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Beni Madhav (Deceased by L. Rs.) and anr. Vs. Smt. Chameli Devi (Deceased by L. Rs.) and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2156 of 1971
Judge
Reported inAIR1985All89
ActsLimitation Act, 1908 - Sections 19 - Schedule - Article 132
AppellantBeni Madhav (Deceased by L. Rs.) and anr.
RespondentSmt. Chameli Devi (Deceased by L. Rs.) and anr.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateS.B. Jauhari, ;J.D. Pradhan and ;Iqbal Ahmad, Advs.
DispositionAppeal allowed
Excerpt:
.....on the back of the mortgage deed under his hand. ghulam abbas air1929all242 also cited for the appellants, the recital contained in the written statement was depended upon in this behalf observing that an acknowledgment to be good should be a conscious acknowledgment of liability. for the respondent it was argued before me that the endorsement appearing at the back of the deed of mortgage is not explicit this is clearly devoid of force since the then counsel for the mortgagor endorsed admission of the execution of this deed on the back thereof and the factum of the recital being under his hand was admitted when that deed was placed on the record in the suit giving rise to this appeal in addition there remains the admission of the mortgagor himself in the aforementioned written..........is the common case of the parties that on october 6, 1947 dr. laxmi narain executed the registered deed of mortgage in favour of the plaintiff no. 2 in respect of the property in dispute. both the courts below have found that this was for cash consideration of rs. 13,000/- as also endorsed before the sub-registrar. the limitation in this case is governed by article 132 of the schedule to the old limitation act, 1908. under this provision, the suit could be brought within three years commencing from the date when the money sued became due. the suit was instituted as mentioned above, on july 12, 1961. in support of the contention that the suit is within limitation, the plaintiff-appellant asserted in the first place that dr. laxmi narain mortgagor had made payment of rs. 39,000/- on.....
Judgment:

B.D. Agarwal, J.

1. The sole question raised in this second appeal arising from Original Suit No. 61 of 1961 institutued in the Court of Civil Judge, Budaun on July 12, 1961 is of limitation. Far back on October 6, 1947 one Dr. Laxmi Narain executed a mortgage in favour of the plaintiff No. 2 by a registered instrument The mortgage was simple; the consideration for the mortgage was a sum of Rs. 13,000/- in cash and there was stipulation for repayment with interest at the rate of 6% per annum. The plaintiff No. 2 is the son of the plaintiff No. 1 since dead. The plaintiffs constituted a joint Hindu family of which the plaintiff No. 1 was the karta The loan was advanced from the joint family fund The plaintiffs contended that a sum of Rs. 3,900/-had been paid by the mortgagor on October 6, 1952 towards the interest and Rs. 10/- were paid on October 3, 1958. These payments were allegedly endorsed on the back of the mortgage deed. The action was for recovery of a sum of Rs. 19,831.50 (including interest). The mortgagor died in or about 1960. Smt. Chameli Devi the widow contested the suit pleading that the plaintiff No. 2 had advanced a sum of Rs. 10,000/- and not Rs. 13,000/- towards mortgage. It was denied that payments or endorsements on the back of the mortgage deed were made by her husband as claimed by the plaintiffs. The suit was also stated to be barred by limitation.

2. The trial Court came to the conclusion that the consideration advanced for the mortgage was a sum of Rs. 13,000/- in cash. It held that there had been no payment as asserted by the plaintiff nor had the mortgagor made endorsement in his hand The loan was advanced from the joint family fund as claimed by the plaintiffs. In view of the finding that there had been no payment accompanied with endorsement asserted by the plaintiff the suit was dismissed as barred by limitation. The lower appellate Court endorsed the finding recorded by the trial Court dated March 29, 1966 to the effect that there had been no payment endorsements made by the mortgagor. It also confirmed that the suit was barred by limitation and hence the plaintiffs' appeal was dismissed on July 21, 1971.

3. Aggrieved the plaintiffs have preferred this second appeal.

4. It is the common case of the parties that on October 6, 1947 Dr. Laxmi Narain executed the registered deed of mortgage in favour of the plaintiff No. 2 in respect of the property in dispute. Both the courts below have found that this was for cash consideration of Rs. 13,000/- as also endorsed before the Sub-Registrar. The limitation in this case is governed by Article 132 of the Schedule to the old Limitation Act, 1908. Under this provision, the suit could be brought within three years commencing from the date when the money sued became due. The suit was instituted as mentioned above, on July 12, 1961. In support of the contention that the suit is within limitation, the plaintiff-appellant asserted in the first place that Dr. Laxmi Narain mortgagor had made payment of Rs. 39,000/- on October 6, 1952, and thereafter sum of Rs. 10/- on October 3, 1958 and had endorsed these items on the back of the mortgage deed under his hand. The courts below have considered at length the evidence placed on record in support of these alleged payments coupled with the endorsements and have in that connection dealt with also the Expert's evidence. The concurrent finding arrived at is that the endorsement attributed to the mortgagor are not genuine. In the absence of any error of law shown to exist about this finding, it may not be claimed to be open to reagitation in this second appeal.

