Amberson Marten, Kt., C.J.
1. The actual question we have to decide in suit No. 221 of 1921 is whether the plaintiff Jadav Gopal is entitled to redeem three acres and twenty gunthas or thereabouts being part of the land comprised in the mortgage of June 9, 1S39, Exhibit 19, as against defendant No. 1, Samal Bechar.
2. The litigation has had a most unfortunate history. This is the fifth Court to hear the dispute, and so far each Court has reversed the decision of its predecessor. The original mortgage comprised in addition to the three acres and twenty gunthas further land making in all seven acres and nine gunthas. But it is clearly found by the learned District Judge in appeal that there was in effect a partition over fifty years ago between the two branches of the family of the original mortgagee Vithal Ranchhod. The one branch represented now by defendant No. 1, Samal Bechar, took these three acres and twenty gunthas. The other branch represented now by defendants Nos. 2, 8 and 4 took the remaining property.
3. The learned Judge says:-
In the present case, though the partition of the mortgaged property between the heirs of the mortgagee can be inferred from the document, Exhibit 17, passed by Bechar Ishvar and attested by Bhukhan Girdhar, there is no evidence be prove that this arrangement was agreed to or acquiesced in by the -mortgagor or his heirs.
That brings me to the real point in dispute. Clearly, on the dates I have given, the redemption of the mortgage would prima facie be barred by lapse of time. But at any rate as against defendant No. 1 the plaintiff relies for an acknowledgment on the document of May 3, 1878, Exhibit 17, passed by the father of defendant No. 1 in favour of the father of the plaintiff. That document was a sub-mortgage of these very three acres and twenty gunthas; and, moreover, the learned District Judge has found that it was attested by Bhukhan Girdhar, the then representative of the other branch of the mortgagee's family,
4. It is, however, contended on behalf of defendant No. 1 that this acknowledgment at most was made by one of several mortgagees, and that therefore it is not binding on any of them, As this argument found favour with the learned District Judge, and also with Mr. Justice Madgavkar in this Court, it is an argument which demands the careful consideration which we have given to it, assisted as we have been by the clear and able arguments by Mr. Divatia for the plaintiff and by Diwan Bahadur Rao for the defendant.
5. The point is governed by the Indian Limitation Act, and having regard to the dates it would appear to be the Indian Limitation Act of 1877, though so far as regards the sections we are concerned with, they are substantially the same as those in the Act of 1908. Turning then first to Section 4 of the Act of 1877, it provides that every suit instituted after the period of limitation prescribed therefor by the second schedule shall be dismissed. Next turning to Article 148 we find that in a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged, the period of limitation is sixty years, and time begins to run when the right to redeem or to recover possession accrues.
6. I should here explain that before us the plaintiff put his case in the alternative that for the present purposes we roust treat the suit as one to redeem only the three acres and twenty gunthas. In this connection it should be borne in mind that though the suit was orginally one brought for accounts under the Dekkhan Agriculturists' Relief Act, yet the learned trial Judge by his order of September 26, 1922, expressly permitted it to be treated as a suit 1 for redemption of at any rate the three acres and twenty gunthas, and passed a decree on that basis. So it seems to me that we should decide this ease on this basis that though the suit was primarily a suit to redeem the whole of the mortgaged property and failed on that basis, yet alternatively there was a claim to redeem a portion of the mortgaged, property, viz., three acres and twenty gunthas, Which succeeded. Accordingly, I would consider the case as it comes before us as one merely for redemption of the three acres and twenty gunthas. That being so, as I read the Act, that would be the property sought to be redeemed under Article 148 in respect of which the period of sixty years runs.
7. Next as to the alleged acknowledgment I turn to a 19, which runs :-
If, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a new period of limitation, according to the nature of the original liability, shall be computed from the time when the acknowledgment was so signed.
8. In Explanation 2, ' signed ' means signed either personally or by an agent duly authorized in this behalf.
9. Treating, therefore, the 'property' as being the three acres and twenty gunthas, we have to see whether there was an acknowledgment in respect of that property signed either by defendant No. 1 or by some person through whom he derives title. Now, clearly the sub-mortgage of May 3, 1878, was 'an acknowledgment of liability', viz., an acknowledgment that the property at that date was still held in mortgage by Bechar- Ishvar as mortgagee. Further, that acknowledgment was signed by defendant No. l's father Bechar Ishvar through whom defendant No, 1 derives title. It is, however, contended that that is insufficient; that the acknowledgment should have been in respect not merely of these three acres and twenty gunthas but with respect to the entirety of the property originally mortgaged; and that accordingly the acknowledgment is neither valid as regards the whole of the property nor as regards any portion of it.
