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Haji Yoonus Shekh MohiddIn Nadkar Vs. Shekh Hasan - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeals No. 426 to 430 of 1936
Judge
Reported inAIR1941Bom178; (1941)43BOMLR194
AppellantHaji Yoonus Shekh MohiddIn Nadkar;sheikh Ali;ishamuddIn Valad ShabuddIn Jamadar;shekh Ahamad
RespondentShekh Hasan;abdul Karim;abdul Karim;sherifa Javje Shekh Usman Tare
DispositionAppeal dismissed
Excerpt:
.....section 1, clause (15)--bombay regulation v of 1827, section 8, clause 1--mortgage--redemption--right to redemption barred under act of 1859--right whether revived owing to section 2 of act of 1871--acknowledgment by pleader--such acknowledgment whether valid under acts of 1859 and 1871--acknowledgment valid under acts of 1877 and 1908 whether revives mortgage--mortgage suit--law of limitation applicable to such suit. ;the plaintiffs' ancestors mortgaged their lands to the predecessor-in-title of the defendants in october, 1791. one of the mortgagors sued in 1849 to redeem the mortgage in which suit the pleader of the mortgagee put in a statement signed by him of the account of the mortgaged property. in 1863 another of the mortgagors sued to redeem a portion of the mortgaged..........against the defendants restraining them from recovering the income of the suit lands. the suit property formed certain fractions of an eight annas khoti taxim in the village of sanglat in the ratnagiri district. this eight annas taxim was at one time owned by three mahomedan brothers. in october, 1791, some of the descendants of these three brothers, mortgaged this taxim to one narayan or naroi damle. the deed of mortgage is not in evidence, but the mortgage has been admitted by the parties. in 1849, one of the persons interested in the mortgaged property filed a redemption suit, but nothing appears on the record with regard to this suit except a statement of account of the mortgaged property in 1849 signed by the pleader of the mortgagee (exhibit 92). then in 1863, shaikh.....
Judgment:

Divatia, J.

1. These are companion appeals preferred by the appellants who are some of the original plaintiffs in suits to recover possession of certain property and for an injunction against the defendants restraining them from recovering the income of the suit lands. The suit property formed certain fractions of an eight annas khoti taxim in the village of Sanglat in the Ratnagiri district. This eight annas taxim was at one time owned by three Mahomedan brothers. In October, 1791, some of the descendants of these three brothers, mortgaged this taxim to one Narayan or Naroi Damle. The deed of mortgage is not in evidence, but the mortgage has been admitted by the parties. In 1849, one of the persons interested in the mortgaged property filed a redemption suit, but nothing appears on the record with regard to this suit except a statement of account of the mortgaged property in 1849 signed by the pleader of the mortgagee (exhibit 92). Then in 1863, Shaikh Ibrahim, father of defendant No. 1 in Second Appeal No. 426, filed Suit No. 1361 of 1863 to redeem a portion of the mortgaged property from the son of the original mortgagee. A decree for redemption was palssed in the plaintiff's favour, but no time was fixed for payment and there was no provision for foreclosure. That decree was confirmed in appeal subject to a slight variation in the mortgage amount. A second appeal was preferred to this Court in 1867 by the descendant of the original mortgagee. In the memorandum of that appeal the existence of the mortgage and the relationship of mortgagor and mortgagee between the parties was admitted as subsisting. This memorandum (exhibit 90) was signed by the pleader of the appellant. The appeal was dismissed, but thereafter neither the mortgagor nor the mortgagee did anything in the way of redemption or foreclosure. It appears that a botkhat of the khoti property was prepared in 1893, and the Damles, i.e. the mortgagees, were continued to be shown in that register from 1893 to 1913. In 1921 and in 1922 a fractional share in the suit property was sold by the descendants of the original mortgagee to two persons. One transaction was a sale-deed by the three descendants of the original mortgagee of their fractional share to two persons Abdul Rahiman and Abdul Karim on April 27, 1921, and in the other deed another descendant of the original mortgagee also sold his fraction of the mortgaged property to Abdul Karim on April 19, 1922. In both these deeds, the vendors, i.e. Damles, purported to sell the property as owners, and the purchasers, who are some of the descendants of the original mortgagors, are the main defendants in these suits. The present plaintiffs are some of the other descendants of the original mortgagors, and they have filed these suits against the defendants treating them not as purchasers but as redeeming co-mortgagors, to recover possession of their proportionate shares in the property comprised in the two sale-deeds on payment of the proportionate amount of the price stated in the two sale-deeds. Their case in short is that the two sale-deeds practically amounted to deeds of redemption of the original mortgage, that they were entitled to recover possession of their share from the redeeming co-mortgagors of the property, and that the cause of action arose when the property had been redeemed by these defendants from the descendants of the original mortgagee, i.e. in 1921 and 1922.