5. Learned counsel for the appellant urged that the claim is within limitation in view of the acknowledgment made by Dr. Laxmi Narain mortgagor as contemplated under section 19 of the Limitation Act 1908. In this connection the reliance placed by him is on the certified copy of the written statement which the mortgagor filed in original suit No. 31 of 1957 on February 9, 1959 and the statement that he made on oath dated September 18, 1959 in the same proceedings. Reference is made also to the endorsement of Sri Fakhre Alam counsel for the deceased mortgagor at the back of the deed of mortgage admitting the execution thereof It appears, plaintiff No. 1 Beni Madhav instituted original suit No. 3.1 of 1957 against Dr. Laxmi Narain for the recovery of certain amount on the basis of two promissory notes dated September 25, 1956 and October 20, 1956 respectively. The defendants therein put his contest The written statement dated February 9, 1959 was filed by him in this context In paragraph 3 of that written statement it was pleaded by him that there was no cash consideration advanced when these promissory notes were obtained but that the same were got executed in lieu of the outstandings mentioned against the deed of mortgage that he had made in favour of the plaintiff, namely, Beni Madhav. This was also the stand taken by him in his statement given on oath before the trial court in that suit on September 18, 1959. Therein too his contention was that he had not received anything in cash upon the execution of the promissory notes but that the same were in Hue of the outstanding amount against the mortgage deed executed in favour of the plaintiff No. 1. In the course of those proceedings the plaintiff had also placed on record the original mortgage deed dated October 6, 1947. On the back thereof Sri Fakhre Alam admittedly the counsel for Dr. Laxmi Narain the defendant made endorsement dated September 18, 1959 to the effect that the execution of bond 'executed'. Upon this deed of mortgage being placed on record in original Suit No. 61 of 1961 giving rise to this appeal before me, the then counsel for the respondents made endorsement dated 9th March 1971 admitting that the endorsement aforementioned was in the handwriting of Sri Fakhre Alam who had been as mentioned above, the counsel for the mortgagor in the earlier suit These statements and the endorsements were all prior to the expiry of the limitation of 12 years commencing from October 6, 1947.

6. Section 19(1) of the Limitation Act 1908 provides that where, before the expiration of the period prescribed for a suit in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed The expression 'signed' here means not only signed personally by such a party, but also by an agent duty authorised in that behalf Explanation 1 to the section then provides that an acknowledgment would be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment has not yet come, or is accompanied by a refusal to pay 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 The new Act of 1963 contains in Section 18 substantially similar provisions.

7. Learned counsel submits that the statements aforementioned made in writing and on oath by the mortgagor and also the endorsement for and on his behalf by the counsel concerning the due execution of the concerned deed of mortgage constitute acknowledgment for purpose of section 19 and since these were made within limitation, they have the effect to save the limitation prescribed for the suit This contention was raised for the plaintiffs before the lower appellate court also. The factum of this statement or the endorsement was accepted by the lower appellate court The benefit of section 19 was, however, declined observing that by these acknowledgments only the execution of the mortgage deed was admitted and since there was no acknowledgment of existing liability or an admission that the liability on the mortgage deed existed, the plaintiff could not avail of the same. This, it is submitted and not without force, is not the correct view of the law on the subject In Lakshmiratan Cotton Mills Co. Ltd v. Aluminium Corporation of India Ltd., : [1971]2SCR623 it was laid down : -

' It is clear that the statement on which the plea of acknowledgment is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act It need not however, amount to a promise to pay, for an acknowledgment does not create a new right of action but merely extends the period of limitation. The statement need not indicate the exact nature or the specific character of the liability. The words used in the statement in question, however, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor, and the intention to such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. Generally speaking a liberal construction of the statement in question should be given. That of course does not mean that where a statement is made without intending to admit the existence of jural relationship, such intention should be fastened on the person making the statement by an involved and far-fetched reasoning'

