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Bai Sakinabai and ors. Vs. Gulam Rasul Umarbhai Shaikh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 314 of 1976
Judge
Reported inAIR1981Guj142; (1981)0GLR389
ActsLimitation Act, 1963 - Sections 18; Code of Civil Procedure (CPC), 1908 - Sections 100; India Evidence Act, 1872 - Sections 17, 18(2), 21, 32(2) and 90
AppellantBai Sakinabai and ors.
RespondentGulam Rasul Umarbhai Shaikh
Appellant Advocate D.F. Amin, Adv.
Respondent Advocate R.N. Shah, Adv.
Cases ReferredVallabhdas v. Assistant Collector of Customs.
Excerpt:
limitation - valid acknowledgement - sections 18 and 19 of limitation act,1963 - acknowledgement prescribed in section 19 renews debt - it does not create new right of action - it is mere acknowledgement of liability in respect of existing right - words used in acknowledgement must indicate jural relation between parties. - - if these two documents are construed as valid acknowledgments within the meaning of section 18 of the limitation act, 1963 then the plaintiff must necessarily fail as the equity of redemption which the present defendants appellants would not get extinguished by passage of time and will enure up to 22-10-1994. if on the other hand they do not amount to valid acknowledgments within the meaning of section 18 of the limitation act, 1963, the plaintiff must.....1. this second appeal under section 100 of the civil p. c. involves a short question of law as to whether documents exs. 38 and 40 relied upon by the present appellants -original defendants - amount to acknowledgment of subsisting mortgagee rights on the part of the respondent and his father within the meaning of section 18 of the indian limitation act, 1963 (section 19 of the indian limitation act, .1908). if these documents are held to amount to valid acknowledgement within the meaning of aforesaid section of the limitation act, the appellants are entitled to succeed but not otherwise.2. in order to appreciate the aforesaid controversy between the parties, it is necessary to have a glance at certain material facts as are brought out in the case.3. in dohad town in panchamahals district.....
Judgment:

1. This second appeal under Section 100 of the Civil P. C. involves a short question of law as to whether documents Exs. 38 and 40 relied upon by the present appellants -original defendants - amount to acknowledgment of subsisting mortgagee rights on the part of the respondent and his father within the meaning of Section 18 of the Indian Limitation Act, 1963 (Section 19 of the Indian Limitation Act, .1908). If these documents are held to amount to valid acknowledgement within the meaning of aforesaid section of the Limitation Act, the appellants are entitled to succeed but not otherwise.

2. In order to appreciate the aforesaid controversy between the parties, it is necessary to have a glance at certain material facts as are brought out in the case.

3. In Dohad town in Panchamahals District is situated an immovable property bearing city survey No. 2810 which was originally an open piece of land over which a hut was constructed later on. The said property was belonging to one Marabkhan Singalkhan. He had mortgaged the said property with possession for Rs. 80/- in 1896 A. D. to one Khatijabu widow of Chand Ramzan, and since that time, the suit property that is open land with a hut over it came in possession of Khatijabu. Thus the said Khatijabu became mortgagee in possession of the suit property. The said Khatijabu bequeathed her mortgagee rights over the suit property by her will dated September 28, 1915 in favour of Umar Mastu Belim, who was the predecessor-in-title of the present respondent. Thus Umar Mastu Belim as a legatee under the will of said Bai Khatijabu became a mortgagee in possession of the suit property after the death of Bai Khatija in 1920 when the aforesaid will of Bai Khatijabu took effect. The aforesaid Umar Mastu died in 1951 leaving behind him the present respondent original plaintiff and one daughter named Babubibi as his sole heirs and legal representatives. According to the plaintiff-respondent, he and his sister on the death of the original mortgagee in possession Umar Mastu derived the mortgagee rights in the suit property after their father's death in 1951. The respondent-plaintiff's further case is that as the original mortgagor had not redeemed the suit property within 60 years from 1896 the heirs of original mortgagee in possession Umar Mastu became full owner of the suit property on the expiry of 60 years from the year 1896 i. e. from 1956 they have become the full owners of the suit property. Thus the case of the plaintiff is that from 1956 onwards he and his sister had become the co-owners of the suit property to the exclusion of the original mortgagor and his successors in interest. This contention of the plaintiff was based on the ground that the equity of redemption had already got extinguished with the expiry of the time for redemption available from the date of the original mortgage of 1896. The plaintiff's further case is that his sister Babubai gave up her right, title and interest in the suit property in favour of respondent-plaintiff by a registered release deed which came to be registered on 29th December 1967. The respondent plaintiff therefore, contends that from 1956 onwards he and his sister were co-owners of the suit property and from the end of 1967 he is the sole owner of the suit property and the equity of redemption that inhered in the legal representatives of original mortgagor had stood extinguished by law of limitation which operated on the original mortgage transaction as the heirs and legal representatives of the original mortgagor took no steps for redeeming the usufructuary mortgage on the suit property within the full span of 60 years from 1896 as per the old Limitation Act, 1908.