10. With all respect to those who have taken a contrary view, it seems to me that that view is not the correct one to take of the statute which governs the case. We have been shown a marked alteration in the language which was used in the Act of 1877, as compared with the Acts of 1859 and 1871, under the former of which the decision to the contrary effect in Bhogilal v. Amritlal ILR (1892) 17 Bom. 173 was arrived at. I respectfully agree with the view of Sir Norman Macleod that not only are we concerned with an entirely different state of facts from those existing in Bhogilal v. Amritlal but that we are also concerned with a different Limitation Act, viz. either the Act of 1877 or the corresponding words in the Act of 1908.
11. Section 21 of the Act was also referred to. That (says that:-
Nothing in sections 19 and 20 renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed, or of a payment made by, or by the agent of, any other or others of them.
If there had been no partition here between the heirs of the mortgagee inter se, then it may well be that an acknowledgment by one of those heirs would not be binding upon the others. Whether the joint mortgagee who did in fact sign the acknowledgment would himself be liable, or liable qua his share, is not, I think, a point that arises for express decision in the present case. We have a case, as I have already emphasized, where there has been a partition existing for over fifty years between the branches of the mortgagee. On the other hand, we have been referred to a decision in Sheowndan Singh v. Achhaibar Singh (1910) 7 A. L. J. 847, which undoubtedly goes to show that in such a case an acknowledgment is binding as against the person giving it. That was the case of an acknowledgment by one of the mortgagees.
12. So, too, in Narayana Ayyar v. Venkataramana Ayyar ILR (1902) Mad. 220, which was the case of co-mortgagors which eventually went before the Full Bench, but which on another part of the case was decided by Sir Arnold White and Mr. Justice Bhashyam Ayyangar, it was held that the effect of Section 21 was that a person making an acknowledgment was bound, though it does not affect his co-mortgagors. It was stated at p. 232 :-
In our opinion, therefore, the suit is not barred as against the first defendant. But we are clearly of opinion that the first defendant's acknowledgment cannot affect his co-mortgagor the third defendant-and save the suit from being barred by limitation as against him.
13. There were several other cases, such as Devchand v. Jamshedji : AIR1923Bom369 , Valasubramania Filial v. S. V. U. R. M. Ramanathan Chettiar ILR (1908) Mad. 421, Ahsan-ul-lah v. Dakkhini Din ILR (1905) All. 573, and Chandra Kumar Dhar v. Ramdin Poddar (1912) 16 C. W. N. 493, cited to show that a similar view had been adopted as regards either co-parceners, or co-judgment-debtors, or co-contractors and so on. But the answer to those cases made by Diwan Bahadur Rao is that they do not affect the present case, because they were not cases of a mortgage debt, and that on the other hand a mortgage debt stands on a special basis.
14. It was argued that the entire mortgage transaction was one and indivisible, and that it could never be broken up unless you could find the consent of all parties, viz., of the mortgagors and of the mortgagees to any different arrangement to be arrived at; and that, consequently, as it has been found as a fact in the present case that there never was any consent by the mortgagor or his representatives to the partition in question between the heirs of the mortgagee, that therefore the mortgage transaction and the mortgage debts remained indivisible, and the acknowledgment itself was invalid.
15. We were referred in this connection to Sections 60 and 67 of the Transfer of Property Act. But it will be noted that both those sections relate in effect to attempts to apportion the mortgage debt between different portions of the mortgaged property. Section 60, for instance, as regards the right of the mortgagor to redeem, states at the end that-
Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage...
16. In the present case there is no question of redeeming a portion of the property, viz. three acres and twenty gunthas, on payment merely of a proportionate part of the amount of the debt. It has been found, and it is not disputed, that the plaintiff can only redeem on payment of the whole debt. So that section does not apply, even if for the sake of argument it is admitted that the plaintiff is 'interested in a share only of the mortgaged property,' viz., qua these three acres and twenty gunthas. Similarly, when one turns to Section 67 (d), that states :-
Nothing in this section shall be deemed-...(d) to authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.
That section deals with the right to bring a suit for foreclosure or sale. We have not got that suit here, and therefore I do not think I need further refer to that section.
