S.D. Singh, J.
1. This special appeal arises out of suit No. 165 of 1954 of the Court of Munsif, Ramsanchighat. district Barabanki. The plaintiffs-respondents (to be referred to hereafter only as plaintiffs) filed the suit against the defendant-appellant (to be referred to hereafter as the defendant) for recovery of possession over a grove, about the identity of which there is no dispute.
The plaintiffs claimed to be the representativesof one Ganeshi, who had mortgaged this grovewith possession with one Sita Ram under a mortgage-deed dated 20th June, 1873. There was a stipulation in the document that if the mortgagewas not redeemed by a certain date in 1882, the mortgage-deed would be deemed to be a sale deed and that Sita Ram would thereafter be entitled to retain the grove as a purchaser thereof. This stipulation has been held to be only by way of aclog on the equity of redemption, and the document has been held to be a usufructuary mortgage-deed, pure and simple.
The mortgagee Sita Ram was succeeded by one Gauri Shankar, who, under a document dated 15th June, 1906, transferred his interest in favour of the present defendant Ram Hazari, who is now in possession of the grove.
2. One of the contentions raised in the suit was that the mortgagor not having redeemed the mortgage within sixty years of the execution of the mortgagee-deed or the date stipulated for payment, the suit for redemption is now barred by time and that Ram Hazari has become full owner of the property. It was, on the other hand, contended on behalf of the plaintiffs that the liability underthe mortgage-deed was admitted by Gauri Shankar in the document executed by him on 15th June, 1906, in favour of the defendant and that this acknowledgment extends limitation for redemption of the mortgage under Section 19 of the Limitation Act. The defendant also relied upon Article 134 of the First Schedule of the Indian Limitation Act, which prescribes a limitation of 12 years for recovering possession of immovable property mortgaged from the date the transfer becomes known to the plaintiff. It was contended that the transfer of the property in favour of Ram Hazari had come to the notice of the plaintiffs more than twelve years before the filing of the suit and that the suit had, consequently, become barred by time even under that article.
The principal amount of the mortgage-deed was Rs. 50/-, but the parties were agreed that in case the suit was found to be within time, the plaintiffs would be entitled to obtain possession on payment of Rs. 35/- only. The trial Court held that the suit was within time and decreed the suit on payment of Rs. 35/- to the defendant. The appeal filed by the defendant was dismissed by the Civil Judge and the second appeal by our brother Beg, J.
3. In respect of the allegation regarding acknowledgment of liability, it has been observed by the learned single Judge:
'A reference to the document, however, shows that this argument is based on a misapprehension. I have read the document, and it contains a clear acknowledgment of the mortgagee.'
The first question for determination in this appealtherefore, is whether there is acknowledgment ofGauri Shankar in the sale deed dated 15th June,1906, within the meaning of Section 19 of theLimitation Act.
4. The relevant portion of Section 19(1) of the Limitation Act reads:
'19 (1) Where, 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..... a fresh period of limitation shell be computed from the time when the acknowledgment was so signed.'
(5) Explanation 1 to this section is also important and has some bearing on the application of Section 19. It reads :
'For the purpose of this section an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right.'
6. A bare reading of Sub-section (1) of Section 19 will, therefore, show that in order that limitation may be saved, there must be an acknowledgment of liability by the defendant and if there is acknowledgment of liability by him, then it would not matter if it omits to specify the exact nature of the property or right, or avers that the time forpayment' delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right.
7. The main question to be considered in this case, therefore, is whether there is any acknowledgment of liability in the document Ext. 14. The document recites in its earlier part:
'Our ancestor Sri Sitaram Shukul had obtained a grove No. 1799, 2 bigha, 15 biswa kham, 18 biswa, 10 biswansi pukhta with, 41 trees, i.e., 34 'mango trees, 4 mahua trees and 1 kathal and Barhal and 1 Aonla tree from Sri Ganeshi Dubey, resident of purey Tarapat, hamlet of village Ghasipur, pargana Daryabad, tahsil and district as described above, ancestor of Bhagwandin, son of Ghisa, caste Brahaman Dubey under a mortgage-deed dated Asarh Badi Duij, Sambat 1929 and year 1279 Fasli for a sum of Rs. 50/- and now that grove in the settlement khewat and patwari's papers 'bataur bai key ho gai hai' (has become like a sale) as there was a condition in the document that if money was not paid in time, then it will be treated as a sale.'
Towards the end of the document Gauri Shankarfurther recites:
'Ram Hazari, aforesaid, may enter into possession over and enjoy the aforesaid grove like myself and in accordance with the conditions of the previous document which I have given to them. I and my descendants will have no objection.'
