IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1181 of 1980 Date of Decision: 22.10.2008 Sham Lal .... Appellant vs. Tilak Raj & ors. .... Respondents Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Kabir Sarin, Advocate for the appellant. Mr. R.K. Gupta, Advocate for the respondents. Rajive Bhalla, J, (Oral) The appellant challenges judgments and decrees dated 4.09.1976 and 22.02.1980 passed by Sub Judge Ist Class, Phagwara and District Judge, Kapurthala, dismissing his suit and appeal respectively. The appellant filed a suit for possession by way of redemption alleging that the suit property, a house, was mortgaged by Dhani Ram, the appellant's father on 18th February, 1939, for a sum of Rs.500/- and on 18th July, 1942, for an additional amount of Rs.500/- in favour of Smt. Banti, the appellant's mother. As per the terms and conditions of the mortgage a sum of Rs.100/- was to be paid towards rent and the balance amount of Rs.400/- carried interest @12% per annum, payable annually. Dhani Ram passed away in the year 1942. On 20/21October, 1948, Smt. Banti executed a Will bequeathing her rights as a mortgagee to Banarsi Dass father of defendants No.1 to 7, thus acknowledging the mortgage and therefore, giving rise to a fresh period of limitation to redeem the suit property. The respondents filed a written statement and apart from controverting the averments in the plaint, asserted that the suit be dismissed as it was barred by time. It was asserted that as the anomalous mortgage had not been redeemed within 30 years from 18th February, 1939 and 18/19th July, 1942, the suit filed in the year 1975, was clearly barred by RSA No.1181 of 1980 -2- time. It was denied that the will executed by Smt. Banti contained a recital acknowledging the mortgage giving rise to a fresh period of limitation to redeem the mortgaged property. On the basis of the pleadings, the learned trial court framed the following issues :- 1. Whether the suit is within time? OPP. 2. On what amount the plaintiff is entitled to redeem the house in dispute? OPP. 3. Whether the suit is bad for mis-joinder of parties? OPD. 4. Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit as barred by time. It was held that the recitals in the Will, bequeathing the mortgaged property to the respondents, was not an acknowledgment that gave rise to a fresh period of limitation. Aggrieved by the dismissal of his suit, the appellant filed an appeal. The first appellate court affirmed the findings recorded by the trial court and dismissed the appeal. Counsel for the appellant submits that with the execution of the Will on 20/21st October, 1948, by the mortgagee Smt. Banti, a fresh period of limitation commenced. The recitals in the Will are an emphatic and unequivocal acknowledgement, by Smt. Banti of her status and of her liability as a mortgagee. As the Will makes a clear and categoric acknowledgement of Smt. Banti's status as a mortgagee, both the trial court and the first appellate court committed an error while holding that the recitals in the Will were insufficient to infer an acknowledgement. It is submitted that Section 18 of the Limitation Act does not prescribe the form or nature of an acknowledgement. The circumstances surrounding an acknowledgement, would determine its nature. As recitals in the Will admit to no ambiguity and as Smt. Banti admitted her status as a mortgagee, this RSA No.1181 of 1980 -3- recital in the Will would necessarily lead to a fresh period of limitation. It is submitted that if the recitals in the Will are accepted as an acknowledgement, the suit would be within time. Counsel for the appellant has framed the following substantial questions of law :- 1. “Whether the courts below misread and misinterpreted the evidence (oral and documentary) on record especially to hold that the recitals in the Will did not amount to an acknowledgement?” 2. “Whether the judgments and decrees of the courts below are vitiated being based on wrong application of mandatory provisions of law and are therefore, perverse?” 3. “Whether the right of plaintiff-appellant (successor in interest of mortgagor) to redeem possessory mortgage redeemable at any time got extinguished with efflux of time?” Counsel for the respondents, on the other hand, submits that the concurrent findings of fact recorded by the courts below that the recitals in the Will do not constitute an acknowledgement do not suffer from any error. The appellant has failed to urge any circumstance as would establish that the conclusions recorded by the courts below are perverse, erroneous in law and in fact are so arbitrary as would require interference in the exercise of power under Section 100 of the Civil Procedure Code. It is further submitted that a mere recital in a document that makes reference to a jural relationship or a liability, would not lead to an inference of an acknowledgement of a relationship or the liability so as to lead to a fresh period of limitation. The essence of an acknowledgement is the intention to acknowledge such a relationship or liability and till such time as the RSA No.1181 of 1980 -4- recitals, do not disclose such an intention an inference that a mere recital