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Narayan Balaji Bandivdekar Vs. Govind Sakharam Nimkar - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 841 of 1923
Judge
Reported inAIR1928Bom28; (1927)29BOMLR1563
AppellantNarayan Balaji Bandivdekar
RespondentGovind Sakharam Nimkar
DispositionAppeal dismissed
Excerpt:
.....by sakharam in the year 1860. it appears to have been found that sakharam was the manager of the joint family, and though it is rather difficult to feel entirely satisfied with the finding upon that point which rests on grounds which are somewhat conjectural, still we take that to be so for the purposes of the present appeal. the facts there were that one jagjivandas was the manager of a joint hindu firm, and also the manager of the joint family estate, and the question before the high court was whether an acknowledgment by jagjivandas satisfied the requirements of clause 15 of section 1 of act xiv of 1859, or article 148 of act ix of 1871. it was held that it did not. upon that point, the high court held that the manager of a joint hindu family could, for the purposes of section 19 of..........by sakharam in the year 1860. it appears to have been found that sakharam was the manager of the joint family, and though it is rather difficult to feel entirely satisfied with the finding upon that point which rests on grounds which are somewhat conjectural, still we take that to be so for the purposes of the present appeal.3. turning then to the act of 1859, which was in force at this date, there will be found in section 15 a reference to acknowledgments in the following words 'if in the meantime an acknowledgment of the title of the...mortgagor, or of his right of redemption, shall have been given in writing signed by the...mortgagee or some person claiming under him, (a period of 60 years) from the date of such acknowledgment in writing.' therefore we have to decide whether.....
Judgment:

Crump, J.

1. The plaintiff in this action sued to redeem a mortgage of the year 1807. The first Court held that the suit was within time. The suit was filed on June 18, 1920, that is to say, 113 years after the date of the mortgage. Bat the trial Court held that, by reason of a certain acknowledgment of June 27 1860, the suit, being within sixty years from the date of that acknowledgment, was not time-barred, The lower appellate Court took a different view, and held that the acknowledgment in question was ineffectual to give a fresh starting point of limitation inasmuch as it was not signed by a person who could give an effectual acknowledgment having regard to Section 15 of Act XIV of 1859, which was in force at that date.

2. The question which we have to determine is which of these two views is correct. The mortgagee under the mortgage of 1807 was one Bachaji, and though the facts are not very clearly ascertained, it appears that in 1860 the family consisted of Sakharam, the son of Bachaji, and possibly his eldest son the 1st defendant, and also Moreshwar, the son of Bachaji's brother. The acknow-ledgment on which reliance is placed is signed by Sakharam. It is contained in a sub-mortgage to a third party, and in the course of the document the following passage occurs : 'We mortgage to you the same fourth takshim of the whole village of, Mouje Karade which we hold under mortgage.' It has been found from other documents that the mortgage alluded to in these words is the mortgage of 1807. Therefore we must consider the effect of this acknowledgment by Sakharam in the year 1860. It appears to have been found that Sakharam was the manager of the joint family, and though it is rather difficult to feel entirely satisfied with the finding upon that point which rests on grounds which are somewhat conjectural, still we take that to be so for the purposes of the present appeal.

3. Turning then to the Act of 1859, which was in force at this date, there will be found in Section 15 a reference to acknowledgments in the following words 'if in the meantime an acknowledgment of the title of the...mortgagor, or of his right of redemption, shall have been given in writing signed by the...mortgagee or some person claiming under him, (a period of 60 years) from the date of such acknowledgment in writing.' Therefore we have to decide whether Sakharam was such a person as would come within these words. Now that very point came before this Court in Bhogilal v. Amritlal I.L.R. (1892) 17 Bom. 173, with reference to Article 148 of the Indian Limitation Act of 1871, where practically the same form of words are used. The facts there were that one Jagjivandas was the manager of a joint Hindu firm, and also the manager of the joint family estate, and the question before the High Court was whether an acknowledgment by Jagjivandas satisfied the requirements of Clause 15 of Section 1 of Act XIV of 1859, or Article 148 of Act IX of 1871. It was held that it did not. The decision was based upon the view that Jagjivandas in that case might have been regarded as an agent, but that an acknowledgment by an agent was not sufficient for the purposes of the law in force at that date.