It was contended that this recital in the deed amounts to acknowledgment of liability within the meaning of Section 19 of the Limitation Act.
What he acknowledged is his liability at one time as a mortgagee; he however, denied that the liability was existing at the time of the deed. When he claimed to be the proprietor, it means that he denied that he was still liable as a mortgagee. He based his title as a proprietor on the mortgage-deed and so admitted it. He relied upon a term in the mortgage-deed itself for his contention that he had ceased to be liable as a mortgagee and had acquired proprietary rights. Acknowledgment within the meaning of Section 19 is acknowledgment of liability existing at the time of the acknowledgment and not of its having existed sometime earlier. The words 'like myself' mean 'on the same right as I possess at the time of the execution of the deed', i.e., as a proprietor, since he claimed to be the proprietor at the time. The words have reference to this right claimed by Gauri Shankar at the time of the execution of the document, and not the right possessed by him sometime earlier. We find that though he admitted the mortgage-deed and his conditional liability under it as a mortgagee, he denied that it was continuing and expressly claimed proprietary right, which was wholly inconsistent with mortgagee right.
8. Some emphasis was laid by the learned Counsel for the respondents on Explanation 1 ofSection 19, which has been quoted by as in full earlier. There is no question in this case of Gauri Shankar having omitted to specify the exact nature of the property or right or having averred that thetime for payment, delivery, performance or enjoyment had not come. It was, however, the latter part of the Explanation which was sought to be relied upon. According to this latter part of this explanation, even if the acknowledgment of liability is accompanied by a refusal to pay, deliver, perform or permit to enjoy, limitation would nevertheless be saved.
Even this part of the Explanation does not apply to the facts of this case as Gauri Shankar does not, while referring to the transaction of mortgage, 'refuse to pay, deliver, perform or permit to enjoy'. He, on the other hand, denies that his liability under the mortgage-deed has been continuing by asserting that under the terms of the document itself the mortgage-deed stands converted into a deed of sale. A person can admit his liability, and yet refuse to discharge it, and it is this case that is covered by the Explanation. It must not be confused with a statement that a liability once existing has ceased to exist. Denying that the liability continues is not refusing to discharge it. This is, therefore, not a case of 'refusal to pay, deliver, perform or permit to enjoy', but a case where Gauri Shankar asserts his own title to the property. The document has to be read as a whole, and if that is done, one can arrive at only one conclusion, namely, that, according to Gauri Shankar, the mortgage liability was not subsisting on the date on which the document was executed, and consequently there is no acknowledgment within the meaning of Section 19 of the Limitation Act.
9. Some decided cases were referred to by the learned Counsel for the respondents to show that the acknowledgment of the nature made in the document, Ext. 14, should be sufficient to establish acknowledgment of liability within the meaning of Section 19 of the Limitation Act.
The earliest case referred to by him is Har Narain v. Sheo Prasad, 11 All LJ 86. In that case B, the mortgagee, sold the mortgagee rights to C on 13th October, 1906, and frecited in the sale deed that he held the property as mortgagee under a mortgage-deed dated 11th June, 1849. That was, therefore, a clear case of acknowledgement of liability. While mentioning the date of the mortgage in the sale deed, the month was mentioned as June instead of May, and it was held that an acknowledgment of liability could not be ruled out merely because the date of the mortgage given therein was not correct. The other point decided in that case was that an acknowledgment in order to be valid need not be addressed to the person entitled to the property or the right. That question has not been raised in the appeal before us. This case, therefore, is of not any help to the respondents.
Sidhari Ram v. Gargi Din, AIR 1924 All 458 is also a case in which the mortgagee sold the mortgagee rights, and purported to sell his rights as mortgagee. It was held that the sale of mortgagee rights was an express acknowledgment of the existence of a subsisting mortgage and of subsisting rights which he was competent to sell. Even this case does not, therefore, help the respondents; the acknowledgment was regarded as acknowledgment of subsisting rights, while in the instant case before us Gauri Shankar specifically mentioned that themortgage was no longer subsisting and the transaction had, by lapse of time, converted itself into one of sale.
