Appeal No 272 of 1956
Appeal from the judgment and decree dated June 28 1954 of the former Nagpur High Court in First Appeal No 107 of 1946
M C Setalvad Attorney General for India Purshottam Trikamdas section T Khirwadkar and I N Shroff for the appellant
Achhru Ram A R Chaubey and Naunit Lal for the respondents
February 22
The Judgment of the Court was delivered by WANCHOO J
This is an appeal on a certificate granted by the Nagpur High Court
The brief facts necessary for present purposes are these
One Ramchandar Jat originally owned Annas 108 share in Mauza Tamalawadi while the rest belonged to others
Ramchandar executed a simple mortgage deed on July 27 1920 in favour of Seth Ram Jiwan and two
minors Ram Narain and Radhey Sham
The plaintiffs
respondents are the representatives of the mortgagees
On August 27 1926 the defendant appellant purchased Annas 54 share belonging to the other share holders in the village
Thereafter the appellant brought a 915 suit against Ramchandar who was lambardar of the village for profits in which 9 decree was passed against Ramchandar
In execution of that decree the appellant purchased the entire Annas 108 share of Ramchandar in the village about the year 1932
In consequence the appellant became the owner of the entire village subject to the mortgage of the respondents on Annas 54 share therein
On July 27 1932 the respondents sued Ramchandar on the basis of their mortgage deed and a preliminary decree for sale was passed in March 1937
To this suit the appellant was also a party
The preliminary decree was followed by a final decree and thereafter the property was put to sale and was purchased by the respondents on March 1 1940
This sale was confirmed on April 12 1940 and a sale certificate was granted to the respondents
So by the year 1940 the respondents were the owners of Annas 54 share in the village while the appellant was the owner of Annas 108 share
The appellant was also a lambardar
Ramchandar Jat held sir land in certain khasras with a total area of 252 49 acres
On the sale of Ramchandar s share to the appellant Ramchandar became an ex proprietary tenant of his sir land
Thereafter Ramchandar was ejected from his exproprietary tenancy sometime in 1936 and the lands came into possession of the appellant
There were certain other lands which were nominally recorded as Muafi Khairati in the name of Ramchandar s mother but were actually in the possession of Ramchandar
It appears that Ramchandar was ejected from these lands also and they came into the possession of the appellant
Further the appellant as a lambardar came into possession of certain other lands by surrender or otherwise
The respondents filed a suit for partition before the Sub Divisional Officer Hard in 1942
In that suit they claimed half share in the lands of Ramchandar and his mother which came into
the possession of the appellant
They also claimed a share in other lands which came into the possession of the appellant as lambardar
Their case was that these lands were 916 accession to the mortgage in their favour and they were therefore entitled to a proper share in them 
This claim was resisted by the appellant before the Sub Divisional Officer
On October 20 1943 the Sub Divisional Officer passed an order which in effect rejected the contention of the respondents and accepted the plea of the appellant
Thereupon the respondents filed the present suit for a declaration in the civil court in 1944 claiming that they were entitled to a proportionate share in the lands specified in the plaint
The suit was resisted by the appellant and his contention was that the respondents had purchased specific khudkashat and chhotaghas plots and that they therefore could not be allowed anything more than what was mentioned in the decree and the sale certificate which were the basis of their title
As the specific lands with respect to which the respondents claimed a declaration in this suit were not mentioned in the sale certificate they were not entitled to any share in them
A large number of issues were framed by the trial court which decreed a part of the claim put forward by the respondents but dismissed the rest
Consequently the respondents went up in appeal to the High Court
The appeal was allowed so far as the respondents  claim to one half share in the sir plots held by Ramchandar was concerned
Further they were allowed one third share in the lands held by the mother of Ramchandar and also in certain other lands which came into the possession of the appellant as lambardar subject to payment of certain amounts
This was followed by an application by the appellant for leave to appeal to this Court and a certificate was granted by the High Court
That is how the matter has come up before us
The main contention of the appellant before us is that the mortgage deed of 1920 which is the basis of the title of the respondents did not include the sir plots in the possession of Ramchandar nor the plots of Ramchandar s mother
Nor were these plots included in the suit which was brought by the respondents on the basis of the mortgage deed
Further the sale certificate also did not include these plots though 917 some other plots were mentioned therein
Therefore the respondents were not entitled to these plots as accession to the mortgage
This brings us to a consideration of the mortgage in favour of the respondents
The mortgage was without possession and the property mortgaged was mentioned in these terms  I do hereby mortgage without possession half share 54 five annas and four pies area 67831 acres jama sarkar Rs 326108 together with khudkashat chhotaghas big shrubs abadi gair abadi cultivated and that lying vacant and the rights and privileges appertaining to water forests chahat gardens and right of cultivation malguzari and trees of every kind whether giving fruits or no fruits and prohibited and unprohibited wood with entire rights and prvileges appertaining to the village
 It will be seen that what was mortgaged was the entire half share of Ramchandar in 108 share which he owned in the village
