dedol-hf/india-case-legal-rag huggingface dataset:
in this case that  the bond  was legally s, attested.
    Mr.  Sinha,  appearing on behalf of the  plaintiffs  re-
spondents,  has,  on the other hand, attempted not  only  to
repel the contentions advanced on behalf of the  appellants;
he has further argued that even if no appeal or cross-objec-
tion  was filed by the plaintiffs against that part  of  the
decree  of the trial court which went against them,  it  was
open  to  the High Court, in view of the findings  which  it
arrived  at on the question of attestation, to make a  mort-
gage  decree in this case under the provisions of Order  41,
Rule  33, of the Civil Procedure Code.  The learned  Counsel
invited  us to exercise our powers under the said  provision
of the Civil Procedure Code in this appeal and pass a  mort-
gage  decree  in favour of his clients on the basis  of  the
findings of the High Court.
    We will first take up the question of limitation, and to
appreciate the nature of the controversy that centres  round
this  point, it will be convenient to advert to a few  rele-
vant  dates.  The mortgage bond is dated the 8th  of  April,
1927,  but it is no longer disputed that the executants  put
their  signatures to the document on the 12th of April  fol-
lowing, and admittedly it was registered on the latter date.
Whether the attesting witnesses signed the deed on the  12th
of  April  or  on the 8th when the   document  was  actually
scribed,  is a debatable point upon which the  courts  below
have  divergent views and we will discuss this matter  later
on.   The due date, as given in the mortgage, is the 6th  of
March, 1928.  The suit was instituted on 4th of March, 1940,
and  if  it  could be treated as a mortgage  suit  pure  and
simple  for enforcement of a charge on  immovable  property,
the suit was obviously within time and no question of  limi-
tation would arise.  If, however, the attestation is held to
be  defective  and the mortgagee seeks to recover  the  debt
personally from the mortgagor on the  basis of a covenant to
pay, such suit, if the bond is registered, would be governed
by Article 116 of the Limitation
120
Act  and the period of limitation would be 6 years from  the
date  fixed for repayment unless it could be extended  under
some  other provision of the Limitation Act.  The mere  fact
that  in such cases the plaintiff chooses to frame his  suit
as  one for enforcement of a charge, would not give  him  an
extended  period  of  limitation for  obtaining  a  personal
decree against the debtor.  The position, therefore, is that
if  the  bond  in the present case cannot be  treated  as  a
mortgage  bond and the only relief which the plaintiffs  can
claim  is one for recovery of money against  the  defendants
personally, the suit must be deemed to be barred, as it  was
instituted  beyond  6  years from the due  date  of  payment
unless  limitation is saved by reason of the payments  under
section 20 of the  Limitation Act. This leads us to  enquire
as to whether the trial Judge was right in holding that  the
payments  made by the defendants satisfied the  requirements
of section 20 of the Limitation Act and were hence available
to the plaintiffs for the purpose of extending the period of
limitation within which the suit should otherwise have  been
brought.
The plaintiffs stated specifically in their plaint  that
the defendants made eight payments in all, aggregating to  a
sum of Rs. 780-9-0, in part satisfaction of the debt,  since
the execution of the mortgage bond. The first payment  which
was of a sum of Rs. 300 was made on 21st January, 1928,  and
this was before the expiry of the due date mentioned in  the
bond.  The second payment was of Rs. 75 and was made on  the
5th of June, 1929. The third payment is dated 8th of  March,
193l, and the fourth was made within one month after that on
3rd April, 1931.  the fifth and the sixth payments were both
made  in the month of May, 1932, the seventh on  25th  July,
1934,  and the last payment was made on 15th of  May,  1936.
The  present suit was instituted, as said above, on the  4th
March,  1940.  There  cannot be any doubt that  if  a  fresh
period of limitation could be computed from each one of  the
payments  mentioned  above, the plaintiffs'  suit  would  be
quite in time even if it is treated as a suit for
121
obtaining a money decree against the defendants  personally.
The contention of the appellants is that as San there is  no
acknowledgement  in  the handwriting of, or in  any  writing
signed  by, the payer in respect of any  Of these  payments,
they  could  be of no avail in giving a fresh start  to  the
period of limitation under section 20 of the Limitation Act.
