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Mst. Chandanbai Vs. Jagjiwanlal - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 51 of 1953
Judge
Reported inAIR1958Raj110
ActsEvidence Act, 1872 - Sections 5, 63, 101 to 104, 124; Transfer of Property Act, 1882 - Sections 60; Limitation Act, 1908 - Sections 19; Mewar Limitation Act - Sections 14 and 22
AppellantMst. Chandanbai
RespondentJagjiwanlal
Appellant Advocate Chandmal, Adv.
Respondent Advocate Zabar Raj, Adv.
DispositionAppeal dismissed
Cases Referred(P) and Shanti Parkash v. Harnam Das
Excerpt:
.....was produced before the munsarim by ratanlal constitutes good secondary evidence of the original deed of mortgage. if the very copy which was on the record of the court of wards should have been transferred to the record of the trial court, i have no doubt it would have been perfectly unexceptionable secondary evidence of the original mortgage deed. my answer to this question is clearly in the negative. such an objection to be valid should be raised at the very time a document is sought to be tendered in evidence and proved, and if not so raised, it should be deemed to have been waived, because if it had been raised, it would have been perfectly possible for the respondent to have prayed for the very copy of the document which was on the record of the munsarim's office to be taken on..........kesharbai or the latter's son-in-law ratanlal had made any application or produced a copy of the deed of mortgage or made any acknowledgment with respect to the mortgage before the munsarim and alternatively that if the persons above-named had done any such thing, then the defendant appellant was not bound there by inasmuch as neither the defendant's mother-in-law nor ratanlal had any right whatever to conduct any proceedings in connection with the mortgage or to make any acknowledgments in respect thereof, and, therefore, the appellant being the sole owner of her husband's estate after the latter's death was not bound by any acknowledgments alleged to have been made by mst. kesharbai her mother-in-law or ratanlal.it was further contended that the plaintiff had never made any demand.....
Judgment:

I.N. Modi, J.

1. This is a second appeal by the defendant Mst. Chandanbai against the judgment of the Civil Judge, Udaipur, dated 10-12-1951, in a suit for redemption.

2. The plaintiff respondent Jagjiwanlal as a minor and brought this suit through his next friend Mst. Kankubai, his mother in his capacity as the legal representative of his ancestor Jawanji who is alleged to have made the mortgage of the suit shop-cum-house, situate in village Dhulev and the boundaries whereof are mentioned in para (1) of the plaint, in favour of Sankad Chand an ancestor of the defendant appellant by a mortgage deed dated Kati Vadi 11 Smt 1920 for Rs. 861/-. The mortgage was with possession.

It was further alleged in the plaint that the mortgagee had spent a sum of Rs. 111/5/- by way of improvements to the suit property in Smt. 1930 and this was acknowledged on behalf of the plaintiff's ancestors on the deed itself, and later in Smt. 1952 a further sum of Rs. 39/- was spent on repairs thereof, and the same was also acknowledged to have been spent on behalf of the plaintiff's ancestors and thus a sum of Rs. 1011/5/- became payable with respect to the mortgage up to the Smt. year 1952.

The case disclosed in the plaint further was that in Samwat year 1986, the plaintiff's estate was taken under the management of the Court of Wards of the former State of Udaipur, and some proceeding was apparently commenced in connection with the redemption of the mortgage, and during that proceeding, the mother-in-law of the defendant appellant Mst. Kesharbai widow of Hiralal made an application through her son-in-law Ratanlal on Kati Vadi 7th Smt. 1987 in which the mortgage in question was admitted, (See Ex. 1), and Ratanlal further gave a statement (Ex. 2) in which he admitted the mortgage and he also produced a copy of the mortgage (Ex. 3) before the Munsarim of the Court of Wards. Although it was not mentioned in so many words, the plaintiff obviously relied on these documents as containing the admission of Mst. Kesharbai and Ratanlal with respect to the mortgage, and these admissions were intended to be utilised as acknowledgments so as to bring the plaintiff's suit within limitation.

The plaintiff further alleged that he had asked for redemption of the suit property a number of times from the defendant appellant, and had also given a notice in writing for the same purpose, but the defendant appellant declined to give redemption. Consequently, the plaintiff instituted the present suit for redemption on 8-4-1948, in the court of the Munsiff Dungarpur.

3. The defendant appellant resisted the Suit on a number of grounds though she admitted that she was the descendant of Sankadchand and was his sole legal representative. The appellant denied the plaintiff's title to the suit property as also the alleged mortgage of Smt 1926, for Rs. 861/- and the alleged endorsements as to repayments in samwat years 1933 & 1952. The defendant further denied that the estate of the plaintiff respondent was ever placed under the management of the Court of wards and contended that, in any case, the entire proceedings which had taken place there were inadmissible in evidence. In particular she denied that her mother-in-law Mst. Kesharbai or the latter's son-in-law Ratanlal had made any application or produced a copy of the deed of mortgage or made any acknowledgment with respect to the mortgage before the Munsarim and alternatively that if the persons above-named had done any such thing, then the defendant appellant was not bound there by inasmuch as neither the defendant's mother-in-law nor Ratanlal had any right whatever to conduct any proceedings in connection with the mortgage or to make any acknowledgments in respect thereof, and, therefore, the appellant being the sole owner of her husband's estate after the latter's death was not bound by any acknowledgments alleged to have been made by Mst. Kesharbai her mother-in-law or Ratanlal.