It is true that the mortgage goes on to describe certain other things but that in our opinion is merely by way of precaution for even if the part underlined was not there in the mortgage the respondents being the mortgagees of 54 share would be entitled to everything contained in that share
The underlined part of the mortgage therefore does not cut down the amplitude of the mortgage with respect to the entire 54 share out of 108 share of Ramchandar
It is true that sir is not specifically mentioned in the mortgage but as the mortgage was of the entire 54 share out of 108 share it will include unless there is a specific exclusion of sir the area of sir also pertaining to the share mortgaged
In this connection our attention was drawn to as
68 and 69 of the Central Provinces Land Revenue Act No 11 of 1917 which was in force at the relevant time
Section 68 deals with sir land and section 69 wit khudkashat
Sir is defined in section 2 17 and khudkashat is defined in section 2 5 as  that part of the home farm of a mahal which is cultivated by the proprietor as such and which is not sir land
 Thus though sir land may be a part of the home farm it is a different entity Here printed in italics
918 from khudkashat land
Reference was also made to sections 49 and 50 of the Central Provinces Tenancy Act No 1 of 1920 hereinafter called the Tenancy Act which deal with transfer of sir land
Under section 49 1 a proprietor who temporarily or permanently loses whether under a decree or order of a civil court or by transfer or otherwise his right to occupy any portion of his sir land as a proprietor shall at the date of such loss become an occupancy
tenant except where he has obtained a sanction under section 50 of the Tenancy Act
Further under section 49 2 there is a prohibition on the registration of documents which purport to transfer all the rights of a proprietor in big sir land without reservation of the right of tenancy specified in sub section
It is urged for the appellant that the reason why sir land was not mentioned in the mortgage deed of 1920 was that otherwise sanction of the Revenue Officer would have been required under section 50 of the Tenancy Act
Now section 50 provides that if a proprietor desires to transfer the proprietary rights in any part of his sir without reservation of a right of occupancy specified in section 491 he may apply to the Revenue Officer and if such Revenue Officer is satisfied that the transferor is not wholly or mainly an agriculturist or that the property is self acquired or has been acquired within the twenty years last preceding he shall sanction the transfer
Sections 49 and 50 in our opinion only come into play when the proprietor making a transfer loses his right to occupy any portion of his sir land temporarily or permanently and sanction has to be obtained under section 50 only where the transfer is to be made without reservation of the right of occupancy
But the mortgage in this case is a simple mortgage and there was no transfer of possession under it
Therefore the proprietor Ramchandar never lost his right to occupy his sir land by this mortgage and there was therefore no necessity for him to make any reservation in that respect or to apply for sanction under section 50 for he was not losing the right to occupy his sir at all
But that does not mean that when he mortgaged his entire share of 54 out of 108 share he was excluding from the mortgage the area of sir 919 corresponding to the share mortgaged
As the mortgage deed of 1920 stands it is a mortgage of all the proprietary rights in 54 share including the proprietary right in the sir pertaining to that share  but as the proprietor was not losing his right to occupy the sir land the mortgage being without possession it was not necessary for him to make any application under section 50 of the Tenancy Act
We are therefore of opinion that the appellant cannot take advantage in the circumstances of the fact that no application was made under section 50 of the Tenancy Act and therefore there was no effect of this mortgage on the sir rights
As we read the mortagage it clearly affected the sir Tight also pertaining to 54 share and it was not necessary to make an application under section 50 of the Tenancy Act for the mortgagor was not losing possession of his sir and there would be no question of any ex proprietary tenancy arising in his favour to relinquish which he would have to apply under section 50
Turning now to the plaint in the mortgage suit we find that the property subject to the mortgage is mentioned in para
2 thereof inexactly the same terms as in the mortgage deed
In para
13 it is again recited that the mortgagor mortgaged 54 share out of his 108 share
Paragraph 13 then goes on to say that on the date of the mortgage the mortgagor had certain khudkashat and chhotaghas lands and both cultivating and proprietary rights in them pertaining to half share only were liable to be sold
No mention was made of sir in this paragraph
But that in our opinion was not necessary for the mortgage included the mortgage of sir land also pertaining to 54 share though without possession
The prayer in the suit was for sale of the mortgaged property together with khudkashat etc
 but this again was a mere matter of precaution for in any case the entire proprietary right in sir khudkashat etc relating to 54 share would be sold on a decree following on the mortgage
Then coming to the sale certificate we find that it certifies that the respondents had purchased 54 share in the village with abadi khudkashat chhotaghas and all rights pertaining to the share
It is true that 920 khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words  all rights pertaining to the share  appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate
We are therefore of opinion
that so far as sir land is concerned the proprietary right in it pertaining to 54 share was mortgaged and the respondents by their sale certificate got a right in the sir land also
Now what happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire 108 share of Ramchandar subject to the mortgage of the respondents in 1932
At that time Ramchandar became an ex proprietary tenant of his entire sir relating to this share under section 49 of the Tenancy Act
