IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:08.09.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.1038 of 1993 1. Periyathayee 2. K.Ramaswamy 3. K.Sellamuthu 4. K.Rangaswamy 5. K.Balakrishnan .. Appellants / Defendants 1 to 5 vs 1. Ponnammal 2. Manimekalai 3. Gunavathy 4. Thilakavathy 5. Krishnaveni 6. Sreerangaswamy 7. Chinnaswamy 8. Murugesan 9. K.Kaliyappa Gounder 10.Guruswamy .. Respondents /Plaintiff/Defendants 6 to 14 Appeal filed under Sec.96 C.P.C against the judgment and decree of the learned Subordinate Judge, Dharapuram passed in O.S.No.121 of 1989 dated 29.11.1991. For appellants : Mr.S.Rajendra Kumar For respondents : Mr.M.V.Krishnan JUDGMENT This appeal is focussed as against the judgement and decree dated 29.11.1991, in O.S.No.121 of 1989, which is a suit based on mortgage passed by the learned Subordinate Judge, Dharapuram. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. The portrayal and parodying of the case of the plaintiffs, quintessentially and precisely as stood exposited from the plaint, would run thus: One Kaliappa Gounder borrowed a sum of Rs.5,000/- and Rs.15,000/- on 11.09.1971 and 30.10.1971 from the plaintiff and executed two promissory notes on those respective dates undertaking to repay the https://hcservices.ecourts.gov.in/hcservices/ principal amounts with interest on demand. On 31.10.1971, at Coimbatore, the said Kaliappa Gounder deposited his title deeds relating to the properties described in the schedule of the plaint with the plaintiff, so as to create a mortgage by deposit of title deeds, so as to cover his past and the future debts. The said Kaliappa Gounder borrowed another sum of Rs.5,000/- on 05.09.1974 and executed a promissory note for Rs.5,000/- subject to the same terms and conditions set out supra. Earlier creation of the mortgage referred to supra covers the third debt also. On 22.07.1977, the promisor paid a sum of Rs.100/- each towards interest concerning the aforesaid three pronotes and made endorsements respectively thereon. For the purpose of creating such mortgage by deposit of title deeds, Kaliappa Gounder deposited a registered copy of the partition deed, since the original was with his eldest brother Kuppusami Gounder. The mortgage deeds in favour of Kaliappa Gounder were also deposited with the plaintiff so as to enable the plaintiff to claim right as sub-mortgagee, but the plaintiff did not want to claim such right as sub-mortgage. Three other documents of sale deeds in favour of Kaliappa Gounder were also deposited with the plaintiff by way of creating such equitable mortgage over those properties. 3. Kaliappa Gounder died leaving behind his widow the first defendant, D2 to D5 his sons and D6 to D9 his daughters. It appears that Kaliappa Gounder and his sons got a partition effected among themselves and the plaintiff is in no way concerned with that as the right of the plaintiff as mortgagee over the suit properties subsists. The other defendants are the alienees of the mortgaged properties subsequent to the creating of mortgage and they are also bound by the mortgage to the extent of the property purchased by them. Accordingly, the plaintiff prayed for the following main relief: (a) directing the defendants to pay plaintiff the sum of Rs.76,165.00 together with costs of suit and subsequent interest at 12% p.a. till realisation within a period to be fixed by this Honourable Court and in default of such payment, directing the mortgaged properties or a sufficient portion thereof to be sold in court auction and the sale proceeds applied in satisfaction of the decree and in the event of the mortgaged properties not being sufficient to satisfy the claim of the mortgagee in the suit, reserving right to the plaintiff to proceed against the personal properties of defendants 2 to 4 by reason of the letter of continuing guarantee and also reserving right to the plaintiff to proceed against the personal properties of the 1st defendant by reason of her having executed the letter of continuing guarantee." 