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Bhagwan Ganpati Mankeshwar Vs. Madhav Shankar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 371 of 1921
Judge
Reported in(1922)24BOMLR713
AppellantBhagwan Ganpati Mankeshwar
RespondentMadhav Shankar
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), sections, 19, 20(2)-mortgage-acknowledgment of sub-mortgage-original mortgage not deemed to be acknowledged-receipts of rents and (sic) orofite by mortgagee in possession-mortgagor's right to redeem not kept alive by receipts.;certain property was mortgagee for a period of ten years in 1836. the mortgagee sub-mortgaged it in 1841. in 1878, the sub mortgagee leased the property, in the rent-note of which the property was described as 'the property mortgaged to you.' the sub-mortgagee presented the rent note for registration and signed the registration particulars endorsed on it. the original mortgagor sued in 1919 to redeem his mortgage of 1836 from the sub-mortgagee alone, the mortgagee having died in the meanwhile without leaving heirs. he sought to..........no heirs. the 1st defendant, who alone contests the plaintiff's claim, is now in possession of the suit property, rajaram's interest having descended to him by inheritance.9. the plaint was filed on the 3rd of october 1919; the suit was therefore instituted after the expiry of the period prescribed by article 148 of the indian limitation act, 1908. it was however alleged in the plaint that the claim was saved from the bar of limitation by certain recitals contained in a document, a copy of which is put in as exhibit 23 in the case. it appears that the first defendant's father shankar narhar being the heir of the sub mortgagee rajaram and being in possession of the suit property, let it to one phandu on the 11th february 1878 for a period of five years. phandu executed a rent-note-the.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sued to redeem and recover possession of the suit property after accounts had been taken under the Dekkhan Agriculturists' Relief Act.

2. The property was originally mortgaged in 1836 by Shankar Janardhan Joshi for Rs. 100 repayable in ten years, to Ramchandra Motiram. Ramchandra sub-mortgaged the property to Rajaram Renukadas in 1841. Defendants Nos. 1 and 2 were in possession as his heirs. Ramchandra died without leaving heirs. The plaintiff, defendant 3 and one Vishwanath were the heirs of Shankar Janardhan, but Vishwanath renounced his rights in favour of plaintiff's father.

3. Primes facie a suit for redemption became time-barred in 1906 but the plaintiff relied upon a rent-note dated the 11th February of 1878 taken by Shankar Narhar the father of defendant No. 1 in which the property was described as 'the property mortgaged to you.' Shankar Narhar presented the document for registration, and signed it. Shankar Narhar thereby acknowledged his liability as a mortgagee to be redeemed by his mortgagor Ramchandra Motiram or his successors. The learned trial Judge appears to have come to the conclusion that Shankar also by the same signature acknowledged his liability to be redeemed by the original mortgagor and decreed the plaintiff's claim. The learned Assistant Judge was of opinion that as the acknowledgment was made by the sub-mortgagee, it was not intended to acknowledge the original mortgage also. Admitting that Shankar knew that Ramchandra Motiram was himself only a mortgagee of the property, he was not concerned with the question whether time was running in favour of Ramchandra against his mortgagor and I am not prepared to give an extended meaning to Shankar's signature on the rent-note so as to make it an acknowledgment under Section 19 of the Indian Limitation Act XV of 1877 of a liability to be redeemed by the original mortgagor with whom he had no privity.

4. As pointed out in Hiralal v. Narsilal (1913) 11 Bom. L.R. 318 an acknowledgment to whomsoever made is a valid acknowledgment only if it points with reasonable certainty to the liability under dispute. It was argued that when a mortgager brings a redemption suit against his mortgagee who has sub-mortgaged, the sub-mortgagee is a necessary party under Order XXXIV, Rule 1, and that consequently if he admits his own mortgage he admits the mortgage to his mortgagor. But I agree with the learned Assistant Judge that this inference in the absence of direct authority in its favour is too far-fetched. Taken at its highest Shankar's signature on the rent-note cannot mean more than this. 'I admit Ramchandra and his heirs can redeem me and as Ramchandra is a mortgagee he is liable to be redeemed himself. If his mortgagor sued for redemption I know I can claim to be made a party to that suit, so that my mortgage rights against Ramchandra can be considered when his claim against his mortgagor is adjusted.' But if a suit against Ramchandra were barred it is difficult to see how it would not also be barred against Shankar unless he had directly admitted his liability to be redeemed by the mortgagor, and the signature on the rent-note does not point with reasonable certainty to that liability.