4. It is necessary to mention one additional development which took place after the original mortgage was executed in 1896. One Vora Mahmadali Jiva Ibrahim Jiwala purchased original mortgagor's rights in a court auction on January 11, 1907. The present appellants defendants are the heirs and legal representatives of the aforesaid purchaser of the original mortgagor's rights.

5. In the background of the aforesaid sequence of events, the present respondent as plaintiff filed Regular Civil Suit No. 241 of 1973 in the Court of the Joint Civil Judge, (J. D.). Dohad for a declaration that the present defendants who are the heirs of Taherali Mohammadli Vora the auction purchaser of the original mortgagor's rights in the suit property have no right left in them to redeem the property as their right of redemption had got extinguished and the defendants have no right, title and interest left in the suit property. The respondent-plaintiff prayed also for a permanent injunction against the appellants restraining them from disturbing the plaintiff's possession of the suit property as full owner thereof.

6. The present appellants as defendants resisted the suit by their written statement, Ex. 21, Defendant No. 2 remained ex parte but the suit was mainly resisted by defendants Nos. 1, 3, 4 and 5. They contended that the suit was not maintainable: that the plaintiff had no right in the suit property as full owner. They admitted that original owner of the suit property was one Pathan Merabkhan Singalkhan. They then traced out their interest in the suit property. They contended that the suit property was sold in court auction keeping the mortgage charge of Rs. 80/- over the same and it was purchased in the court sale by their grand-father Mohamedali Jiva Ibrahim on 16-1-1907 and after his death the father of the defendants had become the owner of the suit property. That they were the heirs of their deceased father. They thus contend that they had equity of redemption in the suit property. They further contended that their equity of redemption in the suit Property was not extinguished on the expiry of 60 years from the date of mortgage of 1896. In order to sustain their plea that their equity of redemption was not extinguished by passage of time they relied upon two documents, one an application, Ex. 38, and a statement dated 29-10-1930, Ex. 39. The said application, Ex. 38, was made by the then mortgagee in possession, Umar Mastu, to the City Survey Officer, Dohad wherein he allegedly acknowledged the subsisting mortgage on the suit property and his mortgagee rights therein. According to the contesting defendants-appellants, the said, the then mortgagee Umar Mastu, the predecessor-in-title of the plaintiff-respondent by his supporting statement Ex. 39 acknowledged his liability as a mortgagee in possession and which was a clear acknowledgment as per section 18 of the Limitation Act, 1963 (old Section 19) and from the said date, a further period of 60 years for redemption of the suit mortgage was available to the defendants. Thus according to the defendants, the right of redemption could be exercised by them over the suit mortgaged property up to 29-10-1990. They further contended that on account of the enactment of the Limitation Act, 1963, which came into force on 1-1-1964 the period of limitation has been reduced to 30 years for redemption of mortgages. Consequently under Section 30(1) of the Limitation Act of 1963, the respondents could avail of their right of redemption of the suit mortgage up to a period of seven years from 1-1-1964. Thus limitation for redemption of the mortgage on the suit property would have finally expired on 1-1-1971 as seven years were available from the date of the coming into operation of Indian Limitation Act, 1963 for filing suits in cases where the period of limitation under 1963 Act was shorter than the period of limitation prescribed by old Limitation Act. The defendants further contended that before this extended period of limitation became over, the present plaintiff himself further acknowledged the mortgage on the suit property and his liability as a mortgagee by another document dated 22-10-1964 Ex. 40 which was a statement given by the plaintiff before the City Survey Officer, Dohad admitting the existence of his mortgagee rights over the suit property. Thus according to the defendants the period of redemption of the mortgage on the suit property stood further extended by 30 more years under the new Limitation Act from 22-10-1964 onwards as the second acknowledgment by the plaintiff dated 22-10-1964 amounted to an acknowledgment under section 18 of the Act. According to them, their equity of redemption will subsist up to 22-10-1994. It was, therefore, contended that the plaintiff's suit as filed in the year 1973 was misconceived, premature and it was liable to be dismissed.

7. On these pleadings, the learned trial Judge framed issues at Ex. 21. It may be stated that both the parties by a written pursis agreed not to lead any oral evidence, and they only relied on the documentary evidence which was produced in the case.

