IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 SA.No. 138 of 1996(G) --------------------- AS.147/1987 of PRL.SUB COURT,TRIVANDRUM OS.170/1978 of MUNSIFF'S COURT,NEDUMANGAD .................... APPELLANT(S): RESPONDENTS/ADDL.PLAINTIFFS: ----------------------------------------------------------------------------- 1. GASSIA ROSSELY, W/O.JAMES KUNJAPPAN, RESIDING AT VAKAPOIKA VEEDU, KONGANAM, PUTHUKULANGARA P.O., NEDUMANGADU. 2. M.K.RAJAN, RESIDING AT ...DO...DO..... 3. ROSSELY JAYANTHI, RESIDING AT ...DO...DO.... 4. ROSSELY ROSY RETNAM, RESIDING AT ..DO..DO.... 5. KUNJAPPAN PREMANANTH, RESIDING AT ...DO...DO.. 6. KUNJAPPAN VINOD KUMAR, RESIDING AT ..DO..DO.... BY ADVS. MR.VELLAYANI SUNDARARAJU, MR.VELLAYANI ROBINSON. RESPONDENT(S): APPELLANT:DEFENDANT: ------------------------------------------------------------------ KRISHNA PILLAI DIVAKARAN PILLAI, RESIDING AT PUTHUVAL PUTHEN VEEDU, NETTIRACHIRA, THEKKUMKARA MURI, NEDUMANGA VILLAGE. BY ADV. MR.M.P.ASHOK KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. =============== S.A. No.138 of 1996 ===================== Dated this the 19th day of January, 2009. JUDGMENT Additional plaintiffs 2 to 7 in O.S.No.170 of 1978 on the file of the Court of the Munsiff of Nedumangad are the appellants in this Second Appeal. The respondent is the defendant therein. The suit instituted by the predecessor-in-interest of the appellants for redemption of mortgage and for recovery of possession of the mortgaged property was decreed by the trial court. On appeal filed by the defendant, on the short ground that the suit is barred by limitation, the lower appellate court reversed the decree passed by the trial court and dismissed the suit. 2. The suit property originally belonged to late Joshua James, father of the plaintiff. He mortgaged the suit property to Sri.Yohannan Daniel as per Ext.A2 mortgage deed dated 18th Medom, 1115 M.E. Ext.B2 is the original of Ext.A2. Sri.Yohannan Daniel settled the mortgage right on his son Sri.Jackson as per gift deed No.6318 of 1124 M.E. of the Additional Sub Registrar's Office, Nedumangad. Sri.Jackson thereafter assigned his rights to Sri.Divakaran Pillai, the defendant as per Ext.A3 assignment deed dated 31.3.1962. The mortgagor's son Sri.James Kunjappan instituted O.S.No.170 of 1978 in the Munsiff's Court, Nedumangad for redemption of the mortgage and recovery of possession SA 138/96 -: 2 :- of the mortgaged property. While the suit was pending, he passed away and thereupon the appellants herein, his legal heirs were impleaded as additional plaintiffs 2 to 7. 3. The defendant resisted the suit raising various contentions; one of which was with regard to fixity of tenure. The said issue was referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal found that the defendant is not entitled to fixity of tenure and returned a finding to that effect. The trial court, on an analysis of the evidence oral and documentary available in the case held that the plaintiff is entitled to redeem the suit property. The contention raised by the defendant that the suit is barred by limitation was repelled. The defendant carried the matter in appeal, A.S.No.143 of 1987 on the file of the Court of the Subordinate Judge of Thiruvananthapuram. The lower appellate court concurred with the trial court on all issues except on the question of limitation. The lower appellate court held that the execution of Ext.A3 assignment deed by the mortgagee's son in favour of the defendant, does not attract Section 18 of the Limitation Act, 1963. The appeal was accordingly allowed and the decree and judgment passed by the trial court were set aside and the suit dismissed. In this Second Appeal, the additional plaintiffs challenge the decree and judgment passed by the lower appellate court dismissing the suit on the ground that it is barred by limitation. 4. I have heard Sri.Vellayani Sundara Raju, the learned counsel SA 138/96 -: 3 :- appearing for the appellants and Sri.Gopinath, the learned counsel appearing for the respondent. The short question that arises in this appeal is whether the execution of Ext.A3 assignment deed by the mortgagee's son on whom the mortgage right had devolved, in favour of the defendant, has the effect of enlarging the period of limitation prescribed in the Limitation Act, 1963 for redemption of the mortgage. Ext.A2 mortgage deed was executed on 18th Medom, 1115 M.E. by the plaintiff's father in favour of Sri Yohannan Daniel. When the mortgage deed was executed, the Limitation Act, 1908 was in force. As per the Limitation Act, 1908, the period of limitation prescribed for filing a suit for redemption of the mortgage was 60 years. The Limitation Act, 1963 was thereafter enacted and it came into force with effect from 1.1.1964. As per the Limitation Act, 1963 the period of limitation stood reduced from 60 years to 30 years. The period of 30 years prescribed in the Limitation Act 1963 to redeem the mortgage evidenced by Ext.A2 expired on 18th Medom, 1145 M.E., corresponding to the English Calender year 1970. After the mortgage deed was executed in the year 1115 M.E., the mortgagee executed a gift deed settling the mortgage right on his son Sri.Jackson. Sri.Jackson assigned his right to the defendant as per Ext.A3 assignment deed dated 31.3.1962. The suit was instituted only on 31.5.1978, admittedly after the expiry of 30 years from 18th Medom, 1115 M.E. The plaintiff contended that with the execution of Ext.A3 assignment deed by the mortgagee's son Sri. Jackson SA 138/96 -: 4 :- in favour of the defendant, a further period of limitation will commence from 31.3.1962 and that the suit filed on 31.5.1978 is well within time. The defendant on the other hand contended that the suit ought to have been filed on or before 18th Medom 1145 M.E. corresponding to English Calender year 1970. Though the trial court overruled the contention