Zora Singh vs Budh Ram and others

D.S. Tewatia, J.—The sole question that falls for determination in this appeal is as to whether the suit for redemption of the land in question is barred by limitation.

To appreciate the import of the aforesaid point, a few facts that are not in dispute deserve to be noticed. Uttam Singh, great grandfather of Zora Singh Appellant, bad mortgaged the land in question with Shiv Chand, predecessor in interest of the Defendant respenden''s for a sum of Rs. 200/- on Har Sudi Dooj, 194(sic) Bk., regarding which a mutation was sanctioned or Poh. 7, 1964(sic) Bk. Pala Singh, grandfather of the Plaintiff, secured a debt of Rs. 100/- more against the said land on Joth Badi Chaudus, 1969 Bk. Nikka Singh, father of the Plaintiff, also raised a loan of Rs. 700/- against the aforesaid lard from the aforesaid mortgagee on Jeth 31, 1984 Bk. corresponding to June 13, 1927 A.D. thus raising the total mortgage debt to Rs. 1003/-. Nikka Singh, father of the Plaintiff, transferred his rights i.e. the equity of of redemption in the land in question to Zora Singh Plaintiff, while Har Kishan, son of Shiv Chand, the original mortgagee, succeeded to the latter''s rights in the land in question. As a result of consolidation operations in the village where the land in question is located, land measuring 12 Kanals and 4 Marias, which is the subject-matter of the present proceedings, was allotted in lieu of the original land measuring 9 Bighas and 8 Biswas, which was the subject-matter of mortgage already recounted.

The trial Court treating document Exhibit P. 1, which is a registered mortgage-deed whereby Nikka Singh had raised a debt of Rs. 700/- against the existing mortgaged land, as an acknowledgment of Shiv Chand mortgagee, held that the suit, which was filed on 2, st December 1967, was within limitation.

The lower appellate Court following the ratio of Tilak Ram v. Nalhu AIR. 19 7 SC. 935, which was reiterated in Lakshmirattan Cotton Mills Co.Ltd. and Behari Lal Ram Charan Vs. The Aluminium Corporation of India Ltd., and that of Samdu and Ors. v. Subhan Khan (1972) 74 P.L.R.435, and Nallathambi Nadar Chellakannu Nadar Vs. Ammal Nadachi Chellathankom Nadachi and Others, held that the document Exhibit P. I did not amount to an acknowledgment on the part of Shiv Chand mortgagee of his liability to be redeemed in terms of Section 19 of the old Limitation Act which is equivalent to Section 18 of the new Act.

The Learned Counsel for its Respondents, besides relying on the aforesaid decisions, additionally drew support for the conclusion of the lower appellate Court from Khan Bahadur Shapoor Fredoom Mazda Vs. Durga Prosad Chamaria and Others, Gurbux Singh and Another Vs. Smt. Chinti and Others, , C. Veerabahu Pattar Vs. P. Eswara Pillai, . and Hoji Abdulla v. Bhoja Mal AIR 1931 Lab. 122.

The authoritative interpretation of Section 18 of the Limitation Act, hereinafter referred to as the Act, was a tempted by their Lordships of the Suppreme Court in Shapoor Fredoom Mazda''s case. Gajendragadkar, J. (as he then was), speaking for the Bench, indicated the requirements of Section 19(1) of the Act, which a document has to comply so as to amount to an acknowledgment in terms of the said section, in paras 5 and 6 of the judgment, which can be noticed with benefit in extenso:

(5) Section 19 (1) says, inter-alia, that where before the expiration of the period prescribed for a suit in respect of any right, an acknowledgment of liability in respect of such right has been made in writing signed by the party against whom such right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. It would be noticed that some of the relevant essential requirements of a valid acknowledgment are that it must be made before the relevant period of limitation has expired, it must be in regard to the liability in respect of the right in question and it must be made in writing and must be signed by the party against whom such right is claimed. Section 19 (2) provides that where the writing containing the acknowledgment is undated, oral evidence may be given about the time when it was signed but it prescribes that subject to the provisions of the Indian Evidence Act, 1878, oral evidenne of its content shall not be received ; in other words, though oral evidence may be given about the date oral evidence about the contents of the document is excluded. Explanation 1 is also relevant. It provides, inter alia, that for the purpose of Section 19 an acknowledgment may be sufficient though it omits to specify the exact nature of the right or avers that the time for payment has not yet come, or is accompanied by a refusal to pay, or is coupled with a claim to a set off, or is adressed to a person other than the person entitled to the right.

(6) It is thus clear that acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action, it is a mere acknowledgmert of the liabitity in resrect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication. From the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it The admission in question need not be express but 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 to statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally Courts 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 a 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. Broadly stated that is the effect of the relevant provisions contained in Section 19 and there is really no substantial difference between the parties as to the true legal position in this matter.