5. Then it was argued that as the mortgagee was in possession of the mortgaged property and receiving the rents and profits the right to redeem was preserved by Section 20, Sub-section (2) of the Indian Limitation Act.

6. In Ganu v. Krishnaji (1893) P.J. 318 it was held that the receipt of produce of the mortgaged property by a mortgagee could be deemed to be a payment for keeping alive the period of limitation for a suit to recover the mortgage debt, but only an acknowledgment of the right to redeem under Section 19 could keep the right to redeem alive. It may be said that the question was not directly in point in that suit but in Chinto v. Balkrishna (1893) P.J. 346 it was held that in a redemption suit by plaintiff the application of Section 20 of the Indian Limitation Act did not keep alive the right to redeem. These decisions were followed in Anwar Husain v. Lalmir Kkan I.L.R. (1904) All. 167. Blair J. said: 'It appears to me on further consideration that the scope of Section 20 is limited by the opening words of that section and extends only to the remedies of persons entitled to a debt or legacy.' And Banerji J. said: 'The effect of any other view of Section 20 would be practically to exclude suits for redemption of usufructuary mortgages from the operation of the Limitation Act.'

7. I think therefore the decision of the lower appellate Court was right and the appeal must be dismissed with costs.

Coyajee, J.

8. The property in dispute in this case belonged to Shankar Janardhan who mortgaged it with possession to Ramchandra Motiram in the year 1836. In 1841 Ramchandra sub-mortgaged it to Rajaram Renukadas. Shankar the mortgagor, Ramchandra the mortgagee and Rajaram the sub-mortgagee all died long before the commencement of the present litigation. The plaintiff (now appellant), claiming to be an heir of Shankar Janardhan, institutes this suit to redeem the mortgage effected by the latter in the year 1836. The mortgagee Ramchandra is said to have left no heirs. The 1st defendant, who alone contests the plaintiff's claim, is now in possession of the suit property, Rajaram's interest having descended to him by inheritance.

9. The plaint was filed on the 3rd of October 1919; the suit was therefore instituted after the expiry of the period prescribed by Article 148 of the Indian Limitation Act, 1908. It was however alleged in the plaint that the claim was saved from the bar of limitation by certain recitals contained in a document, a copy of which is put in as Exhibit 23 in the case. It appears that the first defendant's father Shankar Narhar being the heir of the sub mortgagee Rajaram and being in possession of the suit property, let it to one Phandu on the 11th February 1878 for a period of five years. Phandu executed a rent-note-the original of Exhibit 23-in favour of Shankar Narhar, describing the property as 'of your ownership by mortgage'. Shankar Narhar presented this document for registration; certain particulars were then endorsed thereon as required by the Registration Act; and Shankar Narhar signed such endorsement. It was claimed for the plaintiff in the trial Court that this signature amounted to an admission by Shankar Narhar of the contents of the rent-note; that the description of the property as 'of your ownership by mortgage ' was an acknowledgment of liability in respect of the plaintiff's right to redeem the original mortgage of 1836; and that, therefore, under the provisions of Section 19 of the Indian Limitation Act, a fresh period of limitation should be computed from the date of the rent-note, This contention was accepted by the trial Judge who gave a decree for redemption as prayed.

10. Against this decree the 1st defendant appealed to the Court of the Assistant Judge at Sholapur. The plaintiff, in support of the decree, relied on the provisions of Section 19 as also on those contained in Section 20(2) of the Indian Limitation Act. The Assistant Judge held that the plaintiff was not entitled to claim exemption from the law of limitation under either of those provisions; he therefore dismissed the plaintiff's suit. In my opinion the decision of the learned Assistant Judge is right.

