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TMI Blog1943 (10) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... t to discharge the interest, that the principal amount in each case has been paid up, and that the defendants--the representatives of the mortgagees --are liable to account. The defence of the heirs of the mortgagees was, inter alia, that there was no relationship of mortgagor and mortgagee between the parties and that the suit was barred by limitation. The trial Court upheld the plea of limitation and dismissed the suit. This decree was affirmed by the lower appellate Court and a second appeal from that decision has been dismissed by a learned Judge of this Court. 2. In the khewat of 1259 Fasli, equivalent to the year 1852, there was a mention of two areas of 6 biswansis odd being in possession of Lachhman, Maharam and Mahasukh as mortgagees, the mortgage money being shown as Rs. 278-4-0 and Rs. 383, respectively. In the settlement khewat of 1285, equivalent to the year 1878, Mahasukh and Maharam are shown as mortgagees of these two properties in equal shares. A reference is made to the earlier khewat prepared at the time of revision settlement, and it is further stated that the interest was equal to profits and that the mortgage was redeemable at Dasehra in the month of Jeth. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Spankie J. disagreed with the view taken by the other three Judges; he held that the signatures of the ancestors of the defendants did not, in the circumstances, amount to an acknowledgment of the title of the mortgagor or of his right to redemption within the meaning of Article 148 of Schedule 2 of Act 9 of 1871. The learned Judge says : The record shows that the appellants did not acknowledge any right of redemption anywhere. They contested in 1863 an attempt of the heirs of the mortgagors to establish their right of redemption, and ultimately in 1872 they succeeded in obtaining an order from the revenue authorities for the erasure of the word 'mortgagees.' 6. The lower appellate Court had by its order remanded that suit to the trial Court for disposal on merits and after remand the case again came before the High Court, and it is reported at page 425 of the same volume. Daia Chand v. Sarfraz ('75-77) 1 All 426 At page 427 Pearson J. observes : Before the enactment of Clause (15), Section 1, Act 14 of 1859, there was no limitation to suits for the redemption of mortgage of landed property. In 1841 therefore when the acknowledgment found in the settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained a description of the land, the amount of the mortgage money and the names of the mortgagor and mortgagee. It was argued that the plaintiff was bound to show that these acknowledgments were given within sixty years of the date of the mort-gage and that, as the plaintiff had failed to prove the exact date of the mortgage, the acknowledgments were of no avail. The learned Judges--Richards C. J., and Banerji J.--after mentioning that the mortgage deed would naturally be in the possession of the appellant, who was the mortgagee's representative, observed, at page 333 : The evidence therefore as to the exact date of the mortgage was a matter within the peculiar knowledge of the defendant and not of the plaintiff. We think that the acknowledgments, assuming them to have been given in time, were sufficient acknowledgments of the subsistence of the mortgage and we think under the circumstances of this case that we ought to hold that the acknowledgments were given before the expiration of 60 years from the date of the mortgage. We therefore think that the plaintiff ought to have got a decree for redemption. 9. It appears that in that case a mortgage bond had admittedly be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of liability given after the expiration of the statutory period and shows by its terms that a plaintiff, before he can succeed upon an acknowledgment at all, must establish that it was made before the expiration of the statutory period. In this case it is not suggested that he has established that fact by any direct evidence. In my opinion no inference can be drawn from the acknowledgment, however fully it may have admitted liability, so far as the actual date of the original mortgage is concerned. It ought not to be presumed that people the agricultural class in 1863 could not have done otherwise than know the terms of the recent statute of limitation of 1859. 13. Banerji J. dissented. He held that the acknowledgment of 1863 saved limitation. At page 581 the learned Judge observes : ...where in respect of a mortgage, the creation of which was established, the mortgagees acknowledged that the mortgage existed, that acknowledgment is in my opinion, prima facie, evidence that it was a mortgage which subsisted at the time when the acknowledgment was made and was not a mortgage which had become extinct by lapse of time. 14. The learned Judge then cites with approval the obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only that there was an implied promise to pay, but further supposing that there was an admission that the debt had really not become barred by time and was still capable of being enforced in a Court of law. When Section 19, Limitation Act, requires proof that the period had not expired, it would be contrary to the provisions of Sections 101 to 104, Evidence Act, to require that the burden lies on the defendant who acknowledged the liability. 