1943 (10) TMI 20 - HC - Indian Laws

Summary

Issues Involved:
1. Relationship of mortgagor and mortgagee.
2. Limitation for redemption of mortgage.
3. Validity of acknowledgments in 1852 and 1878.
4. Burden of proof regarding the date of mortgage and acknowledgment.
5. Applicability of previous legal precedents and statutory provisions.

Detailed Analysis:

1. Relationship of Mortgagor and Mortgagee:
The plaintiffs alleged that the properties were usufructuarily mortgaged in 1836 by Tulsi, Dilsukh, Natha, and Hira to Lachhman, Maharam, and Mahasukh. The defendants contended that there was no relationship of mortgagor and mortgagee between the parties. The trial court found that there was no evidence to prove the specific mortgages set up by the plaintiffs. The entries in the khewats of 1852 and 1878 did not conclusively prove the identity of the original mortgagors and mortgagees, nor did they establish the terms of the alleged mortgages.

2. Limitation for Redemption of Mortgage:
The trial court upheld the plea of limitation and dismissed the suit. The plaintiffs argued that the limitation was saved by acknowledgments made in 1852 and 1878. However, the court found that the plaintiffs failed to prove that these acknowledgments were made within the prescribed period of limitation. The entries in 1852 were made when there was no limitation for redemption suits, and the entries in 1878 did not conclusively establish a subsisting liability.

3. Validity of Acknowledgments in 1852 and 1878:
The court examined whether the acknowledgments in 1852 and 1878 saved the limitation for a suit for redemption. The acknowledgment in 1852 was made before the enactment of Act 14 of 1859, which introduced a period of limitation for redemption suits. The acknowledgment in 1878 recited that the mortgage was redeemable at Dasehra in the month of Jeth. However, the court doubted whether the mortgagees were consciously acknowledging a subsisting liability. The acknowledgment must be made within the prescribed period of limitation to be valid, and the plaintiffs failed to prove that the acknowledgment in 1878 was made within 60 years of the mortgage or an earlier acknowledgment.

4. Burden of Proof Regarding the Date of Mortgage and Acknowledgment:
The onus was on the plaintiffs to show that the acknowledgment of 1878 was made within the period of limitation. The court held that an acknowledgment of liability does not necessarily imply an admission that a suit is not barred by limitation. The plaintiffs failed to establish the date of the mortgage, and therefore, they could not prove that the acknowledgment in 1878 was made within the prescribed period of limitation.

5. Applicability of Previous Legal Precedents and Statutory Provisions:
The court referred to several legal precedents and statutory provisions, including Daia Chand v. Sarfraz, Shankar v. Dharmon, Kamla Devi v. Gur Dayal, Anup Singh v. Fateh Chand, and others. The court noted that there was a divergence of opinion on whether an acknowledgment of liability amounted to proof of a subsisting liability enforceable at law. The court concluded that the acknowledgment in 1852 did not amount to an acknowledgment of liability, and the acknowledgment in 1878 did not relieve the plaintiffs of the duty of proving that the acknowledgment was made within 60 years of the mortgage or an earlier acknowledgment.

Conclusion:
The appeals were dismissed on the grounds that the plaintiffs failed to prove the specific mortgages they set up, and their claims were barred by limitation. The acknowledgments in 1852 and 1878 did not save the limitation, and the plaintiffs failed to discharge the burden of proving that the acknowledgments were made within the prescribed period of limitation.