4. In the same volume, is another decision of this High Court, Bhasker Tatya Shet v. Vijalal Nathu I.L.R. (1892) 17 Bom. 512, in which the validity of an acknowledgment by the manager of a joint Hindu family was considered with reference to Section 19 of the Indian Limitation Act XV of 1877. It may be remarked here that it was in Section 19 of the Act of 1877 that an agent was introduced for the first time as a person competent to give an acknowledgment for the purpose of giving rise to a fresh starting point for limitation. Upon that point, the High Court held that the manager of a joint Hindu family could, for the purposes of Section 19 of the Indian Limitation Act of 1877, give a valid acknowledgment, and they base their decision upon this that the manager must ordinarily be held to be an agent duly authorised in this behalf within the meaning of Section 19.

5. Those two decisions bring out very clearly the views of this High Court as to the provisions of the law in the Act of 1859 and the Act of 1871 as compared with the provisions of the law in the Act of 1,877. The effect of the two decisions together is plainly this : that the manager of a joint Hindu family should be regarded as an agent, and therefore a person who could give an acknowledgment for the purposes of the latter Act, but though he is an agent, he cannot give an acknowledgment for the purposes of the former Act, because the former Act does not provide for an acknowledgment by an agent. It has been conceded before us that the earlier of these two decisions has never been overruled, and the only criticism offered upon it is that it is in some way inconsistent with the decision of their Lordships of the Privy Council in Annamalai Chetty v. Murugasa Chetty. , 5 Bom. L.R. 494 The point before the Privy Council there was not whether there was a good acknowledgment for the purposes of limitation, but whether the manager of a joint family was a person on whom proper service could be effected for the purposes of Section 17 of the Code of Civil Procedure of 1882. Their Lordships say with reference to the relation between the manager of joint family property and the agent of the members of the family (p. 228):

The relation of such persons is not that of principal or agent, or of partners . it is much more like that of trustee and cestui que trust.

6. But how that decision on an entirely different point can be invoked as casting any serious doubt upon the decision in Bhogilal v. Amritlal is, in ray opinion, difficult to understand, It was further suggested that in Bhogilal's case the Court had to deal with the manager of a Hindu family firm, and that in some respects for the present purpose the manager of a joint family firm stands upon a different footing from the manager of a joint Hindu family. We are, however, unable to see any substantial difference so far as the present purpose is concerned. No doubt the manager of a joint family firm is not in all respects identical with the manager of a joint Hindu family. But in Bhogilal v. Amritlal, it is relevant to observe that Jagjivan held both capacities, and the Court says (p. 176):-

Jagjivan was then manager of the mortgagee firm for and on behalf of the Hindu family to which the firm belonged, and was not sole owner thereof, but like the present defendant only one of several coparceners.

7. Nothing really turned upon the distinction now sought to'be made, nor are we able to see that that distinction in any way detracts from the value of the authority in question for the purpose of the present case. It follows then that the acknowledgment of 1860 was not such an acknowledgment as was required by Act XIV of 1859 which was then in force. It is, therefore, further clear that had a suit for redemption been brought in the year 1868, that suit would have been barred. In other words, the mortgagers allowed the time within which they could sue for redemption to expire.

8. We have next to consider the effect of that inaction on their part upon their right to redeem. Upon this point a reference may be made to the judgment of their Lordships of the Privy Council in Fatimatulnissa Begum v. Snower Das. I.L.R. (1900) Cal. 1004, P.C. Their Lordships were there dealing with a mortgage and a suit to redeem. That mortgage was in the year 1738, and therefore the suit to redeem became barred in 1848 unless in the meantime the required acknowledgment was given. Their Lordships say at p. 1010 of the report:-

The Act of 1871 provided the same limits of time for suits of this kind, and it added the provision (s 29) that at the expiration of the period thereby limited to any person for instituting a suit for the possession of any land his right to such land shall be extinguished. The period thereby limited in the case of this mortgage was the October 17, 1848, and the title of the mortgagors was extinguished on that day unless they can show a previous acknowledgment in writing.