4. Per contra, remonstrating and refuting, gainsaying and impugning the allegations/averments in the plaint, the defendants 1 https://hcservices.ecourts.gov.in/hcservices/ to 4 filed the written statement which was adopted by D5 to D10, the gist and kernel of it would run thus: The suit is barred by limitation. The cause of action as alleged in the plaint is not correct. Kaliappa Gounder had no money dealings with the plaintiff during his life time. No equitable mortgage by deposit of title deeds as alleged in the plaint was created by Kaliappa Gounder during his life time. The allegations that Kaliappa Gounder executed three promissory notes and made endorsements thereon are all false and frivolous. Kaliappa Gounder was under the bad influence of plaintiff's husband, who was a big money lender as well as tobacco merchant. The plaintiff's husband Subbaraya Chettiar advanced money to Kaliappa Gounder and got possession of some documents of title from Kaliappa Gounder by practising fraud and undue influence. The debts alleged in the plaint are fictitious ones. The plaintiff had no sufficient funds to lend money to Kaliappa Gounder. Late Kaliappa Gounder was heavily indebted and hence, he was indebted to his creditors including plaintiff's husband. Creditors meeting was held during the year 1972 at Kaliappa Gounder's house; however, the plaintiff did not attend the meeting. On behalf of the plaintiff, her husband did not state anything about the mortgage by deposit of title deeds and the said meeting entered in a fiasco. Many creditors of Kaliappa Gounder filed suit and attached the plaint scheduled properties and in the Court auction sale, properties were sold, but subsequently, those sales were set aside after compromise. A partition was effected among Kaliappa Gounder and his four sons and as such, the defendants are not bound to honour the alleged debts of Kaliappa Gounder. The sales effected by Kaliappa Gounder and his sons in favour of third parties cannot be questioned. The debts alleged in the plaint are all time barred. Accordingly, the defendants prayed for the dismissal of the suit. 5. The plaintiff filed the reply statement contradicting the allegations in the written statement but by reiterating the plaint averments; over an above that here version is that D2 to D4 on 12.09.1971 executed a letter of guarantee to a tune of Rs.75,000/-. The first defendant also on the same day executed a letter of guarantee relating to the debts incurred by Kaliappa Gounder. Inasmuch as on 22.07.1977 Kaliappa Gounder himself made endorsement on the promissory note after making part payments and hence the suit cannot be labelled as one barred by limitation. 6. D3 also filed additional written statement to the effect that the suit promissory notes and the mortgage by deposit of title deeds could not be enforced, as they were barred by limitation. The defendants 1 to 9 are entitled to protection as they happened to be small farmers and accordingly, he prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 7. The plaintiff once again filed reply, denying and refuting, controverting and denying the allegations in the additional written statement. 8. The trial Court framed the relevant issues. During the trial, on the side of the plaintiff P.Ws.1 to 3 were examined and Exs.A1 to Ex.A25 were marked. On the side of the respondents, R.Ws.1 and 2 were examined and Exs.B1 was marked. Ultimately, the trial Court decreed the suit in toto and passed a preliminary decree. 9. Being dissatisfied with and aggrieved by the judgement and decree of the trial Court, the defendants 1 to 5 filed this appeal on various grounds, the warp and woof of them, would run thus:- (a) The judgement and decree of the trial Court are against law and weight of evidence; (b) The trial Court ignored the fact that the suit was barred by limitation; (c) Exs.A14 and 15 endorsements made on promissory note Exs.A1 and 2 respectively did not enure to the benefit of the plaintiff to file the suit; (d) No endorsement was made on Ex.A3, the memorandum relating to the creation of the mortgage by deposit of title deeds. From the date of Ex.A3, 12 years period also already got elapsed by the time suit was filed. (e) Mere possession of title deeds would not enure to the benefit of the plaintiff to file a suit based on such deeds as though equitable mortgage was created in her favour. (f) The alleged endorsements made on the promissory note would not automatically get extended the period of limitation to enforce the alleged equitable mortgage by deposit of title deeds by computing the limitation period from the date of endorsements made on the promissory note. (g) The trial Court wrongly applied the law and decreed the suit. Accordingly, the defendants pray for setting aside the judgment and decree of the trial Court and for dismissing the original suit. https://hcservices.ecourts.gov.in/hcservices/ 10. The points for consideration are as to: 1. Whether the suit was barred by limitation or not? 2. Whether Exs.A14 and A15 endorsements made on Exs.A1 and A2 pronotes would enure to the benefit of the plaintiff to file the suit invoking the said mortgage created by deposit of title deeds? 3. Whether the endorsement Ex.A16 made on Ex.A4 the pronote would enure to the benefit of the plaintiff to invoke the mortgage by deposit of title deeds created earlier to such debt as contemplated in Ex.A4? 4. Whether there is any infirmity in the judgment and decree of the trial court? 