17. The learned Judge relied upon the view expressed by Piggott and Walsh JJ. in Anup Singh v. Fateh Chand ('20) 7 I have now cited the more important decisions of our own Court, and it will be seen that there is a formidable divergence of opinion. I do not think it is necessary to go further a field. I will proceed to consider the attested entries in the khewats of 1852 and 1878. The entries were apparently attested by the mortgagors and the mortgagees or their representatives-in-interest; but before 1859 there was no limitation for a suit for redemption: vide proviso 4 to Section 3, Bengal Regulation 2 of 1805. Then came Act 14 of 1859. Clause (15) of Section 1 of that Act provided that a suit for redemption of immovable property must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I do not suppose for a moment that the revenue officer was applying his mind to the question whether redemption of the mortgages was or was not barred by limitation. It is, of course, a fact that the entries were attested by the mortgagees or their representatives and it was recited therein that the mortgages were redeemable at Dasehra in the month of Jeth, and 1 can appreciate the view that by reason of this recital it should be held that the entries contained an acknowledgment of liability. But for my own part I very much doubt whether the mortgagees were consciously acknowledging a liability to redemption and I am strongly inclined to agree with the view expressed by Piggott J. in Anup Singh v. Fateh Chand ('20) that the attestation by the mortgagees amounted to no more than an admission that their possession originated in a contract of mortgage, the amount of mortgage money being shown in the khewat. It is true that in the case under our consideration the entry of 1878 was made 19 years after the passing of Act 14 of 1859, whereas in Anup Singh v. Fateh Chand ('20) 7 a period of only four years had elapsed from the passing of that Act and it may, therefore, be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made within the period of limitation; and the circumstance that in the entry there is a recital of the right to redeem in the month of Jeth does not relieve the plaintiff of the duty of proving that the acknowledgment was made within 60 years of the mortgage or within sixty years of an earlier acknowledgment and that the liability was, therefore, subsisting. 20. The appellants have undoubtedly proved that the acknowledgment of 1878 was made within sixty years of the earlier acknowledgment which finds place in the khewat of 1852. In 1852 there was no period of limitation for a suit for redemption, but by Section 1(15) of Act 14 of 1859, it was provided that a suit for redemption of immovable property should be brought within sixty years of the date of the mortgage or within sixty years of an acknowledgment of the title of the mortgagor or of his right to redemption if such acknowledgment were made within sixty years of the mortgage. The entry in 1852 contains no mention of the right of redemption and I do not think that it amounts to an acknowledgment of liability at all. But if the contrary view be held, it was for the plaintiff to show that such liability was subsisting and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the representatives of the mortgagors and the defendants were the representatives of the mortgagees. The mortgages were alleged to be of the year 1836 or thereabouts, and it is obvious that the plaintiffs have to prove the specific mortgage which they set up. There is no writing or any other contemporaneous document evidencing the mortgage and the burden lies heavily on the plaintiffs to establish the terms of the specific mortgage which they allege. In Sheo Prasad v. Lalit Kuar ('96) 18 All. 403 it was held that the burden lay on the plaintiffs in a suit of this kind to establish the specific mortgage which they set up and if they failed to discharge this burden their suit was liable to be dismissed. In the present case, the date of the mortgage and the names of the mortgagors and mortgagees and certain other particulars cannot be said to be proved even from the khewat entries upon which reliance is placed. There is yet another ground, and that is the ground which has found favour with the Courts below including the learned single Judge of this Court, on which the plaintiffs can be non-suited. Their claim is barred by time. Under Section 8, Limitation Act, 1908, every suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in the words if in the meantime an acknowledgment of the title of the mortgagor or of his right of redemption shall have been given in writing signed by the mortgagee or some person claiming under him, and under those circumstances it was said that the time of 60 years would run from the date of such acknowledgment in writing. I have, therefore, got to see whether there was any such acknowledgment in writing. It is pleaded on behalf of the mortgagors that there were two such acknowledgments, one of the year 1852 and the other of the year 1878, both contained in khewats of those years. So far as the khewat of 1852 is concerned, it is almost irrelevant because it is prior to 1859 and the question is only about the khewat of 1878. It has got to be proved even under the Act of 1859 that the acknowledgment in the khewat of 1878 was made within 60 years of the mortgage. This is clear from the words in the meantime. The date of the mortgage has not been proved in any manner whatsoever, and that being so, the acknowledgment cannot be said to have been made within 60 years of the date of the mortgage. Coming to the Limitation Act of 1908, we find that the relevant section is Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made within sixty years of the mortgages. 28. The case law that has been discussed by my learned brothers is more in favour of the defendants than in favour of the plaintiffs. Although I am aware that some learned Judges of some High Courts have taken the view that from the mere entry of a mortgage in a khewat signed by the mortgagee a presumption as to the existence of a subsisting mortgage can be drawn, but I am not prepared to draw any such inference where the date of the mortgage and the specific terms thereof are surrounded in mystery. The plaintiffs are not entitled to any sympathy and they or their predecessors are themselves to blame for not asserting their rights (if there are any) earlier. For the reasons given above, I dismiss this appeal with costs. 