1. This appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned Single Judge D/- 3-9-1973, passed in S. A. No. 103 of 1963. The short point involved in this appeal is whether the gift-deed (Exhibit P. 1) amounts to acknowledgment of subsisting mortgage by Inder Singh in favour of Smt. Bishni. The facts, which have given rise to the point of law involved in the case, arc that Khazana mortgaged land measuring 22 bighas 9 biswas in favour of Bhagwana on June 14, 1893, for Rs. 650/-. The mutation in respect of that mortgage was sanctioned in 1894. Jamabandi for the year 1912-13 (Exhibit P. 31) shows that land measuring 17 bighas 15 biswas instead of 22 bighas 9 biswas was under mortgage with Chirta son of Bhagwana as mortgagee. The mortgagors of that land at that time were Attru, Dittu and Naraina, sons of Khazana, and Inder Singh and Arjan Singh, sons of Harnam Singh, another son of Khazana, who died in 1898. Dittu and Naraina died issueless and after their death Inder Singh and Arjan Singh to the extent of one-half and Attru to the extent of the other half were the mortgagors of the land. Attru also died leaving behind Smt. Bishni, so that she became the mortgagor of one-half of the land of Khazana. Inder Singh and Arjan Singh purchased mortgagee rights from China in respect of that land and became mortgagees thereof.
2. Attru son of Khazana mortgaged 5 bighas 5 biswas of land for Rs. 188/- in favour of Balak Ram and Rama Nand with regard to which mutation was sanctioned on June 23, 1897, vide Exhibit P. 16. According to this mutation, the mortgage was for Rs. 250/- from which it becomes clear that Attru received another sum of Rs. 62/- from Balak Ram and Rama Nand before the mutation was sanctioned. Balak Ram and Rama Nand died and their heirs sold their mortgagee rights in favour of Inder Singh and Arjan Singh for Rs. 250/- vide mutation, copy of which is Exhibit P. 19. Inclcr Singh made a gift of his entire land, including the mortgagee rights, in favour of Jagir Singh, vide gift-deed Exhibit P. 1, duly registered. In this gift-deed, he described the various properties gifted as under:--
1. Land measuring 14 bighas and 7 bighas 7 biswas comprised in various khasra numbers which belonged to him as full owner.
2. Mortgagee rights in the land measuring 9 bighas 17 biswas owned by Smt. Bishni, widow of Attru, co-sharer out of possession as under :--5 bighas 3 biswas comprised in khasra No. 311 and 4 bighas 14 biswas, half of 9 bighas 8 biswas comprised in khewat No. 37, Khatauni No. 80.
3. Possessory rights acquired against Smt. Bishni co-sharer in some land and share of Shamlat etc.
3. We are concerned with the property mentioned as mortgagee rights. Smt. Bishni died and on her death, two widows of Inder Singh, Smt. Chinti and Smt. Basanti, succeeded in equal shares. Jagir Singh donee from Inder Singh sold his mortgagee rights in favour of Mehma Singh and Gurbaksh Singh, sons of Arjan Singh, for a sum of Rs. 700/- on January 30. 1959. Smt. Chinti filed a suit for redemption of land measuring 23 kanals 19 marlas on payment of Rs. 575/-as mortgage money or the amount that might be fixed by the Court. Mehma Singh and Gurbaksh Singh are defendants 1 and 2, Jagir Singh is defendant 3 and Arjan Singh son of Uttam Singh, is defendant No. 4. It appears that after the death of Inder Singh, Smt. Basanti married Uttam Singh and Arjan Singh, defendant 4, is their son. Defendants 1 and 2 denied that the plaintiff was a mortgagor of the land in suit or was entitled to redeem it. Jagir Singh defendant conceded the plaintiff's claim in his written statement. He stated that he had delivered all the properly in suit to defendants 1 and 2, to whom he had sold the mortgagee rights for a sum of Rs. 700/- but no sale-deed had been executed by him in their favour. Arjan Singh defendant 4, did not appear to contest the suit. The learned trial Court framed the following issues :- --
