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Kochappu Vs. Ammu Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 800 of 1960
Judge
Reported inAIR1965Ker103
ActsLimitation Act, 1908 - Sections 19
AppellantKochappu
RespondentAmmu Amma and ors.
Appellant Advocate Mani J. Meenattor, Adv.
Respondent Advocate V.P. Gopalan Nambiar, Adv.
DispositionAppeal dismissed
Cases ReferredRajah Kishen Dutt Ram Panday v. Narendra Bahadoor Singh
Excerpt:
.....sought to be redeemed, for the duty is of the mortgagee. although it may be that the evidence of neither side is altogethersatisfactory, nevertheless their lordships, after giving their best consideration to the case, are of opinion that the plaintiff did give some such prima facie evidence. ' the rule referred to above formulated by the bench ofthis court, as also the principle enunciated by the privycouncil in the case cited, apply as well to the proof ofthe subsistence of the mortgage as to that of its existence......mortgage to be not proved, and the judge gave the decree, holding that the plaintiff has adduced prima facie proof of the mortgage the defendants not having produced the mortgage deed, and that the mortgage has been acknowledged.2. except stating that the mortgage was of the year 1052, the plaintiff has not, alleged a specific mortgage. whatever might have been the view taken in some of the earlier cases, it has been held by a division bench of this court in ramakrishna pillai v. thankamma, 1959 ker lj 443 : (air 1959 ker. 377), confirming on appeal the decision of the single judge in thankamma v. ramakrishna pillai, 1956 ker lt 383, that if in a redemption suit the plaintiff is unable to give the date of the mortgage, he must give prima facie evidence that the mortgage was subsisting.....
Judgment:

S. Velu Pillai, J.

1. This second appeal is directed against a decree passed by the Subordinate Judge in appeal allowing redemption of a mortgage, In reversal of the decree passed by the Additional Munsiff dismissing the suit. The plaintiff alleged, that the property in suit was given on mortgage to one Koyammad in the year 1052 M. E. for720 puthens and 195 1/2 parahs of paddy, the right under which became vested in the defendants. The first defendant contended, that the mortgage to Koyammad was tons before the year 1052, that the mortgagee subsequently became full owner of the property by lapse of time, that from the mortgagee, he and his father purchased the property and that the plaintiff has no right to redeem. The Munsiff dismissed the suit finding the mortgage to be not proved, and the Judge gave the decree, holding that the plaintiff has adduced prima facie proof of the mortgage the defendants not having produced the mortgage deed, and that the mortgage has been acknowledged.

2. Except stating that the mortgage was of the year 1052, the plaintiff has not, alleged a specific mortgage. Whatever might have been the view taken in some of the earlier cases, it has been held by a division bench of this Court in Ramakrishna Pillai v. Thankamma, 1959 Ker LJ 443 : (AIR 1959 Ker. 377), confirming on appeal the decision of the single Judge in Thankamma v. Ramakrishna Pillai, 1956 Ker LT 383, that if in a redemption suit the plaintiff is unable to give the date of the mortgage, he must give prima facie evidence that the mortgage was subsisting on the date of the suit, or admitted to have been subsisting within the period of limitation. The plaintiff could not testify to the execution of the mortgage, as he was only 28 years old at the time he was examined in the case as P. W. 1. But there is a recital in a partition deed Ext. D of the year 1079, in the family of the mortgage, in which this property, which was also partitioned, was described as a mortgage right of 720 puthens and 159 1/2 parahs of paddy under a usufructuary mortgage in favour of Koyammad from the mortgagor's family, the deed for which had been filed: in 0. Section 215 of 1078 of the Ernakulam Munsiffs Court and penalty levied thereon. There is a reference to the mortgage in another partition deed also, Ext. E of the year 1093. In my opinion, these words are not merely, descriptive of the property, but are also definitive as to the quantum and the nature of the right of the family in the property find no difficulty in reading into these words, an admission of a subsisting mortgage right, by the mortgagee at the time. This affords prima facie evidence of the mortgage

3. It was next contended that Exts. D and E operate as acknowledgments under Section 19 of the Indian Limitation Act. As remarked in Ext. D there is an admission of a subsisting mortgage right, but it was argued for the defendants, that to operate as acknowledgments to save limitation, it must further be proved, that the admission was made before the expiry of the period of limitation for redemption of the mortgage. In reply it was contended, that the very fact, that the mortgage was admitted to be subsisting implied that redemption of the mortgage had not become barred by limitation on the date of the admission, and that, in any view, the admission is prima facie proof that it was not barred and reliance was placed on Kunchi Amma v. Pappi Amma, 21 Cochin 320 which has followed Ahamad Haji v. Mayan, 57 Mad LJ 789 : (AIR 1930 (Mad 65). It was held in these cases that the admission that the mortgage was subsisting itself implied, that the admission was made before the expiry of the period of limitation.

