1. This is a defendant's revision application arising out of a suit for redemption of a usufructuary mortgage.
2. The facts appearing from the order of our brother Katju who has referred this case are brieflyas follows:
Umar Ali and Umar Gharri mortgaged villages Baski Uparhar and Baski Kachar on March 12, 1872 to Abdul Qadir for Rs. 800/-. The plaintiffs and defendants Nos. 8 to 12 are the heirs of the mortgagors. Subsequently, one Jagat Narain purchased the interest of the mortgagors in Baski Uparhar. Thereafter, the legal representatives of Jagat Narain gifted this interest to Abdul Rahman and Abdul Ghafoor on January 24, 1902.
3. Abdul Rahman and Abdul Ghafoor instituted a suit (No. 472 of 1921) for redemption of the entire mortgaged property in Baski Uparhar and Baski Kachhar which had been mortgaged by Umar Ali and Umar Ghani. In this suit, the predecessors of the present plaintiffs as well as the heirs of Abdul Qadir were impleaded. Paragraph 6 of the plaint read:
'That the defendants 13 to 16 are owners ofthe mortgaged property of village Baski Kachhar and they had not joined them in the suit and so they were made pro forma defendants'.
4. The suit was decreed and the predecessors of the present defendants came into possession of the properties of both the villages.
5. The present suit was brought on the allegation that defendants Nos. 1 to 7 were subrogated in place of the original mortgagee in respect of the property in village Baski Kachhar and the plaintiffs were entitled to redeem the property. It was also alleged that the period of limitation for bringing the suit had been extended by anacknowledgment, the acknowledgment being said to be contained in paragraph 6 of the plaint set out above.
6. The suit was contested on the grounds inter alia that it was barred by limitation and paragraph 6 of the said plaint of 1921 did not constitute an acknowledgment and that there was no question of subrogation.
7. The trial Court decreed' the suit holding that the suit was not barred by time and that the contesting defendants were co-mortgagees with respect to the property in village Baski Kachhar and were subrogated to the position of mortgagees. An appeal by the defendants was dismissed by the lower appellate Court.
8. When this revision application came on for hearing before our brother Katju, two questions were raised. Firstly, that the suit was barred by limitation and the contents of paragraph 6 of the plaint of 1921 did not constitute an acknowledgment within the meaning of Section 19 of the Limitation Act and, secondly, that the contesting defendants had not become co-mortgagees of the property in village Baski Kachhar and were not subrogated to the position of mortgagees. The case was then referred by him to a larger Bench.
9. We may at first consider the defendants' plea that the suit is barred by limitation. It is clear that at the time the plaint was framed the predecessors of the present defendants who signed it had no present subsisting interest in the property and could not be said to have admitted any liability existing against themselves. The question which falls for consideration is whether an acknowledgment for the purposes of Section 19 of the Limitation Act can be said to have been made if when making it there was no present subsisting liability against the person making the acknowledgment.
10. Before the learned Single Judge, a number of decisions were cited in respect of the rival conations relating to this question. On behalf of the plaintiffs, reliance was placed on the decisions, of this Court in Jugal Kishore v. Fakhruddin, ILR 29 All 90 and Baleshwar v. Ram Deo, ILR 36 All 408: (AIR 1914 All 481). It was contended that truly interpreted the provisions of Section 19 of the Limitation Act did not require that the person making acknowledgment as to liability in respect of the property should at the time of the acknowledgment be a person subject to that liability.
Since then, however, a Full Bench of this Court in Gur Saran v. Shib Singh : AIR1943All393 and subsequently a Division Bench of this Court in Parasram Shukul v. Bindeshari Pandey : AIR1953All33 have stated the law differently. These decisions have proceeded on the basis that a person while making acknowledgment must intend to adroit a present subsisting liability against himself in order that the provisions of Section 19 of the Limitation Act should apply. The law has thereafter been clearly stated by the Supreme Court in Shapoor Fredoom v. Durga Pd. Chamaria : 1SCR140 where emphasis has been laid upon the existence of a jural relationship between the parties at the time when one of them makes the acknowledg-ment and that 'it must appear that the statement is made with the intention to admit such jural relationship.'' Reference was made in that decision to Green v. Humphreys, (1884) 26 Ch D 474. Explaining what is an acknowledgment, Fry, L. J. observed as follows:
'In my view an acknowledgment is an admission by the writer that there is a debt owing him, either to the receiver of the letter or to some other person on whose behalf the letter is received but it is not enough that he refers to a debt as being due from somebody. In order to take the case out of the statute there must upon the fair construction of the letter, read by the light of the surrounding circumstances, be an admission that the writer owes the debt.'
11. It is plain that the law enunciated in the two earlier decisions of the Court is no longer good law and must be considered to have been overruled by the Full Bench decision of this Court in : AIR1943All393 (supra). It is also clearly inconsistent with the law laid down by the Supreme Court in : 1SCR140 (supra).
12. Accordingly, the plea of the plaintiff that limitation was extended, by acknowledgment under Section 19 of the Limitation Act must be repelled, and we hold that the suit is barred by limitation.
13. That being so, it is not necessary to express any opinion on the other question.
14. In the circumstances, the revision application is allowed, the decree of the Courts below is set aside and the suit is dismissed with costs.