9. Now an acknowledgment which is ineffectual for the purposes of the law is no acknowledgment at all, and therefore precisely, as in the case before their Lordships of the Privy Council, the effect of Section 29 of the Act of 1871 in the present case would be to extinguish the rights of the mortgagors. That would appear to put an end to the present action, unless it can be shown that in some way or other those rights have been revived by something that has taken place after the year 1868. Clearly the Act of 1871 did not revive those rights but rather extinguished them. The Act of 1877 .specifically provides in Section 2 that :-

all references to the Indian Limitation.Act, 1871, shall be read as if made to this Act; and nothing herein or in that Act contained 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.

10. This is not merely a case of reviving a Right to sue barred under the provisions of the Act. It is a case of reviving a right which has become extinguished by the operation of law. The word 'extinguished' is a very strong word-almost as strong a word as could be used, and nothing has been shown to us which can be invoked as an authority for holding that the right extinguished has been in any way revived. Much reliance was placed upon the decision of the Privy Council in Soni Ram v. Kanhaiya, Lal. I.L.R. (1913) All. 227 15 Bom. L.R. 489, P.C. It is argued that here, as in that case, we must apply to this suit the Indian Limitation Act of 1908. That may be conceded, and the article applicable is no doubt Article 148 of that Act, But that does not touch the real point which, as I have said, is whether the extinguished right can be revived. Now in that case their Lordships of the Privy Council were considering a mortgage of 1842, the period of limitation for that mortgage expired in 1902, and it was not barred when the Act of 1877 came into force, and therefore it was not touched by Section 2 of that Act. Their Lordships say that the case must be approached from the stand-point of the Act of 1908, There were certain acknowledgments round about the year 1866, and with reference to those acknowledgments their Lordships say that (p. 236) 'an acknowledgment of liability only extends the period of limitation within which a suit must be brought and does not confer title, and is not a 'thing done' within the meaning of Section 6 of the General Clauses Act,' The case was heard ex parte, and though their Lordships took that view they held in effect that the acknowledgment on which reliance was placed was not an effectual acknowledgment, and that therefore the suit was time-barred. They did not consider, nor was it necessary for them to consider, whether the right had been extinguished by the failure of the mortgagees to sue within sixty years from the date of the mortgage or sixty years from the date of the acknowledgment. The grounds on which they base their judgment were sufficient for the decision of the appeal before them, and, therefore, that case cannot be cited as an authority with reference to the operation of Section 29 of the Act of 1871 on the rights of these mortgagors.

11. It is not necessary in this view of the case to consider the decision in Mahomed Mehdi v. Sakinabai I.L.R. (1912) 37 Bom. 392 14 Bom. L.R. 908, which lays down that a right to sue once lost cannot be revived by the enactment of subsequent Act of Limitation-a principle which is also expressed in the judgment of the Privy Council in Mohesh Narain Moonshi v. Taruck Nath Moitra . The precise point which we have here did not come up for consideration in those cases. The real point here is that the acknowledgment of 1860 was not a valid acknowledgment for the purposes of the Act of 1859, and, therefore, must be regarded as no acknowledgment at all, and the rights of the mortgagors were, therefore, extinguished in 1868 or thereabouts and nothing has occurred which can be held to revive them.

12. Therefore the decision of the Court below appears to be correct and the appeal must be dismissed with costs.

Amberson Marten, Kt., C.J.

13. I agree. On the points of law I would hold that the effect of Section 29 of the Act of 1871 was to extinguish the plaintiff's right to possession of the land, because sixty years had expired from the date of the mortgage, and under the law then in force there had been no valid acknowledgment, and that in particular the alleged acknowledgment, Exhibit 77, in 1860 was insufficient for that purpose. The fact that there was a subsequent Act in 1877 which altered the clauses dealing with acknowledgment by an agent, is to my mind immaterial, because there are words in the later Act, either the general Act or otherwise, which prevent rights which have been once extinguished from being revived.

