Smt. Bachint Kaur vs Smt. Gurnam Kaur and Others

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the first appellate Court, affirming on appeal those of the trial Judge.

The facts :--

The suit land was originally owned by Sher Singh and Sunder Singh having 1/2 share and Mihan Singh having remaining 1/2 share Sher Singh and Sunder Singh had mortgaged their 1/2 share in the suit land in favour of Kishan Singh for Rs. 1,800/ and mutation No. 1547 dated June 14, 1929, Ex. P-7 was sanctioned. The mortgagee transferred his mortgagee rights to Gian Singh and Mal Singh son of Chuhar Singh for Rs. 1800/- and mutation No. 3345, dated May 16, 1944 was sanctioned. Kishan Singh executed receipt, Ex. D.1, in favour of the transferor mortgagee acknowledging receipt of consideration of Rs. 1800/-. Sher Singh and Sunder Singh sold their 1/2 share in the suit land to Smt. Bachint Kaur, defendant-appellant, Gurbux Singh and Kashmir Singh, defendant-respondents, for a consideration of Rs. 7500/- vide registered sale deed dated February 25, 1943, Ex. P-4 and mutation Ex. P-9 was sanctioned in favour of vendees. Gian Singh and Mal Singh sold their mortgagee rights in favour of Smt. Gurnam Kaur, plaintiff respondent No. 1 for Rs. 1,800/-. She filed a suit for declaration that she had become the owner of land since the defendants had lost their right of redemption by efflux of time as they lid not exercise the same within the period of limitation prescribed. The defendants joined issue with the plaintiff on the question of limitation and pleaded that the mortgagees had transferred their mortgagee rights vide Exhibit. D. 1 and D. 2, on the basis of which mutations Exhibits P-8 and P-10, respectively, were sa(sic)ctioned. In the receipts, the subsistence of jural relationship of mortgagor and mortgagee is admitted and this admission amounts to an acknowledgement. Within the meaning of Section 19 of the Limitation Act.

The only question which survives for determination is that receipt dated June 7, 1948(Ex. D-1) executed by Kishan Singh mortgagee while transferring his mortgagee rights in favour of Gian Singh and Mal Singh and the subsequent transfer of the mortgagee rights by Gian Singh and Mal Singh in favour of Smt. Gurnam Kaur, plaintiff respondent No. 1. vide receipt dated July 11, 1949 (Ex. D-2) amounts to acknowledgement within the meaning of Section 19 of the Limitation Act. It will be useful to reproduce the English translation of the receipts Exhibits D-1 and D-2, which are in Urdu. Translated version of receipt Ex-D. I reads as under :--

''By this writing, I, Kishan Singh son of Dassundha Jat Sikh, resident of village Bopa Rai Kalan, Tehsil Jagraon, am the executant of this receipt. I have received a total amount of Rs. 1,800/-in cash, half of which comes to Rs. 900/- from Gian Singh, son of Bir Singh, and Mal Singh son of Chuhar Singh, in equal shares, jats by caste, residents of V. Bopa Rai Kalan, regarding the mortgage of land with possession by Sher Singh, son of Tara Singh and Sunder Singh son of Budh Singh, Jat Sikhs, residents of Village Bopa Rai Kalan, at present Chak Biruwala, Gujrat Bahawalpur and after receiving the cash in the presence of the two attesting witnesses, had sold the mortgagee rights. Therefore, a few words have been written for evidence.

Sd/---Executant Kishan Singh 7-4-48. in English Sd/- Witnesses.

Translated version of receipt, Ex. D-2 reads as under :--

"I, Gian Singh son of Bir Singh, Jat Sikh, resident of Bopa Rai Kalan, am of the executant of the receipt. I have received Rs 1,800/- half of which comes to Rs. 900/- in the presence of the witnesses, from Gurnam Kaur wife of Gurbux Singh, Jat, resident of Bopa Rai Kaian, Teh. Jagraon on account of the total amount regarding the mortgage of land with possession by Sher Singh, son of Tara Singh and Sunder Singh son of Budh Singh, Jats by caste, residents of V. Bopa Rai Kalan, Tehsil Jagraon, and the mortgagee rights have been sold to her. I am the general power of attorney of Mal Singh son of Chuhar Singh, vide registered deed 26-1-1948. Therefore, the receipt has been executed in evidence dated 11.7.49. Register No. 14.

Sd/- Witnesses. Sd/- Executant.

A bare reading of receipts Ex. D-1 and D-2 shows that the transferees of the mortgagee rights by making a statement as to the jural relationship only wanted to give a description of the right dealt with by them. A statement to fall within acknowledgement u/s 19 of the Limitation Act must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. These receipts do not indicate that their makers intended to admit the subsisting mortgages and that the right to re-deem subsisted. The statement in these two receipts is merely a description of the rights which were being transferred and nothing being beyond it and this statement will not amount to falling within meaning of Section 19 of the Limitation Act. It will be useful to reproduce the following observations of the apex Court in Tilak Ram and Ors. v. Nathu and Ors. AIR 1967 S. G. 935.

''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 mast 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 an intention to admit cannot be imposed on its maker by an involved or farfetched process of reasoning."

Following the dictum of the apex Court, in Tilak Ram''s case (supra), a Division Bench of this Court in Gurbux Singh and Anr. v. Smt. Chinti and Ors. AIR 1975 Punj. & Hat. 17, held thus :--

"On the parity of reasoning, it can be said that Inder Singh while executing Gurbux Singh and Another Vs. Smt. Chinti and Others, the gift-deed, did not intend to acknowledge that Smt. Bishni had the right to redeem the land which he held on mortgage from his predecessor-in-interest. Inder Singh was only describing the property that he was gifting in favour of Jagir Singh. He was even trying to acquire proprietary rights in the land owned by Smt Bishni by adverse possession. He could not, in these circumstances, be expected to keep any right of Smt. Bishni alive by making an acknowledgement in her favour. I am, therefore, of the opinion, that the mention of the mortgagee rights in the gift deed did not amount to acknowledgement of the liability of Inder Singh to be redeemed by Smt. Bishni or her heirs."

In the light of these decisions, there is no escape from the conclusion that admission in the receipts Exhibits D-1 and D-2 of existence of jural relationship between the parties is only a description of the rights which were transferred and there was no intention to admit that the mortgage subsisted or that the right of redemption was cancelled.

Resultantly, there is no force in the appeal and the same is dismissed with no order as to costs.