Case: Tilak Ram &amp; Others Vs. Nathu &amp; Others

1. The predecessors of one Teja Hazari were the owners of lands admeasuring 15S bighas situate in the village Naraina near Delhi. Between August 1861 and October 1869 they executed seven usufructuary mortgages in favour of one Dharamdas to secure repayment of an aggregate sum of Rs. 1,290 advanced by him. Dharamdas died leaving him surviving his son Parmeshwardas. The said Parmeshwardasthe suit lands in favour of one Badam, Chunder and Ganga Sahai, the ancestors of the appellants for Rs. 650 bydated February 21, 1902 and April 8, 1902. Thereafter he sold his mortgage rights to Ganga Sahai and Hira Singh, the predecessors in title of the respondents for Rs. 1,290. By a deed of sale dated March 9, 1903 the said Teja sold equity of redemption in his 3/4th sharein the said mortgaged lands for Rs. 1,900 in favour of Badam Jaishi, Chunder Bapal, Kalu Harnam and Badam Gulab, theof the appellants. As a result of these transactions the position in 1903 was that theof the respondents stood in the position of mortgagors subject to the saidtle of the appellants stood in the position of mortgagors of the said lands to the extent of the 3/4th share therein and the rest of the 1/4th share therein remained with the said Teja. On April 14, 1903 the said Hira Singh and Ganga Sahai, theof the respondents filed a suit being Suit No. 31 of 1903 against the said Badam and others for redemption and for possession of the said lands. The said Badam, Teja and others, theof the appellants, thereupon brought a suit being Suit No. 50 of 1903 for redemption against the said Hira Singh and others on payment of Rs. 856 and odd. The Trial Judge by his judgment, dated August 31, 1903 decreed Suit No. 31 of 1903 and dismissed Suit No. 50 of 1903. In appeal, however, the appellate Court reversed the said judgment and decree and passed a decree for redemption and possession on payment of Rs.in favour of theof the appellants and the said Teja and against theof the respondents. The appellantshowever, failed to redeem. Consequently the suit lands continued to remain in possession of the respondentsThe said Teja migrated to Pakistan in 1947 whereupon his 1/4th share in the said lands vested in the Custodian of Evacuee Property. On December 4, 1951, the appellants applied for redemption of their 3/4th share in the said lands under the Punjab Redemption of Mortgages Act, II of 1913 before the Additional Collector, Delhi, who, however, referred the parties to a civil Court. On May 15, 1954 the appellants filed the present suit for a declaration that the said seven mortgages still subsisted and for redemption and possession of their 3/4th share in the suit lands. In answer to that suit the respondents pleaded that as sixty years had already expired since the dates of the said mortgages the suit was barred by limitation and the appellants were not entitled to redeem the said lands. The appellants relied on four statements for the purpose of saving limitation which they alleged were acknowledgments within the meaning of S. 19 of the Limitation Act, IX of 1908. These statements were in the following, Ex. X, executed by Parmeshwardas thereby selling his mortgage rightsin favour of theof the respondents.4. Deed ofEx. E executed by Parmeshwardas in 1902.In the last document the statement relied on was with regard to only the first of the said seven mortgages, dated August 16, 1861.The Trial Court passed a preliminary decree, dated March 29, 1957 for possession on condition that the appellants paid Rs.within four months. Accordingly the appellants deposited the said amount in Court. The respondents filed an appeal challenging the said judgment and decree. On January 8, 1958 the learned District Judge dismissed the said appeal and confirmed the preliminary decree holding that the suit was within time as the statements in the aforesaid documents constituted acknowledgments within the meaning of S. 19. The respondents then took the matter to the High Court by way of second appeal. The learned Single Judge of the High Court allowed the appeal holding that the said statements were not sufficient to constitute acknowledgments and, therefore, the suit was barred by limitation and dismissed it. Thereupon the appellants filed a Letters Patent appeal which met the same fate. This appeal by certificate challenges the correctness of the said judgment and decree passed by the High Court.

Reasoning: 5. Before we proceed to consider these contentions we may mention that none of the statements relied on by the appellants expressly admitted the appellants right to redeem or the liability of the respondents and theirto be redeemed. What these statements did was only to mention without anything more the fact of jural relationship of mortgagor andis thus a clear divergence of opinion not only amongst the different High Courts but also sometimes in the same HighE, dated April 8, 1902 is the mortgage deed executed by Parmeshwardas in favour of Badam for Rs. 200. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200 rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot he said to be one made with the intention of admitting the jural relationship between him as theof Dharamdas and theof the said Teja. The second document Ex. X, dated August 16, 1902 was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgage rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dharamdassthe deed of mortgage, dated April 8, 1902 (Ex. E) and the fact that he was by this deed selling his mortgage rights for Rs. 1,290. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Ex. P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgage rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgage rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be, availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.12. In the light of the tests laid down in Khan Bahadur Mazdas case, (1962) 1 SCR 140  : (AIR 1961 SC 1236  ) (Supra) none of these statements can be regarded as acknowledgment within the meaning of S. 19. The High Court, therefore, was right in refusing to treat these statements or any of them as acknowledgments and was equally right in its conclusion that the appellants suit was barred by limitation.