11. Heard both sides. Point Nos.1, 2 and 3 have been taken together as they are inter- linked and inter-woven with one another. 12. Pithily and precisely, tersely and briefly, the learned counsel for the defendants would advance his argument to the effect that as on 22.07.1977, the date on which the alleged endorsements made by the deceased Kaliappa Gounder on the pronotes Exs.A1 and A2, the period of limitation for enforcing those pronotes got expired and correspondingly any equitable mortgage created so as to secure the prompt repayment of the amounts due under the pronotes also could not be enforced; Ex.A3, the alleged letter of acknowledgement purported to have been executed by Kaliappa Gounder cannot be taken as one capable of securing the future debts as contained in Ex.A4 the promissory note and correspondingly, the endorsement Ex.A17 made on Ex.A4 also would not enable the plaintiff to place reliance on the said equitable mortgage to file the suit and obtain a mortgage decree. 13. By way of torpedoing the argument of the learned counsel for the defendants/appellants, the learned counsel for the plaintiff would submit that the suit itself is based on mortgage by deposit of title deeds; the endorsements made on the respective pronotes, whether before or after three years' period of limitation, would enure to the benefit of the plaintiff to place reliance on the equitable mortgage so as to obtain a preliminary decree by calculating the period of limitation from the date of those endorsements made on the promissory notes. 14. A mere perusal of the judgment of the trial Court would unambiguously and unequivocally highlight that the judgment of this Court reported in AIR 1960 Madras 403 [Pilla Venkatamma and others vs. R.M.Chidambaram Chettiar and others] has been misinterpreted and misapplied by the trial Court. It is therefore just and necessary to https://hcservices.ecourts.gov.in/hcservices/ understand the ratio decideni of the said decision. An excerpt from the said decision would run thus: "6. The first point for determination in the appeal is whether the suit was in time. Ex.A1 is the promissory note executed by Abdul Karim and his son, the second defendant, on 7.2.1929 in favour of Chidambaram Chettiar for Rs.1000/-. Ex.A2 is the promissory note executed by those two persons in favour of Chidambaram Chettiar on the same date for Rs.2000/-. Ex.A4 is the mortgage executed by Abdul Karim in favour of Chidambaram Chettiar on the same date securing repayment of the debts of Rs.1000 and Rs.2000 borrowed under Exs.A1 and A2. We accept the evidence of P.W.1 and find that Abdul Karim and his son (the second defendant) executed the promissory notes Exs.A1 and A2 and borrowed Rs.1000 and Rs.2000 respectively from Chidambaram Chettiar, and that Abdul Karim executed the mortgage Ex.A4 on the same date. 7. Abdul Karim and the 2nd defendant paid Rs.100 towards the debt due on the promissory note Ex.A1 on 30.1.1932. The payment was endorsed on the promissory note and was signed by both these persons. The endorsement was written by P.W.1. He had been a clerk under Chidambaram Chettiar, and after him under Ramanatha and was a clerk under the plaintiff when he gave evidence in the lower court. On the same day, namely, 30.1.1932, Abdul Karim and the 2nd defendant paid Rs.100 towards the debt due on the promissory note Ex.A2. The payment was endorsed on the note, the endorsement was written by P.W.1 and signed by Abdul Karim and his son (the second defendant) on 11.12.1934. Abdul Karim and the second defendant paid Rs.5 towards the interest due on the promissory note Ex.A1. The payment was endorsed on the note and the endorsement was written by P.W.1 and signed by Abdul Karim and the 2nd defendant. On the same date, namely, 11.12.1934, Abdul Karim and the 2nd defendant paid Rs.10 towards the interest due on the promissory note Ex.A2 payment was endorsed on the note. The endorsement was written by P.W.1 and signed by Abdul Karim and the 2nd defendant. These facts were proved on the evidence of P.W.1. ....... For the institution of a suit on the mortgage Ex.A4, the period of limitation had to be reckoned under S.20 of the Limitation Act from 11.12.1934. The person entitled to institute the suit on the mortgage https://hcservices.ecourts.gov.in/hcservices/ at that time was the plaintiff. He was then a minor. A suit by him instituted within 3 years from the date of his attaining majority would be in time under S.6 of the Limitation Act read with S.8, which limits the extension granted under S.6 to three years after the attainment of majority. 11. The rule of law on which the conclusion sated above is based was enunciated in Venkataramayyar v. Kothandaramayyar, ILR 13 Mad 135, and was reaffirmed in Somalinga v. Muthulakshmi, AIR 1945 Mad 149. 