1. This is a defendants' second appeal against whom the suit for possession by way of redemption was dismissed by the trial Court, but decreed in appeal.
2. Originally, Inder Singh, the predecessor-in-interest of the plaintiff-respondents instituted the suit for possession of the half share of the land measuring 22 kanals 10 marlas on payment of Rs. 965/- on the allegations that the said land was shown as mortgaged by him in favour of Naruang Singh and Bhag Singh sons of Tillu Singh in the jamabandi for the year 1965-66. The defendants had earlier file a suit wherein he was held to be a mortgagor. Thus, he was a mortgagor and Naurang Singh and Bhag Singh along with others were the mortgagees, redeemed from them, but the land, in dispute, in possession of Naurang Singh and Bhag Singh, mortgagees, remained with them as such; hence the suit for redemption thereof. The suit was contested on behalf of the defendants on the plea that the same was barred by time and that the plaintiffs deceased Inder Singh was not entitled to redeem the suit land as he had already redeemed his one-half share which he had purchased from the mortgagor Mst. Karam Bibi, who had succeeded to the mortgagor Bura alias Rura. The trial Court found that the suit was within limitation, but the deceased Inder Singh, plaintiff, was not entitled to redeem the suit land as he had purchased the equity of redemption only to the extent of one-half of the mortgaged land from Mst. Karam Bibi and the remaining one-half mortgaged land was still owned by her. Besides, the plaintiff himself admitted in the plaint that he had already redeemed one-half of the mortgaged land which was in possession of his brothers. Thus, the plaintiff's claim stood already satisfied. He had, therefore, no cause of action against the defendants. Consequently, the plaintiff's suit was dismissed. In appeal, the learned District Judge affirmed the finding of the trial Court on the question of limitation, but reversed its other findings and came to the conclusion that deceased Inder Singh, plaintiff had purchased the equity of redemption to the extent of the half of the suit land and, thus, he had become a co-mortgagor and, therefore, he could redeem the entire land. According to the learned lower appellate Court, the integrity of the mortgage stood broken and that deceased Inder Singh, plaintiff, was, thus entitled to seek redemption of the whole of the mortgaged land on payment of Rs. 510/-. In view of this finding, the plaintiff's suit was decreed. Dissatisfied with the same, the defendants have come up in second appeal to this Court.
3. The learned counsel for the appellants contended that deceased Inder Singh, plaintiff, had only purchased half of the equity of redemption from Mst. Karam Bibi and that one-half of the mortgaged land was got redeemed by him. Therefore, the present suit for redemption of the other one-half of the mortgaged land filed by deceased Inder Singh, plaintiff, was not maintainable. According to the learned counsel, deceased Inder Singh, plaintiff, was only entitled to one-half of the mortgaged land which he had already got by redemption. The finding of the lower appellate Court in this behalf, according to the learned counsel, was wrong and illegal. In support of the contention, the learned counsel relied upon Ramla Baldev v. Kiran singh AIR 1960 Punj 420; Mr. Jagannath Kunwar v. Jaipal, AIR 1933 All 257 (FB); Prithi Nath v. Suraj Ahir, AIR 1963 SC 1041; Ghasiram v. Hiralal, AIR 1954 Madh Bha 67 and Abdul Wahab v. Raghunandan Lal, AIR 1945 All 388. On the other hand, the learned counsel for the plaintiff-respondents submitted that deceased Inder Singh, plaintiff, was only one of the mortgagees and not the only mortgagee who had purchased the equity of redemption to the extent of one-half of the mortgaged land and, therefore, he was entitled to redeem the whole of the mortgaged land from the mortgagees. In support of this contention, reference was made to S. 60 of the T. P. Act, (hereinafter called the Act). In this behalf, the learned counsel also relied upon Subbarama v. Raghava, AIR 1955 Mad 439; Haji Ali Han Khan v. Majid-Ud-Din, AIR 1923 All 499; Jagmohan v. Harbans Singh, Air 1925 Oudh 609, which was approved in Sadasheo Rao v. Roopchand, Air 1939 Nag 136; Mahatab Rai v. Sant Lal, (1883) ILR 5 All 276 and Fakir Chand v. Babu Lal, AIR 1917 All 401.