8. As seen above, the entire fate of this case depends on the true construction of the two basic documents i. e. statement dated 29-10-1930 Ex. 39 and the statement dated 22-10-1964, Ex. 40.Ex. 39 is said to have been executed by the plaintiff's father, the then mortgage in possession while the second statement was made by the plaintiff himself. If these two documents are construed as valid acknowledgments within the meaning of section 18 of the Limitation Act, 1963 then the plaintiff must necessarily fail as the equity of redemption which the present defendants appellants would not get extinguished by passage of time and will enure up to 22-10-1994. If on the other hand they do not amount to valid acknowledgments within the meaning of section 18 of the Limitation Act, 1963, the plaintiff must necessarily succeed as the equity of redemption which the present defendants inherited from their grand-father via their father would stand extinguished by the operation of the law of limitation.

9. The learned trial Judge took the view that these two documents amounted to valid acknowledgments within the meaning of section 18 of the Limitation Act, 1963 and consequently the equity of redemption in favour of the defendants-appellants so far its the said mortgage was concerned stood effective and would enure up to 22-10-1994. On the aforesaid conclusion, the learned trial Judge was pleased to dismiss the plaintiff 's suit.

10. That prompted the dissatisfied plaintiff to approach the District Court Panchmahals at Godhra by way of an appeal, being Regular Civil Appeal No.11 of 1975. And the same has been allowed by the learned Assistant Judge on the construction, which he put on these two basic documents Exs. 39 and 40. The learned Appellate Judge held that Exs. 39 and 40 are not made with an intent to acknowledge the mortgagor

mortgagee relationship and consequently they were of no use to the defendants for getting the extension of period of limitation for redemption of the suit mortgage. In that view of the matter, the learned Assistant Judge. Panchmahals at Godhra who decided the appeal allowed the same and decreed the plaintiff's suit and granted him a declaration to the effect that the equity of redemption for the suit mortgage so far as the defendants are concerned stood extinguished and the plaintiff had become the sole owner of the suit property Consequently the learned Appellate Judge also granted permanent injunction in favour of the plaintiff and against the defendants.

11. The aforesaid decree passed by the learned Appellate Judge has brought the dissatisfied defendants to this court by way of the present second appeal.

12. Mr. D. F. Amin, the learned advocate appearing on behalf of the appelants-defendants has raised the following contentions.

(1) That the lower appellate Court had committed a patent error of law in holding that the documents Exs.. 38 and 39 did not amount to valid acknowledgment within the meaning of section 18 of the Limitation Act, 1963

(2) The learned Appellate Judge was equally in error of law in holding that the. Document Ex. 39 was not duly proved

Mr. Amin, therefore, contended that the leaned Appellate Judge had committed a grave error of Law in decreeing the plaintiff's suit.

13. Mr. R. N. Shah on the other hand supported the decree passed by the learned Appellate Judge and amongst other contended that the Appellate Judge had considered the relevant documents Exs. 38 to 40 and has come to the conclusion that the executant of these documents had not expressed any intention to acknowledge their subsisting liabilities as mortgagees in possession and that finding about the intention of the executants of these documents was a pure finding of fact which could not be interfered with by this court in second appeal.

14. I will proceed to deal with the submissions raised by Mr. Amin in the said sequence in which they were raised before me.

15. So far as the first contention is concerned it is necessary to have a look at the relevant recitals of these basic documents in light of the contemporaneous facts which are well established on the record of the case. It is to be recalled at this stage that the original mortgagee rights which had inhered in Bai Khatija carne to be bequeathed to plaintiff's father Umar Mastu by her will dated 28-9-1915 and which came into effect on the testator's death in the year 1920. Thus from 1920 onwards the present plaintiff's father was occupying the suit property as mortgagee in possession. It appears that at the relevant time, the suit property was not shown in his name as a mortgagee in possession. Consequently, he seems to have given an application on July 28, 1930 to the City Survey Officer. Dohad, requesting him to show his usufructuary mortgagee rights in the suit property. The said application is at Ex. 38 on the record of the case. In the said application plaintiff's father Umar Mastu stated that he had usufructuary mortgagee rights in the property being City Survey No. 2810 (the suit property) for Rs. 80/-. That the property belonged to Vera Mahmadali Jiva Ibrahirnjivala (the predecessor in-title of the present defendants) but he could not find from the City Survey record that his aforesaid mortgagee right was noted so far as the said property was concerned. He therefore. applied to the City Survey Officer. Dohad for mutation of his usufructuary Mortgagee right. He stated further in his application that the said house was in his possession since many years and his mortgagee rights deserve to be noted with respect to the said property. It appears that pursuant to the said application Ex. 38 the then mortgagee Umar Mastu was called before the City Survey Officer, Dohad and on October 29, 1930 he appeared before the City Survey Officer. Dohad and gave a statement in support of his application. Ex 38. The said statement is at Ex. 39 in the record of the case. It is this statement, Ex 39, signed by Umar Mastu on 29-10-1930 which is one of the bones of contentions between the parties. The plaintiff-respondent contends that Ex. 39 does not amount to any acknowledgment of subsisting mortgagee rights of Umar Mastu within the meaning of section 18 of the Limitation Act, 1963. The appellants-defendants contend to the contrary. It is, therefore, necessary to reproduce the relevant recitals in the statement Ex. 39 in extenso. The said statement of Umar Mustu, the then mortgagee when translated into English reads as under:

