Sunder Das and others vs Fatimul-ul-Nissa Begam and others

Beverley, J.—The object of this suit is for a declaration that a certain mortgage debt has been paid off, and that the Plaintiffs, as representing the mortgagors, are entitled to possession, or that if any portion of the debt be still due, the Plaintiffs may have an opportunity of redeeming the property. The mortgage in question was executed so far back as the 17th of October 1788, by one Narul Hussain Khan, in favour of three persons, named Shadhu Ram, Nehal Chand, and Brindabon, to whom he owed a sum of Rs. 1,05,783-11-3.

The arrangement was that the mortgagees should take possession of the property mortgaged, and should deduct Rs. 6,201 annually from the debt.

In 1213 Fuslee, the heir of Narul Hussain Khan, under the pretext that the (2) ILR 9 Cal. 586, debt had been paid off, took possession of the villages mortgaged. A claim was preferred by the mortgagors, and it is said that a settlement was come to between the heirs of the mortgagor, and the representatives of two out of the original three mortgagees.

There is no evidence of any arrangement with Shadhu Ram, the remaining mortgagee.

As far as we can make out from the documents put in, litigation broke out very soon after the execution of the mortgage. There were decrees of the Courts so early as the 22nd of August 1798 and the 20th of December 1799 in matters apparently concerning the mortgage, as we find them recited in the decree or the mortgage, dated the 17th of September 1818. In the last mentioned decree, there is also a reference to razinama, but it is impossible for us to say in the absence of evidence that the original contract ceased to have any effect.

There was undoubtedly a release of 14 annas of the debt and of the property, but as is stated in the plaint, apparently the ancestor of the Defendants, the shareholders of the two annas debt, i.e., Shadhu Ram, did not come to a settlement. There is nothing whatever to show that Shadhu Ram entered into a new contract or in any way gave up his rights under the old contract, except perhaps that he was willing that a two annas share of the property should be appropriated to pay his share of the debt, and that the rest of the property should be released.

On the 14th of July 1817, Juggernath and Balaram, the two sons of Shadhu Ram, brought a suit against the heirs of Narul Hussain for their share of the rents appropriated by the Defendants from 1213, when they took possession until 1223. They obtained a decree on the 17th September 1818 for possession of, an eighth share of the villages mortgaged, and also for an eighth share of the proceeds appropriated by the Defendants.

On the 25th of November 1819, the representatives of the mortgagors sued Juggernath and Balaram for redemption of the one-eighth share.

In this suit the Provincial Court made a decree on the 3rd of October 1820 dismissing the suit, but also providing for the redemption of the property. The account prepared by the Provincial Court and annexed in their decree was altered -on special appeal in 1833 by the Court of Sudder Dewany Adalat.

The present Plaintiffs, who are, with Defendants 3 to 7, heirs of the original mortgagor, claim that the debt was paid off in 1288 Fuslee, and now sue the heirs of Shadhu Ram for a declaration to that effect and for a declaration of their rights to the property, or for redemption in case any of the money be found still to be due.

Amongst other defences limitation is pleaded, and with the exception of a plea of res judicata, the only question which -has been argued before us is whether the suit is barred by limitation.

The learned Judge in the Court below decides this question in favour of the Plaintiffs. We regret that we find ourselves unable to agree with him.

Until Act XIV of 1859 was passed, there was no limitation in respect of suits for redemption. But that Act, which came into force on the 1st of January '' 1860, provided the term of 60 years in suits against a mortgagee for the recovery of property mortgaged, each 60 years, running from the time of the mortgage, or "if, in the meantime, an acknowledgment of the title of the mortgagor or of his right of redemption shall have been given in writing signed by the mortgagee or some person claiming under him from the date of such acknowledgment in writing," Act XIV of 1859, sec. 1, cl. 15.

Now, the first question is from what date limitation began to run. Mr. Gregory for the Plaintiffs contended that the time began to run not from 1788, the date of the original mortgage, but from some time in 1814, when he says there was a fresh agreement.

