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TMI Blog1963 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... question we shall refer to the facts which have given rise to this appeal. Madi Pillai, the original owner of the property which forms the subject-matter of this litigation, created in the year 1869 (14-10-1044 M. E.) a usufructuary mortgage over it in favour of one Raman Kumaran. The mortgagor's right in course of time devolved on two persons, Kanakkan Thampi and Sivasankara Thampi. The latter who was in the position of a comortgagor instituted a suit in the Sub Court, Padmanabhapuram (O.S. 1161 of 1106) against the Co-mortgagee for redemption. In the course he obtained a decree, paid up the mortgage money and obtained delivery of possession of the entire mortgaged property. This was on 11-12-1107 M. E. that is in the year 1932. The half right in the equity of redemption which vested in Kankkan Thampi was subsequently purchased in the year 1946 from his successor-in-interest by the appellant who on 1-2-1954 filed the suit which has given rise to this appeal for redemption of his share of the mortgaged property. Both the Courts below have held the claim to be barred by limitation. 3. The claim for redemption is made on the basis that the first respondent's predecessor-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erment as to the subsistence of the mortgage, would constitute a sufficient acknowledgment of the liability of the existence of the mortgage and that as by reason of the subsequent redemption the first respondent was subrogated to the rights under the mortgagee, a fresh period of 50 years from the date of the plaint would be available for the filing of the present suit. 9. The plea that limitation had been saved by the existence of an acknowledgment does not appear to have been taken in the trial Court. While the appeal was pending before the lower appellate Court, a copy of the plaint filed by Sivasankaran Thampi was produced as additional evidence and it appears that such evidence had been admitted by the lower appellate Court and marked as Ex. P-4. Along with the application for receipt of additional evidence, the appellant also filed I. A. 1163 of 1958 for having the plaint suitably amended so as to include the plea about the acknowledgment. Curiously enough that application which was posted along with the appeal appears to have been dismissed following the dismissal of the latter. If in this second appeal before us we were to come to the conclusion that Ex. P.4 the plaint f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gee, an admission made by him before obtaining redemption could be used as an acknowledgment of liability by him. To support that contention reliance has been placed on the following observations of Stanley, C. J., in Jugal Kishore y. Fakhruddin, ILR 29 All 90. Section 19 of the Indian Limitation Act, 1877, does not require that the person making an acknowledgment should have an interest in the property in respect of which the acknowledgment was made at the time when the acknowledgment was given; it prescribes that if before the period of limitation expires an acknowledgment of liability or right has been made in writing signed by the parties against whom the property or right is claimed a new period of limitation will be computed from the time of the acknowledgment. The claim in this case is for partition and Alimuddin who made the acknowledgment is part-owner of the property sought to be partitioned. It does not lie in his mouth, we think, to set up the bar of the statute of limitation. In that case Alimuddin had no interest in the property at the time when the acknowledgment was made, but he came to own an interest as a co-sharer subsequently. That subsisted on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right is claimed. Both in AIR1925Mad134 , the determination of the question whether a statement would amount to an acknowledgment Under Section 19 of the Limitation Act, appears to have been rested only on the second among the two requisites set out above. This will be particularly clear from the observations of Jackson, J. in the latter case which we have extracted above. The learned Judges in the two cases did not consider the precise import of the term acknowledgment of a liability and see whether the particular statement before them did amount to such an acknowledgment. An acknowledgment means an act of admission of owning, where the acknowledgment is in respect of a liability it implies that the person who acknowledges admits or owns the liability. If a person who is a stranger to the liability makes a statement as to the subsistence of the liability, it cannot amount to an acknowledgment in law because he cannot own or admit the liability. 15. In Pavayi v. Palanivelu Gounden, ILR (1940) Mad 872 : AIR 1940 Mad 470 a Full Bench of this Court held that a mortgagor who had lost all interest in the mortgaged property and who had ceased to be personally liable for the mortgag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase at the time when Sivasankaran Thampi made the statement as to the subsistence of the mortgage in his plaint as he was not a mortgagee, there could be no jural relationship between him and the other party so as to constitute his statement, as an acknowledgment of liability on the part of the mortgagee as to the subsistence of the mortgage. Secondly the kind of jura relationship that should exist is that the person making the acknowledgment should be under an existing liability to the other party. 16. Taking the facts of the present case, Sivasankaran Thampi who made the statement was not then in the position of a mortgagee as against the person to whom he made the statement but the position was exactly the reverse. He was only a mortgagor. To hold that he could, by his own statement extend the period of limitation as against the mortgagee would mean that a mortgagor can acknowledge the liability of the mortgagee to be redeemed. Again, as we stated, for the purpose of Section 19 of the Limitation Act, the acknowledgment relied on must purport to be of an existing liability. In Ittappa Kuthiravattat Nayer v. Nanu Sastry, ILR 26 Mad 34, it was held that in order to constitute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounced by my Lord the Chief Justice on behalf of himself and Jagadisan, J. The view expressed by them in this judgment on the period of limitation available for the non-redeeming co-mortgagor in a suit for redemption of his share of the property against the redeeming co-mortgagor follows the view expressed by them in L. P. A. No. 18 of 1961 (Mad). That view is that the non-redeeming co-mortgagor has two periods of limitation and he can avail himself of whichever is longer. The first is the period of 50 years from the date of the original mortgage (50 years being the period under Article 136 of the Travancore Limitation Regulation VI of 1100 ME); the second is the period of 12 years from the time of redemption by the redeeming co-mortgagor. In L. P. A. No. 18 of 1961 (Mad) I have expressed my respectful dissent from this view and expressed my view that the period of limitation for the non-redeeming co-mortgagor would be simply a period of 50 years from the date of the redemption by the redeeming co-mortgagor, the reason being that on redemption, the original mortgage has, by operation of law, become split up and become a mortgage in respect of the non-redeeming co-mortgagor's a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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