17. Then it was said that this Court in Purshottam v. Isub Mahamad : AIR1927Bom513 has laid down that a mortgagor cannot bring separate suits for redemption of a single mortgage debt, where the interest of the mortgagee has been divided by a gift or an assignment between different co-sharers. In that case the mortgagor was really trying to bring several simultaneous suits for redemption. And it was there pointed out what difficulties would ensue even as a matter of procedure. But that is not the case we have to deal with here. We have only one suit, and all persons who could possibly be interested in these three acres and twenty gunthas have been brought before the Court. Defendants Nos. 2, 3 and 4 who are interested in the other branch have not chosen to appear, but the decision of the Court that in fact there has been this partition between these two branches is nevertheless binding on them. In the other case it had not been established that there had been any such partition. Therefore I do not think there is anything in the procedure adopted here, or in that other case, which would militate against the success of the plaintiff in the present suit.
18. What then we really find is that for a great number of years defendant No. 1 and his branch have been in possession of this particular land. Their branch has given this acknowledgment. The other branch have either not disputed the interests of defendant No. 1, or alternatively the decision of the Court is against them on the ground of partition. It seems to me then that within Section 19 of the Indian Limitation Act the present redemption suit is 'in respect of property', viz., the 'three acres twenty gunthas,' and that an acknowledgment of liability in respect of such property has been singned by the party against whom the property is claimed or by some person through whom he claimed, viz., Bechar Ishvar, the father of defendant No. 1, and that as Bechar Ishvar was solely entitled to that property as between himself and the original co-mortgagers the requirements of the statute are satisfied and the suit is within time.
19. That being so, it follows that, in my opinion, the decisions of Sir Norman Macleod and subsequently of Mr. Justice Patkar confirming that of the learned Subordinate Judge were correct, and that this appeal ought to be allowed, and the decision of Sir Norman, restored, and that defendant No. 1 must pay the costs throughout.
20. The decision in Bhogilal v. Amritlal ILR (1892) 11 Bom. 173, on which reliance has been placed on behalf of the respondent, can be distinguished from the present case. That case was decided under the Indian Limitation Act of 187J. The present case is governed by the Indian Limitation Act of 1877 the provisions of which so far as they apply to this case are substantially the same as the corresponding provisions of the present Act of 1908. In the Indian Limitation Act of 1877 a new provision is to be found in Section 21, Sub-section (2), which has been interpreted as meaning that an acknowledgment by a co-mortgagor or a co-debtor would give under proper conditions a fresh start for limitation against the acknowledgor though it would not at the same time give a fresh start against his co-mortgagor or his co-debtor. Reference may be made in this connection to the rulings in Narayana Ayyar v. Venkataramana Ayyar ILR (1902) Mad. 220; Ahsan-ul-lak v. Dakkhini Din ILR (1905) All. 575; and Sheonandan Singh v. Achhaibar Singh (1910) 7 A. L. J. 847. Bhogilal v. Amritlal can also be distinguished from the present case on the ground that that case related to certain co-mortgagees who had not split up their interests as was done in the present case. In Bhogilal v. Amritlal Mr. Justice Jardine followed the ruling in Richardson v. Younge (1871) L.R. 6 Ch. 478, but that case, as is shown by the judgments of Mellish L. J. and James L. J., turned upon the circumstance that the co-mortgagees were also co-trustees. The judgment in that case expressly states that different considerations might have applied if the mortgagees had not at the same time been trustees, who by the very nature of being trustees had no other interest beyond a joint interest in the property.
21. The two Allahabad cases on which Diwan Bahadur Rao has relied, viz., Dharma v. Balmahund ILR (1896) All. 458 and Hira Singh v. Musammat Amarti ILR (1812) All. 375, relate to eases where there had been no partition and no severance of interest between the joint owners.
23. The case of Venlcatvarahacharya v. Kotrapa (1901) 3 Bom. L.R. 935 is an authority for holding that a mortgagor cannot be compelled to redeem the whole of the mortgaged property. He can be allowed if he pays the whole of the mortgage debt to redeem any portion of the mortgaged property he likes, and there is nothing to prevent his relinquishment of the right to redeem one portion of the property while suing to redeem other portions. It has been held in the present case that the claim of the defendant to redeem the other moiety in the possession of the second branch of the mortgagee's property is barred by limitation. The plaintiff has been allowed to redeem the moiety in respect of which his claim has been kept alive by the acknowledgment, only on terms of paying the whole of the mortgage-debt after taking credit for the rents and profits received from the moiety which is allowed to be redeemed.
