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TMI Blog1948 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mortgagee, was entitled to the amount due under the mortgage, executed a deed of assignment of a usufructuary mortgage executed in his favour by a third party, in favour of Ayyaswami, This deed of assignment is Ex. P-2, dated 9th September, 1931. The mortgage debt due by that date was ascertained and was found to be Rs. 609. He executed a promissory note for a sum of Rs. 200 on that date. The consideration for the assignment by the usufructuary mortgage was taken to be Rs. 300 and a cash of Rs. 109 was paid to make up the total of Rs. 609 due under the mortgage in favour of Mariyayi. Thus the entire mortgage debt was discharged by this arrangement with the son of the mortgagee. The first defendant sold the property comprised in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Subordinate Judge reversed the decision on both the points and decreed the plaintiff's suit. 4. The only question that was argued in second appeal was the question of limitation. Unless Ex. P-2 contains a valid acknowledgment within the meaning of Section 19 of the Limitation Act, the plaintiff's suit would be barred by limitation. Under Ex. P-2 the first defendant admitted that the mortgage debt amounted to Rs. 609 but stated that it was discharged by the execution of the promissory note, by the assignment of the usufructuary mortgage and by payment of cash. The question therefore that arises for consideration is whether the statement of the first defendant in Ex. P-2 that there was a liability under a mortgage but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a subsisting liability; but the more relevant decision in my opinion is the decision reported in Rangaswami Chetty v. Thangavelu Chetty I.L.R. (1919) Mad. 637. In that case as in the present, the statement by the debtor that he was under a liability was coupled with a statement that he had discharged the debt and it was held that such a statement did not amount to an acknowledgment of any subsisting liability. This decision, so far as I am aware, was never dissented, and on the other hand was cited with approval by this and other High Courts. The decision on which strong reliance was placed by the learned advocate for the respondents is the decision of Varadachariar, J., in Ramasami Mestriar v. Velayutham Pillai AIR1938Mad496 . In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law to give a discharge by reason of the anterior sub-mortgage. The situation therefore which the learned Judge was dealing was one where the parties substituted one arrangement for another, and for some reason or other the later arrangement became frustrated, and the parties were relegated to the old arrangement; and in such circumstances when the old arrangement was sought to be enforced it was possible to rely upon the statements in the later arrangement evidenced by a document as establishing a valid acknowledgment of a subsisting liability. The position in the present case is entirely different. The arrangement evidenced by Ex. P-2 did not become ineffective between the parties to the transaction. The plaintiff who is a stranger to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip of debtor and creditor. The decision of Venkataramana Rao, J., in Kuppuswami Aiyar v. Sabapathi Pathan AIR1936Mad943 does not help the respondents. In that case there was merely a direction by the mortgagors to a third person in whose favour they had executed a usufructuary mortgage, to pay the mortgage debt, and this arrangement was repeated by the mortgagors in their reply notice to a demand made by the mortgagee for payment of the debt. It is obviously a case where there was a clear acknowledgment of a subsisting liability. 7. I do not think it is necessary to refer to the other decisions on the point, but two decisions which have been referred to in the judgment of Varadachariar, J., in Ramasami Mestriar v. Velayutham Pillai AIR1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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