1. Whether the suit is within time?
2. Whether the plaintiff has right of redemption?
4. Both the issues were decided in favour of the plaintiff and a preliminary decree for redemption in favour of the plaintiff against the defendants with costs, to be borne by defendants 1 and 2 alone, on payment of Rs. 700/- was passed on July 30, 1962. The amount was ordered to be deposited within one month and thereafter the plaintiff was to apply for the passing of a final decree. The appeal against that decree was dismissed by the learned Additional District Judge, Ambala, on December 20, 1962. Further appeal against that decree in this Court (S. A. No. 103 of 1963) was dismissed by a learned Single Judge on 3-9-1973, against which this appeal has been filed.
5. The only question of law involved in the case is whether the description of the property in the gift deed executed by Inder Singh in favour of Jagir Singh (Exhibit P. 1) as mortgagee rights in the land owned by Smt. Bishni amounted to acknowledgment of the jura! relationship of mortgagee and mortgagor between the two and admission by Inder Singh of his liability to be redeemed by Smt. Bishni. Apart from the area of the land and the name of the owner, no other particulars of the mortgage were mentioned. On similar facts, their Lordships of the Supreme Court in Tilak Ram v. Nathu, AIR 1967 SC 935, held that the sale-deed executed by Parmeshwardas, whereby he sold his mortgagee rights in favour of the predeccssors-in-title of the respondents of that appeal, did not amount to acknowledgment within the meaning of Section 19 of the Indian Limitation Act, 1908. The appeal before the Supreme Court wa,s from a judgment of a Division Bench of this Court in L. P. A. No. 54-D of 1958 (Tilak Ram v. Nathu) decided on 11-10-1961 (Punj). In the judgment of the Division Bench, it is mentioned that Parmeshwardas mortgaged his mortgagee rights by means of a registered deed dated April 8, 1902, in which mention of previous mortgages had been made. On August 16, 1902, he sold his mortgagee rights by executing a registered sale-deed mentioning therein all the previous mortgages of the years 1861 to 1869. An argument was advanced before the Supreme Court that an admission of jural relationship of mortgagor and mortgagee was by itself sufficient to constitute an acknowledgment. It was urged that an admission by a party that he holds a property as a mortgagee or that what he is disposing of are his mortgagee rights therein postulates that there is a subsisting mortgage, that his interest in the property is as a mortgagee and he acknowledges by such a statement his liability to be redeemed by the mortgagor subject of course to the mortgagor paying the mortgage debt. Before proceeding to consider these contentions, their Lordships mentioned that none of the statements relied on by the appellants expressly admitted the appellants' right to redeem or the liability of the respondents and their predecessors-in-title to be redeemed. What those statements did was only to mention, without anything more, the fact of jural relationship of mortgagor and mortgagee. Reference was then made to Section 19 of the Indian Limitation Act, 1908, and it was pointed out that: --
'the section requires
(i) an admission or acknowledgment,
(ii) that such acknowledgment must be in respect of a liability in respect of a property or right,
(iii) that it must be made before the expiry of the period of limitation, and
(iv) that it should be in writing and signed by the party against whom such properly or right is claimed.
Under the Explanation, such an acknowledgement need not specify the exact nature of the property or the right claimed. It is manifest that the statement relied on must amount to an admission or acknowledgment and that acknowledgment must be in respect of the property or right claimed by the party relying on such a statement.'
6. After noticing various decisions, their Lordships went on to observe in paras 10 and 11 of the report as under:--
'10. The right of redemption, no doubt, is of the essence of and inherent in a transaction of mortgage. But the statement in question must relate to the subsisting liability or the right claimed. Where the statement is relied on as expressing jural relationship, it must show that it was made with the intention of admitting such jural relationship subsisting at the time when it was made. It follows that where a statement setting out jural relationship is made clearly without intending to admit its existence, an intention to admit cannot be imposed on its maker by an involved or a farfetched process of reasoning.
