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Cooverje Jethabhai Shah Vs. Amir Abdulali Kachwala and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberAppeal No. 38 of 1959
Judge
Reported inAIR1963Bom170; (1963)1BOMLR65; ILR1963Bom1; 1963MhLJ345
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rules 1, 3 and 4 - Order 6, Rule 1; Transfer of Property Act, 1882 - Sections 68; Limitation Act, 1908 - Sections 19 - Schedule - Article 120; Khoti Act; Mahomedan Law
AppellantCooverje Jethabhai Shah
RespondentAmir Abdulali Kachwala and Co.
Appellant AdvocateMahendra M. Shah and ;Chitre, Advs.
Respondent AdvocateWanmahatti and ;J.C. Dias, Advs.
Excerpt:
.....could not be said to be badly constituted. chitre, be entitled to claim relief in respect of the mortgage, his suit must be regarded as bad. nawal singh, ilr 24 all 226. in both these cases the learned judges of the two high courts took the view that it would not be proper in the circumstances like those present before us to dismiss the plaintiffs suit. 2 and 3 were not joined as parties to the suit within six years of the accrual of the cause of action for the enforcement of the personal covenant would not render the plaintiff's suit for its enforcement bad. he failed to do so and, therefore, in our opinion, the amendment of the plaint permitting the plaintiff to refer to the alleged acknowledgment ought not to have been granted. it is common ground that the defendant endorsed his..........before us to dismiss the plaintiffs suit.12. mr. chitre then contended that in so far as the personal relief is concerned the plaintiff alone would not be entitled to institute a suit without having joined the second and the third defendants as parties to the suit. he joined them as parties to the suit beyond the period of limitation and, therefore, in so far as that relief is concerned, the suit will have to be regarded as having been instituted by one only of the several heirs of a deceased maho-medan. such a suit, he contends would be incompetent and in support of this he relied upon a decision of a division bench of this court in virbhadrappa v. shekaoai, 41 bom lr 249 : air 1939 bom 188. this argument proceeded upon the basis that even in so far as the enforcement of the.....
Judgment:

Mudholkar, Acting C.J.

1. This is an appeal by the first defendant to a suit for the enforcement of a mortgage and of the personal covenant contained in it.

2. Briefly stated this facts are these: The first defendant mortgaged a house belonging to him and situate at Mahabaleshwar with one Saftabai and her son Shiraz on 4th May 1950 by depositing the title deed of the said house. The consideration for the mortgage was Rs. 40,000/-and interest was agreed to be paid thereon at the rate of six per cent per annum. The due date for the redemption of the mortgage was 4th May 1951. Saftabai died on 7th April 1951 and Shiraz died the very next day. The present plaintiff, Amir Abdul Ali, is another son of Safiabai and the defendants Nos. 2 and 3 are the daughters of Safiabai. It is admitted that these three persons constitute the only theirs of Safiabai and Shiraz.

3. The plaintiff alone obtained a succession certificate on 18th March 1952 entitling him to recover ill the debts and assets due to the estate of Shiraz and this succession certificate was extended on 29th October 1952 to the mortgage in question. As nothing, was paid on the mortgage, the plaintiff instituted a suit on 21st October 1959 against the first defendant, in that suit he asked for a decree for sale end in addition also asked for a personal decree against the defendant in case the amount realised by the sale of the mortgaged-property was insufficient to discharge tha claim under the mortgage.

4. The defendant took various contentions in his written statement but we would confine ourselves to only three of them because those were the ones which were pressed before us. The first contention was that the suit, as instituted, was not properly constituted and, therefore, the Court ought not to have passed any decree whatsoever in favour of the plaintiff. The second defence was that the plaintiff was not entitled to a personal decree against the defendant No. 1 because the suit was instituted more than six years after the accrual of we cause of action. The third point urged was that the relief sought by the plaintiff in the plaint could not properly be granted.