2. The defence to the suits was that the mortgagors had lost their right to redeem and their title was also extinguished, that the Damles had become owners of the property and the two deeds of 1921 and 1922 conveyed shares in the property itself and not the mortgage rights in them, so that the defendants having purchased the property from its owners got rights of ownership which the plaintiffs cannot challenge.

3. It appears that five out of the six suits came to be tried by one Judge, Mr. Vaidya, and the sixth suit having been filed later on, was tried by his successor. The learned Judge who tried the five suits framed several issues of which the material issue for the purpose of these appeals is, whether it was proved that the mortgage was extinguished and that Damles had become absolute owners. He found that issue in the affirmative, and also held that the alleged purchase by the defendants from the Damles had been proved. On these findings he dismissed all the five suits. The learned Judge who tried the sixth suit, which is the subject-matter of Second Appeal No. 427, came to a contrary conclusion on the strength of certain documents relied on as acknowledgments of the mortgage. It may be stated here that the plaintiffs relied upon these acknowledgments, and they had tried to prove them before Mr. Vaidya, but the learned Judge rejected their application on the ground that they were produced at a; late stage. His successor, however, admitted them as they were produced in his suit at a comparatively early stage, and he came to the conclusion that the plaintiff's suit was in time having regard to the acknowledgments which were proved, and on that ground he decreed the plaintiffs' suit.

4. Against these decrees appeals were preferred to the District Court, the appeals in the first five suits having been preferred by the plaintiffs and that in the sixth suit by the defendants. The material point for determination was the same, namely, whether the suits were barred by lapse of time under Article 148 of the Indian Limitation Act, and the finding of the learned Judge was in the affirmative. In deciding that point he considered the acknowledgments relied upon by the plaintiffs, and came to the conclusion that they do not save the bar of limitation. Shortly stated, his reasons were that the two acknowledgments relied upon on behalf of the plaintiffs, namely, the statement of account (exhibit 92) produced by the pleader of the mortgagee in 1849 in the redemption suit and the memorandum of appeal (exhibit 90) filed by the mortgagee's pleader in the High Court in 1867, were not signed by the mortgagee or by any person claiming through him, but by his pleader who was a legal agent and whose signature would not amount to an acknowledgment under the Limitation Act of 1859 or of 1871. He, therefore, rejected both these documents as not amounting to acknowledgments under either of these two Acts. The right to redeem was lost after January 1, 1862, under the Act of 1859.

5. These five appeals (the plaintiffs in one suit having not appealed to this Court) have been preferred against the decrees passed by the learned District Judge. Mr. Coyajee on behalf of the appellants has based his argument on one point, viz., that the Act to apply to the present suits' for the purpose of determining whether they are barred by limitation is the Act in force at the date when the suits were filed, namely, the Limitation Act of 1908, and that under that Act an acknowledgment made by a mortgagee or his agent, either specially or generally authorised, would be valid under Section 19. Therefore, the acknowledgments of 1849 and 1867, although they might be invalid under the Acts 1859 and 1871, must be deemed to be valid as tested by the provisions of the present Act which alone applies to the suits. He relies upon several cases the most important of which is the decision of their Lordships of the Privy Council in Lala Soni Ram v. Kanhaiya Lal , .