11. Do the statements relied on admit or acknowledge subsisting mortgages and the right to redeem or the liability of the maker thereof to 'be redeemed? Exhibit E, dated April 8, 1902, is the mortgage-deed executed by Parmeshwardas in favour of Badam for Rs. 200/-. The document refers only to one out of the said seven mortgages. Though it refers to the mortgage in favour of Dharamdas, it does so for the purpose of describing the interest Parmeshwardas was mortgaging in favour of Badam and of his own right of redeeming the mortgage. The said mortgage thus is set out for showing the nature of the interest which he was mortgaging as security for the said debt of Rs. 200/- rather than for admitting the mortgage of 1861 as a subsisting mortgage. The document thus cannot be said to be one made with the intention of admitting the jural relationship between him as the success or-in-title of Dharamdas and the succcssors-in-title of the said Teja. The second document Exhibit X, dated August 16. 1902, was made between Parmeshwardas on the one hand and Hira Singh and others on the other and was a sale of his mortgagee rights. The deed recites the mortgages executed by the said Teja in favour of Dharamdas, the fact of Parmeshwardas being in possession as Dhararndas's successor-in-title, the deed of mortgage, dated April 8, 1902 (Exhibit E) and the fact that he was by this deed selling his mortgagee rights for Rs. 1,290/-. These statements were clearly made for the purpose of describing his own rights which he was selling under this deed. But there is nothing in this document to show that he referred to the said mortgages with the intention of admitting his jural relationship with his mortgagors and, therefore, of his subsisting liability as the mortgagee thereunder of being redeemed. The third document Exhibit P. 15 is the plaint in Suit No. 31 of 1903. Here again the statement as to Parmeshwardas having sold his mortgagee rights to the plaintiffs was made with a view to trace their own rights as against the defendants and not with any consciousness or intention to admit the jural relationship between them or to admit the fact of the said mortgages being subsisting at the time when the plaint was filed. The statement in the plaint was made not in relation to the said mortgages but with reference to their own rights under the said deed of sale of mortgagee-rights in their favour. The fourth document is the written statement in Suit No. 50 of 1903 where the right of the plaintiffs in that suit to redeem has been specifically denied. The statement, therefore, cannot be availed of as an acknowledgment of a subsisting jural relationship or of a subsisting right and a corresponding liability of being redeemed.'
7. On the parity of reasoning, it can be said that Inder Singh while executing the gift-deed, did not intend to acknowledge that Smt. Bishni had the right to redeem the land which he held on mortgage from his predecessor-in-interest. Inder Singh was only describing the property that he was gifting in favour of Jagjir Singh. He was even trying to acquire proprietary rights in the land owned by Smt. Bishni by adverse possession. He could not, in these circumstances, be expected to keep any right of Smt. Bishni alive by making an acknowledgment in her favour. I am, therefore, of the opinion that the mention of the mortgagee rights in the gift deed did not amount to acknowledgment of the liability of Inder Singh to be redeemed by Smt. Bishni or her heirs.
8. The learned Single Judge has relied on an earlier judgment of the Supreme Court in Shapoor Fredoom Mazda v. Durga Prosad. AIR 1961 SC 1236, which was followed by their Lordships in AIR 1967 SC 935 The general propositions governing acknowledgment laid down in Shapoor Fredoom Mazda's case (supra) were actually applied by their Lordships in Tilak Raj's case AIR 1967 SC 935 (supra). The general observations in Shapoor Fredoom Mazda's case (supra) cannot, therefore, be used by the learned counsel for the respondents in support of his plea that the mere description of the property as mortgagee rights gifted by Inder Singh in favour of Jagir Singh amounted to an acknowledgment of the right of Smt. Bishni to redeem the land from Inder Singh.
9. The result is that this appeal is accepted and the suit of the plaintiff is dismissed, but the parties are left to bear their own costs throughout.
Bhopinder Singh Dhillon, J.