12. The appellant's learned counsel contends that in order that a creditor may be entitled to an extension of the period of limitation by the combined application of S.6 and of S.19 or S.20 of the Act, it is necessary that he should have been in existence on the date on which the liability was initially incurred. There is neither principle nor authority in support of that contention. Sections 19 and 20 require a fresh period of limitation to be computed from the date of the acknowledgement of the payment which is acknowledged in writing signed by the debtor. Where, on the date from which the period of limitation has to be reckoned, the creditor is a minor, Ss.6 and 8 of the Limitation Act give him right to institute the suit for the recovery of the debt within 3 years after attaining majority. We see no reason to import into the sections a qualification that the creditor who was a minor on the date with effect from which the period of limitation has to be reckoned under S.19 or 20 of the Limitation Act should be in order to be entitled to the benefit of S.6, have been in existence on the date to which the liability was initially incurred. 13. The fact that the acknowledgement of the payments do not appear on the mortgage deed, but appears on the promissory note makes no difference to the applicability of S.20 of the Limitation Act to the suit instituted to enforce the mortgage. It is not necessary for the applicability of S.19 or S.20 that the acknowledgment should appear on the document under which the debt is payable." 15. The ratio decideni of the decision of this Court cited supra is that when an equitable mortgage by deposit of title deed is created so as to secure the prompt repayment of the debt due under the promissory note and if any endorsement of payment is made by the https://hcservices.ecourts.gov.in/hcservices/ promisor on the pronote within three years period of limitation for enforcing the pronote, automatically, the period of 12 years limitation for enforcing the mortgage also would get enlarged by computing the period of limitation from the date of endorsement made on the promissory note. No where it is stated in the cited decision that even if any endorsement is made beyond the three years period of limitation from the date of execution of the promissory note, the period of limitation for enforcing the mortgage also would get extended from the period of such endorsement. 15. Here, indubitably and incontrovertibly, the promissory notes Exs.A1 and A2 emerged on 11.09.1971 and 30.10.1971 respectively, whereas, Exs.A14 and 15 endorsements respectively made on Exs.A1 and A2 were emerged on 22.07.1977 so to say, long after the expiry of three years period from the date of Exs.A1 and A2 and as such, as per Section 19 of the Indian Limitation Act, any endorsement made after the period of limitation would not save limitation. It is also pertinent to point out that such endorsements on Exs.A1 and A2 were made as though part payments were made only towards the pronote debts and even the said mortgage was not referred to therein. Hence it is crystal clear that the mortgage by deposit of title deeds allegedly created by Kaliappa Gounder in favour of the plaintiff cannot be enforced by filing the suit on 17.07.1989, long after the expiry of 12 years from 30.10.1971, the date of said creation of the equitable mortgage by deposit of title deeds. 16. The learned counsel for the plaintiff would cite the decision of Hon'ble Apex Court reported in AIR 1989 SC 1775 [Reet Mohinder Singh Sekhon v. Mohinder Parkash and others]. An excerpt from it would run thus: The fact of Nanak Chand having obtained a mortgage with possession had already been recited in an earlier part of the sale deed. The passages in the sale deed, which have been extracted by us above, contain two specific recitals. The first is that “the original consideration and interest under had accrued and was payable to the instant vendor”. These words acknowledge that the mortgage had not been redeemed and that the mortgage and that the mortgage moneys remained outstanding to the mortgagee from the mortgagor as on the date of the sale deed. The second recital is even more specific. It says that what stands transferred to the purchaser is not only the right of the mortgagee for recovering the principal amounts and interest according to the mortgage deed (which, as earlier stated, still remained outstanding) but also “the rights and interest” regarding the redemption of the mortgaged land. These words are, of course, a little inappropriate because the https://hcservices.ecourts.gov.in/hcservices/ right of redemption is in the mortgagor