14. The right to sue then having been barred by the Act of 1859, and the right to the land itself having been extinguished, in my judgment the plaintiff is not entitled to sue for redemption and possession of the land in the year 1920. A somewhat similar provision us to extinguishment will be found in the English Limitation Acts. There too a title once extinguished by limitation cannot be revived by a subsequent acknowledgment. (See Halsbury, Vol. XIX, page 155.)

15. Then on the second point of law as to whether this acknowledgment of 1826 was given by the mortgagee or some person claiming under him, in my judgment, the decision in Bhogilal v. Amritlal, I.L.R. (1892) 17 Bom. 173 of Mr. Justice Jardine and Mr. Justice Telang, is binding on us. That decision decided that on the construction of that particular Act, viz., the Act of 1859, the manager of a joint Hindu family firm was not a person claiming under a mortgagee within the meaning of that Act. That decision has not been dissented from or questioned in this Court, and, therefore, I do not think it is for us, sitting as a Division Bench, to question it now.

16. I have only some general observations to make. This case is an apt illustration of the possibilities of 'litigation in India that are caused by this excessive period of sixty years being allowed for limitation in the case of mortgages. I doubt whether in any civilised country in the world a law suit of the present nature would be possible. It would bo quite impossible in England. The parties begin first of all with a long discussion as to whether the plaintiff is an agriculturist. Then there is another issue as to whether the old mortgage of 1807 is proved. Then there is another long discussion whether the family was joint or separate in 1860. Then there is a further point-and an important point-whether Sakharam was then the manager or not. That was at one time in some doubt. There is another point, viz., Does this acknowledgment of 1860 clearly refer to the mortgage of 1807. The acknowledgment only says that the sub-mortgagor holds the land under a mortgage. No express reference is made . to the mortgage of 1807. Once more we go on presumption or inference. Then, when the learned trial Judge has given judgment on all these disputed points, including the two main points of law which my brother Crump has just dealt with, there is even yet a question left as to whether all the lands in suit are covered by the mortgage in question. So an inquiry has been ordered as to the identity of some of the lands.

17. Then to complete the story, my brother Crump at the end of counsel's arguments said : 'Are you quite satisfied that even now the suit is within time ?' In fact the plaintiff has left it almost to the last possible date. The plaint itself was presented on June 18, 1920. I have had that date checked by the translator and the sheristedar, and I understand counsel agree on that date. But when we come to check the date of the acknowledgment, which was stated in the judgments of the lower Courts to be June 27, 1860, our interpreter now tells us the real date is May 24, 1860. If that latter date is correct, then the suit is in any event out of time. We have accordingly thought it right to send for the Chief Translator, to see whether the date given by the Court Translator is correct. I will only add that all these things show the difficulties and ambiguities that arise in certain classes of Hindu litigation, more especially where there is a joint Hindu family. They also show partly why some of these suits drag on for years and years, and why a law suit of this type is a curse to the people of India. If the Legislature would cut down the period of sixty years to something like twenty years I have no doubt, speaking for myself, that benefits would result from it.

18. [At this stage the Chief Translator arrives in Court and is questioned as to the dates.]

19. We have now called on the Chief Translator, and he confirn s what the original interpreter told us, viz.. that the true date of Exhibit 77 is May 24, 1860, and not June 27, 1860. Counsel for the appellant is not able to dispute that.

20. Under these circumstances on that finding the suit must in any event fail. But our prior judgments nevertheless stand. It might possibly be contended that sitting here in second appeal, we are bound by the findings of fact, and that both Courts below have given the date as being June 27, 1860, and that no point as to a different date has arisen in the Courts below. My brother Crump also mentions that it is conceivable that if the date expired in the vacation, the plaintiff might have had some few extra days to file his plaint, viz., at the beginning of term. But to ascertain that we should have to enquire of the lower Courts.


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