1. This appeal arises out of a suit for the redemption of a usufructuary mortgage dated the 2nd of January 1842 and the only question we have to determine is whether the claim is time barred or not.
2. The mortgage was made by Dalip Singh and others in favour of one Khushwakt Rai and related to the whole of the village Khera Buzurg. Khushwakt Rai died leaving' a widow, Musammat Jamna, and a daughter, Musammat Janki, both of whom are now dead. The defendants Shib Shankar Lal and Charan Bihari Lal are the sons of Musammat Janki.
3. On 12th November 1865 Musammat Jamna made a sub-mortgage of her mortgagee rights in favour of Akhay Ram and Day a Ram.
4. On the 31st of May 1866 she sold one half of her mortgagee rights to Debi Prasad and Gulab Rai and mortgaged to theni the other half which after her death was sold to those persons by her daughter Janki on 29th April 1867. So that Debi Prasad and Gulab Rai acquired the whole of the mortgagee rights.
5. Between the years 1880 and 1883 the mortgagors' rights in respect of 13 biswas 2 1/2 biswanisis were acquired by the mortgagees. Under various transfers and other transactions, to which we need not refer, these rights as well as the rights of the mortgagee passed to Munnu Lal, the father of the plaintiff and he thus became the owner of the whole of the mortgagee rights and of the rights of the mortgagors in respect of 13 biswas 2 1/2 biswansis. The remainder of the mortgaged property has been redeemed by the original mortgagors and as to this there is no controversy in this appeal.
6. Mmammat Janki, died on the 30th of May 1898 and on the 10th of May 1904 her sons the defendants Shib Shankar Lal and Charan Bihari Lal brought a suit against the present plaintiff to have the transfers of the mortgagee rights made by the two ladies, mentioned above, set aside and for possession of those rights. They obtained a decree on the 12th of August 1904 and the decree was affirmed by this Court on the 4th of February 1907.
7. On the 4th of March 1907, the suit which has given rise to this appeal was brought by the plaintiff for redemption of the 13 biswas 2 1/2 biswanasis share referred to above. As the suit was instituted after the expiry of 60 years from the date of the mortgage, the plaintiff invoked in aid the acknowledgment of the mortgage contained in the documents executed by the two ladies in the years 1865, 1866 and 1867. The Court below held them to be valid acknowledgments and decreed the claim.
8. The first contention raised on behalf of the appellants is that those documents do not contain an acknowledgment of liability and that they do not amount in law to an acknowledgment of the mortgage inasmuch as they were not signed by the ladies There cannot be any doubt that the mortgage in suit was in terms admitted by the ladies who executed those documents. In fact they purported to sub-mortgage and sell the rights which they possessed as holders of the mortgage of the 2nd of January 1842. The documents of 1865 and 1866 purported to have been executed by Musammat Jamna; as she was illiterate her signature was written on them by other persons. Similarly the sale-deed by Musammat Janki which purported to have been executed by her was signed for her by her husband. There can be no doubt that their signatures were affixed on the documents under their authority. They themselves admitted execution before the officer who registered the documents. The acknowledgments were, therefore, made and signed by them and not by their agents and in this respect we fully agree with the Courts below.
9. It is next urged that the acknowledgments made by the two ladies do not save the operation of limitation. Reliance is placed on the terms of Section 19 of the Indian Limitation Act (No. XV of 1877) and it is contended that as the acknowledgments were not made by the defendants themselves and as they do not derive title from the ladies who made them, a new period of limitation cannot be computed from the dates of the acknowledgments. The provisions of Section 19 differ in this respect from, those of Clause 15, Section 1 of Act No. XIV of 1859 .which was the Act in. force at the time when the acknowledgments were made and signed. Under that clause a new period of limitation could be reckoned in a suit for redemption of a mortgage, from the date of an acknowledgment of the title of the mortgagor or of his right of redemption 'given in writing signed by the mortgagee or some person claimingunder him.' Section 19 provides that an acknowledgment which would give a new start for the computation of limitation must be an acknowledgment by the defendant against whom the right of redemption is claimed 'or by some person through whom he derives title or liability'. Whilst, therefore, under Act No. XIV of 1859 an acknowledgment by the mortgagee or his successor in title would have saved limitation, it would have no effect under Act No. XV of 1877 unless it was made by the defendant or his predecessor-in-title. Had Act No. XIV of 1859 applied to the present case the acknowledgments by the two ladies would have been operative as they were persons claiming under the original mortgagee. It is clear that under the later Act the acknowledgments would be of no avail. They were not made by the defendants and the persons who made them were not persons from whom the defendants derive title. The defendants succeeded to the mortgagee rights as the grandsons of the original mortgagee, Khushwakt Rai, and not as the sons of their mother Janki, and acquired those rights by virtue of inheritance to their maternal grand-father who was the last full owner. It is settled law that one reversioner does not derive title from another but from the last full owner Bhagwanta v. Sukhi 22 A. 33; Chheddu Singh v. Durga Dyi 22 A. 382 and the rulings of the Privy Council cited in those cases. The learned Counsel for the plaintiff-respondent contends that as the widow and the daughter of the mortgagee fully represented the estate they must be regarded as the persons from whom the title of the defendants was derived and he relies on the analogy of the cases in which it was held that a decree obtained against a Hindu widow is binding on the reversioner if there was a fair trial of the suit in which the decree was passed. We are of opinion that the analogy does not apply. In the case of Katama Nutcliiur v. The Raja of Shivagungah 9 M.I.A. 539 : 2 W.R. 31 (P.C) in which the above rule, was laid down, their Lordships of the Privy Council said : Their Lordships are of opinion that unless it could be shown that there had not been a fair trial of the right in that suit or, in other words, unless that decree could have been, successfully impeached on some special ground it would have been an effectual bar to any new suit in the Zilla Court byany person claiming in succession 'to Anga Motoo Natchiar. For assuming her to be entitled to the zemindary at all, the whole estate would for the time be vested in her absolutely for some purposes, though in some respects, for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindu widow, and it is obvious that there would be the greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against, the widow' (p. 604). Their Lordships held the decree to be binding on the reversioner, not on the ground that 'he derived his. title from and was claiming under the widow but. on the ground that she fully represented the estate for the time and' that the greatest possible inconvenience' would arise if the decree were not binding on the succeeding heirs'. If the litigation was fairly and properly conducted the widow was seeking to protect the estate and was acting for its benefit. The decree passed in the litigation would, therefore, bind the estate in the hands of the person or persons who succeeded to it after her. A widow acknowledging the right of redemption of the mortgagor in respect of a mortgaged estate cannot be deemed to have acted for the benefit of the estate. It would be unreasonable to hold that her act would bind the estate and to apply to a case like this the analogy of the rule of res judicata referred to above. Further more, their Lordships did not hold in the Shiva Ganga case 9 M.I.A. 539 : 2 W.R. 31, (P.C) or in other subsequent cases that a reversioner derived his title from the widow or other female heir holding a limited interest.