5. It was contended on behalf of the defendants that though the plaintiff held a succession certificate in his favour, he was not entitled to sue upon the mortgage by himself since the other heirs of Safiabai and Shiraz were not joined as parties. Thereupon the plaintiff made an application for amendment of the plaint. In that application he not only asked for joinder of two sisters as defendants Nos. 2 and 3 but also for being permitted to raise an additional plea to the effect that a certain document which tears the signature of the defendant operates as an acknowledgment of liability and brings the claim with respect to the personal liability within time. The application was allowed by the learned Single Judge on 15th April 1959 without prejudice to the rights of the first defendant to raise the question of limitation, that the claim of the plaintiff was barred by limitation. It may be mentioned that in his application for amendment the plaintiff pleaded that the second and the third defendants were being joined merely as pro forma defendants and thereafter the defendant filed a supplemental written statement and in that written statement, amongst other things he raised a contention that the claim in so far as the second and the third defendants areconcerned was barred by limitation despite the allegations made in the application for amendment and further that the document upon which reliance was placed by the plaintiff does not amount to an acknowledgment within the meaning of Section 19 of the' Limitation Act. The defendant also pointed out that even after the addition of the 2nd and the 3rd defendants as pro forma defendants to the suit, the plaintiff's suit was not properly constituted. Thereupon at the hearing the plaintiff made a further application for amendment of the plaint seeking thereby to obtain a decree in respect of the mortgage also in favour of the 2nd and the 3rd defendants. The Court allowed the amendment and thereafter tried the suit and eventually decided it on the basis of all materials placed before it.

6. The Court below negatived the defendant's plea at limitation. It also negatived the defendant's contention trial the suit was badly constituted.

7. As regards the reliefs it came to the conclusion that the plaintiff and his two sisters were entitled to the relief of enforcement of the mortgage by the sale of the mortgaged properly but so far as the relief under the personal covenant is concerned the plaintiff alone is entitled and passed a decree accordingly.

8. Mr. Chitre confined himself mainly to two points. This first was that the suit, as constituted, was bad and the second was that no decree whatsoever could be passed against the defendant on the personal covenant.

9. It seems to us that the defendant's contention that the plaintiff's suit was bad in its entirety as it has not teen properly constituted is untenable. It is no doubt true, as contended by Mr. Chitre, that tinder the Mahomedan Law there being a unity of title and interest to the property of the deceased in the entire body of the heirs of a deceased Mahomedan, it is not permissible for only on or some of such heirs to represent the entire body of heirs and that, therefore, a suit by some only of the heirs to recover a debt due to the deceased would be defective on the ground of lack of title or interest in the heirs to the suit. It would therefore, follow that ihe suit instituted by the plaintiff alone for the enforcement of the mortgage was not properly constituted. But the plaintiff applied for we joinder of his two sisters, who are the only other heirs of the deceased, Safiabai and Shiraz and his application was allowed. It wouid, therefore, follow that after these two persons were brought on record the suit could not be said to be badly constituted.

10. Mr. Chitre, however, says that these two person should have been joined as plaintiffs and not merely as pro-forma defendants. The sama argument appears to have been advanced before the Court below and while dealing with that argument, the learned Judge has referred to decision of the Privy Council in Monghibai v. Cooverji Umersey . In that case their Lordships have observed:

'It has long been recognised that one or more of several persons jointly interested can bring an action in respect of joint property, and, if their right to sue is challenged, can amend by joining their co-contractors as plain tiffs if they will consent or as co-defendants if they will not .... Once all the parties are before the Court, the Court can make the appropriate order, and should give judgment in favour of all the persons interested whether they be joined as plaintiffs or defendants.'

Now, here, as in the case before the Privy council, an the heirs are before the Court and, therefore, it was open to the Court to pass a decree in their favour.

11. Mr. Chitre then said that a person who should have been joined as a co-plaintiff would not be entitled to be given relief after being made a defendant to a suit unless it is shown that that person was unwilling to be joined as co-plaintiff. In other words, according to him, where a person, who ought to have been joined as a plaintiff to the suit, was not joined as a co-plaintiff because he has refused to be so joined then only he would be entitled to be granted a relief after being made defendant to the suit but not otherwise. Mr. Chitre points out that in this case there is no evidence to show that the second and the third defendants had originally refused to be joined as plaintiff to the suit, and, therefore, they would not be entitled to any relief whatsoever. The result of this, according to him, would be that these persons can be regarded as pro forma defendants only, who would not be entitled to any relief. Since the plaintiff alone would not, according to Mr. Chitre, be entitled to claim relief in respect of the mortgage, his suit must be regarded as bad. We think that a suit should not be dismissed upon the sole ground that the plaintiff has not averred or proved that some persons who ought to have been made co-plaintiffs and were subsequently made defendants to the suit refused to be joined as co-plaintiffs. In this connection we may refer to the decisions in Pyari Mohun Bose v. Kedarnath, ILR 26 Cal 409 and Biri Singh v. Nawal Singh, ILR 24 All 226. In both these cases the learned Judges of the two High Courts took the view that it would not be proper in the circumstances like those present before us to dismiss the plaintiffs suit.