'I, the undersigned, Umar Musa give my statement as under. At present I am in possession of City Survey No. 2810 situated in Dahod Kasba by way of my mortgagee rights therein. The said mortgagee rights have been gifted to me on 28-9-1915 by Bai Khatijabu widow of Shaikh Chand Ramjan, and from that day onwards that is since last 15 years the said property is in my possession. Prior thereto it was in possession of Khatijabu by way of her mortgagee rights therein. The aforesaid property of mine was purchased by Vohra Mahmadali Jiva Ibrahimjiwala on 11-1-1907. In the certificate (which may have been issued to him) my mortgage dues of Rs. 80/- are mentioned, he has still not remitted them to me. Hence my Possession continues. As a proof of my possession I produce rent note dated 8-11-1928. The said rent note is executed in my favour by Abdul Raheman Maulabax. It is therefore, requested that the property, be mutated in my name.

Dated 29-10-1930. Sd/- Umar Musa'.

16. The aforesaid statement, Ex. 39 of Umar Mastu when read in light of his application, Ex. 38, shows that Umar Mastu clearly admitted that he was in possession of the suit property as a mortgagee in possession. Thus the statement at Ex. 39 not only asserts the jural relationship of mortgagor and morteagee, but also contains a clear prayer on the part of the mortgagee that the property be so mutated in his name. These recitals in the document leave no room for doubt that they amount to a clear acceptance of the position on the part of the executant of the document that there was a subsisting relationship between him and the auction purchaser of 1907 as a mortgagee and the mortgagor. It also reflected a clear intent on the part of Umar Mastu to acknowledge his possession only as a mortgages in possession and his existing liabilities as a mortgagee in possession. It is the contention of the appellants that recitals, in Ex. 39 amounts to a valid acknowledgment of the executants mortgage rights in the suit property within the meaning of section 18 of the Limitation Act, 1963 and by the said document the period of limitation for redemption of the suit mortgage stood extended up to 9-10-1990, i.e. sixty more years from 9-10-1930.

17. It is now well settled as to when an acknowledgment of liability can be said to have taken place within the meaning of section 18 (1) of the Limitation Act, 1963. The said section reads as under:

'18. (1) 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 signed.'

Under the earlier Indian Limitation Act. 1908, there was an equivalent Sec, 19 (1) similarly providing for the effect of acknowledgment in writing. The Supreme Court in the case of S. F. Mazda v. Durga Prasad : [1962]1SCR140 considered the scope of Section 19 of the Limitation Act. 1908 and laid down the tests for deciding the question as to when given recitals amount to acknowledgment with the meaning of that section. It has been observed by the Supreme Court that the acknowledgment as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the act nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. It is further observed by the Supreme Court that in construing words used in the statement made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should, be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19. and there is really no substantial difference between the parties as to the true legal position in this matter. '

18. The aforesaid decision of the Supreme Court was later relied upon by the Supreme Court in the case of Tilak Ram v. Nathu, : AIR1967SC935 . Following the earlier judgment of the Supreme Court in the case of S. F. Mazda : [1962]1SCR140 (supra). Shelat, J. speaking for the Supreme Court in Tilak Ram's case held that a statement on which the plea of acknowledgment to subsisting liability is based must contain the following requirements. 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. It was further observed by the Supreme Court in Tilak Ram's case that 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 all involved or a far-fetched process of reasoning. On the facts of Tilak Ram's case the Supreme Court in the aforesaid case took the view that the four statements relied upon by the mortgagors in that case did not contain any acknowledgment on the Dart of the erstwhile mortgages which would enlarge the period of limitation for redeeming the suit mortgage. On the f acts the Supreme Court found in Tilak Ram's' case that the statement contained in four documents relied upon by the mortgagors in that case merely shows that the concerned mortgagee had only emphasised his own rights and had not made the concerned statements with an intention to admit jural relationship between him and the mortgagor. But all the same in Tilak Ram's case was reaffirmed the earlier decision of the Supreme Court in Mazda's case (supra).