As to what is an acknowledgment, their Lordships quoted with approval the weighty observations of Fry, L.J. made in Green v. Humphreye, 1884 Ch. D. 474. which are reproduced below:

... In my view an acknowledgment is an admission by the writer that there is a debt owing by him either to the receiver of the Letter or to some other person on whose behalf the letter is received but it is not enough that he refers to a debt as being due from somebody. In order to take the case out of the statute there must upon the fair construction of the letter, read by the light of the surrounding circumstances, be an admission that the writter owes the debt.

In the case Shapoor Fredoom Mazda''s case, the doument the following letter written by the mortgagor to the mortgagee came up for consideration to see as to whether that amounted to an acknowledgement by the mortgagor of his status as such, as also that of the mortgagee, in regard to the property therein involved:

My dear Durgaprosad,

Chandni Bazar is again advertised for sale on Friday the 11th instant. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000/- a few days ago but as soon as they heard it was advertised by the Registrar they withdrew. As you are interested why do not you take up the whole. There is only about Rs. 70,000/- due to the mortgagee a payment of Rs. 10,000/- will stop the sale.

Yours sincerely, Sd. J. C. Galstaun.

After reading the letter, their Lordships observed that the tenor of the letter showed that it was addressed by the mortgagor to the puisne mortgagee, it reminded him of his interest as such mortgagee in the property which would be put up for sale by the first mortgagee, and appealed to him to assist the avoidance of sale, and thus acquired the whole of the mortgagee''s interest; that it was common ground that no other relationship existed between the parties at the date on the said letter and that the only subsisting relationship was that of mortgagee and mortgagor ; and that since that letter acknowledged the existence of such jural relationship, it amounted to a clear acknowledgement u/s 19 of the Act.

In the case of Tilak Ram and Ors. (supra), their Lordships applied the principle enunciated in Shapoor Fredhom Mazda''s case while construing the statement of Parmeshwar Dass mortgagee contained in a sale deed whereby he sold his mortgagee rights ; in a plaint; and in a written statement where he described himself as the mortgagee Their Lordships held that the mention of his interest in the land as that of a mortgagee was merely descriptive of his rights and was not an admission of the existence of the jural relationship between him and the mortgagor and accordingly the documents in question did not amount to an acknowledgement of the liability to be redeemed in terms of Section 18 of the Act.

The other decisions viz. the cases of M/s, Lakshmiratan Cotton Mills Company Ltd. (supra); Gurbux Singh and Anr. (supra); and C. Veerabahu Pattar (supra), relied upon by the Learned Counsel for the Respondents, were also the cases in which the mortgagee happened to acknowledge himself as the mortgagee of the land while assigning his rights as mortgagee. It was held that a mortgagee while effecting transfer of his mortgagee rights could not do so without giving a description of his status qua the property rights which he was transferring, but from that it could not be inferred that he intended to admit the existence of jural relationship between himself and the mortgagor.

The facts involved in C. Veerabaha Pattar''s case did not, in fact, bring the document within the four corners of the requirements of Section 19 of the Act inasmuch as the person who is said to have made acknowledgement did not enjoy in the property the right, which he is said to have acknowledged, on the date when the document in question was written.

The case of Haji Abdulla (supra) decided by the Lahore High Court too fell in the same category, as the document in question had not been signed by the mortgagee.

In the present case the document that fails for considration is a registered mortgage deed executed by Shiv Chand mortgagee and the mortgagor. When rendered in English, this document reads:

I, Nikka Singh son of Pala Singh, caste Jat, Got Sanghera, aged 30 years, resident of Sanghera, Tehsil Barnala, do hereby declare as under:

I have agricultural land of Barani soil measuring 9 Bighas 8 Biswas bearing Khasra Nos. 1351/3-1 Barani and 1415/6-7 Barani entered at Khata No 1231/2223 situate in the area of Sanghera which is already mortgaged by me with Lala Shib Chand son of Johri Mal, caste Mahajan, resident of Karamgarh for Rs. 300/- by way of private mortgage. Now I have to pay off a considerable amount of debt and have to purchase the cattle so I am in dire necessity of money. Hence I, while in the enjoyment of my sound health and intellect and of my own accord, do hereby agree to receive a sum of Rs. 700/- double of Rs. 350/- more in current coins in respect of the said land from the said mortgagee and execute as under:

I have received the additional sale money as under: Received in cash from the mortgagee at the Rs. 510 00 house.

To be received now in cash before the Sub- Rs. 190-00 Registrar, Barnala.

