1. This second appeal has arisen in the following manner: On the 14th May 1914, the defendant executed a simple unregistered money bond for good consideration of Rs. 3,999 at 12 per cent simple interest in favour of the plaintiff. The defendant was not liable to pay the amount till 5th June 1917. On the 3rd June 1920, an endorsement was written on the back of the bond by one Sumer Singh on the instructions of the plaintiff. This was signed by the defendant. We translate the endorsement as follows:
Accounts having been made up the sum of Rs. 6,500 has resulted as principal and interest 'in which' (this is a literal translation: the words are jismen) a usufructuary mortgage of village Samogarh for Rs. 4,000 has been executed today: Rs. 10 in cash have been paid.
2. The same day a deed was executed by the defendant in favour of the plaintiff in respect of the village Samogarh. This deed is the 'usufructuary mortgage' to which reference is made in the endorsement. The deed is not a usufructuary mortgage.
3. It sets forth that in consideration of Rs. 4,000-it is not stated how the figure is arrived at-the defendant transfers to the plaintiff possession of the village of Samogarh with full enjoyment of the usufruct. At the end of twenty years the village is to be restored to the defendant without payment, but during the continuance of the twenty years' enjoyment it is open to the defendant to recover possession of the village at any time by payment of 'the whole amount due' (kul zare saman). The deed contained a previous interpolation to the effect that the 'kul zare saman' of the deed of 14th May 1914 has been taken into account. The deed thus added to the characteristic of a zar-i-peshgi lease, a right to determine the lease by exercise of what approximated to a right to redeem. It probably assumed its form in order not to contravene the restriction of transfer provided by Local Act II of 1903, the parties being governed by the provisions of the Act.
4. The defendant, after executing this deed, refused to register it. Compulsory registration was subsequently obtained. On 5th July 1921(more than seven years after the execution of the simple bond of 14th May 1914) the plaintiff sued the defendant on the basis of that bond. He relied on the endorsement of the 3rd June 1920 to save limitation and sued for Rs. 2,490 principal and Rs. 323-11-0 interest after deducting Rs. 4,010. The Subordinate Judge dismissed the suit as time-barred.
5. The District Judge decreed it on appeal. The defendant files this second appeal. The District Judge found that the so-called 'usufructuary mortgage' had been executed in part payment of the amount due on the deed of 14th May 1914, and treating the endorsement of the 3rd June 1920 as an acknowledgment in writing within the meaning of Section 19(Act IX of 1908) considered the suit within time. A preliminary objection has been taken by the plaintiff-respondent to the effect that no second appeal lies baaed on the plea that the finding that the 'usufructuary mortgage' had been executed in part payment is a finding of fact, and that in view of this finding the endorsement can only be treated as an acknowledgment.
6. There is no force in this objection. The decision of the District Judge proceeds necessarily on his view of the legal effect of the words of the endorsement and it is open to the defendants to question his decision on that point.
7. The main point for decision in this appeal is whether the defendant by signing the endorsement has made an acknowledgment of liability in respect of the right of the plaintiff to sue on the bond. On the facts the plaintiff cannot invoke the assistance of Section 20, Act 9 of 1908.
8. It is necessary to keep in the foreground the first explanation to Section 19. The acknowledgment may be sufficient though it omits to specify the exact nature of the right. But there must be a definite acknowledgment. In order to extend the period of limitation the plaintiff must show that the defendant signed an acknowledgment to the effect that on the 3rd June 1920, there was a balance due to the plaintiff on the bond after crediting the defendant with what was properly due to him in respect of the execution of the deed for Rs. 4,000 and the payment of Rs. 10 in cash. Has he been able to show this? The words of the endorsement neither assert that anything is due on the bond nor deny that anything is due on the bond. The words 'jismen' are ambiguous. They cannot be read as meaning 'in part payment of which' and they cannot be read as meaning 'in full satisfaction of which,' The learned Counsel for the respondent argues that the execution of the deed cannot entitle the defendant to more than... a credit for the amount of nominal consideration stated therein, that is, Rupees 4,000. But this would impose an unjustifiable restriction. The execution of a deed of transfer of immovable property does not necessarily confine the amount of satisfaction enjoyed in lieu to the nominal consideration. This is not a case where limitation can be extended on proof of payment of interest as such or part payment of principal of a debt where the fact of the payment appears in the handwriting of the person making the same. There is nothing in the endorsement to show that interest was paid as such' and the endorsement is not in the defendant's handwriting. The provisions of Section 20 have no application. The plaintiff-respondent, has to show that on the 3rd June 1920 the defendant made and signed an acknowledgment that after all realizations there was a balance due on the deed. In our opinion he made no such acknowledgment.