and not in the mortgagee. But, read as a whole, the second sentence we have quoted here from the sale deed clearly manifests an intention on the part of the mortgagee to acknowledge that his right to recover the moneys under the mortgage deed as well as his liability to have the property redeemed by the mortgagor in the event of his paying off the moneys due under the instrument both stand vested in the purchaser. We are of the opinion that it is not correct to treat the recitals in the document as a mere narration of the previous mortgage that had been created on the property. The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right of redemption which he could enforce against the mortgagee. In this view of the matter the contention on behalf of the appellant that the recitals in the document of 1-11-1913 constituted an acknowledgement of liability for redemption within the meaning of Section 19 of the Limitation Act deserves to be accepted. 17. Placing reliance on the cited decision, the learned counsel for the plaintiff would develop his argument that even the recital in a sale deed relating to the subsistence of the mortgage could be treated as one enuring to the benefit of the mortgagee to file the suit by computing the period of limitation of 12 years from the date of such recital in the sale deed. Absolutely there is no quarrel over such a proposition. Here the endorsements Exs.A14 and A15 made on Exs.A1 and 2 respectively would speak only to the effect that such sums of Rs.100/- each was paid only towards interest due under the pronote debt and not under mortgage and such endorsements were made after the expiry of the three years from the date of execution of the pronote. In this factual matrix, the decision of the Hon'ble Apex Court cited supra cannot be pressed into service by the learned counsel for the plaintiff. 18. The learned counsel for the plaintiff also cited the decision of Allahabad High Court reported in AIR (32) 1945 Allahabad 224 [Tulshi Ram and others v. Nek Ram and another]. An excerpt from it would run thus: The relevant portion of the sale deed, which is relied on as an acknowledgment, is quoted in the judgment of the trial Court. Nek Ram, the mortgagor, admitted that a sum of Rs.5000 was due to the plaintiffs under a simple mortgage for Rs.3000 and he was setting off that amount as against the sale consideration. The trial Court was of the opinion that there was no valid acknowledgement as Nek Ram did not say that he was paying off a subsisting liability. It is true that a man may pay off a barred debt if he https://hcservices.ecourts.gov.in/hcservices/ wants to and any acknowledgement of a barred debt would not save limitation under S.19, Limitation Act, but in this case we know that the acknowledgement related to a mortgage which was executed on 19th December 1916. Moreover in the absence of anything to the contrary when a debtor makes an acknowledgement of his liability to pay a debt it would ordinarily mean that he was admitting a subsisting liability to pay. We, therefore, do not agree with the trial Court that there was no acknowledgement in the sale deed. 19. A bare perusal of the cited judgment would demonstrate that the case of the plaintiff herein is not covered by the cited judgment, wherein, unequivocally it is found posited that any acknowledgment of debt after it became time barred would not save limitation. The recital in the sale deed involved in the cited case emerged on 05.12.1928, so to say, within 12 years from the date of simple mortgage which had been created on 19.12.1916. But here, that is not the case and as such, it is crystal clear that the debts as contemplated under Exs.A1 and A2 cannot be enforced under any pretext. 20. Ex.A4 is the pronote dated 05.09.1974. However, Ex.A16 the endorsement made by the promisor on Ex.A4 was on 22.07.1977, so to say, within three years from the date of the pronote. However, the suit was filed as already set out supra was on 17.07.1989 long after expiry of three years. It is the contention of the plaintiff that from the date of Ex.A16, the endorsement dated 22.07.1977 made on Ex.A4 the pronote, if the period of limitation for enforcement of the equitable mortgage by deposit of title deeds is calculated, the suit filed was within 12 years and as such, according to the plaintiff, the suit filed based on mortgage was within time for enforcing the debt as contemplated under Ex.A4. It is also the contention of the plaintiff that the pronote and the mortgage deed are not two different transactions deeds, but they constitute as integral unit. No doubt, the connectivity and nexus between the pronote transaction as contemplated under Ex.A4 and Ex.A16 the endorsement made thereon, apparently,