9911796707
TMI Blog1962 (2) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... a clog on the equity of redemption, and the document has been held to be a usufructuary mortgage-deed, pure and simple. The mortgagee Sita Ram was succeeded by one Gauri Shankar, who, under a document dated 15th June, 1906, transferred his interest in favour of the present defendant Ram Hazari, who is now in possession of the grove. 2. One of the contentions raised in the suit was that the mortgagor not having redeemed the mortgage within sixty years of the execution of the mortgagee deed or the date stipulated for payment, the suit for redemption is now barred by time and that Ram Hazari has become full owner of the property. It was, on the other hand, contended on behalf of the plaintiffs that the liability under the mortgage-deed was admitted by Gauri Shankar in the document executed by him on 15th June, 1906, in favour of the defendant and that this acknowledgment extends limitation for redemption of the mortgage under Section 19 of the Limitation Act. The defendant also relied upon Article 134 of the First Schedule of the Indian Limitation Act, which prescribes a limitation of 12 years for recovering possession of immovable property mortgaged from the date the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant and if there is acknowledgment of liability by him, then it would not matter if it omits to specify the exact nature of the property or right, or avers that the time for payment' delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right. 7. The main question to be considered in this case, therefore, is whether there is any acknowledgment of liability in the document Ext. 14. The document recites in its earlier part: Our ancestor Sri Sitaram Shukul had obtained a grove No. 1799, 2 bigha, 15 biswa kham, 18 biswa, 10 biswansi pukhta with, 41 trees, i.e., 34 'mango trees, 4 mahua trees and 1 kathal and Barhal and 1 Aonla tree from Sri Ganeshi Dubey, resident of purey Tarapat, hamlet of village Ghasipur, pargana Daryabad, tahsil and district as described above, ancestor of Bhagwandin, son of Ghisa, caste Brahaman Dubey under a mortgage-deed dated Asarh Badi Duij, Sambat 1929 and year 1279 Fasli for a sum of ₹ 50/- and now that grove in the settlement khewat a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability is accompanied by a refusal to pay, deliver, perform or permit to enjoy, limitation would nevertheless be saved. Even this part of the Explanation does not apply to the facts of this case as Gauri Shankar does not, while referring to the transaction of mortgage, refuse to pay, deliver, perform or permit to enjoy . He, on the other hand, denies that his liability under the mortgage-deed has been continuing by asserting that under the terms of the document itself the mortgage-deed stands converted into a deed of sale. A person can admit his liability, and yet refuse to discharge it, and it is this case that is covered by the Explanation. It must not be confused with a statement that a liability once existing has ceased to exist. Denying that the liability continues is not refusing to discharge it. This is, therefore, not a case of refusal to pay, deliver, perform or permit to enjoy , but a case where Gauri Shankar asserts his own title to the property. The document has to be read as a whole, and if that is done, one can arrive at only one conclusion, namely, that, according to Gauri Shankar, the mortgage liability was not subsisting on the date on which the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortgagee. This is also a clear case in which there was acknowledgment of existing liability by the sub-mortgagee under the prior mortgage. When the prior mortgage was mentioned as one, subject to which the property was to be sold in execution of the decree, the sub-mortgagee clearly admitted the prior mortgage to be subsisting on the date and this clearly, therefore, amounted to an acknowledgment of a subsisting liability under the aforesaid mortgage. 11. In B. Adya Prasad Singh v. Lal Girjish Bahadur Pal AIR1933All364 a decree-holder gave the judgment-debtor a letter wherein he agreed not to take out execution of the decree up to a certain date. The judgment-debtor filed an application in the Court praying that the letter be placed on record. It was held that the application which was accompanied by the letter was an acknowledgment of liability in respect of the amount due under the decree within the meaning of Section 19 of the Limitation Act. It was observed by Niamatullah and Kisch, JJ. : The letter recites that it has been settled between the parties that no further execution shall be taken out in respect of the money still due under the decree before the end of 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce mortgaged his property and that a mortgage-decree had already been passed against him and did not specifically acknowledge his liability under the same and it was, therefore, contended that on the basis of this decision we must hold that there is sufficient acknowledgment of liability even in the case before us. The facts in the two cases are, however, materially different and it is not possible for us to take the decision in AIR1939All483 (supra), as being fully applicable to the facts before us. In that case what the judgment-debtor wanted to contend was that since a final decree had already been passed in the suit against him, it was no longer open' to the decree-holder to move an application for an injunction. This recital by him was taken to be an acknowledgment of liability. Rachhpal Singh and Mohammad Ismail, JJ. pointed out even in this case that an acknowledgment in order that it may be taken as an acknowledgment of liability under Section 19 of the Limitation Act must show a definite and conscious acknowledgment of subsisting liability . The admission made by the judgment-debtor was taken to be a definite and conscious acknowledgment probably because if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is not necessary that there should be a specific and direct acknowledgment of the particular liability which is sought to be enforced, and if there is an admission of facts of which the liability in question is a necessary consequence, there should be an acknowledgment within the meaning of Section 19. Even according to this case, the question would be one of interpretation of the document before us and we would have to see whether there is in it an admission of facts from which the liability in question arises as a matter of law. When Gauri Shankar expressly denied that his liability as a mortgagee was subsisting, there is no problem of interpretation presented in this case. 19. In T. Satyanarayanamoorthy v. M. Ramireddi AIR 1924 Mad 856, a debtor said : The debt due to the creditor, K. Basava Reddy was a mortgage-debt. It ripened into a decree. It was in O. S. No. 80 of 1910, on the file of the Ellore Sub-Court. He gave me a letter that he would proceed against the mortgaged properties only and would not proceed against my person. Though he said in the end, These debts are due by me along with others, but they were paid by me alone. I, therefore, owe n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