    For determination of this point, it is necessary to turn
to  the provision of section 20 of the Limitation Act.   The
section,  after it was amended by Act I of 1927,  stands  as
follows :--
    20(1).  "Where interest on a debt or legacy  is,  before
the  expiration, of the prescribed period, paid as  such  by
the person liable to pay the debt or legacy, or by his agent
duly authorized in this behalf,
    or where part of the principal of a debt is, before  the
expiration  of the prescribed period, paid by the debtor  or
by his agent duly authorized in this behalf,
    a fresh period of limitation shall be computed from  the
time when the payment was made:
    Provided that, save in the case of a payment of interest
made before the 1st day of January, 1928, an  acknowledgment
of the payment appears in the handwriting of, or in a  writ-
ing signed by, the person making the payment."
    Admittedly  in the case before us, none of the  payments
specified  above were endorsed on the bond itself and  there
was  no  acknowledgment  either in the  handwriting  of,  or
signed by, the debtors prior to the institution of the suit.
What  the  Subordinate Judge relied upon, is  the  admission
contained in paragraph 15 of the written statement filed  on
behalf of defendants 1 to 3 in the present suit where  these
defendants admitted not only that the payments specified  in
the  plaint were actually made on the respective  dates  but
asserted that there were other payments besides these, which
reduced the debt still further and for which the plaintiffs'
did not give any credit to the defendants. In the opinion of
the Subordinate Judge as the written
122
statement  was signed by these defendants, it  would  fulfil
all  the requirements of a signed acknowledgment as is  con-
templated by the proviso to section 20. The  short point for
our consideration is: whether the view taken by the Subordi-
nate Judge is correct ?
  It would be clear, we think, from the language of  section
20  of the Limitation Act that to attract its operation  two
conditions  are essential: first, the payment must  be  made
within the prescribed period of limitation and secondly,  it
must  be acknowledged by some form of writing either in  the
handwriting of the payer himself or signed by him. We  agree
with  the  Subordinate Judge that it is  the  payment  which
really extends the period of limitation under section 20  of
the Limitarian Act; but the payment has got to be proved  in
a  particular way and for reasons of policy the  legislature
insists  on a written or signed acknowledgment as. the  only
proof of payment and excludes oral testimony. Unless, there-
fore,  there  is acknowledgment in the  required  form,  the
payment  by  itself is of no avail. The  Subordinate  Judge,
however,  is  right in holding that while the.  section  re-
quires that the payment should be made within the period  of
limitation,  it  does not require  that  the  acknowledgment
should  also  be made within that period. To  interpret  the
proviso in that way would be to import into it certain words
which do not occur there.  This is the view taken by  almost
all  the  High Courts in India and to us it seems  to  be  a
proper view to take(1).
But while it is not necessary that the written acknowl-
edgment should be made prior to the expiry of the period  of
limitation,  it  is,  in our opinion,  essential  that  such
acknowledgment,  whether made before or after the period  of
limitation, must be in existence prior to the institution of
the  suit.  Whether a suit is time-barred or not has got  to
be  determined  exclusively with reference to  the  date  on
which the plaint is filed and the allegations made  therein.
The legislature has expressly
     (1) See Md. Moizuddin v. Nalini Bala (A.I.R. 1937  Cal.
284:  I.L.R.  (1937)  2 Cal. 137), Lal Singh  v.  Gulab  Rai
(I.L.R. 55 All 280), Venkata Subbhu v. Appa Sundaram  I.L.R.
17  Mad.  92). Ram Prasad v. Mohan Lal (A.I.R.  1923  Nagpur
117), Viswanath v. Mahadeo (57 Bom. 453).
123
declared  in  section 3 of the Limitation Act  that  whether
defence of limitation be pleaded or not, the court is  bound
to dismiss a suit which is brought after the period provided
therefore  in the first schedule to the Limitation Act.   If
the  plaintiff's right of action is apparently barred  under
the  statute  of limitation, Order 7, Rule 6, of  the  Civil
Procedure  Code makes it his duty to state  specifically  in
the  plaint the grounds of exemption allowed by the  Limita-
tion Act upon which he relies to exclude its operation;  and
if  the plaintiff has got to allege in his plaint the  facts
which entitle him, to exemption, obviously these facts  must
be  in  existence at or before the time when the  plaint  is
filed;  facts which come into existence after the filing  of
the  plaint  cannot be called in aid to revive  a  right  of
action  which  was dead at the date of the suit.   To  claim
exemption under section 20 of the Limitation Act the  plain-
tiff  must.  be in a position to allege and prove  not  only
that there was payment of interest on a debt or part payment
of  the principal, but that such payment had  been  acknowl-
edged in writing in the manner contemplated by that section.
