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Genda Mal and ors. Vs. Ilahi Buksh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.510
AppellantGenda Mal and ors.
Respondentilahi Buksh and ors.
Excerpt:
.....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 set-off, or is addressed to a person other than the person entitled to the property or right'.the learned additional district judge says: but i am satisfied that they never intended to decide that the mere fact that the admission was not made to the plaintiff or to any one through whom he claims, renders insufficient an acknowledgment otherwise sufficient. ' it is perfectly clear from the concluding words of this passage that their lordships thought that it was not necessary that..........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 in writing, signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a now period of limitation according to the nature of the original liability shall be computed from the time when the acknowledgment was so signed.' the rest of the section is immaterial except explanation 1, which is as follows: 'for the purposes 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.....
Judgment:

Richards, J.

1. This was a suit to redeem two usufructuary mortgages dated respectively the 4th of September 1839 and the 21st September 1839. A sub-mortgage was made on the 25th July 1890. I shall assume for the purposes of my judgment that the plaintiffs are the persons who in the events which have happened, and subject to the question of limitation would be the persons entitled to redeem. The defendants are the representatives of the original usufructuary mortgagee and the sub-mortgagees or their representatives (except the defendant No. 14 who has been made a pro forma defendant, because he would not join in the suit). The suit was not instituted until the 9th of April 1906 and having regard to the date of the mortgages it is quite clear that the suit would be barred by limitation unless there was a sufficient acknowledgment within the meaning of Section 19 of Act XV of 1877. Both the Courts below have decided that there was no such acknowledgment and dismissed the suit. The sole question which I have to determine is whether or not there was an acknowledgment. The acknowledgment relied upon is contained in the sub-mortgage of the 25th July 1890. In this document the mortgagees state that they hold the property under the two mortgages of the 4th of September 1839 and the 28th September 1839, and they proceed to mortgage their mortgagee rights. The sub-mortgage was a duly registered document. Some of the sub-mortgagors were minors and the mortgage is made by their certificated guardian by leave of the Court. The question is-Was this an acknowledgment within Section 19? The section is as follows: 'If, 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 in writing, signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a now period of limitation according to the nature of the original liability shall be computed from the time when the acknowledgment was so signed.' The rest of the section is immaterial except explanation 1, which is as follows: 'For the purposes 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 set-off, or is addressed to a person other than the person entitled to the property or right'. The learned Additional District Judge says: I see no necessity for the lower Court to express sorrow that this ruling, referring to a decided case, was not brought to its notice earlier. I cannot see where the necessity for a ruling in such a case lay. The matter seems to mo patent. If only Courts, as I am continually emphasizing, would try and apply their own common sense to the interpretation of what comes before them instead of at once looking to see if some one else has already done their work for them, their findings would be just as sound and their legal acumen would go on improving'. I quite agree with the concluding remarks of the learned Judge but I am not quite sure that he applied the rule in his own case. The statement in the sub-mortgage was duly signed by the person against whom such property or right is claimed or by some person through whom he derives title or liability'. It was a clear and distinct acknowledgment that the title of the sub-mortgagors was that of usufructuary mortgagees under two mortgages, the dates etc, of which are given. It is true that it was not addressed to any person claiming the right to redeem, but explanation I to Section 19, it seems to me, makes it absolutely clear that it is not necessary that an acknowledgment, otherwise sufficient, should be so addressed. I think had the learned Additional Judge considered the statement in the sub-mortgage in the light of Section 19 read with explanation I and then applied his common sense, he would have come to the conclusion, prima facie at least, that it constituted a sufficient acknowledgment. For my own part I would have no difficulty whatever in arriving at such a conclusion but for the ruling in the case of Imam Ali v. Baij Nath Ram Sahu 33 C. 613. In that case the Court held that an acknowledgment of a debt to be operative under Section 19 of the Limitation Act must be addressed or communicated to the creditor, or to some one on his behalf. The learned Judges decided the case mainly on the strength of the decision of the Judicial Committee in the case of Mylapore Iyasawmy Vyapoory