9. In these circumstances it is unnecessary to consider the point raised by the appellant which does not appear to have been pressed in the Court of the District Judge and is not raised explicitly in the grounds of appeal here that the acknowledgment is bad as being unstamped. The appeal is allowed and the suit is dismissed. The plaintiff will pay, his costs and those of the defendant in all Courts; fees on the higher scale.
10. I am in entire agreement with my learned brother on the questions with which he had dealt fully, the questions of acknowledgment of liability and limitation. But we have had fully discussed before us the interpretation of the so-called mortgage deed and I think it is desirable in the just interests of the plaintiff if he is right, and in the just interests of the defendant if he is right, that we should also express our opinion as regards the interpretation of the terms of that deed and of the endorsement on the earlier bond. A perusal of: both documents, particularly of what I will call the mortgage deed, of which the terms are very unusual gives the impression that it might be correctly described as a 'conversational document;' that is to sav, a document which has not had its origin in any carefully preconceived view of the exact terms in which the parties were going to define their obligations, but which has started with expressing the main idea, and then as various questions have occurred to either party clauses have been added. So we find in this document, first of all, a simple declaration that such and such property is mortgaged for a period of twenty years in consideration for a sum of four thousand rupees. Then it appears that somebody said: 'That does not make it clear whether the four thousand rupees refers to the principal only or the principal and interest;' and then a phrase is added not defining this in clear terms but simply stating that the kul zar-i-saman has been taken into account.
11. This latter is followed by what has been described as a clause providing for redemption. Here again no amount is specified but simply the phrase 'kul zar-i-saman' again appears. Then lastly, after apparently the whole document has been completed, a kind of foot-note is added in which it is said that (I quote from the Court translation): The document, account whereof has been adjusted and in lieu of which the mortgage-deed has been executed, was executed on the 14th May 1914. The endorsement on the bond gives us no further indication than such as is to be found in the words 'jismen char hazar rupees.' We have clearly then to determine the effect to be given to the words 'jismen' and the effect to be given to the words 'kul zar i-saman.' We find it impossible to determine the exact meaning of the word, 'jismen' in the context in which they are here used, as to whether they mean 'against which,' 'towards the account of which' and so on. The words are ambiguous. To turn to the words kul zar-i-sarnan' we note that the learned District Judge says: 'The mortgage-deed contains a statement that the sum of four thousand rupees is accounted for (mahsub) in (men) the money bond, i.e., set against the money bond.' A perusal of the transliteration of the mortgage-deed has not enabled me to find any such statement at all. What has been Said in the document is 'kul zar-i-saman mahsut pahlia.' To say that the document contains the words 'four thousand rupees is accounted for' is to beg the whole question. I have already described the first passage where the term 'kul zar-i-saman' occurs as indicating that passage was merely an additional statement which was intended to make it clear, but entirely failing to make it clear whether the whole Rs. 6,500 was being settled or only the Rs. 4,000. But there is to my mind a clear indication in the second passage, where the second 'kul zar-i-sarnan' occurs showing the true meaning to be given to that phrase. It is admitted that it must mean either Rs. 4,000 or Rs. 6,500. Let us suppose that it meant Rs. 4,000. Then it would effect this: that after a week, ten years, or any period he pleased, after the execution of that deed, the mortgagor could by the payment of Rs. 4,000 without even any interest, have discharged the deed. That would mean that the mortgagee would lose his whole security. The whole purpose of the execution of the second deed would be frustrated. It is impossible to believe that could possibly have been the intention. On the other hand, if it meant Rs. 6,500 there is a very obvious meaning in the clause, namely, that if the mortgagee was to be allowed to keep possession for his twenty years well and good, the whole debt was wiped off. If on the other hand the mortgagor choose to redeem, and it was made unlikely that he would choose to redeem, he would have to pay the Rs. 6,500. Seeing that, to put the interpretation four thousand rupees' on the words kul zar-i-saman' where they occur in the second place would be to make the whole document absolutely futile, while to interpret it as meaning Rs. 6,500 would make it logical, reasonable and intelligible, we think it must mean inevitably the sum of Rs. 6,500. If that is so, there can be no possible justification for holding that it meant anything else where exactly the same phrase occurs clearly without qualification. The final note at the end of the document supports this view that the second document was executed in lieu of the first document and entirely superseded it.
12. We think for these reasons therefore that the second deed was intended to entirely supersede the first deed and that the plaintiff's case should have been dismissed. I agree in the order passed by my learned brother.