12. Mr. Chitre then contended that in so far as the personal relief is concerned the plaintiff alone would not be entitled to institute a suit without having joined the second and the third defendants as parties to the suit. He joined them as parties to the suit beyond the period of limitation and, therefore, in so far as that relief is concerned, the suit will have to be regarded as having been instituted by one only of the several heirs of a deceased Maho-medan. Such a suit, he contends would be incompetent and in support of this he relied upon a decision of a Division Bench of this Court in Virbhadrappa v. Shekaoai, 41 Bom LR 249 : AIR 1939 Bom 188. This argument proceeded upon the basis that even in so far as the enforcement of the mortgage is concerned, the suit cannot be regarded as one for the recovery of a debt. We cannot accept this argument in view of what has been held by this Court in 41 Bom LR 249: AIR 1939 Bom 188. If we analyse the present suit, it will be clear that what the plaintiff has sought are two distinct reliefs: One is the enforcement of the mortgage security and the other is the enforcement of the personal covenant. So far as the former relief is concerned, it can no doubt be said that the plaintiff is only enforcing one ot the terms of the mortgage deed and not proceeding to realise a debt; but so far as the second relief is concerned the plaintiff can be said to be doing nothing but seeking to realise the decretal amount or deficiency under me personal covenant. Now, here, as already stated, the plaintiff obtained a succession certificate entitling him to recover among others the debt due from the first defendant to Safiabai and Shiraz. The succession certificate thus entitles him to do that which his personal law could not enable him to do. Therefore, the mere fact that the defendants Nos. 2 and 3 were not joined as parties to the suit within six years of the accrual of the cause of action for the enforcement of the personal covenant would not render the plaintiff's suit for its enforcement bad.

13. The question then is whether the plaintiff is entitled to a decree against the first defendant upon the Personal covenant. As already stated the plaintiff had not pleaded in the plaint that the suit was within limitation because of any acknowledgment made by the defendant before the expiry of the period of limitation. The due date for the redemption of the mortgage, as already stated, was the 4th of May 1951. The suit was, however, instituted on the 15th November 1957, that is, more than six years alter the creation of the equitable mortgage. No doubt the memorandum of the mortgage was duly registered. Even so, the mortgagee had to bring a suit within six years of the accrual of the cause of action for the enforcement of the personal covenant. The plaintiff has not given any satisfactory reasons in his application for amendment for not referring to the acknowledgment in the plaint. All that he has said is that the documents upon which the plea is based were in the possession of some Solicitors and he came upon the documents only recently and nothing more. The statement is much too vague. Even so, the statement having been categorically denied by the defendant No. 1, it was necessary for the plaintiff at least to put in an affidavit of tne Solicitors. He failed to do so and, therefore, in our opinion, the amendment of the plaint permitting the plaintiff to refer to the alleged acknowledgment ought not to have been granted. Apart from that, having read the document, which is supposed to operate as an acknowledgment, we have no doubt whatsoever that it does not amount to an acknowledgment of liability by the first defendant.

14. According to the plaintiff, after the death of safiabai and Shiraz, he repeatedly demanded the repayment from the defendant but the latter put him off on one pretext or another. In March 1952 in order to deal with the matters relating to the estate of the deceased he obtained a succession certificate. The plaintiff says that he gave further time to the defendant for redemption of the mortgage deed and that it was arranged between him and the defendant that the latter should execute a fresh equitable mortgage in his favour while the plaintiff himself in his turn should execute a release of the previous equitable mortgage in favour of the defendant. Pursuant to the said arrangement instructions were, according to the plaintiff, given to Mr. Bhedwar, Solicitor of M/s. Mulla and Mulla. Mr. Bhedwar prepared a draft of the release deed and a draft mortgage-deed. It is common ground that the defendant endorsed his approval on these drafts and also signed beneath the endorsements made by him on them. The draft deed of release contained, amongst other terms, the following:

'..... .And whereas the said principal sum ofRs. 30,000/- (Thirty thousand) and the sum of Rs. 1384/- for interest making together the sum of Rs. 31,384/- are due and owing to the Mortgagee under the said Equitable Mortgage and Whereas the Mortgagor is desirous of paying to the Mortgagee the said sum of Rs. 31,384/- and having a Release from the Mortgagee as is hereinafter expressed.'