11. Dealing first with Section 19, it may be conceded that for the purpose of excluding the law of limitation 'any expression referring to the estate as mortgaged...will be a sufficient acknowledgment. No particular form is necessary,...the acknowledgment may be made as well by affidavit in a suit, or in a schedule to a deed, or by an answer to interrogatories, as by a letter or other writing' (Fisher's Law of Mortgage, Section 1408). Here it is urged that the acknowledgment took the form of a description; that Shankar Narhar allowed himself to be described as mortgagee of the property in question; and that his acceptance of that position amounted to an acknowledgment of his liability to be redeemed by the mortgagor. This proposition would be clearly unassailable if Ramchandra's heirs had been suing Shankar Narhar or his successors in interest to redeem the sub-mortgage of 1841: Pranjiwandas Parshottamdas v. Bai Mani. (1920) 23 Bom. L.R. 294. But in my opinion the said admission cannot avail the plaintiff; for he is seeking to redeem the mortgage effected by Shankar Janardhan in favour of Ramchandra. There is nothing in the document Exhibit 23 which could be held to amount to an acknowledgment of the particular liability now in dispute, namely, the liability in respect of the plaintiff's right to redeem the mortgage effected by Shankar Janardhan in the year 1836: Gopalrao v. Harilal. : (1907)9BOMLR715 The effect of the rent-note is correctly described by the Assistant Judge thus: 'At the most, he (Shankar Narhar) admitted that the origin of his possession was a mortgage, and obviously he meant the mortgage to him, or rather to his ancestor Rajaram by Ramchandra Motiram, but he made no admission in the acknowledgment that the said Ramchandra himself was a mortgagee.' Moreover, it is not shown that Shankar Narhar signed the acknowledgment as Ramchandra's agent 'duly authorized' in that behalf (Explanation II, Section 19). The result is that the plaintiff is not entitled to claim benefit of an extended period under the provisions of Section 19.

12. The argument based on Sub-section (2) of Section 20 is, in my opinion, equally untenable. Even assuming that the 1st defendent is 'the mortgagee' contemplated in that section, still the provisions contained therein do not operate to extend the period prescribed by Article 148 of the Act for the redemption of a mortgage; they are clearly intended for the benefit of a mortgagee suing on the mortgage-debt, For by Section 20(2) it is enacted that the receipt of the rent or produce of mortgaged property by the mortgagee in possession 'shall be deemed to be a payment for the purpose of Sub-section (1)'. The purpose of Sub-section (1) is clear: where interest on a debt or legacy is paid by the person liable to pay the debt or legacy, or where part of the principal of a debt is paid by the debtor, the person entitled to the debt or legacy acquires the benefit of a fresh period of limitation. The scope of Sub-section (2), then, is limited; it extends the period of limitation allowed to a mortgagee for suing on the mortgage-debt; it does not confer a like indulgence on a mortgagor suing to redeem the mortgage. This was the interpretation put upon the clause by Sargent C.J. and Telang J. in Ganu v. Krishnaji(1898) P.J. 318 and again in Chinto v. Balkrishna (1893) P.J. 346. A similar view was taken by the High Court at Allahabad in Anwar Husain v. Lalmir Khan I.L.R (1904) All. 167. It was however urged in this second appeal that the rights of the mortgagor and the mortgagee being co-extensive and reciprocal, there is no reason to suppose that the Legislature extended the indulgence to the mortgagee alone, but declined it to the mortgagor. The answer to this argument may best be given in the words of Rattigan J. in Khilanda Ram v. Jinda (1883) P.R. No. 37 of 1883: 'No doubt by the general law the right to redeem and the right to foreclose are co-extensive rights but in the present case we have to apply the provisions of the law of limitation which is a special law, and we cannot enlarge the exceptions or extensions of time allowed by that law beyond their legitimate scope.'

13. I therefore agree that the decree of the lower appellate Court should be affirmed and this appeal dismissed with costs.


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