4. After hearing the learned counsel for the parties on this point, I find force in the contention raised on behalf of the plaintiff-respondents. Admittedly, deceased Inder Singh, plaintiff, was one of the mortgagees and the other mortgagees were Pala, Sunder, Lala Rulia and Bachittar, his brothers, and the defendants Naurang Singh and Bhag Singh. Thus, Inder Singh, was not the only mortgagee. Being one of the mortgagees, he purchased the equity of redemption to the extent of one-half of the mortgaged land. Section 60 of the Act provides for the right of mortgagor to redeem. The last paragraph of Section 60 of the Act lays down that nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. Where one only of a number of mortgagees has acquired by purchase a part of the mortgaged property, it cannot be said that the mortgage over that portion has merged in the sale. The purchaser-mortgagee is in no different position from an outsider so far as his rights conferred by his purchase are concerned. The mortgage remains one and undivided, and if redeemed at all can only be redeemed in its entirety. The purchaser-mortgagee cannot insist that the mortgagor should redeem only that part of the property which has not been purchased. It was so held in Jagmohan's case (supra). This ratio of the decision was approved by the Nagpur High Court in Sadasheo Rao's case (supra), wherein it was held that where one of the three mortgagees acquires in part a share in the property mortgaged without the consent of the other mortgagees, the mortgagee is not split up so far as the other mortgagees are concerned and they are entitled to proceed against the entire property. Such a mortgagee cannot be placed in a better position than the innocent purchaser of property burdened with a mortgage about which he knew nothing and the fact that he expended money to the full value of the property does not save him. Under the circumstances, deceased Inder Singh, plaintiff, being one of the mortgagees who had purchased the equity of redemption to the extent of one-half of the mortgaged land, was, thus, entitled to redeem the whole of the mortgaged land as the integrity of the mortgage could not be said to have been broken by purchasing a part of the equity of redemption by him. The judgments relied upon by the appellants are clearly distinguishable as in all those cases either the mortgagee was one or all the mortgagees had acquired, in whole or in part, the share of the mortgagor, as contemplated under the last paragraph of Section 60 of the Act, as noticed above.
5. The fact that deceased Inder Singh, plaintiff, had earlier got redeemed a portion of the mortgaged land from his brothers by consent of the parties and not by filing a suit, does not disentitle him to get the remaining mortgaged land redeemed which is in possession of the defendants. In that situation also, the integrity of the mortgage could not be said to have been broken. In Ramla Baldev's case (Air 1960 Punj 420) (supra), which was strongly relied upon by the learned counsel for the appellants, there had been a mortgage by two persons of the land belonging to them in equal shares though held jointly with rights of survivorship and wherein one of the mortgagors had transferred his share of the equity of redemption to the landlords. In such circumstances, the mortgage became divisible and the only right left to the joint mortgagor was to redeem his share of the land. It was in this context held therein:--
'In this view of the matter, it is not possible for me to accept the contention of Mr. Pandit that the integrity of the mortgage is not broken'.
In that case, it is not clear whether the mortgagee was one or they were more than one who had acquired the right from the mortgagor. Thus, the said case has no applicability to the facts and circumstances of this case.
6. Faced with this situation, the learned counsel for the appellants contended that the suit filed by the plaintiff was barred by time as the original mortgage was of the year 1908 whereas the present suit was filed in the year 1972, i.e., more than 60 years thereafter. The Courts below wrongly relied upon the plaint, Exhibit P.4 dated July 31, 1964, in the civil suit filed on behalf of the defendants, in order to come to the conclusion that it amounted to an acknowledgment as contemplated under S. 18 of the Limitation Act, 1963, and thus, the suit filed by him was within limitation. According to the learned counsel, the defendants never acknowledged their liability in respect of the mortgaged property in the said plaint and, therefore, it did not fall within the purview of the above-said provisions. In support of the contention, the learned counsel relied upon the Supreme Court decision in Tialk Ram v. Nathu, 1967 Cur LJ 1: (AIR 1967 SC 935). On the other hand, the learned counsel for the plaintiff-respondents submitted that from a perusal of the plaint, Exhibit P.4 and the judgment rendered in the suit on its basis, on Sept. 30, 1965, Exhibit P. 2, it was evident that the defendants admitted the factum of the mortgage and their liability in respect thereof and, therefore, it was an acknowledgment as contemplated under Section 18 of the Limitation Act, 1963. It was further contended that the surrounding circumstances could also be taken into consideration to find out if there was acknowledgment of liability on the part of the mortgagees. In support of the contention, the learned counsel relied upon S. F. Mazda v. Durga Prasad AIR 1961 SC 1236; Zora Singh v. Budh Ram, (1976) 78 Pun LR 418 Thandi Ram v. Banersi Dass (1976) 78 Pun LR 469 and Narinder Singh v. Arjan Singh, AIR 1983 Punj and Har 337.
7. I have heard the learned counsel for the parties on this issue and have also gone through the plaint, Exhibit P. 4 and the judgment, Exhibit P. 2.
8. By virtue of the plaint, Exhibit P. 4, Bhag Singh and Naurang Singh, defendants in the present suit filed the suit against deceased Inder Singh, (plaintiff in the present suit) for a declaration to the effect that they were the mortgagees in possession of the one-half share of the land with the consequential relief that the defendant be restrained from interfering with their possession and, in the alternative, for possession of the said land. In order to claim that relief, it was stated in the plaint that according to the revenue entries, Mst. Karam Bibi wife of Jalal-Ud-Din was entered as the owner of the suit property and that they were shown to be the mortgagees therein. On that account, it was claimed that their possession on the suit land was that of the mortgagees and that Inder Singh was not entitled to interfere with their lawful possession thereof. Nothing more than that was stated in the plaint. Besides, neither the terms of the mortgage, nor the date of the original mortgage as such, nor the mortgage amount were stated therein. Thus, the plaintiff in that suit never admitted their liability with respect to the mortgaged land. The only admission was that they were the mortgagees thereon as shown in the revenue record. The right of Inder Singh to dispossess them was categorically denied. The said suit was decreed to the extent that the plaintiffs therein were the mortgagees with possession of one-half share of the land, in question, and the defendant was restrained from interfering with their possession thereon except in due course of law. It was further observed therein that since the plaintiffs had failed to prove the date of the mortgage under issue No. 1, they were not entitled to any costs.
