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Fundabai Alias Saraswathibai and ors. Vs. Ramanagouda Mallanagouda Patil and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 893 of 1966
Judge
Reported inAIR1971Kant312; AIR1971Mys312
ActsLimitation Act, 1908 - Sections 19; Transfer of Property Act, 1882 - Sections 68
AppellantFundabai Alias Saraswathibai and ors.
RespondentRamanagouda Mallanagouda Patil and anr.
Appellant AdvocateB.V. Deshpande, Adv.
Respondent AdvocateK.A. Swami, Adv.
DispositionAppeal dismissed
Excerpt:
.....extinguished, his contention on behalf of the appellants is that this document was taken by the mortgagee from the mortgagor to show that the debtor was not an agriculturist and that no such application was necessary to be filed under the said act; stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. it follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on..........ground that the plaintiffs are entitled to possession of the same as mortgagees under the deed of mortgage exhibit 78, dated 9-9-1941. the first defendant is the husband of the first appellant (defendant 1-a) and father of defendants 2 and 3. defendant-1 had mortgaged the suit properties in favour of the father of plaintiffs. defendant 6 is the mother of the plaintiffs. the deed of mortgage provides that the consideration of the mortgage is rupees 1,500/-; that the mortgagee should be in possession for a period of 9 years, the nature of mortgage being a self redeeming mortgage. according to the case of the plaintiffs the mortgagee was dispossessed after three years from the date of mortgage, though he was entitled to possession for a period of 9 years. the suit was filed on 15-12-1956......
Judgment:

M. Sadanandaswamy, J.

1. The appellants are defendants: the respondents are plaintiffs. The suit was filed for possession of S. No. 376 Muthalageri village, Badami Taluk, along with a house and a site on the ground that the plaintiffs are entitled to possession of the same as mortgagees under the deed of mortgage Exhibit 78, dated 9-9-1941. The first defendant is the husband of the first appellant (Defendant 1-A) and father of defendants 2 and 3. Defendant-1 had mortgaged the suit properties in favour of the father of plaintiffs. Defendant 6 is the mother of the plaintiffs. The deed of mortgage provides that the consideration of the mortgage is Rupees 1,500/-; that the mortgagee should be in possession for a period of 9 years, the nature of mortgage being a self redeeming mortgage. According to the case of the plaintiffs the mortgagee was dispossessed after three years from the date of mortgage, though he was entitled to possession for a period of 9 years. The suit was filed on 15-12-1956. The defendants admitted the mortgage, but contended that the original mortgagee was in enjoyment of the property till his death in 1946 and thereafter his widow. Defendant 6, was in possession till 1950, that therefore the entire mortgage amount has been recovered and that defendant 6 gave up possession voluntarily to the defendants since the stipulated period of 9 years had expired. Both the lower Courts negatived the contentions of the defendants and held that the mortgagee lost possession after three years from the date of mortgage, and accordingly, both the Courts have decreed the plaintiff's suit.

2. It is contended by Shri Deshpande, learned counsel for the appellants, that the lower Courts erred in holding that Exhibit 79, the document on 21-7-1946, amounts to an acknowledgement so as to save limitation for the suit. His contention is that the circumstances under which the said document was executed show that the mortgagor had no intention to acknowledge his liability as a mortgagor, and that the suit which is for enforcing the right to possession is not in time since Exhibit 79 does not amount to acknowledgement of the right of the mortgagee for possession. His contention is that even though Exhibit 79, refers to the mortgage deed, there is not an acknowledgement of the right of the mortgagee to the possession of the mortgaged property. The Bombay Agriculturists Debtors Relief Act had come into force; under that Act both the creditor as well as the debtor, if the latter happened to be an agriculturist, had to file an application for adjustment of the debt, before the Debt Adjustment Board. If the creditor failed to file the necessary application within the tune (prescribed under the Act), it is provided in the Act, that the debt would stand extinguished, His contention on behalf of the appellants is that this document was taken by the mortgagee from the mortgagor to show that the debtor was not an agriculturist and that no such application was necessary to be filed under the said Act; and that no such application was actually filed by the mortgagee. The document executed by the mortgagor in favour of the mortgagee reads as follows :--

'I have executed a self redeeming mortgage bond for Rupees 1500/- for 9 years period in respect of S. Nos. 433 and 465 of Muthalageri village and got it registered on 9-9-41. In respect of the said mortgage the same amount has been paid and the balance is to be paid.'

