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Jaigopal Misir and anr. Vs. Sheo Sagar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Judge
Reported in4Ind.Cas.579
AppellantJaigopal Misir and anr.
RespondentSheo Sagar Singh and ors.
Excerpt:
limitation act (xv of 1877), section 19 - acknowledgment--by whom to be signed--acknowledgment by mortgagee need not be addressed to the mortgagor--evidence act (i of 1872), sections 35, 61, 62 and 63--statement in a judgment--secondary evidence--certified copy of translation of judgment. - - that being so, the lower appellate court was perfectly right in holding that the statement in the copy of the translation of the judgment did not satisfy the requirements of section 19 of the indian limitation act. 576. but the law laid down in that ruling, with due respect to the learned judges, who decided that case, is not good law......or the application dated 10th may 1895 saves limitation. the judgment relied on is a certified copy of a translation in urdu from an english judgment of the subordinate judge in suit no. 261 of 1873 which was brought by the representatives of the original mortgagee against ram tahlu and others. the plaint in that suit has been weeded out. the opening words in the urdu translation of the judgment are 'muddiyan bayan karte hain ke bazarya haq rehan ke hamara qarza uper hissa zemindari nakchidd miser ke mouza gabiya.... ' the learned vakil for the appellants argues that these words amount to an acknowledgment, and as the original plaint has been weeded out, he is entitled to rely upon the certified copy of the urdu translation of the judgment which is secondary evidence under section 65.....
Judgment:

Karamat Husain, J.