Moodliar v. Yeo Kay and others 14 C. 801. In that case the question arose as to whether or not the recital in a conveyance was a sufficient acknowledgment within Section 19. The particular acknowledgment was made in the year 1874, but for the purposes of the question before the Court there is no material difference between Section 20 of Act IX of 1871 and Section 19 of Act XV of 1877. Mukerji, J., in delivering the judgment of the Court in the case of Imam Ali v. Baij Nath Ram Sahu (I) quotes the following passages from the judgment of Sir Barnes Peacock in Mylapore Iyasawmy Vyapoory Moodliar v. Yeo Kay 14 C. 801: It is contended that in that conveyance Mr. 13. admitted that he was liable in respect of the property. The only admission is that he was acting as agent for one of the executors in selling the estate. He was selling the estate for the purpose of getting paid out of the proceeds of the sale. He does not admit that he was liable to be turned out of possession or that any one had a right of possession as against him, nor does he make any admission at all to the plaintiff or to any one through whom he claims. Under these circumstances the clause does not apply'. The learned Judge lays particular stress on the words 'Nor does he make any admission to the plaintiff or to any one through whom he claims'. He then proceeds to say: It is clear that this is an authority for the proposition that an admission contemplated by section is an admission of liability made to the plaintiff or to a person through whom the plaintiff claims.' It seems to me, with great respect to the learned Judge, that he misinterpreted the decision of their Lordships of the Privy Council. I think their Lordships only intended to decide that the recital in the conveyance relied upon as an acknowledgment under Section 19 was not sufficient. In considering his question they, no doubt, took into consideration the words in the acknowledgment and all the circumstances of the particular case. But I am satisfied that they never intended to decide that the mere fact that the admission was not made to the plaintiff or to any one through whom he claims, renders insufficient an acknowledgment otherwise sufficient. In the very same volume of the report another decision of their Lordships of the Privy Council is reported, namely the case of Maniram Seth v. Seth Rupchand 33 C. 1017. In that case the defendant had been named as one of the executors of a will of a deceased creditor. He joined in an application for probate. An objection was taken to the probate being granted to him on the ground that he was indebted to the estate. He replied to this objection by a petition duly signed by him in which he stated as follows-'for the last five years he had open current accounts with the deceased: the alleged indebtedness does not affect his right to apply for probate'. It was held that this was a sufficient acknowledgment within Section 19 of the Limitation Act. In their Lordships' judgment at page 1057 of the report the following passage occurs: There is, therefore, a clear admission that there were open and current accounts between the parties at the death of Moti Ram. The legal consequence would be that at that date either of them had a right as against the other to an account. It follows equally that whoever on the account should be shown to be the debtor to the other was bound to pay his debt to the other and it appears to their Lordships that the inevitable deduction from this admission is that the respondent acknowledged his liability to pay his debt to Moti Ram or his representative, if the balance should be ascertained to be against him. The question is whether this is sufficient by the Indian Law to take the case out of the statute. It has been already pointed out that the acknowledgment was made before the statutory period had run out. Thus one requisite of Section 19 is complied with. The necessity of signature by the party to be charged is also complied with. The acknowledgment is not addressed to the person entitled but according to the explanation' given in Section 19 this is not necessary.' It is perfectly clear from the concluding words of this passage that their Lordships thought that it was not necessary that an acknowledgment should be addressed to the person entitled. In the case before us the alleged acknowledgment was given in 1890, before the statutory period had run out. It was signed by the parties to be charged. It acknowledged that the title to the property was merely that of mortgagees in possession, the legal consequences of which were that the person entitled to the equity of redemption might redeem. In my opinion with all respect, the decision in the case of Imam Ali v. Baij Nath Ram Sahu 33 C. 613 is not sound or warranted by the decision in the case of Mylapore Iyasawmy Vyapoory Moodliar v. Yeo Kay 14 C. 801. A similar view was taken by a Judge of this Court in the case of Lachhmi Chand v. Allah Dia 1908, A.W.N. 226. I allow the appeal, set aside the decrees of both the Courts below and remand the case to the Court of first instance through the lower appellate Court with directions to re-admit the case on its original number in the register and to proceed to hear and determine the suit on merits. The appellants will have their costs in this Court including fees on the higher scale. Other costs will abide the result.


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