10. In Sanwal Das v. Saiyid Ali Madhi : AIR1925All174 a sub-mortgagee was executing the decree obtained by him, and, in connection with his application for execution of the decree, he submitted the list of the property to be sold and described that property to be subject to a prior mortgage. It was held that this amounted to an acknowledgment of liability under the prior mortgage and saved limitation for the redemption of that mortgage against the sub-mortgagee. This is also a clear case in which there was acknowledgment of existing liability by the sub-mortgagee under the prior mortgage. When the prior mortgage was mentioned as one, subject to which the property was to be sold in execution of the decree, the sub-mortgagee clearly admitted the prior mortgage to be subsisting on the date and this clearly, therefore, amounted to an acknowledgment of a subsisting liability under the aforesaid mortgage.
11. In B. Adya Prasad Singh v. Lal Girjish Bahadur Pal : AIR1933All364 a decree-holder gave the judgment-debtor a letter wherein he agreed not to take out execution of the decree up to a certain date. The judgment-debtor filed an application in the Court praying that the letter be placed on record. It was held that the application which was accompanied by the letter was an acknowledgment of liability in respect of the amount due under the decree within the meaning of Section 19 of the Limitation Act.
It was observed by Niamatullah and Kisch, JJ. : 'The letter recites that it has been settled between the parties that no further execution shall be taken out in respect of the money still due under the decree before the end of 1930. The application cannot be read otherwise than as admitting the contents of the letter and filing it in Court as a guarantee that the decree-holder shall observe the terms of the agreement recorded therein.'
The learned Judges further observed: 'In the light of explanation 1, Section 19, Limitation Act, it seems to us that the application even if considered by itself cannot be construed otherwise than as an acknowledgment that the applicant was a judgment-debtor in a suit in which the opposite party was the decree-holder and that the decree was unsatisfied, which is a sufficient acknowledgment of liability to satisfy the requirements of Section 19. When the application is read with the letter, as we hold that it must be read, a clear admission is added that the applicant still owes the decree-holder money under the decree and has obtained a receipt from the decree-holder up to the end of 1930 for making further payment. This is a clear acknowledgment of liability.'
It will thus be seen that this was also a case in which there was an acknowledgment of subsisting liability by the judgment-debtor.
12. Risal Singh v. Lal Singh 0043/1939 : AIR1939All483 was the next case relied upon, and it was urged that this is a case which is on all fours with the one before us. In this case, the decree-holder obtained a mortgage decree against the judgment-debtor and the decree was even made absolute.
'Thereafter the decree-holder moved an application for an injunction against the judgment-debtor so as to prevent some apprehended waste of part of the mortgaged property. In answer to that application the judgment-debtor filed an objection in which he stated:
'The mortgage suit No. 26 of 1930 has come to end after the passing of the final decree. The plaintiff now cannot legally move an application for injunction in the case.'
13. The judgment-debtor was also examined in Court and in the course of his statement he stated 'I had mortgaged my share.....' These two statements, one in the objection, and the other in the Court were held to amount to an admission of subsisting liability and, consequently, acknowledgment which saved limitation for a subsequent application for execution which would have otherwise been barred by time. It was contended on behalf of the respondents that in this particular case all what the judgment-debtor admitted was that he had once mortgaged his property and that a mortgage-decree had already been passed against him and did not specifically acknowledge his liability under the same and it was, therefore, contended that on the basis of this decision we must hold that there is sufficient acknowledgment of liability even in the case before us.
The facts in the two cases are, however, materially different and it is not possible for us to take the decision in 0043/1939 : AIR1939All483 (supra), as being fully applicable to the facts before us. In that case what the judgment-debtor wanted to contend was that since a final decree had already been passed in the suit against him, it was no longer open' to the decree-holder to move an application for an injunction. This recital by him was taken to be an acknowledgment of liability. Rachhpal Singh and Mohammad Ismail, JJ. pointed out even in this case that an acknowledgment in order that it may be taken as an acknowledgment of liability under Section 19 of the Limitation Act must show 'a definite and conscious acknowledgment of subsisting liability'. The admission made by the judgment-debtor was taken to be a definite and conscious acknowledgment probably because if the judgment-debtor had ceased to be liable under the mortgage-decree either on account of payment or any subsequent agreement between the parties, or lapse of limitation or for any reason whatsoever, he would have pleaded those circumstances in answer to the application for injunction rather than that the final decree having already been passed, the application for injunction in the proceeding could no longer be entertained. It was probably because of these circumstances that it was held that there was an acknowledgment of a subsisting liability by the judgment-debtor.
14. Apart from this the circumstances of each case have to be judged in the light of the facts and circumstances surrounding it, as has been observed in 0043/1939 : AIR1939All483 (supra) itself:
'Whether a particular document does or does not amount to acknowledgment of subsisting liability is a matter for construction which the Courts will place on it.'
