D.K. Mahajan, J.
1. The short question in this second appeal is whether by giving up a part of the property mortgaged, there is novation of the contract of mortgage.
2. The land in dispute, along with khasra No. 7800, was mortgaged by Balwant to Ram Parshad for a sum of Rs. 35 some time before 1877, and the mortgage was with possession. In the year 1906 the mortgagee gave up possession of khasra No. 7800 on the plea that the profits of the land had been excessive, and mutation of this khasra number was entered in the name of the mortgagor free from all encumbrances. On Balwant's death the plaintiff inherited 1/8th share of the mortgaged land, while the remaining 7/8th chare was inherited by the defendants.
On the 2nd January 1933 the present suit was filed by the plaintiff, who is the successor-in-interest of the mortgagee, that the defendants, who are the successor-in-interest of the mortgagor, had lost their right of redemption by the lapse of 60 years, and that under section 28 of the Indian Limitation Act the plaintiff had become owner of the suit land. To this suit the defence was that the mortgage was not more than sixty years old and that, in any case, there were acknowledgments by the mortgagee which saved limitation.
On the 1st June 1954, the trial Court dismiss-ed the suit, leaving the parries to their own costs. It held that there was a novation of contract and that a fresh mortgage came into being in the year 1906 by reason of the mutation whereby khasra No. 7800 was handed back by the mortgagee to the mortgagor, and that therefore, limitation would run from the year 1906, and as 60 years had not elapsed from this date the plaintiff's suit was liable to dismissal.
Against this decision the plaintiff preferred an appeal to the Senior Subordinate Judge, Gurgaon, who allowed the appeal on the 9th December 1954, holding that no novation of the contract of mortgage had been proved, nor was there any acknowledgment of the mortgage by the mortgagee, and that, as the period of 60 years had elapsed, the plaintiff had become owner of the land in view of the provisions of section 28 of the Limitation Act. Against this decision the defendants have come in second appeal to this Court.
3. The contention of Mr. Pandit, learned counsel for the defendant-appellants is that the real question arising in this second appeal is as to what is the true nature of the transaction of 1906. According to learned counsel, a new mortgage came into being in 1906, while, according to the contention of the plaintiff-respondents what happened in 1906 was that the mortgagee released a part of the mortgaged property. In order to arrive at a correct decision, one has to see what novation of a contract implies.
In ordinary parlance, novation of a contract would mean that for an existing contract a new contract is substituted and the new contract implies concurrence of both the parties to the contract. If there is no such concurrence, there can be no novation. By giving up a part of the mortgaged property, there is no question of a new agreement or contract between the mortgagee and the mortgagor. In such circumstances, it cannot be held that there is novation of the contract.
Thus in the present case the mortgage prior to 1877 stands and is not replaced by a new mortgage in the year 1906 when only part of the land was surrendered by the mortgagee. Mr. Pandit relied strongly on a decision of this court reported as Tika v. Harchandi, Second Appeal No. 830 of 1951, decided by a Division Bench of this Court (consisting of Gosain and Grover, JJ.) on the 24th February 1859, and maintains that by any change in the security there is necessarily a novation.
I am afraid I am unable to agree with the leamed counsel's interpretation of that decision. In that case the mortgaged property was substituted by a totally different property and this could only be done by concurrence of both the mortgagor and the mortgagee. In such circumstances there would be a new contract and as such there would he novation. Nothing of this type has happened in the present case.
4. For the reasons given above this appeal fails and is dismissed but, in view of the circumstances of this case, I leave the parties to bear their own costs throughout.