1. This is a suit for redemption of a mortgage which was passed in 1834 by the ancestors of the plaintiff's vendors to the ancestors of the defendants. The original mortgage deed is not forthcoming. A copy has been pat in, bat the existence of the mortgage was admitted in the lower appellate Court, as the District Judge has noted. Both the Courts below have awarded redemption, the lower appellate Court having varied the decree of the first Court in respect of the amount payable. The only question that has been argued in appeal is the question of limitation. It is contended that the suit is barred by limitation, the mortgage having been executed so long ago as 1834, the lower Courts having held that limitation was saved by two acknowledgments by the mortgagees or their successore-in-title. The acknowledgments on which the lower Courts have relied are Exhibit 73, which is at p. 13 of the record, and is contained in a kabulayat passed by Nagu, one of the mortgagees to the inamdar of his village on April 2, 1861, and the second acknowledgment is contained in the plaint in Suit No. 8367 of 1877 which was brought by Sakhubai, the heir of Nagu, and her son on March 27, 1877. In addition to these, the deposition of the son of Sakhubai in that suit, which is Exhibit 106, has also been referred to, but it is not relied on as an acknowledgment, because it is not signed. The learned advocate for the appellants has contended that these so-called acknowledgments are not acknowledgments at all, and will not serve to save limitation, and he contends that not being acknowledgments as required by law, they cannot avail to extend the period of limitation. Exhibit 73, which is dated April 2, 1864, is a kabulayat passed by Nagu bin Ramji Marwadi to the inamdar of the village, in which he states that he had with him in mortgage the land of Pinjan out of No. 5 in Tike Sindethal. Then the area and assessment of the land are given. Then after reference to a mortgage of a third property which he redeemed, he agrees to take it from the inamdar, The plaint in Suit No. 1367 of 1877 was brought by Sakhubai, who was the daughter and heiress of Nagu, and her son Rajaram, against certain tenants to recover possession of the land now in suit, and in that plaint it is stated, ' The aforesaid land was under a mortgage with Nagu-ram Marwadi, who was the father of the plaintiff No. 1 and the same was taken for cultivation with a stipulation to pay Rs. 17 as rent by Sakharam, the defendant (that is, the tenant).' Sakha-bai has made her mark on the plaint. At this time, it appears in the evidence, Sakhubai was the sole owner of the land or of whatever rights her father had in the land (she had inherited it from him), and her son Rajaram had no interest, There could not therefore he any admission by Rajaram at that time, and Exhibit 106, which is his deposition, is not relied on by the respondents. It is further not signed by him. but it is employed to show that he and his mother were fully aware of the nature of their interest in the land. This deposition Exhibit 106 shows that the land originally belonged to Esaji Dhondaji PinJan, who had mortgaged it to Naguram, the deponent's grandfather. Now it is contended that prior to the Indian Limitation Act of 1877 there was no provision for the acknowledgment of a mortgage, and these acknowledgments, if they are acknowledgments at all, having been made prior to the Act of 1877, would not avail to save limitation, and therefore the suit is time-barred. It is further contended that the plaint is not signed, and the mark of Sakhubai is not sufficient. And under Section 20 of the Act of 1871, which would apply at the time the suit was filed, because admittedly the Act of 1877 came into operation after the filing of this plaint, only acknowledgment could be made of a debt or legacy.
2. I would deal first with the point as to the law which should be applied in considering acknowledgments, On this point we have two rulings of the Allahabad High Court, and one of the Privy Council confirming one in which it is laid down that the law to be applied is the Indian Limitation Act as it stands at the filing of a suit. In Shib Shankar Lal v. Soni Ram I.L.R. (1909) All. 33 it was held that unless there is a distinct provision to the contrary, the validity of an acknowledgment set up by plaititiff as saving limitation in his favour must be decided with reference to the law in force when the suit is brought, and not with reference to that in force when the acknowledgment was made, and therefore Act XV of 1877 was applied to that suit. That decision was confirmed on appeal by the Privy Council in Lala Soni Earn v. Kanhaiya Lal and that distinctly covers the point in question. In a suit brought by the appellant on March 24,1907, against the respondents for the redemption of a mortgage dated January 2,1842, made between the respective predecessors-in-title of the parties and in which no date for redemption was specified, acknowledgments of the mortgagor's right had been made by the widow and daughter of a former mortgagee, apredecessor-in-title of the respondents, which, the appellant contended, extended the period of limitation, It was held that the law of limitation applicable to the case was not Act XIV of 1S59S the law in force at the date of the acknowledgments, but Act XV of 1877, which was in force at the time of the institution of the suit. Applying that principle, the Act to be applied would be the Act of 1908 (the provisions of the Act of 1877 are the same). In Zaib-un-nissa Bibi v. The Maharaja of Benare I.L.R. (1911) All. 109 it was held that the criterion to be applied to test an acknowledgment of liability put forward by a plaintiff as extending the periond of limitation in his favour is the law in force at the time when the plaintiff's suit would otherwise have been time-barred, and not that in force at the time when the acknowledgment relied upon was made. The mortgage is in 1834, and the plaintiff's suit would have been in 1894. At that time the Act of 1877 was in force. Hence also if that Act were applied, the result would be the same, but under the Privy Council ruling, the Act to be applied is that of 1908. It has been contended that a different view has been taken by this Court in Narayan v. Govind : AIR1928Bom28 , and it has been contended that the mortgagor's suit having become time barred, nothing that is done hereafter can revive it, but if it did not become time-barred in 1894, at which time the Act of 1877 was in force, the acknowledgments would serve to revive the claim, assuming them to be acknowledgments, a point I will deal with later. The facts in Narayan v. Govind are rather different from the present case, because the acknowledgment of 1860 was held not to have been by the mortgagee and therefore was ineffectual for the purpose of the Indian Limitation Act of 1859, and the right to sue having been extinguished by the operation of law, was not revived by the Indian Limitation Acts of 1877 and 1908. But in the present case the right to sue has not been extinguished, assuming that these are acknowledgments, and in this connection I may refer to p. 1568 of the judgment, where it is said that the Privy Council in Lola Soni Ram v. Kanhaiya Lal, a case I have already referred to, did not consider, nor was it necessary for them to consider, whether the right had been extinguished by the failure of the mortgages to sue within sixty years from the date of the mortgage or sixty years from the date of the acknowledgment. In the present case, the suit is within sixty years from the date of either of the acknowledgments. The mark of Sakhubai will operate as her signature, and it is not seriously disputed that that is so, for the case is governed by the present Indian Limitation Act.