8. The base propounded is whether there, is admission of the existence of jural relationship between the parties. It is to be seen whether the statement relied upon relates to subsisting liability because section 19 requires that it must be made before the expiry of the period prescribed under the Act Applying this test it may be noticed that by means of his statement comprised in the written statement filed in original suit No, 31 of 1957 as also in the statement given on oath the mortgagor accepted the creation of the jural relationship as between the creditor and the debtor. The execution of the particular deed of mortgage is admitted also and more specifically this is through the endorsement of the counsel dated September 18, 1959. The mortgagor admitted in his statement, moreover the advance of Rs. 13,000/- as the consideration pleading that the promissory notes had been made in respect of the amount outstanding against the said mortgage. There was no indication in any shape or form given to the effect that the mortgage had been redeemed It is true that he claimed to have made substantial payments towards the mortgage but then this is some thing different from refuting subsisting liability under the deed of mortgage. The liability flowing from the said mortgage deed on account of the loan taken was in other words admitted by the mortgagor within limitation prescribed and this, as enunciated by their Lordships of the Supreme Court in the abovementioned case constitutes acknowledgment within the meaning of section 19. Unfortunately, the lower appellate court did not refer to the full text of this reported decision of the Supreme Court and it has been misled by a reference merely to the brief of the case contained in AIR 1971 N.S.C. 2 : : [1971]2SCR623 to which alone it refers.

9. The law is settled that an admission contained in the pleading of another proceeding made in the circumstances of the case may constitute acknowledgment against the maker thereof. In Balbhaddar Singh v. Sheo Pearey Lal, AIR 1930 Oudh 67 it was stated in the plaint that the defendants concerned were mortgagees of a part of the mortgaged property. In the corresponding paragraph of the written statement the recital was that the paragraph of the plaint 'is correct'. It was argued before the High Court that this admission of the mortgage in suit was an admission only as to the fact of execution of the mortgage and not of a liability thereunder and, therefore, section 19 of the Limitation Act did not apply. A Division Bench of this court repelled this contention pointing that it is not necessary that an acknowledgment should be express or that it should specify the exact nature of the right. There being the acknowledgment of the right of the mortgagee under the mortgage, this was enough for the purposes of section 19. In Chheda Lal v. Ghulam Abbas : AIR1929All242 also cited for the appellants, the recital contained in the written statement was depended upon in this behalf observing that an acknowledgment to be good should be a conscious acknowledgment of liability. It should appear that the person making the statement thought and believed that he was liable to be redeemed at the date of making of the statement There can be no doubt indeed as to this in the present case consideration being had to the fact that the statement given was also on oath by an educated person. The case reported in Raghubar Dayal v. Banwari Lal : AIR1933All352 also concerns acknowledgment made in a written statement. The plaintiff had filed a suit on the basis of a promissory note. The defendant in his written statement admitted the existence of two promissory notes but pleaded an agreement by which the plaintiffs had agreed to take a certain amount on account of both the promissory notes and that certain part of it had been paid. The agreement was not proved In a suit based on the second promissory note the plaintiffs relied on the above written statement to save limitation It was held that it was sufficient acknowledgment, though it omitted to specify the exact nature of the property or right The argument in that case also was that there was mere admission of execution of that other promissory note but the view taken was that this could adequately serve to save limitation under Article 19. The decision in Risal Singh v. Lal Singh 0043/1939 : AIR1939All483 shows that therein the statement of acknowledgment to save limitation. In Kamta Rai v. Rani Jaduraj Kunwari : AIR1931All398 the question arose concerning an admission by a pleader in a petition made in the ordinary course of business and the Division Bench held that this could serve as acknowledgment so as to give a fresh starting point. The authority to be given to the agent for purpose of section 19 was not required to be express. For the respondent it was argued before me that the endorsement appearing at the back of the deed of mortgage is not explicit This is clearly devoid of force since the then counsel for the mortgagor endorsed admission of the execution of this deed on the back thereof and the factum of the recital being under his hand was admitted when that deed was placed on the record in the suit giving rise to this appeal In addition there remains the admission of the mortgagor himself in the aforementioned written statement as also in the statement given on oath.

10. Consideration being had to the discussion made in the above I find that the appeal-lants-plaintiffs have established acknowledgment within limitation as contemplated under section 19 of the old Limitation Act and in view thereof the suit was within limitation.

11. The appeal consequently succeeds and is allowed The judgment and decree of the court below are set aside. The suit shall stand decreed with costs for the recovery of a sum of Rs. 19831-50 and pendent elite and future interest at the rate of 6% per annum simple against the assets of Dr. Laxmi Narain deceased in the hands of the legal representatives of the respondent No. 1 (Smt. Chameli Devi) (also dead). The judgment debtors shall have six months' time to make the payment Preliminary decree be drawn accordingly under Order XXXIV, rule 4, Code of Civil Procedure.


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