretation of Section 18 of the Limitation Act. One view was that a mere statement in an assignment of mortgage that he was selling his mortgage right was sufficient to create an estoppel in setting up a defence inconsistent with the rights of mortgage. The other view is that a mere admission of jural relationship is not sufficient and that a statement in order to constitute acknowledgment must be in relation to the liability or the right or the property claimed and that such a statement must be shown to have Seen made with a consciousness and an intention of admitting such a right or liability. These two views were considered and the latter one was accepted by the Supreme Court in Tilak Ram and Others Vs. Nathu and Others, . The later decision have not gone against it. What section requires are: (a) an admission or acknowledgment:

(b) such admission or acknowledgment must be in respect of a liability in respect of a a property or right;

(c) it must be before the limitation; and

(d) it should be in writing and signed.

Admission of the jural relationship of mortgagor or mortgagee is not by itself sufficient to constitute an acknowledgment within the meaning of the section. The words used in the acknowledgment must indicate the jural relationship and it must also appear that such a statement is made with the intention of admitting the jural relationship even though the intention can be inferred from the nature of the admission. Admission must be of a subsisting relationship which was there when it was made. The description in the assignment for the purpose of describing the interest, as was considered earlier, is not sufficient. Admission must be of the subsisting liability as mortgagee thereunder of being redeemed.

Bhagavathi Pillai v. Ponnamma Pillai (1966 K. L. T. 1096), relied on by the appellant, did not hold anything different. Padmanabha Pillai Kochukrishna Pillai v. Lakshmi Pillai Rugmini Pillai Thankachi and others (A.I.R 1953 T. C 244); which held the contrary, cannot represent the correct law in view of what the Supreme Court said. Lakshmirattan Cotton Mills Co.Ltd. and Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd., did not say anything different from Tilak Ram and Others Vs. Nathu and Others, . Valliamma Champaka Pillai Vs. Sivathanu Pillai and Others, also said that admission of subsisting liability is necessary. Exts. A4 did not contain any such acknowledgment. What is contained is only description of the right transferred. Without that an assignment is not possible. The Appellate Judge was right in non-suiting the appellants on the ground of limitation. Second appeals are dismissed. No costs.