'I have 200 acres of land in Muthalageri and other villages, out of which I am personally cultivating 20 to 25 acres; the remaining lands are leased to tenants on cash rent and also on crop-share basis. The income from the rent and the crop is twice the income I am getting from the lands personally cultivated by me. Therefore I am not an agriculturist and I am a non-agriculturist, the relation between you and me with respect to mortgage transaction is smooth and cordial. No application need be made to the Debt Adjustment Board. Thus, is given this deed on 21-7-1946.'

3. There was an earlier simple mortgage with regard to S. Nos. 433 and 465 mentioned in the abovesaid document, executed by the first defendant in favour of the father of the plaintiffs and that mortgage was not subsisting on the date of Exhibit 79. Since Exhibit 78, the mortgage deed dated 9-9-41, came to be executed after the adjustment of the amount due under the simple mortgage, there was no other transaction between the parties on the date of Exhibit 79. except the mortgage under Exhibit 78. Hence the Survey numbers of land S. Nos. 433 and 465 shown in Exhibit 79 appear to be a mistake for S. No. 376 which is the property secured under Exhibit 78. The debt amount, the description of the kind of the mortgage referred to in the document all relate to Exhibit 78.

4. While construing Section 19 of the Limitation Act the Supreme Court has stated as follows: (S. F. Mazda v. Durga Prosad : [1962]1SCR140 ) :--

'It is thus clear that acknowledgement as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. _ Such intention can be inferred by implication from the nature of admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the Court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgement rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally Courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning.'

It was further observed :--

'that in deciding the question as to whether any particular writing amounts to an acknowledgement as in construing wills for instance, it is not very useful to refer to judicial decisions on the point. The effect of the words used in a particular document must inevitably depend upon the context in which the words are used and would always be conditioned by the tenor of the said document, and so unless words used in a given document are identical with words used in a document judicially considered it would not serve any useful purpose to refer to judicial precedents in the matter.'

The tenor of the letter in question in that case shows :--

'that it was addressed by the mortgagor to the puisne mortgagee; it reminded him of his interest as such mortgagee in the property which would be put up for sale by the first mortgagee, and appealed to him to assist the avoidance of sale, and thus acquire the whole of the mortgagee's interest. As no other relationship existed between the parties at the date of this letter, and the only subsisting relationship was that of mortgagee and mortgagor the letter acknowledged the existence of the said jural relationship and amounted to a clear acknowledgement under Section 19 of the Limitation Act.

5. The appellants relied on the decision in : AIR1967SC935 (Tilak Ram v. Nathu). The test laid down in : [1962]1SCR140 was also applied in that case. The question in that case was whether the right of redemption was not barred by virtue of the statements made by the mortgagee in some documents and it was observed as follows:--

'10. The right of redemption no doubt is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed, Where the statement is relied on as expressing rural relationship it must show that it was made with the intention of admitting such a rural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence an intention to admit cannot be imposed on its maker by an involved or a far-fetched process of reasoning.'

Applying the tests laid down in : [1962]1SCR140 , it was held that none of the statements could be regarded as an acknowledgement within the meaning of Section 19 of the Limitation Act Though, in those documents reference was made to the mortgagee, it was held that the document cannot be said to be those made with the intention of admitting the rural relationship between him and the mortgagor or to admit the facts that the mortgage was subsisting at the time when the statements were made.

6. It is contended on behalf of the appellants that the contents of Exhibit 79 show that the said document was got executed at the instance of the mortgagee by the mortgagor only to support the contentions of the mortgagee that the mortgagor was not an agriculturist-debtor, that no application had to be filed under the Bombay Agriculturists Debtors Relief Act, and to prevent the extinguishment of the mortgage debt. The contents of the document do lead to such an inference. But it cannot be said that there was no intention on the part of the mortgagor to admit the liability under the mortgage. The document is addressed to the mortgagee. There was no other rural relationship between the parties except that of mortgagor and the mortgagee, the details of the transaction have been set out and there can be no doubt that the reference is to the suit mortgage. Both the parties were aware of the fact of the said relationship and that the admission is made for the purpose of avoiding the application being filed under the B. A. D. R. Act. The mortgagor was fully conscious of the purpose for which the document was being taken and deliberately made the admission with regard to his liability under the suit mortgage. Hence, it must be held that this document amounts to an acknowledgement of liability under the suit mortgage. This position is not seriously disputed. But what is contended on behalf of the appellants is that this acknowledgement does not amount to an acknowledgement of the right of the mortgagee for possession.