According to the plaintiff the aforesaid recital in the draft deed of release, which contains an endorsement of approval under the signature of the defendant constitutes an acknowledgment of liability within the meaning of Section 19 of the Limitation Act. In our opinion, there is no substance in the contention. For one thing, the document was to be executed not by the defendant No. 1 but by the plaintiff and his two sisters. Therefore, whatever was said or was intended to be said in those documents was intended to be so said not by the defendant No. 1 but by the plaintiff and his two sisters. The mere endorsement by the defendant on the draft of the document showed that he perhaps.did agree that such a deed may be executed but it cannot by any stretch of imagination amount to making an acknowledgment of existing liability to the plaintiff. Apatt from mat, the document, as a deed of release, has to be read as a whole. When it is read as a whole we find that it contains a statement to the effect that the entire debt due on the mortgage dated the 4th of May 1950 has been fully satisfied. Therefore, if at ail there is an acknowledgement, it is not an acknowledgement of a subsisting liability. In that document the liability is said to have been completely discharged. Where a person makes a statement to the effect that his liability upon a debt has been discharged, that statement cannot be regarded as an acknowledgment of a debt which could be availed of for extending time under Section 19 of the Limitation Act. In this connection we may refer to the judgment of Mr. Justice Kotwal in Narsinghdas Kanihiyalal v. Chhaikodilal Ratial and Co., AIR 195S Nag 267 and to the decisions in Appasami Pillai v. Morangam Muthirian, AIR 1935 Mad 371 -- and Harlock v. Ashberry, (1882) 19 Ch D 539 -- on which reliance was placed By tne learned Judge. We may also refer to the decision in Chhaterdhari Mahto v. Nasib Singh : AIR1924Pat806 . In that case it was held that where there was an acknowledgment that there was a mortgage but there was no express statement that it was discharged; but there was a statement that in order to pay it off a sale was effected and since the date of the sale the vendees had been in possession of the property that writing would not constitute an acknowledgment of liability under Section 19.

15. Mr. Wanmahatti, who appears for the plaintiff, has referred us to the decision of this Court in Sheikh Mahomed v. Jamaluddin Mohamed, 10 Bom LR 385, in support of his contention that a mere reference to liability in a document by a debtor is sufficient to constitute an acknowledgment. In that case the plaintiff had instituted a suit for redemption. On the face of it the claim was barred by time but in order to bring it in time they relied upon a certain document as amounting to acknowledgment within the meaning of Section 19 of the Limitation Act. The nature and the purport of the document is described thus by Chandavarkar J. in his judgment at page 386:

'It is necessary to state shortly the nature and purport of that Exhibit so far as they are material for me 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 dharkaris and alleged that the evidence of that title was contained in certain hooks 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 and of that book, several Khots admitted in writing signs a by them the correctness of the statements made by the occupants to the abovementioned effect and recorded by the Settlement officer.'

The learned Judge held that-

'Where a mortgagor describes 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 unmistakably affirms that he is what he is described to be -- a mortgagee.'

Further, according to the learned Judge, it is a necessary implication from the admission that he acknowledges an the legal consequences of his position as a mortgagee, one of which is his liability to be redeemed.

16. In our opinion, the recital in the document, which was before the learned Judge in that case was quite different from that in the case before us. Apart from that as we have already pointed out, the defendant No. 1 at no point of time intended to make any acknowledgment whatsoever and had in fact not made an acknowledgment.

17. Upon this view we hold that the plaintiff's claim, for personal relief against the defendant No. 1 was barred by time at the date of the suit and the so called acknowledgment does not bring it within limitation.

18. In the result the appeal is partly allowed and the decree of the Court below is modified by deleting the direction

'In the event of the net sale proceeds proving insufficient to satisfy in full the amount payable hereunder the plaintiff will be at liberty to apply for a personal decree against the first defendant for the balance.'

19. As regards the costs we direct that the plaintiff respondent will get only two-thirds of his costs in this Court. He will also get two thirds of his costs in the lower Court after the 28th of January 1959. As regards the costs prior to that data we confirm the order of the Court below.

20. The respondents are at liberty to withdraw the deposit towards the two thirds of the costs of the appeal.

21. Appeal partly allowed.


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