19. In another decision of the Supreme Court in the case of L. C. Mills v. Aluminum. Corpn. of India. : [1971]2SCR623 , Justice J. M. Shelat who was a party to the earlier decision in Tilak Ram's case : AIR1967SC935 supra) again reiterated the same test for application of provisions of Section 19 of the Indian Limitation Act, 1908 to a given case. It was observed in the aforesaid case that the statement on which the plea of acknowledgment is founded need not amount to promise and need not indicate the exact nature or the specific character of the liability. It must, however, relate to a present subsisting liability and indicate the existence of jural relationship between the parties such as, for instance, that of a debtor and a creditor and the intention to admit such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. It was further observed relying on the earlier aforesaid decision of the Supreme Court that generally speaking a liberal construction of the statement in question should be given. That of course does not mean that where a statement is made without intending to admit the existence of jural relationship such intention should be fastened on the person making the statement by an involved and far-fetched reasoning.

20. In view of the aforesaid settled legal position it must be held that before any recital in a document is treated to be within the meaning of section 18 of the Limitation Act. 1963, it must be shown that the statement concerned avers about the existence of a jural relationship and the said statement is made with an intention to acknowledge the said relationship. Thus the assertion about the existence of jural relationship between the parties and an intention to admit one's liability flowing from such a relationship are the essence of any valid acknowledgment within the meaning of section 18 of the Limitation Act. 1963 (old Section 19).

21. In light of the aforesaid legal position it will have to be decided as to whether the concerned documents Exs. 39 and 40 amount to a valid acknowledgments. So far as Ex. 39 is concerned it is a statement which came to be made by the then mortgagee in possession. Umar Mastu. When read in the light of his prior application, Ex. 38, it is clear that by Ex. 39 the then mortgagee in possession asserted years back on 29-10-1930 the jural relationship which existed between him and the owner of the suit property accepting the fact that he was a mortgagee in possession and the auction Purchaser and owner of the property was one Vohra Mahmadali Jiva lbrahimjiwala, who had purchased it on 11-1-1907. Thus he clearly admitted that there existed a jural relationship between him as mortgagee and the mortgagor and the said assertion was obviously made by him with an intention to acknowledge his subsisting liability as a mortgagee in possession of the suit property as he wanted the City Survey Officer to mutate the suit property in his name only as a mortgagee in possession. Thus he acknowledged his liability as a mortgagee in possession qua the suit property. It is thus apparent that the mortgagee in possession Umar Mastu clearly asserted the jural relationship of mortgagee and mortgager with a clear intention to acknowledge his liability to remain in possession as a mortgagee and did not assert any higher rights in the suit property. Consequently both the legal requirements for being a valid acknowledgment within the meaning of section 18 of the Limitation Act have squarely been met so far as the recitals in Ex. 39 are concerned and it must be stated that Ex. 39 clearly included recitals which amounted to an acknowledgment on the part of the then mortgagee in possession Umar Mastu of his subsisting liabilities as a mortgagee under section 18 of the Limitation Act. Consequently by the said document the period of redemption as available to the original mortgagor get further extended by 60 years as the law of limitation then stood and hence, it got extended up to 29th October, 1990.

22. As stated above, in between intervened the new Limitation Act. 1963. It came into force on 1-1-1964. Under Section 30 of the said Act the period for redemption of suit mortgage got extended only by seven years from the date of the coming into force of the 1963 Limitation Act that is up to 1-1-1971. In the meantime the present respondent-plaintiff made a statement Ex. 40 before the City Survey Officer 22-10-1964. This statement of the respondent is alleged to have contained a further acknowledgement on his part of his mortgage rights in the suit property. It is, therefore, necessary for me to turn now to the recitals in Ex. 40 with a view to find out as to whether these recitals can be treated to be a valid acknowledgement of mortgage rights of the plaintiff in the suit property or not. It may be stated at this stage that so far as original mortgagor Umar Mastu was concerned he got his name entered as mortgagee in possession by statement Ex. 39 years back in 1930. Thereafter on 21-10-1951, mortgagee in possession Umar Mastu died. The plaintiff as his son, and Umar's daughter thereafter applied to the City Survey Officer, Dohad by an application Ex. 40 dated 22-12-1962 for getting their father's properties mutated in their names. It is this application Ex. 40 of the plaintiff that has been heavily relied upon by the defendants to cull out a fresh acknowledgment of mortgagee rights in the suit property, and hence, it is necessary for me to refer to the said application in all its details. The said application when translated in English reads as under:-

To the Civil Survey Officer. Dohad.

Subject:- For effecting mutation entries.