Hence, I have executed these few words in the form of additional mortgage deed respecting land measuring 9-9 Bighas Kham for Rs. 700/-, so that the same may serve as authority.

Executed on Monday, the 13th June, 1927, corresponding to Jeth 31 Saraat 1984.

Executed by : Nikka Singh s/o Pala Singh, caste Jat, Got Sanghera, aged 30 years resident of Sanghera, mortgagor.

Scribed by :BanarsiDass. Petition-writer No. 1808. Witnessed by :

Nikka Singh s/o Buta, cast Jat, Got Sanghera, aged 35 years. Sd/- Nikka Singh (with his thumb mark). Witnessed by :GokalChand s/o Ganga Ram, caste Mahajan, Got Bansal, aged 54 years, r/o Sanghera. Sd/- GokalChand (in Hindi)

Sd/- Nikka Singh (with his thumb mark), s/o Sanghera.

(Registration endorsements)

Nikka Singh son of Pala Singh, caste Jat, r/o Sanghera has produced before me this mortgage deed, today, Monday, the 13th June, 1927, corresponding to Jeth 31 Sanbat 84, for registration.

Sd/- Ram Saran Das

Executed by: Nikka Singh s/o Pala Singh, Executant-mortgagor. Sd/- Nikka Singh (with his thumb mark).

The executant named above identified by Nikka Singh and Gokal Chand s/o Ganga Ram, marginal witnesses, has admitted the execution and completion of the additional mortgage deed after hearing the contents thereof word for word and understanding the same. The mortgagor has received before me a sum of Rs. 190/- on account of additional mortgage money and admitted to have received the remaining money amounting to Rs. 510/- at his house. Gokal Chand witness is known to me. Hence, this deed be registered.

Signature of: Ram Saran Das Sub-Registrar

Produced by: Nikka Singh s/o Pala Singh, mortgagor, executant. Sd/- Nikka Singh (with his thumb impression) Witnessed by:

Nikka Singh s/o Buta Singh Jat. So/- Nikka Singh (with his thumb mark)

Gokal Chand s/o Ganga Ram, Sd/- Gokal Chand (in Hindi).

Certificate

This deed has been registered at No. 317. Bahi No. 1, volume No. 63, pages 294 and 295, on Har 13 Sammat 84. The signatures in Hind land thumb impressions have been secured before me.

Signature of: Ram Saran Das Sub-Registrar, Barnala.

A perusal of the aforesaid document would make it clear that it was jointly executed by the mortgagee and mortgagor concerned, wherein it was specifically mentioned that the land in question was already mortgaged with the mortgagee for a sum of Rs. 300/- and that the said mortagage amount was raised by another sum of Rs. 700/- which the mortgagor bad secured against the said land from Shiv Chand mortgagee. The deed in question had been signed by Shiv Chand mortgagee in his capacity as a mortgagee in the presence of the Sub-Registrar who too had appended a certificate to that effect under his endorsement.

To the facts of the present case, it is the ratio of the ease of Shapoor Fredhom Mazda (supra) that has a bearing, if at all, and not of the cases which had been relied upon on behalf of the Respondent. In the present case, Shiv Chand mortgagee clearly admitted the existing jural relationship between him and Nikka Singh mortgagor and, therefore, the document in question clearly constituted an acknowledgment of Shiv Chand mortgagee''s liability to be redeemed which flowed as a legal consequence from his admission of the jural relationship of the mortgage and the mortgagor.

Mr. Sarin sought to faintly urge that since the document in question was written in Urdu and Shiv Chand mortgagee had put his signatures under the expression Murtehan in Hindi and there being no mention of the fact that the document had been read out to him, it cannot be presumed that he was consciously admitting the jural relationship of the mortgagee and the mortgagor between him and Nikka Singh.

The argument would not bear even a moment''s scrutiny. It is the admitted case of both the parties that Rs. 700/- had been advanced by Shiv Chand mortgagee to Nikka Singh mortgagor against the land which was already under mortgage for a sum of Rs. 300/- (Rs. 200/- being the mortgage-money taken by the great grandfather of Zora Singh Plaintiff and Rs. 100/- later on raised from the mortgagee against that very land by the grandfather of the Plaintiff both being predecessors-in-interest of Nikka Singh, father of the Plaintiff-mortgagor) and a registered mortgage deed had been executed between the parties regarding the latest mortgage in question.

For the reasons stated, I hold that the document Exhibit P. 1 constituted an acknowledgement in terms of Section 18 of the Act and thus brought the suit of the Plaintiff within limitation, for it is not disputed that once the document in question is found to constitute acknowledgment, the suit would be within limitation.

In the result, the judgment and decree of the lower appellate Court is reversed, that of the trial Court is restored, and while allowing the appeal of the Plaintiff his suit is decreed with costs.