is an acknowledgement is unwarranted. In the absence of any intention to acknowledge the mortgage, the courts below rightly held that the recitals in the Will would not attract the provisions of Section 18 of the Limitation Act. For the above arguments, learned counsel for the respondent places reliance on the judgment 'Tilak Ram and others vs. Nathu and others' reported as AIR 1967 SC 935, M/s Lakshmiratan Cotton Mills Co. Ltd., M/s Behari Lal Ram Charan vs. The Aluminium Corporation of India Ltd., reported as AIR 1971 SC 1482 and 'Samdu and others vs. Subhan Khan and others, 1972 PLR 435. I have heard counsel for the parties, perused the impugned judgments as also the precedents cited by the counsel for the respondent. The solitary point that requires adjudication is whether the recitals in the Will dated 20/21st October, 1948, whereby Smt. Banti bequeathed the mortgaged property to Banarsi Dass is an acknowledgement that would lead to a fresh period of limitation for redemption of the mortgaged property. Counsel for the parties are ad idem that the mortgage in dispute is anomalous and limitation for redeeming such a mortgage is thirty years from the date of mortgage. An acknowledgement is, an admission of a jural relationship or a liability, made with intent to acknowledge its existence to the other party. A mere recital in a document or a mere reference to the jural relationship or the liability, without intention to acknowledge any subsisting relationship or liability would not partake the nature of an acknowledgement sufficient to place it within the meaning of an acknowledgement referred to in Section 18 of the Limitation Act. In this regard reference would necessarily have to be made to a judgment of the Hon'ble Supreme Court in “Shapoor Preedom Mazda vs. Durga Prosad Chamaria and others” AIR 1961 SC 1236, a relevant extract whereof read as follows :- RSA No.1181 of 1980 -5- “It is thus clear that acknowledgment as prescribed by S.19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement of which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words, words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests, oral evidence has been expressly excluded, but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is RSA No.1181 of 1980 -6- made one should be inferred or where a statement has made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in S.19 and there is really no substantial difference between the parties as to the true legal position in this matter.” Another judgment that would require reference is Tilak Ram and others vs. Nathu and others (supra). It would be appropriate to reproduce a relevant extract from the same :- “The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on an expressing jural relationship it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a far-fetched process of reasoning.” It is, therefore, apparent that the statement alleged to be an acknowledgement must be unequivocal and must have been made with intent to admit an existing liability or a jural relationship between the parties. As a natural corollary mere reference to such a relationship or liability shall not be construed to be an acknowledgement sufficient to place it within the provisions of Section 18 of the Limitation Act. A mere RSA No.1181 of 1980 -7- statement that refers to a jural relationship, without an intention to acknowledge the liability would be insufficient to extend the period of limitation. Reference in this regard may also be made to two judgments of this Court, namely, 1996 (1) PLR 472 titled as 'Chanderpati alias Kasturi Mahajan vs. Maman Chand' and 'Samdu and others vs. Subhan Kahn and others' (supra), where while considering a similar controversy the plea of acknowledgement was rejected. Applying the above principles to the facts of the present case, leaves no manner of doubt that reference to the mortgage in the recitals of the Will executed by Smt. Banti, cannot be construed as an admission of a jural relationship or a liability as to hold it to be an acknowledgement, sufficient to bring into play the provisions of Section 18 of the Limitation Act. While executing the Will Smt. Banti Devi, bequeathed the mortgaged property to Banarsi Dass. She did not by these recitals intend to acknowledge the mortgage or her liability as a mortgagee to the appellants. Both the trial court as also the first appellate court are concurrent in their opinion that the recitals in the Will do not fulfill the ingredients of an acknowledgement sufficient to extend the period of limitation under Section 18 of the Act and therefore rightly held that the suit for redemption was barred by time. I find no reason to hold that any of the questions of law framed by counsel for the appellant arise for consideration in the instant appeal. The impugned judgments are legal and valid and do not disclose any misreading of evidence, a perversity in the process of reasoning or an erroneous application of law as to require interference. As the concurrent findings of fact recorded by the courts below do not suffer from any error, the present appeal is dismissed with no order as to costs. 22.10.2008 (Rajive Bhalla) sk Judge