The ground of exemption is not complete without this  second
element, and unless both these elements are proved to  exist
at  the date of the filing of the plaint the suit  would  be
held to be time-barred.  In the plaint as it was  originally
filed  in  this  case, the prayer was only  for  a  mortgage
decree in the usual form.  After the hearing was closed, the
plaintiffs,  it  seems,  were apprehensive that  the   court
might  not  hold the bond  to  be  properly   attested.   In
these   circumstances.  they prayed for an amendment of  the
plaint  which  was  allowed by the court.   By  the  amended
plaint  the  cause of action was stated to  arise  from  the
different payments made on different dates as were stated in
paragraph 7 of the plaint and at the end of paragraph 7  the
following words were added :-
    "The suit is saved from limitation so far as the person-
al  remedy  is concerned and the payments were made  by  the
defendants  on  different dates as mentioned in  Schedule  A
below."
124
These  amendments must be deemed in the eye of law to  be  a
part  of  the  original plaint, and  obviously     there  is
neither any averment nor proof that any of    these payments
was  acknowledgment in writing prior to the  institution  of
the suit.  This being the position, the suit treated as  one
for obtaining a money decree against the defendants must  be
held to be barred by limitation at the date on which it  was
instituted  and  the  courts  below  consequently  were  not
justified  in giving the plaintiffs a money decree  in  this
suit.
     The  question  now is whether we can  pass  a  mortgage
decree  in  favour  of the plaintiffs on the  basis  of  the
finding of the High Court that the bond was properly attest-
ed;  and it is not disputed that no question  of  limitation
would in that case arise.  To decide this question there are
two points which require consideration :--
     (1) Whether the finding of the High Court on the  ques-
tion  of attestation is a correct and proper finding on  the
evidence adduced in this case ?
     (2)  If it is so, whether the facts of  the  plaintiffs
not  having preferred an appeal or  cross-objection  against
that  part of the judgment of the trial Judge which  refused
them a mortgage decree, stands in the way of their  claiming
any  relief other than what was given to them by  the  trial
Judge ?
     As regards the first point, the evidence shows that the
mortgage  bond was written and engrossed at the  plaintiffs'
house  at village Chakla Maulanagur and the date  which  the
document  bears is 21st Chaitra 1334 Fasli corresponding  to
8th April, 1027. Obviously, it was on that date the document
was written. There are four attesting witnesses whose  names
appear  in the deed, to wit, Sunderlal,  Matukdhari  Prasad,
Dwarka Prasad and Nanak Prasad  the last named person  being
also  the  scribe  of the document --and all  of  them  were
residents  of Chakla Maulanagur which is the place of  resi-
dence of the mortgagees. The mortgagors, on the other  hand,
are   inhabitants of a  different  village,  namely,  Chand-
pur.  Nanak Chand, the scribe, was not alive
 125
at the time when the suit came up for hearing and out of the
remaining  three witnesses two were  examined on behalf   of
the  plaintiffs.  They are Sunderlal and Matukdhari  Prasad.
Sunderlal,  who  is P.W. 1, states  when  cross-examined  on
behalf  of some of the  defendants:  "I signed the  bond  at
the plaintiffs' house, as did the attesting witnesses." The
attestation  of  the bond was on the same day  that  it  was
written."  The other attesting witness,  Matukdhari  Prasad,
during  cross-examination  said as follows:  "The  bond  was
written,  signed by the executants and attested by the  wit-
nesses on the same date."