It is in the light of what is stated by Gauri Shankar in the document which is before as for consideration that the question will have to be determined in the case, namely, whether he was actually acknowledging a subsisting liability under the previous mortgage-deed.
15. Bachu Lal v. Jang Bahadur Rai, AIR 1939 Pat 427 was the next case referred to on behalf of the respondents. This is also a case in which a mortgagee sub-mortgaged the property and while doing so recited his own mortgagee rights and liabilities under the original mortgage. This was obviously a clear acknowledgment of his liability under the original mortgage within the meaning of Section 19 of the Limitation Act and does not consequently help the respondents.
16. Udhavji Anandji v. Bapudas Ramdas : AIR1950Bom94 also does not help the respondents. There also the acknowledgment was of a subsisting liability. With reference to the letter which contains the acknowledgment, Chagla, C. J., who delivered the judgment of the Court observed:
'Now this letter in our opinion clearly admits that there are subsisting accounts between the parties, and once an admission is made of subsisting accounts, there is a clear acknowledgment of liability to render accounts and to pay whatever is due.'
17. The letter was regarded as an acknowledgment of liability as it acknowledged subsistingaccounts between the parties.
18. Jai Narain v. Governor General of India : AIR1951Cal462 only lays down that it is not necessary that there should be a specific anddirect acknowledgment of the particular liability which is sought to be enforced, and if there is anadmission of facts of which the liability in question is a necessary consequence, there should be an acknowledgment within the meaning of Section 19. Even according to this case, the question would be one of interpretation of the document before us and we would have to see whether there is in it an admission of facts from which the liability in question arises as a matter of law. WhenGauri Shankar expressly denied that his liability as a mortgagee was subsisting, there is no problem of interpretation presented in this case.
19. In T. Satyanarayanamoorthy v. M. Ramireddi, AIR 1924 Mad 856, a debtor said :
'The debt due to the creditor, K. Basava Reddy was a mortgage-debt. It ripened into a decree. Itwas in O. S. No. 80 of 1910, on the file of the Ellore Sub-Court. He gave me a letter that he would proceed against the mortgaged properties only and would not proceed against my person.'
Though he said in the end,
'These debts are due by me along with others, but they were paid by me alone. I, therefore, owe no debts to any of my creditors',
the statement was held to be an acknowledgment of liability within the meaning of Section 19 of the Limitation Act. If the earlier part of the statement is taken into consideration, it is obvious that there was a clear acknowledgment of subsisting liability; but the conclusion would beotherwise, if the last two sentences were also considered, in which the debtor alleged that the debtshad been paid by him and that he owed no debt to any of his creditors. There is no discussion in the judgment of the effect of this part of the statement on the acknowledgment and it was only on the basis of the earlier statements that it was held that there was a clear admission that the appellant was in debt to the plaintiffs.
Even in this case it has been observed, on the basis of certain rulings mentioned therein, that each case is to be considered on its own merit. If this case is taken to lay down that there was an acknowledgment of liability even though the debtor specifically alleged that the debt had been paid by him and no sum was due against him, we find it difficult to endorse that view. If, however, the judgment proceeded on the basis of the earlier part of the statement alone, the decision does not help the respondents at all.
20. None of these cases, therefore, supports the contention of the respondents that in a case, such as the one before us, 'acknowledgment of liability' within the meaning of Section 19 of the Limitation Act should be presumed. They are all, on the other hand, authority for the proposition that in order that limitation may be saved, the acknowledgment should be of a subsisting liability. Acknowledgment of the original transaction may also under certain circumstances, amount to acknowledgement of a subsisting liability thereunder, as Was found to be the case in 0043/1939 : AIR1939All483 , but where the liability is specifically denied, that inference would be almost impossible.
Though 'refusal to pay, deliver, perform or permit to enjoy' or setting up of a claim of a set-off would not do away with the effect of acknowledgment, the position is different where the liability itself is denied, as in that case there is no acknowledgment of any subsisting liability at all. In the case before us, Gauri Shankar specifically denies his liability and clearly asserts that the mortgage-deed has become a sale deed in terms of the document itself. It may be that in this assertion he was wrong, as the document has been held to be a mortgage-deed with a stipulation by way of a clog on the equity of redemption; but that does not mean that Gauri Shankar is to be deemed to have acknowledged his liability on that account. In that view, therefore, the suit for possession over the grove should have been dismissed as barred by time.
21. The appeal is allowed. The judgmentsand decrees of the trial Court, the first appellateCourt and the learned single Judge of this Courtare set aside. The suit of the plaintiffs will standdismissed with costs to the appellant throughout.