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Sheikh Mahomed Vs. JamaluddIn Mahomed - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 602 of 1906
Judge
Reported in(1908)10BOMLR385
AppellantSheikh Mahomed
RespondentJamaluddIn Mahomed
Excerpt:
.....which is his liability to be redeemed.;it is immaterial for the purposes of section 19 of the indian limitation act, in what connection or for what purpose the description was made by the mortgagor and admitted as correct by the mortgagee whether it was or not made in a document, which had nothing to do either directly or indirectly with the mortgage. the sole question is whether the writing, whatever its immediate purpose or occasion, contains an the liability. - - bal) in his excellent judgment went into that evidence carefully and after duly considering the presumptions of law and fact, the proper weight to be given to official procedure, and conduct, came to the conclusion that the admission at the end of the book was made with knowledge of the description and extended to it......were aware that the statements included a description of them as 'mortgagees' and made the admission in writing over their signatures at the end of the book containing the statements in exhibit 88 with knowledge of that description. if they were aware and had the knowledge, it must follow that the admission was of the correctness of the description and amounted to an acknowledgment under section 19.6. this question is one of fact and must be determined upon the evidence. the subordinate judge (mr. r. k. bal) in his excellent judgment went into that evidence carefully and after duly considering the presumptions of law and fact, the proper weight to be given to official procedure, and conduct, came to the conclusion that the admission at the end of the book was made with knowledge.....
Judgment:

Chandavarkar, J.

1. The suit, which has given rise to this second appeal, was for redemption of two mortgages, one of 1830 and the other of 1835 and was brought by the appellant after the right to redeem had prima, facie become barred under the statute of limitation. To bring the claim within the period prescribed by that statute the appellant relied upon certain statements contained in a document (Exhibit 88), as amounting to an acknowledgment within the meaning of Section 19 of the Limitation Act. The question of law now is whether Exhibit 88 contains such an acknowledgment.

2. It is necessary to state shortly the nature and purport of that Exhibit, so far as they are material for the purposes of that question. In 1882 the Settlement Officer had to determine under the Khoti Act the tenure on which the lands in dispute were held by their occupants, who were also mortgagors under the mortgages now concerned. Those occupants asserted their title to the lands as dhar karis and alleged that the evidence of that title was contained in certain books relating to the payment of assessment which, they further stated, were in the possession of two of the Khots, who were expressly named by them and described also as 'mortgagees.' These statements of the occupants, which included the description of the two Khots as 'mortgagees,'' were recorded by the Settlement officer in a big book of which Exhibit 88 is an extract. At the end of that book, several Khots admitted in writing signed by them the correctness of the statements 'made by the occupants to the above mentioned effeat and recorded by the Settlement officer.

3. The appellants' case is as it was in both the Courts below, that the two Khots who were mortgagees having admitted in writing over their signatures the correctness of all the statements made by the occupants, that admission must be treated as having extended to the description of those two Khots as 'mortgagees,' since it formed part of those statements, and that as such admission it amounted to an acknowledgment of their liability to be redeemed by the occupants who were also mortgagors.

4. The learned District Judge (Mr. Phadnis) has declined to give the admission the legal effect contended for by the appellants on several grounds, one of which is that the mere description of the mortgagees as 'mortgagees' 'predicates nothing and affirms nothing.' We find it impossible to follow this language of the learned District Judge. Where a mortgagor describe his mortgagee as such and the latter admits in writing over his signature the correctness of that description, the meaning of the admission is as plain as language can make it. Thereby the mortgagee unmistakeably affirms that he is what he is described to be-a mortgagee. To hold otherwise is in effect to decline to attribute to simple words their natural and sensible meaning. And if a mortgagee in writing signed by him admits the correctness of the description, it is a necessary implication from the admission that he acknowledges all the legal consequences of his position as a mortgagee, one of which is his liability to be redeemed. It is immaterial, for the purposes of Section 19 of the Indian Limitation Act, in what connection or for what purpose the description was made by the mortgagor and admitted as correct by the mortgagee -whether it was made in a document, which had nothing to do either directly or indirectly with the mortagage. The sole question is, whether the writing, whatever its immediate purpose or occasion, contains an acknowledgment of Reliability in dispute. The two authorities Daia Chand v. Sarfraz ILR (1875) All. 117, and Vithu v. Keshav (1903) 6 Bom. L.R. 40, which the learned Subordinate Judge held to be in favour of this view but which the District Judge has somewhat summarily brushed aside as irrelevant, are apposite here.

5. The only question, then, is whether while admitting the statements made by the occupants to the Settlement Officer as correct, the mortgagees through the persons who are found to have been authorised to make the admission were aware that the statements included a description of them as 'mortgagees' and made the admission in writing over their signatures at the end of the book containing the statements in Exhibit 88 with knowledge of that description. If they were aware and had the knowledge, it must follow that the admission was of the correctness of the description and amounted to an acknowledgment under Section 19.

6. This question is one of fact and must be determined upon the evidence. The Subordinate Judge (Mr. R. K. Bal) in his excellent judgment went into that evidence carefully and after duly considering the presumptions of law and fact, the proper weight to be given to official procedure, and conduct, came to the conclusion that the admission at the end of the book was made with knowledge of the description and extended to it. It is not clear from the learned District Judge's judgment whether he meant to find on this important question of fact on the evidence or whether he has held the writing in Exhibit 88 to be not an aknowledgment merely on the strength of its language and immediate purpose. His language is so ambiguous that it is impossible to gather any clear meaning of his finding, such as it is. He discusses none of the evidence and refers to none of the circumstances which the learned Subordinate Judge has dealt with in his able judgment. We must, therefore, send the case back to the District Judge for a clear finding upon the evidence on the following issue :-

Whether the admission of the correctness of the statements which were made by the mortgagors as occupants to the Settlement Officer was made with knowledge on the part of Hasan and Ruknudin that those statements included the description of Mahomed Ali valad Aba Khot and Mahomed Ibrahim valad Sheikh Mahomed as mortgagees.

7. Finding to be returned within two months.


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