29. I agree that if the entries of 1852 and 1878 can be considered to be acknowledgments they do not for reasons given by my learned brothers start a new period of limitation. I am further not satisfied that these entries constitute acknowledgments. Learned Counsel has informed us that the signatures of all the cosharers are to be found together somewhere at the end of the record of rights, but the actual signatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namah or wajib-ool-urz. In coparcenary mahals, this is the most important of all the papers, for it is intended to show the whole of the constitution of the village. The principles on which it is to be compiled have been already laid down in paras. 146-149. No specimen is given, because it has been found that the mention of any specimen leads to its too general adoption as a form, whereas it is not to be expected that any one form should suit more than a very few cases. It is better to enumerate the principal topics on which the paper should be implicit, so that the settlement officer may see that no necessary subject has been overlooked. The paper should contain complete information on the following points. 31. There are then eight points and they are too long for me to quote in full. I will merely say that they include the mode of paying the Government revenue, how in holdings in common separation of interest may take place, what are the functions of the lambardars and the advantages to which they are entitled in virtue of their office, what are the items of sayer and the rules regarding fruit or timber trees, what are the rights of irrigation, what is to happen to waste land, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that these mortgages were of some unknown and earlier dates and the mortgagees were not the persons mentioned above but their ancestors. In the khewats which were prepared at the revised settlement in the year 1852 and in the settlement of the year 1878 there are certain entries in relation to these mortgages. In the earlier khewat of 1852, Hira Singh, son of Nathha, and Khamani and Ram Prasad, sons of Dilsukh, are shown as possessed of eight biswansi odd share each and out of this one biswansi odd share is shown in possession of Hira Singh and Khamani and Ram Prasad each and six biswansi odd share of each is shown in possession of Lachhman, Maharam and Mahasukh, mortgagees, for Rs. 383 and Rs. 278-4-0, respectively. In the later khewat of 1878, Khamani and Earn Prasad, sons of Dilsukh; and Tora and Kalloo, sons of Hira Singh, are shown as holding one biswansi odd share each and Mahasukh and Maharam between them are shown as holding one-half, and Thakuria, one grandson of Lachhman, Dalpat and Narain, two other grandsons of Lachhman and Bijai Singh, a son of Lachhman, are shown as holding one-half share in six biswansi odd share, and it is also stated that these persons were th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and son, Nathha and Hira, were the original mortgagors. Nor do they prove that Lachhman, Maharam and Mahasukh were the original mortgagees. It is a matter of evidence whether the persons who are mentioned in the said khewats were the original mortgagors or mortgagees or only their successors-in-interest. In either of the two khewats Nathha is not shown anywhere as the mortgagor and the judgment of the Munsif of Muttra of 1836 negatives the theory that Lachhman, Maharam and Mahasukh were the original mortgagees and shows that the mortgagees were the ancestors of Lachhman. There is thus no evidence in support of the specific portgages set up by the plaintiffs in their plaints, and on the authority of Sheo Prasad v. Lalit Kuar ('96) 18 All. 403, I should have been prepared to dismiss these claims on the short ground that the plaintiffs have failed to prove the specific mortgages which they set up in their plaints : see also Zingari v. Bhagwan 1889 A.W.N. 187 and Parmanand Misr v. Sahib Ali ('89) 11 All. 438. 35. But as an elaborate argument was addressed to us on the question of limitation and the case was decided by Ismail J. and by the lower appellate Court mainly on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven when the preceding Acts 15 of 1877 and 9 of 1871 were enacted. A period of limitation was provided for the first time in regard to usufructuary mortgages by Act 14 of 1859. Clause (15) to Section 1 of that Act is as follows : To suits against a depositary, pawnee or mortgagee of any property moveable or immovable for the recovery of the same--a period of 30 years if the property be moveable and 60 years if it be immovable, from the time of the deposit, pawn, or mortgage; or if in the meantime an acknowledgment of the title of the depositor, pawner, or mortgagor, or of his right of redemption, shall have been given in writing signed by the depositary, pawnee or mortgagee or some person claiming under him, from the date of such acknowledgment in writing. 37. By Section 18 of the said Act a period of grace of two years was granted for filing suits on all old mortgages which were affected by this new enactment. The Limitation Act 14 of 1859 was substituted by the Limitation Act 9 of 1871 and Article 148 of Schedule 2 provided a period of 60 years for a redemption suit from the date of the mortgage, unless where an acknowledgment of the title of the mortgagor, or of his right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and before the expiration of sixty years from the date of the mortgage, and the question whether the mortgage was a subsisting mortgage or not a subsisting mortgage is wholly irrelevant for the purposes of Clause (15). If a mortgage is more than sixty years old and an acknowledgment was made about it after the period of sixty years though at a time when the mortgage was subsisting either because at that time there was no period of limitation for mortgages or because the period of grace of two years given under the Act of 1859 had not expired or because there were a series of acknowledgments which had kept alive the mortgage, such an acknowledgment whatever may be its effect under other Limitation Acts did not satisfy the condition of the statute as laid down in Clause (15) of Section 1 of Act 14 of 1859. 