6. Before dealing with the cases cited at the bar, it is necessary to review what were the relevant provisions in the previous Acts bearing on this point. The earliest law to apply is Bombay Regulation V of 1827, Section 8, Clause 1, in which it was provided that no length of time shall prevent the Court's entertaining a suit to recover possession of the property held in mortgage; but if such property had been held for more than thirty years by a bona fide possessor as proprietor, the right of suit would be lost. Thereafter, Act XIV of 1859 was passed by the Indian Legislature. For the first time that Act prescribed a period of limitation for suits for redemption in Section 1, Clause (15), which laid down a period of sixty years for redemption of a mortgage from its date unless the mortgagor's title or right of redemption was acknowledged in writing by the mortgagee or some person claiming under him, in which case the period would run from the date of the acknowledgment. As that Act applies to all the mortgages at the date when it was passed, and as according to the previous law there was no provision for limitation for redemption suits, the Legislature provided a period of grace by the amending Act XI of 1861 under Section 1 of which a period of grace was given up to January 1, 1862, to bring suits for redemption of mortgages which were barred on the date when the Act of 1859 came into force. The next Act of Limitation is Act IX of 1871, which repealed the previous Act of 1859, and it provided the same period of sixty years for redemption suits under Article 148 of the Second Schedule to the Act. It was further enacted that the right to sue would expire at the end of sixty years unless there was an acknowledgment of the title of the mortgagor or of his right of redemption, before the expiration of the prescribed period, made in writing signed by the mortgagee or some person claiming under him. In that case a new period would run from the date of the acknowledgment. There was another provision for acknowledgment also in Section 20 of that Act in case of a debt or legacy, under which an acknowledgment in respect of a debt or legacy in writing signed by a party or his agent before the expiration of the prescribed period would have the effect of starting limitation from the date of the acknowledgment. It was further provided in Section 29 of that Act that at the determination of the period limited to any person for instituting a suit for possession of any land, his right to such land shall be extinguished.

7. This Act of 1871 was followed by Act XV of 1877, which embodied a new provision in Section 2 thereof, that nothing contained in that Act or in the Act of 1871 shall be deemed to affect any title acquired, or to revive any right to sue barred, under that Act or under any enactment thereby repealed. The provision for acknowledgment with regard to mortgage suits, which was provided for in Article 148 of the previous Act, was embodied in Section 19 of this Act in which it was provided that if an acknowledgment of liability in respect of any property or right was 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 would run from the date of such acknowledgment. It was further provided that the word 'signed' meant signed either personally or by an agent duly authorized in this behalf. So that for the first time an acknowledgment signed by an agent became a valid acknowledgment. Section 29 of the Act of 1871 was re-enacted as Section 28 of this Act.

8. The last Act of Limitation is the present one, Act IX of, 1908, in which all the relevant provisions, namely, Article 148 and Sections 19 and 28, are similar to those in the Act of 1877. It may be stated here that the provisions of Section 2 of the Act of 1877, which I have mentioned above, were not re-enacted in the Indian Limitation Act of 1908 for the reason that they were embodied in Section 6 of the General Clauses Act of 1897.