1. This was a suit for redemption of a mortgage. One of the pleas in defence was that the suit was barred by limitation. The Court of first instance repelled this plea and gave the plaintiffs a decree for redemption. On appeal by the defendants the lower appellate Court came to the conclusion that the suit was barred by limitation and set aside the decree of the Court of first instance. The plaintiffs have preferred a second appeal to this Court; and it is contended on their behalf that acknowledgments contained in certain documents save limitation under the provisions of Section 19 of the Indian Limitation Act No. XV of 1877. The facts on which the determination of the question raised by the learned Vakil for the appellants rests are as follows: The mortgage sought to be redeemed was made on the 10th of July 1832 for a period of three years. The period of sixty years allowed for redemption thus expired on the 10th of July 1895. The present suit was instituted on the 27th of May 1907. The suit is thus obviously barred by limitation. The learned Vakil for the appellants, however, says that in consequence of acknowledgement made in the mortgage-deeds of 7th May 1875, 7th November 1877, the judgment dated 30th August 1873 and the application dated 10th May 1895, the suit is not barred by limitation. As no argument was based upon the two mortgage-deeds in the lower appellate Court and as that Court after considering the judgment and the application referred to above remarked: 'These were the only two documents on which the respondent's pleader relied as saving limitation,' the learned Vakil for the appellants is not entitled to base any argument upon those two mortgage-deeds. It only remains to consider whether the judgment dated 30th August 1873 or the application dated 10th May 1895 saves limitation. The judgment relied on is a certified copy of a translation in Urdu from an English judgment of the Subordinate Judge in Suit No. 261 of 1873 which was brought by the representatives of the original mortgagee against Ram Tahlu and others. The plaint in that suit has been weeded out. The opening words in the Urdu translation of the judgment are 'Muddiyan bayan karte hain ke bazarya haq rehan ke hamara qarza uper hissa zemindari Nakchidd Miser ke mouza Gabiya.... ' The learned Vakil for the appellants argues that these words amount to an acknowledgment, and as the original plaint has been weeded out, he is entitled to rely upon the certified copy of the Urdu translation of the judgment which is secondary evidence under Section 65 of the Indian Evidence Act. He also contends that under Section 35 of the said Act the statement made by the learned Subordinate Judge as a public servant in the discharge of his official duty' is a relevant fact. The statement made by the learned Subordinate Judge and contained in his judgment is undoubtedly a relevant fact under the provisions of Section 35 of the Indian Evidence Act. But being contained in a document it is to be proved either by primary or by secondary evidence under Section 61 of the Indian Evidence Act. It is admitted by the learned Vakil for the appellants that the copy of the translation of the judgment is not primary evidence. But he contends that it is secondary evidence. The judgment dated 30th August 1873 was originally written in English. But under the provisions of Section 185 of Act No. VIII of 1859, old Civil Procedure Code, which was then in force, the judgment was translated into Urdu, and the translation was signed by the Subordinate Judge. The Urdu translation of the judgment was, therefore, primary evidence of its contents. But a certified copy of the translation of the judgment cannot possibly be regarded under Section 63 of the Indian Evidence Act as secondary evidence of the plaint filed in the suit. It is contended by the learned Vakil for the appellants that this copy may be regarded as Oral account of the contents of the plaint under Clause (3) of that section. I am unable to accept this contention. A copy of the Urdu translation of the English judgment can by no means be said to be an oral account of the contents of the plaint. This copy may, however, be regarded as secondary evidence of the original translation. But there is nothing on the record to show that the plaintiffs when they put in the copy in question as secondary evidence established that they were entitled to prove the contents of the original translation by means of secondary evidence. Granting for the sake of argument that they were so entitled, the statement contained in the copy to the effect that the then plaintiffs were mortgagees will not satisfy the requirements of Section 19 of the Indian Limitation Act No. XV of 1877 One of the essential elements of an acknowledgment under Section 19 of the Limitation Act is that it be signed by the party 'personally or by an Agent duly authorized in this behalf, or by some person through whom he derives title or liability'. The translation of the judgment must under the provisions of Section 185 of Act VIII of 1859 have been signed by the Subordinate Judge, but it could not have been signed by the mortgagee personally, nor by his duly authorized agent, nor by some person through whom he derived title or liability. That being so, the lower appellate Court was perfectly right in holding that the statement in the copy of the translation of the judgment did not satisfy the requirements of Section 19 of the Indian Limitation Act. In this connection I may mention that the learned Advocate for the respondents contended that as the so-called acknowledgment in the copy of the translation of the judgment was not made to the mortgagor, it did not amount to an acknowledgment within the meaning of Section 19. In support of this contention he relied upon 'Imam Ali v. Baijnath Ram Sahu 33 C. 613; 10 C.W.N. 551; 3 C.L.J. 576. But the law laid down in that ruling, with due respect to the learned Judges, who decided that case, is not good law. According to explanation I of Section 19 it is not necessary that an acknowledgment, by or on behalf of a mortgagee must be addressed to the mortgagor. A Bench of the Calcutta High Court in Brigo Nath Sahu Gaya Sundari Dassya 6 C.L.J. 141 did not follow the case relied on by the learned Advocate for the respondents but held that it was not necessary that an acknowledgment should be addressed to the person entitled. The learned Judges remark as follows: 'It is contended that the acknowledgment of liability was not to the decree-holder or any one through whom he claims. The cases of Mylapore Iyasawmy Vyapoory Moodliar v. Yeokay 14 C. 801; 14 I.A. 168 and Imam Ali v. Baijnath Ram Sahu 33 C. 613; 10 C.W.N. 551; 3 C.L.J. 576 are relied on in support of this argument. But this contention is against the terms of the explanation to Section 19 of the Limitation Act, and their Lordships of the Privy Council in the recent case of Maniram v. Seth Rupchand 33 C. 1047; 4 C.L.J. 94; 8 Bom. L.R. 501; 10 C.W.N. 874; 1 M.L.T. 199; 3 A.L.J. 525; 10 M.L.J. 300; 2 KL.B. 130 have adhered to the provisions of the explanation to Section 19. They say the acknowledgment is not addressed to the person entitled but according to the explanation given in Section 19, this is not necessary'. That being so, the acknowledgment in question is sufficient to save limitation. The next document on which the learned Vakil for the appellants relies is the application dated 10th May 1895. This application bears the signature of Chhaterpati Singh alone. The learned Vakil for the appellants on the authority of Deonarain Rai v. Kukur Bind 24 A. 319 argues that the said signature ought to be regarded as the signature for all the applicants under an authority given by them to Chhaterpati Singh. With reference to that application the lower appellate Court in its judgment remarks: 'This application is signed by one of the several applicants only, and there is nothing to show that he was authorized to sign it on behalf of the other applicants'. In face of such a finding, I am unable to hold that the application was signed by Chhaterpati Singh on behalf of all the applicants. In this connection I may note that in the copy of the application the word rehandari may, no doubt, be read as zemindari. But on a reference to the original document which is to be found on the original record of the case, I have no doubt that the word is rehandari and not zemindari. The dakhalnamah on that record is signed by Chhaterpati in Hindi as rehandar.

2. For the above reasons, I hold that the conclusions arrived at by the lower appellate Court are right. I dismiss the appeal with costs which in this Court will include fees on the higher scale.


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