40. There is high authority on the interpretation of the material words in the meantime which occur in Clause (15) of Section 1 of Act 14 of 1859, both in England and in this country. At Madras, Bombay and at Lahore the High Courts have consistently held that an acknowledgment to be valid under Clause (15) has to be made within sixty years of the date of the mortgage and an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome conflict of authority at one time in this Court on the interpretation of Clause (15) of Section 1 of Act 14 of 1859. In Mahomed Abdool Ruzzah v. Syud Asif Ali Shah ('71) 3 N. W. P. H. C. R. 119 and in Muniruddin v. Muhammad Kaim ('85) 1885 A. W. N. 194, the clause was interpreted as requiring an acknowledgment within 60 years of the date of the mortgage, while in Daia Chand v. Sarfraz ('75-77) 1 All 426, Pearson J. expressed the view that an acknowledgment made 60 years after the mortgage, but at a time when there was no period of limitation for redemption suits, was a good acknowledgment, and in this view Spankie J. also concurred although at an earlier stage of that case he had held against validity of the acknowledgment which was the subject-matter of consideration in that case: see Daia Chand v. Sarfraz ('75-77) 1 All. 117 (F.B.) at pp. 120, 126. And Daia Chand v. Sarfraz ('75-77) 1 All 426 was followed by Tyrrell. J. in Jamna Prasad v. Gokla ('94) 1894 A.W.N. 87. Daia Chand v. Sarfraz ('75-77) 1 All. 117 (F.B.) was decided before Stansfield v. Hobaon (1852) 3 De. G. M. G. 620 was overruled in England. Since then a strong current of judicial au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion and this conflict is best illustrated by the majority and minority decisions in Anup Singh v. Fateh Chand ('20) 7. The main arguments in support of the majority view are that Section 19, Limitation Act, itself contemplates the possibility of both kinds of acknowledgments, those made before the period of limitation and those made after the period of limitation and it enjoins that the former kind of acknowledgments only shall be valid and puts the burden of proof upon the person who relies on the acknowledgment and as between the mortgagor and mortgagee in a redemption suit upon the mortgagor. Secondly, the entry in the settlement record, where no date is given of the mortgage, is a good evidence of the factum of the mortgage and of its terms, but it is no evidence of the date of the mortgage or of the fact that on the date of the entry the mortgage was subsisting or the mortgagee was liable to be redeemed or that the entry was made within 60 years of the date of the mortgage. It is not the duty of a settlement officer to record only subsisting mortgages in the khewat; his duty consists in showing in the khewat how much land comprised in it is in possession of owners and ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the acknowledgment. But it is not so easy to reconstruct the condition of society as it existed sixty-five years ago and there is both danger and temptation to judge the past by present conditions and standard. The entire basis of the argument that an acknowledgment of liability imports an acknowledgment of a subsisting liability is that persons do not admit liability when it is extinguished by law. This may be a legitimate inference in the present condition of society in relation to commercial transactions, in relation to loans and debts having regard to knowledge of law of limitation and standard of morality which prevails in society in these days. But can it be said with equal certainty that sixty-five years ago ignorant villagers living in the interior of the districts of United Provinces were equally familiar with the law of limitation in relation to redemption of old mort gages and in relation to validity of their acknowledgments when a period of limitation was for the first time introduced with regard to mortgages by Act 14 of 1859 and when the law relating to their acknowledgments was the subject of such conflicting decisions as are shown by Mahomed Abdool Ruzzah v. Syu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the khewat of 1878 does not give the date of the mortgage, it merely describes certain persons as the mortgagors and the mortgagees and states the amount of mortgage money and the terms of redemption. Admittedly the persons so described were not the original mortgagors or mortgagees, but they were only their successors-in-interest. And the entry in the khewat of 1878 expressly states that it was made by virtue of the writing made at the amended settlement of 1852. One can almost visualise the circumstances in which these mortgages came to be recorded in the settlement khewats. In 1852, at the time of the revised settlement, no period was fixed by law for redemption of mortgages. If the settlement officer of 1852 found an entry about these mortgages in previous revenue records or even if he found no such entry but he found the mortgagees in possession of the land comprised in the khewat, it was his duty to record the mortgages in the khewat which he prepared for the revised settlement and it was wholly unnecessary for him to ascertain the date of the mortgage and he could not possibly enter into the question of subsistence of the mortgages as there was no period for redemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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