9. These are the relevant provisions of the law applicable to the facts, of the present case.

10. As I said before, Mr. Coyajee has mainly relied on the decision of their Lordships of the Privy Council in Lola Soni Ram v. Kanhaiya Lal for the purpose of his argument that the law of limitation to apply to a suit is the one in force at the date when it is filed. That is no doubt true as a general rule, but it is subject to a qualification as stated in that decision itself, viz., unless there was a distinct provision to the contrary. An example of such a contrary provision is Section 2 of the Indian Limitation Act of 1877 under which a right to sue once barred cannot be revived by the provisions of a later enactment. On the facts of the particular case which their Lordships had before them, it was not necessary to apply the provisions which limited the operation of that rule. The facts there were that the mortgage was of 1842, the two acknowledgments relied upon were in 1866 and 1867 by the widow and the daughter of the mortgagee, respectively, and the suit was brought in 1907. If the acknowledgments were governed by the law prevailing at the time when they were made, i.e. by Section 1, Clause (15), of the Indian Limitation Act of 1859, they would be valid as they were given by persons who claimed under the mortgagee, but if they were governed by the law in force at the date of the suit, i.e. the Act of 1877, they would be invalid because they were not given by persons through whom the defendants who were reversioners derived their title. It was held that the law of limitation, applicable to a suit was the law in force at the date of its institution unless there was distinct provision to the contrary, and under Section 19 of the Act of 1877, which applied, the acknowledgments were invalid for the reason stated above. There was therefore no question there of the applicability of Section 2 of the Act of 1877, according to which nothing in that Act was to affect any title acquired or to revive any right to sue barred under that Act or under any enactment thereby repealed. That was so because no title had been acquired and no right to sue was barred when that Act came into force in 1877 as the period of sixty years had not elapsed at that time. A suit could have been properly filed till the year 1902 without the aid of any acknowledgment, but after that data it would be good only if the acknowledgment was valid according to the law of 1877, and as that was not so, the acknowledgments were regarded as ineffectual. The present case, however, is a; converse case where the acknowledgments would be good if they were governed by the law of 1908. The facts of this case would attract the application of Section 2 of the Limitation Act of 1877 as well as Section 6 of the General Clauses Act, because as I observed before, the mortgage in suit was in the year 1791, and it would be governed by the provisions of Section 1, Clause (15), of the Limitation Act of 1859 read with Section 1 of the amending Act XI of 1861, according to which a suit for redemption of a mortgage, which would have been barred when the Act of 1859 came into force, would be barred after January 1, 1862.

11. The question then is, could a suit on this mortgage have been properly filed after that date? It is clear that the alleged acknowledgment of 1849 would not have saved it, because under Section 1, Clause (15), of the Act of 1859; the acknowledgment must be by a mortgagee or some person claiming under him, and here it was not by such a person but by a legal agent. Therefore, the suit would have been barred after the beginning of the year 1862. Under Article 148 of the Act of 1871 also the acknowledgment must be given by the same type of person as mentioned in the Act of 1859. Therefore, in any case the present suit would be barred at the date when the Act of 1877 came into force, and therefore, Section 2 of that Act would apply with the result that the right to sue having been lost, it could not be revived even though the acknowledgments would have been good under the Act of 1908 when the suits were brought. The present case, therefore, stands entirely on different facts from those in Lola Soni Ram v. Kanhaiya Lal, and it is governed not by the general rule about the application of the law in force at the date of the suit, but by the provisions of Section 2 of the Act of 1877, which makes the general rule inapplicable by barring the remedy as well as extinguishing the right.

12. Before I go to the other cases relied on by Mr. Coyajee, I might dwell upon an earlier decision of their Lordships of the Privy Council in Fatimatulnissa Begum v. Soonder Das , which lays down the principle applicable to the facts of the present case. In that case the mortgage was of 1788, there was no acknowledgment within sixty years from its date and the suit for redemption was filed in 1893. Their Lordships held that that suit would be barred at the end of sixty years on October 17, 1848, by Act XIV of 1859, Section 1, Clause (15), unless brought before January 1, 1862, or unles previous to October 17, 1848, an acknowledgment of the mortgage in terms of that clause was given, signed by the mortgagees or some person claiming under them. It was observed in the course of the judgment that as the parties did not sue on the last date provided for such a suit, namely, January 1, 1862, the right to sue had been lost and the right to property had been also extinguished under Section 29 of the Act of 1871. The same principle would apply to the present case even though there purports to be an acknowledgment within sixty years which however was not valid under the law prevailing then. The principle enunciated in this decision has been followed by the Calcutta High Court in Gope-shwar Pal v. Jiban Chandra Chandra (1914) I.L.R. 41 Cal. 1125, S.B., where the later decision in Lala Soni Ram v. Kanhaiya Lal is distinguished. The general proposition there laid down is that where the application of the provisions of an amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases. The decision in Lala Soni Ram v. Kanhaiya Lal was distinguished on the ground that it did not apply to cases where the effect of the application of the amended law would be to confiscate a vested right.