10. Mr. Agarwala next urges that as the acknowledgments made in his case were valid acknowledgments under Act No. XIV of 1859 and Article 148, Schedule II of Act No. IX, of 1871, being acknowledgments by persons claiming under the mortgagee, the subsequent alteration of the law of limitation cannot affect the right of redemption of the plaintiff. It is' said that the plaintiff acquired a title by virtue of the acknowledgments and that title cannot be taken away by subsequent legislation. In support of this contention we are referred to Section 2 of Act No. XV of 1877 which provides that nothing contained in the Act shall be deemed to affect any title acquired' under any enactment repealed by the Act.
11. With reference to this provision it was held by a Full Bench of this Court in Zulfikar Husain v. Munna Lal 3 A. 148 that the term 'title acquired' denotes a title to property as contra distinguished from a right to sue. An acknowledgment of liability only extends the period of limitation for the institution of a suit and does not confer a title to the property. Therefore, according to this ruling, Section 2 does not help the plaintiff and cannot save the application of the Act of 1877. The learned Counsel referring to Section 6 of the General Clauses Act, 1868, contends that in the above ruling the provisions of that section were not considered. The ruling being one of a Full Bench is binding on us and must be followed. Besides, we do not think that Section 6 applies inasmuch as an acknowledgment is not a thing done' in pursuance of any Act of the legislature. The law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there is a distinct provision to the contrary, see Gurupadapa Basapa v. Virbhadrapa Irsangapg 7 B. 459.
12. As Act No. XV of 1877 was in force when this suit was brought and there is no provision in it limiting or postponing its application, Section 19 of that Act applies to this case. And under that section the acknowledgments relied on cannot give to the plaintiff a new start for the computation of limitation as they were not made by the defendants or by persons from whom they derive their title.
13. It is next urged that even if the acknowledgments are of no avail to the plaintiff the claim is not time barred because there was a fusion of the interests of the mortgagor and the mortgagee in the same person between the years 1883 and 1898, that no mortgage was in existence during that period and that Article 148 of the second schedule to Act No. XV of 1877 does not consequently apply. It is contended that the suit is governed by Article 120 and that the plaintiff's cause of action arose when there was a bifurcation of interest upon the death of Musammat Janki in 1898. In support of this contention a number of English authorities have been cited. We do not deem it necessary to refer to those cases as they do not appear to us to be in point. If it be assumed that Article 120 applies to the case, the plaintiff's right to sue admittedly arose on the death of Janki in 1898. And the six years' limitation prescribed by the article expired in 1904. This suit which was not instituted until the 4th of March 1907 was, therefore, beyond time. Further, a complete fusion of interests did not take place as Janki had only a limited interest in the mortgagee rights and it was this limited interest which the plaintiff purchased from her.
14. The last contention on behalf of the plaintiff-respondent is that the matter is res judicata; under Section 13, Exp. II of Act No. XIV of 1882 inasmuch as in the suit brought by the defendants in 1904 they could have claimed the whole estate the equity of redemption having become extinct, but did not do so. We do not agree with the contention. In the suit referred to, the defendants claimed only the rights of the mortgagee on the ground that Musammat Janki and her mother had only life-estates 1 and there was no legal necessity for the transfers made by them. For that claim they were bound to put forward all matters which might have been made ground of attack. The extinction of the equity of redemption could not have been any ground for claiming the rights of the mortgagee but would have been inconsistent with such a claim. It may be said that they relinquished a part of the relief which they were entitled to ask for. Such relinquishment would under Section 43 have barred a subsequent suit for that relief but cannot preclude a defendant from putting it forward as a defence to a suit brought against him.
15. For the reasons stated above we are of opinion that the claim is barred by limitation and that the acknowledgments relied upon by the plaintiff cannot take the case out of the operation of limitation. We, accordingly, allow the appeal, discharge the decrees of the Courts below and dismiss the suit with costs in all Courts including fees on the higher scale.