    The  document  shows that all the three  executants  put
their  signatures to it on 12th of April, 1927, and  on  the
same day it was presented for registration before the Regis-
tering Officer at Katihar. Katihar is at some distance  from
the plaintiffs' village and a part of the journey has to  be
covered  by train.  The evidence of the two  attesting  wit-
nesses makes it clear that the document was attested on  the
same day as it was written.  As the document was written  on
the  8th but actually executed on the 12th, the  Subordinate
Judge was of opinion that the attesting witnesses must  have
signed  the  deed before it was executed land  this  was  no
attestation in the eye of law.  The High Court, on the other
hand,  has held that the vernacular equivalent of  the  word
"written"  as  used by the attesting  witnesses  might  mean
execution  as  well and the Subordinate Judge, who  was  not
familiar  with  the  language of the  witnesses  might  have
committed  the mistake of taking the word "written"  in  the
sense  of mere engrossing or scribing of the deed,  although
the word could be interpreted to mean execution as well.  We
do not think that this assumption on the part of the learned
Judges of the High Court is justified.  In the first  place,
Matukdhari  Prasad,  the plaintiffs' own witness,  is  quite
precise in his statement and makes a distinction between the
writing of a document and its signing or execution.  Accord-
ing  to him, the bond was written, executed and attested  on
the same day.  But
              17
126
what  is more important for our purpose is the place of  the
execution  of  the  document.  If it was  executed  at   the
plaintiffs' house, where it was admittedly written, the date
of  execution would naturally be the date when the deed  was
scribed or engrossed. This is exactly the suggestion   which
the  plaintiffs' lawyers made to defendant No. 1  Sant  Lall
when he was being crossexamined.  He was asked as to whether
the document was executed at the' plaintiffs' village or  at
Katihar,  where it was taken for registration.  The  witness
persisted  in  saying that he and the other  executants  put
their  signatures not at the place of the plaintiffs but  at
Katihar where they reached by train between 9 and 10 a.m. in
the  morning.  This story seems to fit in with  the  circum-
stances  and  probabilities of the case.  The  document  was
certainly  taken to Katihar on the 12th of April, 1927,  and
the executants were all present there on that day and admit-
ted  execution of the document by putting  their  signatures
before  the Registering Officer.  The signatures by  way  of
execution  of  the document also bear the  same  date.  From
these circumstances it would be natural to presume that  the
execution  took place at Katihar some time before the  docu-
ment  was presented for registration. On the other hand,  it
is  nobody's  case that any of the attesting  witnesses  had
gone to Katihar;  they belong to the plaintiffs' village and
were  present at the time when the document was written.  It
was  quite  natural in these circumstances that  they  would
sign the deed at the plaintiffs' place and on the date  when
it was written.  It might have been in contemplation of  the
parties that the executants should also sign the document on
the same day but it seems that somehow or other that did not
happen.   We are not unmindful of the fact that no  specific
defence  was  taken by defendants 1 and 3 pleading  want  of
attestation  of this document and defendant No. 1  also  did
not  say anything on the point in his examination in  chief.
But the point was definitely taken in the written  statement
not  only of the minor defendants but also of  defendants  4
and  9,  who  are the sons of Bharath and  defendant  No.  2
respectively and
127
they  were  no less interested in contesting the  suit  than
defendants  1  to  3.  Moreover, a specific  issue  on  the,
question  of attestation was framed by the learned  Subordi-
nate  Judge.  On the Whole, our conclusion is that the  view
taken on this point by the Subordinate Judge is right and it
is  difficult to hold on the internal evidence furnished  by
the  contents  of the document itself taken along  with  the
statements  of witnesses that the bond was attested  in  due
and  proper manner. This being our view, the other  question
as to whether we should pass a mortgage decree in this  case
in exercise     of our powers under Order 41, Rule 33, Civil
Procedure Code, in spite of the fact that the plaintiffs did
not  challenge  the decision of the trial court  by  way  of
appeal  or cross-objection does  not require  to be  consid-
ered
The result is that the appeal is allowed, the judgments  and
decrees  of  both  the courts below are set  aside  and  the
plaintiffs'  suit dismissed. Having regard to the facts  and
circumstances of this case, we would direct that each  party
would bear its own costs in all the courts.
                                   Appeal allowed.
  Agent for the appellant:I. N. Shroff.
  Agent for the respondents: R.C. Prasad.
PETITIONER:
COLLECTOR OF BOMBAY
        Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF THE CITY OF BOMBAY AND OTHERS.
DATE OF JUDGMENT:
05/10/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
AIYAR, N. CHANDRASEKHARA
BOSE, VIVIAN
CITATION:
 1951 AIR  469            1952 SCR   43
 CITATOR INFO :
 D          1955 SC 298  (22)
 RF         1968 SC 718  (22)
 F          1970 SC1778  (16)
D          1971 SC2399  (8)
 R          1979 SC 621  (21,24)
 RF         1980 SC1285  (11)
 RF         1981 SC1937  (31)
 F          1985 SC 941  (4)
ACT:
    Bombay City Land Revenue Act (II of 1876), s. 8--Resolu-
tion  of  Government granting land to  Corporation  free  of
rent--Statutory  formalities not complied  with--Corporation
in  possession for over 70 years and erecting costly  struc-
tures--Assessment  to  land  revenue   --Legality--Equitable
estoppel--Part-performance--Acquisition  of right to  exemp-
tion from assessment--Prerogative of Crown.