13. Two cases of our High Court have also distinguished this Privy Council decision. The first is Narayan v. Govind : AIR1928Bom28 . In that case the mortgage was in 1807. In 1860 there purported to be an acknowledgment by one of the heirs of the mortgagee, and the suit was filed in 1920. It was held that the acknowledgment of 1860 was not a valid acknowledgment under the Act of 1859 as it was not given by all the heirs of the mortgagee, and therefore, as it was ineffectual for the purpose of the Limitation Act of 1859, the right of the mortgagor was extinguished in 1868 in view of Section 29 of the Limitation Act of 1871, and could not be revived by the later Acts. It was observed in the course of the judgment that although the general principle might be conceded, namely, that the Act of Limitation to apply to a suit is the one in force at the date of the suit, it was subject to the qualification that where a right to bring a suit had been extinguished before, it could not be revived subsequently, and on that ground the decision in Lala Soni Ram v. Kanhaiya Lal was distinguished. On the facts of that case it was clear that the acknowledgment was bad, and therefore, the right of suit had already been lost before the Act of 1877 came into force. This decision, therefore, would be applicable to the facts of the present case.

14. The next decision is in Dhondi v. Lakshman : AIR1930Bom55 . There the mortgage was in 1799, the acknowledgment was in 1865, and the suit was filed in 1924. It was held that the right to sue for redemption was barred on January 1, 1862, i.e. before the date of the acknowledgment, and therefore, the acknowledgment of 1865, could not extend the period of limitation under the Act of 1859. It was further held that the remedy as well as the plaintiffs' right to bring a suit having been extinguished by the operation of Section 29 of the Act of 1871 as well as Section 2 of the Act of 1877 and Section 6 of the General Clauses Act of 1897, nothing contained in the subsequent Limitation Act of 1908 would affect the operation of the previous enactments. The ratio decidendi of this case is clearly applicable to the facts of the present case. The Privy Council decision in Fatimatulnissa Begum v. Sounder Das was followed and the decision in Lata Soni Ram v. Kanhaiya Lal was distinguished on the ground that in that case there was no question of the revival of the lost right to sue.

15. Mr. Coyajee has referred to three more decisions to support his argument. The first decision relied upon by him, apart from, the decision in Lata) Soni Ram v. Kanhaiya Lal, is the one in Mohesh Lal v. Busunt Kumaree (1880) I.L.R. 6 Cal. 340. That was a suit to recover a debt, and governed by Section 20 of the Limitation Act of 1871, and the acknowledgment was good under that section. The law of limitation at the date of the suit being the Act of 1871 there was no question of the applicability of Section 2 of the Act of 1877. That case is, therefore, clearly distinguishable from the facts of the present case, which is not to recover a debt and as such governed by Section 20 of the Limitation Act of 1871, but is governed by Article 148 of that Act under which the two acknowledgments would be invalid.

16. The next case relied upon is Zaib-un-nissa Bibi v. The Maharaja of Benares (1911) I.L.R. 34 All. 109. In that case the mortgage was in 1823, there was an acknowledgment in 1868 which was valid according to the law in force at the date of the suit which was instituted in 1909. The suit could have been filed without the acknowledgment till 1883, and it would, therefore, have been governed by the Limitation Act of 1877 under which the acknowledgment in question was valid though it was invalid according to the law in force at the date of the acknowledgment, namely, the Act of 1859. The plaintiff was, therefore, held as entitled to rely on the acknowledgment. It is clear that in that case the right to sue was not barred when the Act of 1877 came into force, because sixty years had not elapsed at that time from the date of the, mortgage. The general proposition laid down in the head note in that report correctly summarizes the law applicable to acknowledgments. It is held that the criterion to be applied to test the validity of an acknowledgment of liability put forward by a plaintiff as extending the period 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.