In 1936 Ramchandar was ejected from the ex proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession
The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex proprietary tenancy became an accession to the mortgage and therefore they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant
We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned
Therefore when Ramchandar s ex proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat the mortgage would cover this khudkashat land to the extent of the mortgagees  share therein
It is true that if Ramchandar s ex proprietary tenancy had continued the mortgagee would have no right to ask for half share in it but when the ex proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it was an accession to the mortgage under section 70 of the Transferof Property Act and the mortgagees could claim a share in it
 It was however urged that accession to be available to 921 the mortgage must be a legal accession
We however see no illegality in the accession which took place
There is also no doubt that the accession took place when the mortgage was still subsisting
Therefore we agree with the High Court that on the ex proprietary tenancy being extinguished the sir land which Would otherwise have remained in the exclusive possession of Ramchandar as an ex proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the 54 share in execution of the decree on the mortgage
The fact that the rent of an ex proprietary tenant is due to the person whose ex proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex proprietary tenancy is extinguished for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the share mortgaged
This brings us to the lands in the name of Ramchandar s mother
It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit
They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands
Later the appellant came into possession of them apparently as a lambardar
It is not clear when and how the appellant got possession of them
There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share in them
But it was urged that the claim of the respondents to these lands was barred by 0 11 r 2 of the Code of Civil Procedure because they were not specified in the plaint based on the mortgage deed of 1920
Reliance in this connection is placed on Hazarilal vs Hazarimal 1 and Seth Manakchand vs Chaube Manoharlal 2
These cases in our opinion do not apply because they are cases of foreclosure while in 1 A I R  2 AIR 1944 PC 46 922 the present case the respondents  suit was for sale of the share mortgaged with them
Further in the plaint when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage the respondents thus did not specify the khudkashat plots on the date of the plaint
Though they had specified some plots in the plaint which were mentioned in the sale certificate also the suit  as for the sale of the entire 54 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed
It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold
The claim therefore would not be barred under 0 11 r 2 on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in the plaint
This leaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management
The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession
This is what the High Court has ordered and we see no reason to disagree with that view
The appeal therefore fails and is hereby dismissed with costs
Appeal dismissed


Summary:
In a mortgage suit brought by him the respondent 1 the mortgagee pleaded that limitation was saved by a letter written to him by the mortgagor the respondent 2 which amounted to acknowledgment under section 19 of the Indian Limitation Act
There was a prior mortgage and before writing the letter in question the mortgagor had written another letter appealing to respondent 1 to save the property from being sold at the instance of the prior mortgagee
Thereupon the respondent No 1 paid the required amount and the threatened sale was averted
The property was again advertised for sale and that was why the letter in question was written it ran as follows Chandni Bazar is again advertised for sale on Friday the 11th instant
I am afraid it will go very cheap
I had a private offer of Rs 275000 a few days ago but as soon as they heard it was advertised by the Registrar they withdrew
As you are interested why do not you take up the whole
There is only about 70000 due to the mortgagee a payment of Rs 10000 will stop the sale
The question was whether this letter amounted to an acknow ledgment of the respondent 1 s right as mortgagee under section 19 of the Indian Limitation Act
The trial judge held that it did not but the Court of appeal took the contrary view
The auction purchaser appealed to this Court
Held that it was obvious that the interest mentioned in the letter in the context of the previous one was none other than that of respondent 1 as a puisne mortgagee and the appeal to take up the whole meant the entirety of the mortgagee s interest including that of the prior mortgagee
Since admittedly the only subsisting relation between the parties at the date of the letter was that of mortgagee and mortgagor and the letter acknowledged the existence of that jural relationship it clearly amounted to an acknowledgment under section 19 of the Act
Held further that the essential requirement for sustaining a plea of acknowledgment under section 19 of the Act is that the statement on which it is sought to be founded must relate to a 141 subsisting liability indicate the existence of the jural relationship between the parties and must be intended either expressly or impliedly to admit that jural relationship
The words used in a particular statement must be construed in the light of its own tenor and according to the context and unless the words used are identical and the interest is similar previous decisions interpreting somewhat similar documents are not of much help
Green vs Humphreys  referred to
Beti Maharani vs Gollector of Etawah 1894 LR 22 IA 3 Sukkamoni Choudhrani vs Ishan Chunder Roy 1897 LR 25 IA 95 Munshi Lal vs Hira Lal ILR 1947 All
II and Swaminatha Odayar vs Subbarama Ayyar Mad 548 considered
Dharma Vithal vs Govind Sadvalkar Bom
99 held inapplicable