7. In (1898) 25 Ind App 95 (PC) (Sukhamoni Chowdhrani v. Ishan Chunder Roy one of the three joint debtors filed a suit for contribution against another who pleaded limitation. All the three had filed an application to the court to appoint a manager to protect their joint property by payment of their joint debts, a list of which, specifying the names of creditors and amounts due, was given. While holding that this application constituted an acknowledgment, the Privy Council observed as follows :--

'That is a distinct acknowledgement that the total of the debts comprised in the list is a joint debt. The Subordinate Judge held that the defendant did not thereby admit any liability to the plaintiff, nor promise to pay anything. But it is not required that an acknowledgement within the statute shall specify every legal consequence of the thine acknowledged. The defendant acknowledged a joint debt. From that follows the legal incidents of her position as joint debtor with the plaintiff, one of which is that he may sue her for contribution.'

In 51 Ind Cas 985 = (AIR 1919 Oudh 217) (Basant Singh v. Rampal Singh) it has been held that the acknowledgement of the right of the plaintiff as mortgagee under the terms of the mortgage necessarily carries with it acknowledgement of the right to claim the particular reliefs to which the provisions of the deed entitled him. It further held that the plaintiffs right to take possession under the mortgage was not barred in view of the admission of the mortgagor's liability under the acknowledgement, following the decision in (1898) 25 Ind App 95 (PC). In 60 Ind Cas 189 = (AIR 1920 Oudh 236) (Jogeshar Singh v. Bir Ram) the question was whether the suit for possession was not barred in view of the acknowledgement in respect of the mortgage debt only. It was held that Section 19 of the Limitation Act does not require that the identity of the liability acknowledged should correspond with the nature of the relief which a plaintiff seeks on the cause of action which embraces his right and upon which he comes into court, and that the section does not demand any exactness in the specification of the nature of the property or right in view of the explanation (1) to Section 19. Since the acknowledgement amounted to acknowledgement of liability for the debt and that each of them imports an admission of a subsisting mortgage in favour of the creditor, it was held that these were acknowledgements of the mortgagee's title. In 68 Ind Cas 196 = (ATR 1922 Oudh 135), (Ram Autar v. Beni Singh) it was held that an admission by a mortgagor of his liability under the mortgage carries with it an admission of all the remedies to which the mortgagee might be entitled under the mortgage.

8. Under Exhibit 79, there is an acknowledgement of the jural relationship of mortgagor and mortgagee. It is not disputed that if the mortgagee had filed a suit for recovery of the money due under the mortgage, the acknowledgement would have saved the suit from the bar of limitation. Since the right of the mortgagee as such mortgagee has been acknowledged, it is immaterial that the acknowledgement does not relate to one of the rights of the mortgagee under the deed of mortgage, namely, the right to possession. It is not merely the money debt due under deed that has been acknowledged, but it is the jural relationship of mortgagor and mortgagee that has been acknowledged by the mortgagor. Hence, the lower Courts were right in holding that the suit is not barred by limitation in view of this acknowledgement.

9. It was next contended on behalf of the appellant that the recitals in Exhibit 79 show that the relations between the parties in respect of the mortgage transaction was cordial. From this. an inference is sought to be drawn that the mortgagee must have been in possession on the date of Exhibit 79, i.e., 21-7-46. It is urged that this circumstance has not been considered by the lower appellate Court while coming to the conclusion that the mortgagee was dispossessed on 1-4-44. But there is no reference to the possession of the mortgagee in Exhibit 79. Hence, it cannot be said that the lower appellate Court was in error in finding that the mortgagee was dispossessed on 1-4-44.

10. It was next contended on behalf of the appellant that the lower courts should have passed a decree for possession with a direction that the plaintiffs are entitled to possession for six years only since even according to the plaintiffs, they were in possession for three years out of nine years stipulated under the mortgage deed. But there is no issue framed in this regard since the prayer in the plaint was only for possession without mentioning any period for which possession is prayed for. Hence, the decree of the lower appellate court has to stand as it is.

11. It is also contended that the right of the mortgagee is only to sue for money and not possession, under Section 68(b) of the Transfer of Property Act. It has been held in (1894) ILR 17 Mad 469, (Linga Reddi v. Sama Rau) that it is open for the usufructuary mortgagee to sue either for money or for possession in case he is unable to obtain possession of the mortgaged property. In AIR 1942 Oudh 172 (Ram Padarath v. Nimar Singh) the mortgage deed recited that possession should be given to the mortgagee. It is also provided that if the mortgagee does not get possession or lost possession, he can recover money with interest by the sale of the mortgaged property. Admittedly possession was not given to the mortgagee. Negativing the contention of the mortgagor that it was a simple mortgage, it was held that whether it may be considered to be a usufructuary or anomalous mortgage, it was open in either case to the mortgagee to sue for possession of the mortgaged property. Hence, this contention of the appellant has also to be rejected.

12. This second appeal is therefore dismissed with costs.


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