Applicant:- Gualm Rasul Umarbhai Shaikh and Banubibi daughter of Umar Mastu.

It is humbly prayed with compliments that properties City S. Nos. 1554, 2319, 2326, 2575, situated in Dohad Kasha stand in the name of our father Umar Mastu. Property bearing City Survey No. 2810 stands in his name by way of usufructuary mortgage and being in his possession accordingly. But he has died on 21-10-1951. His death certificate is produced herewith. We are his lawful heirs. There is no other heir. It is therefore, prayed that our names may be inserted qua these properties by way of inheritance.

D/- 22-10-1964

Sd/- Gulam Rasul Umarbhai Shaikh Thumb impression of Banubibi daughter of Umar Mastu.

The said application Ex. 40 is followed by a statement signed by respondent plaintiff and his sister on the same day i. e. 22-10-1964. Their joint statement is recorded just below Ex 40. The said statement is also on the same lines and contains similar recitals as are founding the main application Ex. 40. It is thus clear that Ex. 40 was moved by the respondent-plaintiff with a view to get his and his sister's name inserted in the various properties left by his father but in the said application it was made clear that out of the immovable Properties left by their father for four properties their names were to be inserted as absolute owners but so far as the property bearing City Survey No. 2810 is concerned, they clearly pointed out to the City Survey Officer that the mortgagee right which had inhered in their father was shown against that property and similarly their names should be substituted for the name of their father so far as property No. 2810 was concerned. A conjoined reading of the various recitals in the said application, Ex. 40 as given by the respondent and his sister shows that so far the respondent's other properties left by his father were concerned they had to be mutated in his and his sister's names as full owners, but so far as the suit property was concerned, he made it clear that their mortgagee rights therein were to be shown. Consequently the respondent even as late on 22-10-1964 reiterated the existence of jural relationship of mortgagor and mortgagee so far as the suit property was concerned and said application was given with an intention clearly to accept the respondent and his sister's subsisting liabilities as mortgagees in possession so far as the suit property is concerned. Thus both the requirements of a valid acknowledgment as laid down by the aforesaid Supreme Court judgments are fully complied with also so far as recitals in Ex. 40 are concerned. Ex. 40 can be said to have contained a clear recital on the part of respondent-plaintiff which will amount to an acknowledgment of his subsisting liability as mortgagee in possession so far as the suit property was concerned. Hence the recitals in Ex. 40 also amounted to a fresh acknowledgment on the part of the respondent of his subsisting liability as a mortgagee in possession. It goes without saving that if the respondent did not want to accept his subsisting liability as a mortgagee in possession so far as suit property was concerned in 1964, he would not have described it had treated it differently as compared to his father's other exclusive properties in those mutation proceedings. The very fact that he separately mentioned and dealt with the suit property as being in his possession as heir of the mortgagee in possession shows his intention to accept his limited interest therein as a initiator in possession and nothing more. So far as the suit property was concerned, as the recitals in Ex. 40 are dated 22-10-1964, this acknowledgment of his liability on the part of the respondent as mortgagee in possession will further extend period of limitation for redemption by 30 years from 22-10-1964 as provided by Article 61 (a) in the Schedule to the Limitation Act, 1963 read with section 18 of that Act. It is further pertinent to note that in the plaint as filed in the present case respondent came with a specific contention, that according to him, the right of redemption of the mortgage over the suit property which was originally effected in 1896 stood extinguished from 1956 and from 1956 onwards the plaintiff was the full owner of the property along with his sister and his sister had relinquished her interest in the suit property in 1967 in his favour and thus he became full and sole owner of the suit property. In view of this specific case put forward by the respondent, it is clear that from 1956 the equity of redemption in the suit property had got extinguished according to him. If that is so it is obvious in 1964 when he gave application Ex. 40 to the City Survey authority for mutation of his name and his sister's name as the heirs of original owner, he would have certainly insisted that so far the suit property was concerned their names should be shown as full owners and not as mortgages in possession. But the respondent in 1964 did not want to assert that he had become the full owner of the suit property bearing City Survey No. 2810 along with his sister, but he made a clear classification of different properties left by the father in two clear categories and he asserted that so far as the suit property was concerned his name should be shown vice his father in the said properties along with the name of his sister in the same manner (i.e.as mortgagees in possession) in which their father's name was previously shown. Thus he clearly treated suit property differently and mentioned City Survey No. 2810 as one which stood in the name of his father as a mortgagee in possession and the respondent requested the City Survey Officer to change the name of his father and mutate the names of the respondent and his sister vice him which obviously meant only as mortgagees in possession. This clearly shows that up to 1964 respondent never treated himself to be full owner of the Suit property but only asserted his limited right so far as the suit property is concerned as successor mortgagee in possession. Consequently the recitals in Ex. 40 not only assert the jural relationship of mortgagee and mortgagor but also show the underlying clear intention on the part of the respondent to acknowledge his subsisting liability to remain in possession of the suit property as mortgagee of the suit property and nothing more.

