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TMI Blog1946 (4) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... our of Hira Lal and Chiranji Lal, the plaintiffs in the present suit, together with one Durga Prasad, as mortgagees to secure a principal sum of ₹ 2000, and interest at the rate of eight annas per centum per mensem, calculated with six monthly rests. 3. By second mortgage (hereinafter called '1918 mortgage') dated 27th May 1918, the same three sons, together with Mt. Hakimunnissa, the widow, charged the same 42 sihams as were included in the 1914 mortgage, together with the nine sihams of the widow (making 51 sihams in all) to the mortgagees of the 1914 mortgage to secure the further principal sum of ₹ 2700, with interest thereon at the rate of seven annas per centum per mensem, calculated at yearly rests. 4. By a third mortgage (hereinafter called the '1919 mortgage') dated 14th February 1919, the two sons, Abdul Noor and Abdul Shakur, mortgaged the equity of redemption in their respective 14 siham shares to Gokul Chand and Kallu Mal, Subject to the 1914 and 1918 mortgages respectively, to secure a principal sum of ₹ 1500 and interest thereon. It is with this mortgage that the questions in this suit are concerned. 5. At that point Mt. Hak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the mortgagees under the 1919 mortgage, sued for sale of the 28 sihams comprised in that mortgage, and, on 18th October 1930, obtained a final decree. This decree was in due course transferred to Munshi Lal, the present defendant-appellant. He, in turn, in execution of the decree, himself in 1932 purchased half the property, i.e., half the twenty-eight sihams - comprised in the 1919 mortgage, and entered into possession of the shares so purchased on 24-2-1933. The plaint in this suit of 1929 originally included Hira Lal and Chiranji Lal, the 1926 mortgagees as defendants, on the ground presumably that they were mortgagees subsequent to the 1919 mortgage. But at a very early stage of the suit an application was made by the plaintiffs, in circumstances which will be explained in greater detail later on, to dispense with Hira Lal and Chiranji Lal as defendants on the ground that they were in truth not subsequent, but prior mortgagees, and so unnecessary parties. The application to exempt the two 1926 mortgagees from the 1929 suit, and its language, will nave to be considered when it comes to seeing how far it constituted an acknowledgment by the 1919 mortgagees that the 1926 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent purchaser of the property in question but was on the other hand, the purchaser of the prior charge. We think this must be taken to imply, as was done in the Court below, that the present appellant asserted his title to the property comprised in the 1919 mortgage acquired by his purchase of 1932 in priority to the mortgage of 1926, The learned Civil Judge of Bulandshahr, who tried the case in the Court below, therefore, treated the pleadings as raising an issue whether the effect of the 1926 mortgage was to keep alive the mortgages of 1914 and 1918 respectively in favour of the plaintiffs, so as to preclude the appellant, Munsi Lal, from relying on his purchase of 1932 in execution of the 1919 mortgage decree as giving him a title to the property purchased in priority to the 1926 mortgage. The actual issues framed by the learned Judge, so far as this question was concerned, were : 2. Whether defendant 11 is a purchaser under prior incumbrance and whether the property purchased by him is liable to be sold in this debt ? and 4. Whether the plaintiff is entitled to sell the property on this debt without payment of the charge of defendant 11. 10. The learned Judge on thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of the relief given, which was on account of what was due on both the mortgages, makes it clear that it is the cause of action on the first mortgage-kept alive for the purpose - which alone is effective to give the owner of the puisne incumbrance priority over the intervening estate. This is, we think, equally the effect of the case in the Judicial Committee in 23 ALL. 3132 when the facts of that case are correctly understood. 13. In, the suit before us the only cause of action actually pleaded by the plaintiffs is the cause of action on the 1926 mortgage, there being no mention in the plaint at all of the 1914 and 1918 mortgages. If the matter bad rested there, we should have entertained some doubt whether the plaintiffs, at least without amendment, could have taken a decree in this suit, superseding a person deriving title under the 1919 mortgage, which in effect rested on a cause of action on the two mortgages of 1914 and 1918 which had never been pleaded. Against this, however, it is true that the person who now represents the estate in the part of the property comprised in the 1919 mortgage was made a party to the suit. We are told, though there is no evidence to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in a case involving a consideration of the effect of an acknowledgment so as to diminish the force of what was said by Sir Asutosh Mookerji in ('05) 1 C.L.J. 337, Surji Ram v. Barham Deo as subsequently approved in ('42) I.L.R. 1942 All. 660 : 29 A.I.R. 1942 P.C. 67 : I.L.R. (1942) Lah. 686 : I.L.R. (1942) Kar. P.C. 153 : 69 I.A. 130 : 202 I.C. 740 (P.C.), Bank of Upper India, Ltd. v. Robert Hercules Skinner by the Privy Council. 