9. It will be a question of fact in each case to be determined on the language used, as to whether a case of acknowledgment was made out as contemplated under S. 18 of the Limitation Act, 1963, or not, the relevant part of which reads--
'18 (1)---Effect of acknowledgment in writing. Where, before the expiration of the prescribed period 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 any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so singed.
(2) *** *** *** ***
Explanation--For the purposes of this section--
(a) 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 a person entitled to the property or right.
(b) the word 'signed' means signed either personally or by an agent duly authorised in this behalf, and
(c) *** *** *** ***'
The judgment relied upon by the learned counsel for the plaintiff-respondents are clearly distinguishable on facts. In S. F. Mazda's case (AIR 1961 SC 1236) (supra), there was the letter written on behalf of the mortgagee to the mortgagor. From the tenor of that letter, it was held that it was addressed by the mortgagor to the puisne mortgagee which reminded him of his interest as such mortgagee in the property which would be put up for sale by the first mortgagee and appealed to him to assist the avoidance of sale and thus acquire the whole of the mortgagee's interest. As no other relationship existed between the parties at the date of this letter and the only subsisting relationship was that of mortgagee and mortgagor the latter acknowledged the existence of the said jural relationship and amounted to a clear acknowledgment under S. 19 of Limitation Act, 1908. As regards the present case. Naruang Singh and Bhag Singh, defendants, never admitted the right of deceased Inder Singh, plaintiff, to redeem the suit property; rather they denied the same and pleaded that deceased Inder Singh, plaintiff, had nothing to do with the land mortgaged with them. Moreover, as observed earlier, neither any amount of mortgage nor the date of mortgage nor their liability to redeem the suit land was ever admitted or acknowledged in the plaint, Exhibit P. 4. In Zora Singh's case (1976 (78) Pun LR 418) (supra), in the document jointly executed by the mortgagee and the mortgagor concerned, it was specifically mentioned that the land, in question, was already mortgaged with the mortgagee for a sum of Rs. 300/- and that the said mortgage amount was raised by another sum of Rs. 700/- which the mortgagor had secured against the said land from the mortgagee. The deed, in question, had been signed by the mortgagee in his capacity as such in the presence of the Sub-Registrar who too had appended a certificate to that effect under his endorsement. In these circumstances, it was held that the document constituted an acknowledgment in terms of S. 18 of the Limitation Act, 1963. Similarly, in Thandi Ram's case (1976 (78) Pun LR 469) (supra), the mortgagee had mentioned in the plaint filed by him earlier all the particulars of the mortgage including the mortgage amount and the other terms and conditions of the mortgage. Therefore, it was held that, that amounted to an acknowledgment of liability which provided a sufficient ground for extension of the period of limitation prescribed for redemption of mortgages. In Narinder Singh's case (AIR 1983 Punj & Har 337) (supra), the mutation was entered at the instance of the mortgagee and it was mentioned therein by him that the mortgagor mortgaged with possession his land and the land revenue was paid by him which was admitted by the mortgagor also and the entry was signed by the Patwari bearing the thumb-impression of the mortgagor, it was evident from the writing that the mortgagee admitted the jural relationship between him and mortgagor was present when he admitted that fact. The statement of the mortgagee in such circumstances within the meaning of S. 18 of the Limitation Act, 1963. There is no such admission as regards the facts of the present case except that in the revenue records, the suit land is shown to be in the ownership of Mst. Karam Bibi whereas the defendants are shown to be the mortgagees thereof. Except this, there is nothing more. In Tialk Ram's case (AIR 1967 SC 935) (supra), while noticing the earlier judgment in S. F. Mazda's case (Air 1961 SC 1236) (supra) in para 9 of the judgment, the Supreme Court observed--
'Nevertheless, the statement on which a plea of acknowledgment is based must relate to a subsisting liability. The words used in the acknowledgment must indicate the jural relationship between the parties and it must appear that such a statement is made with the intention of admitting that jural relationship. Such an intention, no doubt, can be inferred by implication from the nature of the admission and need not be in express words'.
There in para. 10 of the judgment, it was further observed by the Supreme Court--
'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 upon 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 far fetched process of reasoning'.
In this view of the matter, I am of the considered opinion that the defendants never admitted intentionally the jural relationship of mortgagor and mortgagee between them and deceased Inder Singh, plaintiff, and, therefore, any statement made in the plaint. Exhibit P. 4, could not be held to be an acknowledgment within the meaning of S. 18 of the Limitation Act, 1963. It is the common case of the parties that in the absence of any acknowledgment, the suit filed by deceased Inder Singh, plaintiff, was barred by time.
10. Consequently, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiff's suit are restored with no order as to costs.
11. Appeal allowed.