23. Mr. R. N. Shah appearing for the respondent-plaintiff contended that the recitals in both these documents Exs, 39 and 40 merely show that the executants of the documents wanted to assert as a fact the existence of their mortgagee rights in the property but they never wanted to acknowledge their subsisting liability as such. It is difficult to accept the said contention of Mr. Shah. The aforesaid discussion clearly show that not only the executants asserted the jural relationship of the mortgagee and mortgagees in the suit property but also expressly or even by necessary implication accepted their liability to be described as mortgagee in possession and to be shown only as mortgagee in possession. Thus they cleary1 accepted their liability and agreed to be treated as mortgagees in possession both at the time when Ex. 39 was executed in 1930 and when Ex. 140 was executed in October, 1964.

24. Mr. Shah then submitted that in any case the learned appellate Judge on the construction of these documents has taken the view that these documents do not show on the part of the executants any intention to admit their subsisting liability of being the mortgagees in possession. Mr. Shah invited my attention to Para 19 of the judgment of the appellate court wherein it has been observed by the learned appellate Judge as under:-

'The intention is the most important ingredient which is required to be judged by the Court and on perusal of Exs. 38 and 39 and also Ex. 40 I find that they are not made with an intent to acknowledge the mortgagee relationship.'

Mr. Shah submitted that this is a clear finding of fact which was arrived at by the learned Assistant Judge. Even this submission of Mr. Shah cannot be accepted. It must be recalled at this stage that the construction of these basic documents Exs. 39 and 40 is the main question involved in the present second appeal and the moot question of law is as to whether these recitals in the documents amount to valid acknowledgment of mortgagee rights and liabilities within the meaning of section 18 of the new Limitation Act or old Section 19 of the Indian Limitation Act. 1908. The construction of these basic documents on which the entire fate of this litigation hangs falls clearly within the scope of Section .100 of the Code of Civil Procedure.

25. In the case of Chitturi Visweswara Rao v. Akolla Satyanarayana, AIR 1957 Andh Pra 445 a learned single Judge of Andhra Pradesh High Court has taken the view that the use of the word 'towards' in itself implied that more remained to be paid and that this amounted to valid acknowledgment of liability within the meaning of See. 19 of the Limitation Act and that is a pure question of law which can be raised even in revision. But even apart from the aforesaid decisions of Andhra Pradesh High Court there are a series of judgments of the Supreme Court which take the view that the construction of a basic document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. In the case of Chunilal v. C.S. & M. Co. Ltd. : AIR1962SC1314 . Mudholkar, J. speaking for the Supreme Court held that it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. The same view is reiterated in a later judgment of the Supreme Court in Jadu Gopal v. Pannalal : [1978]3SCR855 , wherein it has been held that construction of these basic documents which go to the root of the matter is a question of law and could be gone into in second appeal.

26. In the case of Bhusawal Municipality V. A. E. Co. Ltd.. : [1964]5SCR905 , it has been held by the Supreme Court that misconstruction of a document which is not merely of evidentiary value but one upon which the claim of a party is based would be an error of law and the High Court in second appeal would be entitled to correct it.

27. In the Present case it is obvious that the construction of documents Exs. 39 and 40 will be of essence on which rights of parties depend. They are they very foundation of the rights of parties in the suit. Thus they are basic documents on which fate of the litigation rests, In fact it has so rested in both the courts below. The High Court construed the aforesaid documents as containing valid acknowledgments of mortgagee rights while appellate court has taken a contrary view. It is also apparent from the record of the case that the parties have given a pursis to the effect that they did not want to lead oral evidence and they relied on their respective constructions of these documents for, supporting their cases. In that view of the matter it must be held that the construction of these basic documents in light of the settled legal position regarding the applicability of section 18 of the new Limitation Act, 1963 clearly raises a question of law which can be gone into by this court in second appeal. Hence the submission of Mr. Shah. the learned advocate for the respondent that this court has no jurisdiction to go into the question of construction of these basic documents cannot be countenanced.