16. In the present case the period of limitation against the 1914 mortgage would have expired on 12-6-1926; and, against the 1918 mortgage, on 27 5-1930. The 1926 mortgage was, therefore, executed before either of them had become time barred. The present suit was started on 4-7-1938 and would be within time, BO far as any reliance on the 1914 and 1918 mortgages was concerned, only if a fresh starting point of limitation, for each of them was constituted by the execution of the 1926 mortgage. The question, therefore, which has nest to be considered is whether the mortgage instrument of 1926 contained any acknowledgment within the meaning of S. 19, Limitation Act, 1908, and, if it did, whether such acknowledgment was effective as against the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gor or his representative, the right of the second mortgagee is defeated, and all the arrears are recoverable against the second and subsequent mortgagees. That is to say, the mortgagor or his representative, who may have no interest whatever in the lands (for the ultimate equity of redemption may not be worth one shilling), shall be enabled to charge the estate anew with any amount of arrears of interest as against the second and subsequent mortgagees. The Court is bound by every principle of judicial interpretation to find, if possible, a construction of the statute which does not involve consequences so inconsistent with natural justice.... 18. With these observations in view, Sir Asutosh Mookerjee decided that S. 19, Limitation Act, should equally be construed so as not to involve a consequence inconsistent with natural justice, and it has to be remembered that a Court is bound to give a liberal construction to an Act curtailing rights. It is not, we think, necessary to follow the course of the many decisions in Indian Courts since 1905. But the Judicial Committee of the Privy Council in ('42) I.L.R. 1942 All. 660 : 29 A.I.R. 1942 P.C. 67 : I.L.R. (1942) Lah. 686 : I.L.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th later by an application made by the plaintiffs to the Court in which the suit was pending in the following terms: Sir, In the above-mentioned case, it is submitted that defendants 3 and 4 had obtained a simple mortgage in lieu of the prior debt due to them. Therefore, they are prior mortgagees and it is not necessary that they should be made parties to the suit. It is, therefore, prayed that their names may be removed from the array of the defendants and in the heading No. 3 may be substituted for No 5 and the names of defendants 3 and 4 with the serial number may be struck off. Petitioner-Babu Ram Sarup Vakil for the plaintiffs. Signature of Gokulehand in Hindi, Signature of Kallumal, in Urdu Sd. Ran Saroop. 11-7-1929. 21. On this application the Munsif made an order on the same day : Amend and exempt as prayed for, In the judgment in the Court below the learned Judge has said that this application on the part of the plaintiffs to the 1929 suit (the 1919 mortgagees) was prompted by the objection of the present plaintiffs to the effect that they were prior mortgagees. We do not know on what material it was that the learned Judge in the Court below based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gage. 22. So far as any claim by the present plaintiffs for priority over the 1919 mortgage by virtue of the 1914 mortgage is concerned, there is an obvious fallacy in this view. The fallacy is that in 1929 the 1914 mortgage had, so far as the 1919 mortgagees were concerned, already become time barred. We have already held that the 1919 mortgagees were not bound by the acknowledgment of 1926 and accordingly in 1929 more than 12 years had elapsed. That being so, no acknowledgment given in 1929 could be relied on to support a right of priority derived through the 1914 mortgage. This, however, does not apply to the 1918 mortgage, since in 1929 the limitation period bad not expired. It remains, therefore, to examine the effect of the document of 11-7-1929, so far as the 1918 mortgage is concerned. The 1919 mortgagees in their application to the Court submitted - we take that to be the equivalent of a statement -that the 1926 mortgagees had taken the 1926 mortgage in lieu of a prior debt due to them. They then set out what was perhaps not a conclusion of fact but was certainly a conclusion of law, viz., that the 1926 mortgagees were prior mortgagees to them. Now, it is clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, we think that the defendant-appellant succeeds in the present suit in respect of the 1914 mortgage, but fails in respect of the 1918 mortgage. To recapitulate the steps by which this result has been arrived at, the plaintiffs, the mortgagees under the 1926 mortgage, were entitled, subject to any question, of limitation, to rely on the 1914 and 1918 mortgages as a shield against the appellant's estate derived through the 1919 mortgagees. The 1919 mortgagees were not, in our judgment, bound by any acknowledgment given by the mortgagors of the 1914 and 1918 mortgages contained in the mortgage instrument of 1926, because that instrument came into being after their title had accrued and they were no parties to it. At that; stage the appellant would, in out view, have succeeded in maintaining his priority as against the plaintiffs-respondents suing under the 1926 mortgage. Nevertheless we are compelled to the view that by the document of 11-7-1929, filed by the 1919 mortgagees in the 1929 proceedings they themselves supplied the acknowledgment of their own liability to concede priority to the present plaintiffs in respect of the 1918 mortgage, and by so doing started a fres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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