HEADNOTE:
    In 1865, the Government of Bombay called upon the prede-
cessor in title of the Corporation of Bombay to remove  some
markets from a certain site and vacate it, and on the appli-
cation  of  the then Municipal Commissioner  the  Government
passed  a resolution approving and authorising the grant  of
another  site  to the Municipality.  The  resolution  stated
further  that "the Government do not consider that any  rent
should  be charged to the Municipality as the  markets  will
be,  like  other public buildings, for the  benefit  of  the
whole  community."   The Corporation gave up  the  sites  on
which the old markets were situated and spent a sum of  over
17 lacs in erecting and maintaining markets on the new site.
In 1940 the Collector of Bombay, overruling the objection of
the  Corporation,  assessed the new site under s. 8  of  the
Bombay City Land Revenue Act to land revenue rising from Rs.
7,500 to Rs. 30,000 in 50 years.  The Corporation sued for a
declaration that the order of assessment was ultra vires and
that  it  was  entitled to hold the land  for  ever  without
payment  of any assessment.  The High Court of  Bombay  held
applying  the  principle  of Ramsden v.  Dyson(1)  that  the
Government had lost its right to assess the land in question
by reason of the equity arising on the facts of the case  in
favour of the Corporation and there was thus a limitation on
the right of the Government to assess under s. 8 of the said
Act:
    Held per KANIA C.J., DAS, CHANDRASEKHARA AIYAR and
BOsE JJ. (PATANJALI SASTRI J. dissenting)--that the  Govern-
ment was not, under the circumstances of the case,  entitled
to assess land revenue on the land in question.
   Per  KANIA  C.J., DAS and Bose JJ.--Though there  was  no
effectual grant by the Government passing title in the  land
to  the  Corporation by reason of  non-compliance  with  the
statutory formalities, yet, inasmuch as the Corporation  had
never-the-less taken possession of the land in terms of  the
Government  resolution  and  continued  in  such  possession
openly,  uninterruptedly and as of right for over 70  years,
the Corporation had acquired the
(1) (1866)L.R. 1 H.L. 129.
44
limited title it had been prescribing for during the period,
that  is  to say, the right to hold the land  in  perpetuity
free of rent, but only for the purposes of a market and  for
no other purposes. The right acquired included as part of it
an  immunity from payment of rent which constituted a  right
in limitation of the Government's right to assess in  excess
of  the  specific  limit established and  preserved  by  the
Government  Resolution  within the meaning of s.  8  of  the
Bombay  City Land Revenue Act (II of 1876) there  being  for
the  purposes of this case no distinction between  rent  and
revenue.  Per CHANDRASEKHARA AIYAR J.--If the Resolution  of
1865 can be read as meaning that the grant was of  rent-free
land  the  case would come strictly within the  doctrine  of
estoppel  enunciated in s. 115 of the Indian  Evidence  Act.
Even  otherwise,  if there was merely the holding out  of  a
promise  that  no  rent will be charged in  the  future  the
Government must be deemed to have bound themselves to fulfil
it.  The right to levy assessment is a prerogative right  of
the Government and it is hard to conceive of a ease where it
could be said to be lost by adverse possession.  A court  of
equity must prevent the perpetration of a legal fraud.
    PATANJALI  SASTRI J. (contra)--The principle of  Ramsden
v.  Dyson  cannot  prevail  against  statutory  requirements
regarding disposition of property or making of contracts  by
Government.  No  question  of  estoppel  by   representation
arises,  as  the Government made no representation  of  fact
which it now seeks to deny. Nor can any case of estoppel  by
acquiescence  be rounded on the facts of the case  as  there
was  no  lying by and letting another run into a  trap.   No
right of exemption has been established either on the  basis
of express or implied contract or on the basis of  equitable
principles of part-performance or estoppel by  acquiescence.
The  right  to levy land revenue is no part of  the  Govern-
ment's right to property but a prerogative of the Crown  and
adverse possession of the land could not destroy the Crown's
prerogative to impose assessment on the land.
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  44  of
1950.   Appeal from a judgment and decree of the High  Court
of Bombay (Sen and Dixit JJ.) dated 21st February, 1947,  in
First Appeal No. 64 of 1943.