28. As a result of the aforesaid discussion, the first submission of Mr. Amin has got to be upheld. The finding of the learned appellate Judge on the construction of Exs. 39 and 40 when he held that they did not amount to valid acknowledgments within the meaning of section 18 of the Limitation Act, and were not available for extending the period for redemption of the suit mortgage has got to be reversed and it has to be held that both these documents Exs. 39 and 40 amount to clear acknowledgments on the part of the then mortgagee in possession and his successor-in interest to the effect that they had subsisting mortgagee interest and liability in the suit property and consequently the period of limitation for redemption got extended under section 18 of the Limitation Act on both the occasional when these documents were executed. It must, therefore, logically follow that the equity of redemption for the suit mortgage enured up to 20-10-1990 by virtue of Ex. 39, got cut down to 1-1-1971 in lieu of Section 30(1) of the Limitation Act of 1963 but again got enlarged by Ex. 40 dated 23-10-1964 up to 22-10-1994. Hence the suit as filed by the present plaintiff is totally misconceived and premature.

29. That takes me to the second contention of Mr. Amin. It has been held by the learned appellate Judge while considering document Ex. 39 that it is not legally proved. It is difficult to accept even that finding of the learned appellate Judge. It may be noted at this stage that Ex. 39 the original statement given by plaintiff's father in 1930 before the City Survey Officer and it has been produced from the proper custody of the City Survey Office. The said document Ex. 39 is more than 30 years old with the result that it can go in evidence as duly executed. The learned appellate Judge has accepted this position but has taken the view that under Section 90 of the Evidence Act the contents of the documents do not prove themselves automatically. For that proposition he placed reliance on the judgment of the Bombay High Court in the case of Chandulal v. Bai Kashi; AIR 1939 Bom 59. It is true that merely because under Section 90 of the Evidence Act the documents are Resumed to be duly executed if they are more than 30 years old, there is no presumption about the contents of these documents being true, but in the present case once the execution of the document is presumed, it will show that the plaintiff's predecessor-in-title Umar Mastu who was the signatory to the document had executed the same. Once that is established by Section 90 of the Evidence Act, it would amount to an admission on the part of the executant i.e. plaintiff's predecessor-in-title Umar Mastu about the truth of the statements mentioned therein. This is not a case in which a third party not signatory to the document is coming forward to show that the recitals contained in the document do not reflect the true facts but here is a case where the very signatory to the document is being foisted with a clear admission on his part of the contents of the document executed by him years back and the said admission is pressed in service against his successor-in-interest. Consequently the recitals in Ext. 39 can go in as admission on the part of its executant i.e. predecessor in-title of the plaintiff in view of the combined effect of Sections 17, 18 (2) and 21 of the Indian Evidence Act, 1872. Section 17 of the Evidence Act provides that an admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. section 18 follows Section 17 and it also postulates statements made by persons from whom the parties to suit have derived their interest in the subject matter of the suit provided they are being made during the continuance of the interest of the makers of these state merits in the subject matter of the suit. It is clear that the present plaintiff who derives his interest through his father in the subject matter of the suit can be foisted with the burden of the admission qua the suit poverty which his father made years back in 1930 by Ex. 39 and when be made that statement Ex. 39 his interest in the suit property did continue. The recitals in Ex. 39 can also go in evidence under the provisions of Section 32(2) of the Evidence Act as it is a statement made against the proprietory interest of a person who is now dead. So far as the proof of such admissions contained in the statement Ex. 39 is concerned it has been now well settled by the decision of the Supreme Court in Vallabhdas v. Assistant Collector of Customs. AIR 1965 SC 481, that once the statements are proved to be signed by persons concerned, they by themselves must be held to prove the admissions contained in those statements signed by the persons concerned. It was not necessary to examine any one else in proof of these statements. In the aforesaid case before the Supreme Court it was argued that certain statements were signed by the accused and their lawyers. The contention on behalf of the accused before the Supreme Court was that without examining the lawyers who were co-signatories of the statements, the statements and the admissions contained in these statements could not have gone in evidence. The Supreme Court held that once the signature of the appellant below the statement is proved or admitted, the admissions contained in this statement were also necessarily held to be proved and there was no necessity to examine the lawyer who had also signed that statement. In view of this legal position, it cannot be held that the recitals in Ex. 39 were not legally proved, consequently the finding of the learned Appellate Judge even on the aspect must be reversed and it must be held that the recitals in Ex. 39 were legally proved on the record of the case.

30. As a result of the aforesaid discussion both the contentions raised by Mr. Amin in the second appeal are well founded and must be accepted. Consequently the judgment and decree as passed by the learned Appellate Judge will have to be set aside as being contrary to law and the decree passed by the learned trial Judge will have to be restored.

31. Accordingly this second appeal is allowed. The judgment and the decree passed by the learned Appellate Judge are set aside and the judgment and decree passed by the learned trial Judge are restored. In the circumstances of the case there will be no order as to costs of this second Appeal.

32. Appeal allowed.


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