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Bhagwan DIn and ors. Vs. Sri Kishen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1926All85
AppellantBhagwan DIn and ors.
RespondentSri Kishen and ors.
Excerpt:
- .....1885 there is a proceeding verifying the khewat exhibit 17 dated the 29th october 1885, to which mahabir prasad, bhagwan din, het ram and puran, mortgagee, affixed their signatures. a man called mahabir prasad, probably the mahabir prasad who signed on his own behalf, signed on behalf of twelve other cosharers including din dayal and ram prasad. there is nothing to show that mahabir prasad had any authority to admit the existence of the mortgage on behalf of din dayal and ram prasad, or that he had any intention of admitting the existence of any such mortgage. he was not a person through whom the mortgagees derived title or liability. it has been pointed out to me that under the authority of haji sheikh bodha v. sukhram singh : air1925all1 , i could presume that mahabir was duly.....
Judgment:

Stuart, J.

1. The only matter to be decided in this appeal is whether the plaintiffs-appellants have the rights to redeem a mortgage which was executed by Sheo Dayal in favour of Lachhman in the year 1857. They sued to redeem five mortgages. They have been allowed to redeem four; but the Courts have held that the redemption of the mortgage of 1857 is time-barred. The suit was instituted in 1920, 63 years after the execution of the mortgage, and in order to redeem, it is necessary for the plaintiff-appellants to show that there are circumstances in the case which will permit the extension of the period permitted by Article 148 of the First Schedule of the Limitation Act. They argue that they have a right to extend that period. They base this alleged right first of all upon the existence of three alleged acknowledgments of liability in respect of the existence of the mortgage which, they say, fall under the provisions of Section 19 of the Act. The first of these is a certified copy of the khewat of 1860 of the village in which the mortgaged property is situated. Now it is sufficient to say here that there is nothing to show on the face of the copy itself, which has been proved that any body admitted that there was any mortgage in existence. Against thenames of more than one person who is mentioned is placed the word 'mutwafi' or 'deceased,' and an attempt has been made to argue that, inasmuch as at least one of such persons was probably not deceased, instead of the word 'mutwafi' the Court should boldly insert the word 'murtahin' or mortgagee. The audacity of the suggestion is the only point in its favour. The lower appellate Court would have been very wrong to make any such assumption. It is sufficient to say that there is nothing in the document Ex. 22 which can possibly be called an acknowledgment in writing of the existence of the mortgage.

2. The next piece of evidence upon which the appellants rely is a report made by a Revenue Officer in 1884 at the time of settlement. This is Exhibit 15. The officer reports in this that Din Dayal made a statement to him in which he asserted that he was a mortgagee, and from this assertion it might be gathered that he admitted to the officer the existence of the mortgage of 1857 in question. But it is to be noted that there is no acknowledgment of liability made in writing signed by Din Dayal. There is the note of the Revenue officer to the effect that Din Dayal made an oral statement of an acknowledgment before him. That does not help. I now come to the last point. In the settlement proceedings of 1885 there is a proceeding verifying the khewat Exhibit 17 dated the 29th October 1885, to which Mahabir Prasad, Bhagwan Din, Het Ram and Puran, mortgagee, affixed their signatures. A man called Mahabir Prasad, probably the Mahabir Prasad who signed on his own behalf, signed on behalf of twelve other cosharers including Din Dayal and Ram Prasad. There is nothing to show that Mahabir Prasad had any authority to admit the existence of the mortgage on behalf of Din Dayal and Ram Prasad, or that he had any intention of admitting the existence of any such mortgage. He was not a person through whom the mortgagees derived title or liability. It has been pointed out to me that under the authority of Haji Sheikh Bodha v. Sukhram Singh : AIR1925All1 , I could presume that Mahabir was duly authorized to represent Din Dayal and Ram Prasad in this particular. It is only necessary to say that, granting I could make the presumption I refuse to make it as there is nothing I can see to justify such a presumption.

3. I agree with the lower Court that there was here also no acknowledgment within the meaning of Section 19. I find that the appellant's case as to acknowledgments under Section 19 fails completely. There remains the fact that in 1913 and 1914 the appellant's representatives-in-interest sold a portion of the mortgaged property to pay off certain of the liability not under the mortgage of 1857, but under other mortgages. The learned Counsel for the appellants has endeavoured to argue that by executing these sale-deeds the period of limitation was extended under the provisions of Section 20 of the Limitation Act. The Section 20 can have no possible application. This is not a question of interest on a debt or legacy having been paid or part of the principal of a debt having been paid to extend limitation. The question is of extending the period of redemption. For the above reasons this appeal fails on every point and is dismissed with costs on the higher scale.


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