As we have already pointed out, there is nothing whatever in this case to show that there was any new arrangement which effaced the original mortgage. The rights both of the mortgagor and mortgagee continued to be determinable by the original mortgage, although a portion of the debt had been cleared off and a portion of the property released. As we have pointed out, we can find no trace of any such arrangement in any portion of the previous litigation. The Plaintiff''s ancestors throughout the litigation based their rights on the original deed. In their present plaint, the Plaintiffs do the same. We do not find that the suggestion of a new arrangement was made in the Court below.

We have no hesitation in coming to the conclusion that the time ran from 1788, and that unless there be evidence of an acknowledgment, such as to satisfy the requirements of sec. 1, clause 15 of Act XIV of 1859) the 60 years expired in 1848, and, therefore, the suit was barred, if not brought before the 1st of January 1862. Was there such an acknowledgment ? The only acknowledgments relied upon by the Plaintiffs between the years 1788 and 1848 are to be found in decrees made in the previous litigation, which purport to recite a plaint of the ancestors of the present Defendants on the 14th of July 1817, and a written statement of the 1st of June 1820.

The learned Judge of the Court below has relied upon admission in those pleadings. The first question is whether any case has been made for secondary evidence of the plaint and written statement. The second question is whether secondary evidence according to law has been given; and the third question is whether, even if the copies of the plaint and written statement set out in the decrees amount in law to secondary evidence of such plaint and written statement, they are sufficient to take the case out of the operation of the law of limitation. On the first question we hold that a case has been made for secondary evidence. It is not very clear whether the records of suits relating to the Shahabad District, but decided by the Provincial Court at Patna, would be kept at Arrah or at Patna; but as far as we can see, they would have been probably kept in the Shahabad Court. Apart from the evidence in this case, it is a matter of notoriety that during the Mutiny, the records of the Civil Courts at Arrah were destroyed.

It is not necessary for us to decide the second question. If we had to decide it, we should have to consider how far we could follow the decision of this Court in Parbutty Dassi v. Purno Chunder Singh ILR 9 Cal, s. 86. We think it quite clear that we must hold on the third question that the requirements of the Limitation Act have not been satisfied. The case of Luchmee Buksh Roy v. Runjeet Ram Panday 13 B.L.R. 177, P.C., decides that it is only an acknowledgment signed by the hand of the mortgagee himself, which will take the case out of the operation of the Act. If, according to the law of Procedure in force at the time, the plaint or written statement was required to be signed by the party himself, we might have been able to decide this question in favour of the Plaintiffs; but on referring to Regulation IV of 1793, which contained the law of procedure then in force in Civil Courts, we find that the plaint might be signed by the Plaintiff or his pleader, and that a written statement did not require any signature at all. It follows that it is consistent with the evidence in this case that the plaint of 1817 was signed by the pleader, and that the written statement of 1820 was either signed by the pleader or not at all. We cannot, therefore, hold that the acknowledgments were signed in the way provided by sec. 1, cl. 15. The learned Judge in the Court below presumes the signatures, because he says that the law requires the plaint and written statement to be signed by the Plaintiff and Defendant respectively, He has forgotten to notice that the law now in force was not in force in 1817 and 1820. This, in our opinion, is the cardinal defect in his judgment.

Holding, as we do, the view that between 1788 and 1840 there was no acknowledgment to take the case out of the Act. It is unnecessary for us to consider the documents which have been put forward as acknowledgments after 1842. It has been contended before us amongst other things that statements made in pleadings cannot be used as acknowledgments for purposes of limitation, especially when they are made in suits to which the mortgagors are not parties, and it is contended that a mere description of the Defendants as mortgagees is not an acknowledgment. It is not necessary for us to decide any of these questions. It is also contended that the suit is barred by the law of res judicata. It is not necessary for us to decide this question. In our opinion the suit is barred by limitation, and must be dismissed with costs in both Courts.