3. Then as regards the nature of these acknowledgments, it has been contended that they are not really acknowledgments at all, and reference is made to the case of Dharrna Vithal v. Govind Sadvalkar I.L.R. (1883) Bom. 99. In that case the mortgagee passed to the officers of the Court a receipt in which he acknowledged having received possession of the mortgaged land as directed by the decree, and it was held that the receipt incorporating the decree by reference did not operate as an acknowledgment of a mortgage subsisting in 1827 so as to give to the mortgagor a new period of limitation under Section 19 of Act XV of 1877, and that that section intends a distinct acknowledgment of existing liability or jural relation, not an acknowledgment without knowledge that the party is admitting anything. The facts of that case are somewhat different. A receipt is presumably drafted under the instruction of the Court, and it was held at p. 102 :-
Now, all that the receipt admits by implication is that the land had been awarded to him who passed it by the decree. To extend it, so as to make it an admission of the reasonings and legal grounds stated in the decree, would be to go beyond what probably was present at all to the consciousness of the recipient when he acknowledged having been put into possession.
Reference is also made to Ittappan Kuthiravattat Nayer v. Nanu Sastri I.L.R. (1902) Mad. 34 in which it was held that though under Section 19 of the Indian Limitation Act the exact nature of the right or liability need not be disclosed by the acknowledgment, and its exact nature may be established by evidence dehors the written acknowledgment, yet the acknowledgment in itself should import that the person making it is under an existing liability at the time: such liability cannot be read into it by proof aliunde or by an admission subsequently made by a party to a suit in which the acknowledgment is relied on as saving the bar of limitation. In that case there was no proof that the mortgage deed was executed and delivered by the plaintiff's ancestors to the 1st and 2nd defendant's ancestors, and the case was decided on the broad terms of Exhibit G. Reference is also made to Ram Autar v. DhanauriI.L.R. (1886) All. 540 and Ram Khelwan Mahto v. Nanhoo Singh (1907) 6 C.L.J. 544 In Ram Khelwan Mahto v. Nanhoo Singh it was held that whether an acknowledgment is an acknowledgment of an existing liability or not, depends upon the terms of the acknowledgment, and subsequent events or external evidence cannot be relied upon with a view to show that there was an existing liability at the time, and thus to place upon the acknowledgment an interpretation of which it would not otherwise admit. The point, therefore, would seem to depend on the terms of the acknowledgment. In Exhibit 73 Nagu has admitted that his title to the land of Pinjan, i.e., the land in dispute, depends upon a mortgage. In the first paragraph of the kabulayat he gives the history of the land, and he does not say that it is of his ownership, but bases his title to it on the mortgage. It has been argued that there is no evidence that the other mortgage was in favour of two persons, Nagu and his brother was dead at the time, but both Courts below have found that he was. With regard to the plaint, the plaintiff Sakhubai, after describing the land which is the land now in dispute, states that it was mortgaged to Naguram Marwadi, the father of plaintiff No. 1. This is the statement of her title to the land, and clearly shows that she was aware that her title depended on a mortgage. She does not claim that it is of her ownership. That is made clearer by the evidence of her son, Exhibt 106, which explains the statement in the plaint. In these circumstances, I do not think that the view of the lower appellate Court that there was an acknowledgment by the mortgagee of the mortgage both in 1864 and 1877 is wrong and it follows on the Privy Council ruling to which I have referred above, that that acknowledgment will operate to save limitation, whether under the Act of 1877 or the Act of 1908, and no question of the mortgagor's right having been barred arises in this present case, as in any event the period for redemption would not expire till 1894. It may be strange that the suit for redemption should now be finally disposed of very nearly a hundred years after the mortgage, but that cannot be helped.
4. The result is that the decree of the lower appellate Court must be confirmed, and the appeal dismissed with costs.