raised by the defendant, the lower appellate court held, relying on the decision of the Apex Court in Tilak Ram and others v. Nathu and others - A.I.R.1967 S.C. 935 and of this Court in Savithri Kunjamma v. Narayanan - 1989 (2) K.L.T. 628 that the execution of Ext.A3 assignment deed does not constitute an acknowledgment within the meaning of Section 18 of the Limitation Act, 1963. The lower appellate court reversed the decree passed by the trial court and dismissed the suit. 5. Section 18 of the Limitation Act, 1963 corresponds to Section 19 of the Limitation Act, 1908. There was divergence of opinion between various High Courts on the question whether admission by the mortgagee that he holds the property as a mortgagee is sufficient to constitute an acknowledgment within the meaning of Section 19 of the Limitation Act, 1908. One view was that mere admission of the jural relationship is sufficient to constitute an acknowledgment. Another view was that mere admission of the jural relationship is not sufficient and that in order to constitute an acknowledgment, the statement must be in relation to the liability or the right over the property claimed and that such statement must be shown to have been made with the SA 138/96 -: 5 :- consciousness and intention of admitting such right or liability. The Apex Court gave a quietus to the issue in Shapoor Freddom Mazda v. Durga Prosad Chamaria and others - A.I.R. 1961 S.C. 1236 and held that an acknowledgment may be sufficient by reason of Explanation under Section 19 of the Limitation Act, 1908 even if it omits to specify the exact nature of the right. The Apex Court also held that the statement on which the plea of acknowledgment is based must be of the subsisting liability and that the words used in the acknowledgment must indicate the jural relationship between the parties and it must appear that such statement is made with the intention of admitting that jural relationship. The Apex Court further held that the intention can no doubt be inferred from the nature of the admission and need not be in express words. The Apex Court again considered the said issue in Tilak Ram and others v. Nathu and others (supra) and held as follows: “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 as 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.” SA 138/96 -: 6 :- 6. In Savithri Kunjamma v. Narayanan (supra), a learned Single Judge of this Court while interpreting Section 19 of the Limitation Act, 1908 held as follows: “Admission of the jural relationship of mortgage is not by itself sufficient to constitute an acknowledgment within the meaning of the section. The words used in the acknowledgment must indicate the jural relationship and it must also appear that such a statement is made with the intention of admitting the jural relationship even though the intention can be inferred from the nature of the admission. Admission must be of a subsisting relationship which was there when it was made. The description in the assignment for the purpose of describing the interest, as was considered earlier, is not sufficient. Admission must be of the subsisting liability as mortgage thereunder of being redeemed.” 7. From the authoritative pronouncements of the Apex Court in Shapoor Freddom Mazda v. Durga Prosad Chamaria and others (supra) and Tilak Ram and others v. Nathu and others (supra), it is evident that mere admission of the jural relationship of mortgagor and mortgagee is not by itself sufficient to constitute an acknowledgment within the meaning of Section 18 of the Limitation Act, 1963. The admission must relate to the subsisting liability as a mortgagee. In the instant case, the mortgagee settled his rights on his son Sri.Jackson who in turn executed Ext.A3 in favour of the defendant. The relevant portion of Ext.A3 reads as follows: SA 138/96 -: 7 :- SA 138/96 -: 8 :- 8. Ext.A3 discloses that on 31.3.1962, the mortgagee's son Sri.Jackson had assigned his rights to the defendant for a consideration of Rs.1,200/-. The sum of Rs.1,200/- which Sri.Jackson obtained under Ext.A3 from the defendant was utilised to pay the mortgage money to Sri.Joseph Livingston and the expenses for cultivation of Rubber in the lands belonging to Sri.Jackson. Ext.A3 refers to the liability under the subsisting mortgage and also states in unequivocal terms that no consideration has been received in respect of the said liability. Ext.A3 further recites that the assignee of the mortgage right shall hold the property subject to the recitals in prior title deeds and the liability as a mortgagee. The prior title deeds in the instant case are Ext.A2 and the gift deed executed by the mortgagee Sri.Yohannan Daniel in favour of his son Sri.Jackson under whom the defendant claims right over the property. These recitals in Ext.A3 according to me, not only admit the jural relationship of mortgagor and mortgagee, but also refer to the right of the mortgagor to redeem the mortgage and the liability of the mortgagee to be redeemed. The lower appellate court without adverting to the recitals in Ext.A3 proceeded on the erroneous assumption that there is only a mere reference to the jural relationship under the mortgage deed in Ext.A3. The finding of the lower appellate court that execution of Ext.A3 does not amount to acknowledgment of the right of the mortgagor to redeem the mortgaged property and of the liability of the mortgagee to be redeemed cannot therefore be sustained. SA 138/96 -: 9 :- In the result, the Second Appeal is allowed, the judgment and decree passed by the Court of the Principal Subordinate Judge of Thiruvananthapuram in A.S.No.143 of 1987 are set aside and the judgment and decree passed by the Court of the Munsiff of Nedumangad in O.S.No.170 of 1978 are restored. The parties are directed to bear their respective costs in this appeal. P.N.Ravindran, Judge. ess 26/1