17. The last case relied upon is Amarchand v. Narayan : AIR1932Bom531 . The mortgage there was in 1834, there were two acknowledgments, one in 1864 and the other in 1877, and the suit was filed in 1924. At least one acknowledgment, vis:., the second, signed by the heirs of the mortgagee, was valid under the Act of 1908 when the suit was brought, and that acknowledgment was made while the right to sue on the mortgage was subsisting in 1877. It is clear, therefore, that the acknowledgment having been made during the subsistence of the right to sue, there was no scope for the application of Section 2 of the Act of 1877.

18. These are all the authorities that have been cited during the course of the arguments. It would be clear from this discussion that the present case is governed by the qualification to the general rule, as the right to sue was lost before the Act of 1877 came into force. The acknowledgments, therefore, though valid under the Act of 1908 are of no avail for saving the bar of time.

19. The decision of the lower Court, therefore, holding that the suits were barred by limitation is correct, and the appeals are dismissed with costs.

Broomfield, J.

20. In view of the learned argument at the bar, I will add a few remarks.

21. It is necessary to Mr. Coyajee's argument that he should be able to show that in 1921 and 1922 when the Damles sold the land, they were still mortgagees, that is to say, that the mortgage was still subsisting. It has to be conceded that, unless there was a valid acknowledgment, a suit to redeem the mortgage would have been barred in January, 1862, and also that the acknowledgment of 1849, on which Mr. Coyajee relies, being by an agent, did not become operative to save limitation until the Act of 1877 was introduced. Under that Act and subsequent Acts it would be operative for that purpose. Mr. Coyajee contends that the test of the validity of an acknowledgment is the law in force at the time of the institution of the suit. As a general rule that is undoubtedly the law: Lola Soni Ram v. Kanhaiya Lal , . But the rule is subject to the proviso that neither the right to the property in question has been extinguished, nor the right to sue in respect of it barred before the later law came into force. Once a right to property has been extinguished, or right of suit barred, it cannot be revived by subsequent Limitation Acts in the absence of express words so providing. That the decision in Lala Soni Ram v. Kmhaiya Lal does not really support the argument advanced by Mr. Coyajee in this case is clear, I think, from the discussion of that case in Gopeshwar Pal v. Jiban Chandra Chandra (1914) I.L.R. 41 Cal. 1125, S.B. and Narayan v. Govind : AIR1928Bom28 .

22. If Section 29 of the Act of 1871 applies to the case, the equity of redemption was extinguished after sixty years from the date of the mortgage and could not be revived. For the purpose of determining whether the right was extinguished or not, the relevant law must, I think, be the law in force when Section 29 was enacted. See Fatimatulnissa Begum, v. Soonder Das and Indu rai v. Shivlal . If the acknowledgment now relied on was not a valid acknowledgment under the Act of 1871--and it was not--the fact that it was made valid by subsequent legislation would be immaterial. It has not been argued before us that Section 29 of the Act of 1871 did not apply to a suit for redemption. In Dhondi v. Lakshman : AIR1930Bom55 and Indurai v. Shivlal : AIR1925Bom339 , it has been held that it did apply to such a suit. But even if the equity of redemption had not been extinguished, the right to sue for redemption was barred in 1862, and in view of Section 2 of the Act of 1877, which is still the law, the right cannot be revived. It is true, as Mr. Coyajee says, that the present is not a suit for redemption, although it has been treated as such by both the lower Courts; but, in any case, in order to succeed the appellants halve to show that the mortgage was subsisting in 1921, and that cannot be so if the right to sue for redemption was barred long before that date.

23. I, therefore, agree with my learned brother that the appeals should be dismissed with costs.


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