24. The rule with regard to the indivisibility of a mortgage in Section 67 of the Transfer of Property Act is a rule for the benefit of the mortgagee. Where a mortgagee splits up the mortgaged property into two portions and remains in possession of one portion only, he can have no just cause for grievance if he is paid the whole mortgage debt before redemption of the portion in his possession is allowed. In Narayan v. Ganpat ILR (1806) 21 Bom. 619 it was held that although the general rule is that a mortgagee has a right to insist that his security shall not be split up, there would be no objection to splitting up the security and rateably distributing the mortgage-debt, where the mortgagee has himself split up the security. I agree with the order proposed by my Lord the Chief Justice,
25. I agree with the order proposed by my Lord the Chief Justice and with Mr. Justice Mirza and have very little to add.
26. Both the District Judge who in the first instance dismissed the suit and Mr. Justice Madgavkar who restored the decision of the District Judge have relied strongly upon the doctrine of the indivisibility of the mortgage or the mortgage transactions. Mr. Justice Madgavkar says:-
The general rule is that a mortgage is one mid indivisible and so remains unless and until it is split up by the consent of both the mortgagor and the mortgagee. Neither the property nor the burden can be divided without the consent of both.
27. And further on :-
Severance implies and means that instead of one property and one burden and one contract, there are several portions and burdens and the replacing of the former contract by one or more new contracts. The last element implies either the consent of both the parties or the action of the Court.
28. In the present case, as Mr. Justice Madgavkar has pointed out, we cannot take it that there has been a consent of both the parties. Of course there is no question of the action of the Court. But it seems to me that there may be a practical difference between the indivisibility of a mortgage contract, and any theory as to the indivisibility of the mortgaged property. It may very probably be quite correct to say that the consent of both the mortgagor and the mortgagee may be necessary for any splitting up of the mortgage contract. But as a matter of fact the mortgaged property may obviously be split up without the consent of the mortgagor, as has happened in the present case. Where we have, as in the present case, an actual severance of the mortgaged property, and when we find that several portions of it are in the hands of persons between whom there is no community of interests, then it seems to me that different considerations arise from those which govern such cases as Bhogilal v. Amritlal. As far as I can see there is nothing in the doctrine of the indivisibility of a mortgage which would imply that the mortgagor cannot redeem a portion of the mortgaged property in the hands of a person who possesses all the rights of a mortgagee in respect of that portion merely because his claim may be time-barred in respect of the other portion of the mortgaged property.
29. The doctrine to which so much importance has been attached is apparently only based on Sections 60 and 67 of the Transfer of Property Act, and as my Lord the Chief Justice has pointed out, those sections have clearly no application to a case of this kind. It may also be pointed out that the extreme form in which the doctrine was stated by Diwan Bahadur Rao, viz., that if a suit for redemption is not valid in respect of the whole mortgage, or in respect of the whole of the mortgaged property, it cannot be valid in respect of a part, would obviously be contrary to the decision of this High Court in Venkatvarahacharya v. Kotrapa (1901) 3 Bom. L.R. 935, where it was held that a mortgagor cannot be compelled to redeem the whole of the mortgaged property. He is bound to pay the whole of the mortgage debt debt before he can redeem any portion of the mortgaged property. But subject to this condition 'there is nothing to prevent his relinquishment of the right to redeem one portion of the property while suing to redeem other portions.
30. There is one other case to which perhaps I might usefully refer, and that is the case of Hiralal v. Narsilal (1909) 11 Bom. L.R. 318. There the facts were that the mortgaged property had been split up into two, and each sharer represented his own share and made acknowledgment In respect of it, and the two acknowledgments put together comprised the whole property. It was held that those were valid acknowledgments within the meaning of Section 19 of the Indian Limitation Act, 1877. If the doctrine contended for by Diwan Bahadur Rao had been correct, that decision could hardly have been arrived at. This case in course of time came before the Privy Council, and is reported in I.L.R. 37 Bom. 326. The actual point discussed by their Lordships of the Privy Council in their judgment was a different one, but it is quite clear that the decision of the High Court was approved as a whole, and the judgment of the Privy Council is therefore, by implication at any rate, an approval of the decision of this Court that the acknowledgments in that case, though not relating to the whole property mortgaged, were nevertheless valid acknowledgments.
31. Appeal allowed. Order of November 21, 1927, discharged. Order of Sir Norman Macleod restored, Defendant No. 1 to pay the costs of the present Letters Patent Appeal No. 10 of 1928 and also of the Letters Patent Appeal No. 21 of 1926.