On the contrary, it has been held by a division benchof the Lahore High Court in Sher Mohammad v. KaramChand, 55 Ind Cas 576 : (AIR 1935 Lah 515), thatfor Section 19 to apply, it is not enough if the acknowledgment is of a subsisting liability, as all acknowledgments must be, but that it must further be proved, that the acknowledgment was made within time, that is, before the expiry of the period of limitation prescribed. Theoretically speaking, it is possible that the person making the acknowledgment was not aware at the time of making it that the mortgage was not subsisting; it may even be, that for reasons best known to him, a party might acknowledge a liability as subsisting though in fact it is not so. Having regard to the words 'where before the expiration of the period' with which Sec, 19 opens, there is considerable force in the contention, that the acknowledgment must be proved to have been made within time. It cannot be, as observed by the single Judge in Gian Chand v. Sher Mohammad, 154 Ind Cas 773 : (AIR 1934 Lah 121) that in every case where an acknowledgment imports a subsisting liability, the onus is to be cast on the person who made the acknowledgment to prove that it was not made before the expiry of the period of limitation. It appears to me that an acknowledgment under Section 19, besides importing a subsisting liability must also be proved to have been made before the expiry of the period of limitation. In this view, speaking with respect, I prefer to adopt the Lahore view.

4. But it was contended that, a different standard of proof has to be applied in a case like the present, where the plaintiff is unable to specify the mortgage sought to be redeemed, for the duty is of the mortgagee. who is or who may justly be presumed to be, in possession of the mortgage deed, to adduce proof of the mortgage, and if he is unable to produce it, it is he and not his mortgagor, who must suffer. The Privy Council observed thus in Rajah Kishen Dutt Ram Panday v. Narendra Bahadoor Singh, 3 Ind App 85 at p. 88 (PC):

'It appears to their Lordships that in such a case as the present it lies upon the Plaintiff to substantiate his case by some evidence, by some prima facie evidence at least. But in this, as in most other cases, when the quantum of evidence required from either party is to be considered, regard must be had to the opportunities which each, party may naturally be supposed to have of giving evidence; and although the burden of proof prima facie in this case in their Lordships' view is upon the Plaintiffs, still they think the consideration should not be omitted that the Defendant would naturally have the mortgage, and that it would be prima facie, at all events, more in his power to give accurate evidence of its contents than in that of the Plaintiff. It is not a case in which two deeds, such as a lease and a counterpart, are executed, the Plaintiff keeping one and the Defendant the other, but it is a case in which it would appear that there is only one document, and that that would be, and was in this case, in the custody of the Defendant. The Plaintiff, by the hypothesis, would not have seen the document or probably have had access to it from the time of its execution, which in this case was the year 1840, whereas the Defendant would be assumed to have it and to be able to produce it, or, if he could not produce it, to show why he could not, and to give some evidence of its contents if it were lost 'Now, applying this view of the law to the present case, their Lordships have to see whether the Plaintiff, in their view, did give such prima facie evidence as shifted the burden of proof on the Defendant. Although it may be that the evidence of neither side is altogethersatisfactory, nevertheless their Lordships, after giving their best consideration to the case, are of opinion that the Plaintiff did give some such prima facie evidence. He was himself examined. He called seven or eight witnesses, who deposed to the contents of the instrument, to its containing the term which he contended for, and further, to the admission of the Defendant or of his predecessors of the existence of some such term, and the Extra Assistant Commissioner believed those witnesses, having, as was before observed, the opportunity of seeing them and observing their demeanour.'

5. The indication in Ext. D is, that the mortgage document was produced by the mortgagee in 0. Section 215 of 1078 in the Ernakulam Munsiff's Court. In 1959 Ker LJ 448 : (AIR 1959 Ker 377) cited above, the bench also observed :

'There may be cases in which the plaintiffs evidence may reach such a point that the onus of proving a suit to be barred by limitation rests upon the defendant, and the question as to which party has the knowledge of the relevant facts has always to be considered.'

The rule referred to above formulated by the bench ofthis Court, as also the principle enunciated by the PrivyCouncil in the case cited, apply as well to the proof ofthe subsistence of the mortgage as to that of its existence. Even adopting the Lahore view, I am of the opinion,that Ext. D affords sufficient prima facie proof, not onlyas to the existence of the mortgage, but also as to itssubsistence at the time, in the sense that a suit for itsredemption was not then barred by the law of limitation.If so, it follows that the present suit is not barred. Theresult is, that I confirm the decree of the SubordinateJudge and dismiss the appeal with costs.


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