It was further contended that the plaintiff had never made any demand for the redemption of the mortgage, and that the defendant had never received any notice and that if a notice had been received, in any case, she had never admitted the existence of the mortgage in her reply and that all she remembered in that connection was that a rely had been given, and even if the mortgage of Smt. 1926 were to be accepted for the sake of argument to have been made, then the plaintiff's suit was barred by limitation.

It was also contended by the defendant appellant that she, and her husband in his life-time and the latter's ancestors had been in possession of the suit property for a period of about 100 years and that she had inherited the suit property as the sole heir to her husband's estate. It was also pleaded that the acknowledgments on which the plaintiff respondent relied were unauthorised and false, and, therefore, they did not avail the plaintiff to bring his suit within limitation. It was further pleaded in that connection that the relations of the defendant appellant with her mother-in-law Mst. Kesharbai were strained and, that she lived separately from the former and, consequently, she had no authority to make any acknowledgment on behalf of the defendant. Lastly, it was contended that the mortgage was an unregistered one, and, therefore, inadmissible in evidence, and, therefore, the plaintiff's suit should be dismissed.

4. The trial court framed six issues in all including the general issue for relief, and dismissed the plaintiffs suit by its Judgment dated the 20th August, 1951. The plaintiff then went in appeal to the Civil Judge, Udaipur, who set aside the Judgment of the trial court, and decreed the plaintiff's suit. The present appeal has been filed from the aforesaid Judgment and decree of the learned Civil Judge.

5. Learned counsel for the defendant appellant attacks the judgment of the court below principally on the grounds that Mst. Kesharbai, mother-in-law of the defendant appellant and Ratanlal who was her son-in-low had no authority whatsoever to act on behalf of the defendant, and, therefore, any acknowledgments made by them with respect to the alleged mortgage were of no avail to the plaintiff respondent, and further that in any case, the plaintiff respondent's suit was barred by limitation, inasmuch as the said acknowledgments had not been made withhin the Sixty years' period of limitation prescribed by the Limitation Act of Smt. 1988 which was in force in the former State of Mewar at the time the present suit was brought. It may however be mentioned that while this was the main line of attack, some subsidiary grounds were also strenuously raised, namely, that there was no legal proof of the mortgage of Smt. 1926 or of the acknowledgments of Smt. 1987 or that the plaintiff was a descendant of Jawanji, and he had, consequently, no right to file the present suit.

6. Before I deal with the principal ground of attack as respects the authority of Mst, Kesharbai and Ratanlal to make any acknowledgments so as to be binding on Mst. Chandanbai or with the point as to limitation, Propose to deal with the other points adverted to above.

(His Lordship on a consideration of the documentary evidence held that it was a perfectly good secondary evidence of the mortgage of Smt. 1926, and proceeded :)

7-9. The contention of learned counsel for the appellant however is that the copy of the copy of the mortgage deed is not legal secondary evidence within the meaning of Section 63 of the Evidence Act, because that was never compared with the original. I am clearly of opinion, however, that under Section 63(3), the copy of the mortgage deed which was produced before the Munsarim by Ratanlal constitutes good secondary evidence of the original deed of mortgage. Mst. Kesharbai had been called upon by the Munsarim to produce the original deed of mortgage. Mst. Kesharbai gave this over to her relation Ratanlal, and gave him a letter of authority and so he produced a copy of the deed before the said officer. I find it impossible to think that in the ordinary course of official business this copy was not compared with the original which Eatanlal certainly had in his possession at that very time (See the foot note on Ex. 3 itself). This copy was sent for at the trial and it was before the court, but a copy thereof appears to have been taken by the respondent and placed on this record and exhibited. If the very copy which was on the record of the Court of Wards should have been transferred to the record of the trial court, I have no doubt it would have been perfectly unexceptionable secondary evidence of the original mortgage deed. The question in these circumstances which arises is whether this copy of the copy of the mortgage deed should be excluded from evidence as inadmissible. My answer to this question is clearly in the negative.

The reason is this. The objection raised by learned counsel is, to my mind, an objection merely to the mode of proof of a document which was doubtless relevant. Such an objection to be valid should be raised at the very time a document is sought to be tendered in evidence and proved, and if not so raised, it should be deemed to have been waived, because if it had been raised, it would have been perfectly possible for the respondent to have prayed for the very copy of the document which was on the record of the Munsarim's office to be taken on this record. This view has the high authority of their Lordships of the Privy Council in Gopaldas v. Sri Thakurji AIR 1943 PC 83 (A) where they expressed themselves in the following words:

'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before the Court of appeal and then complain for the first time of the mode of proof.' In this state oi the law, I hold that the objection that the copy of the copy of the deed is not legally admissible secondary evidence is of nor avail to the appellant and hereby repel it.

10. In this connection, I also desire to add that although the initial burden of proof in a case of this character rests upon the plaintiff mortgagor to prove the mortgage by some primal facie evidence, this burden of proof is comparatively not heavy, and when the question of the quantum of the evidence required from either party is to be considered, then, as observed by their Lordships of the Privy Council in Rajah Kishen Dutt Ram Panday v. Narendar Bahadoor Singh 3 Ind App 85 (PC) (B), regard must be had to the opportunities which each party must naturally be supposed to have of giving evidence, and the consideration cannot be omitted that it is the defendant who would naturally have the mortgage deed, and it would be more in his or her power to give evidence of its contents than in that of the plaintiff.

10a. Applying this view of the law to the present case, we find that the plaintiff respondent has produced fairly good secondary evidence of the mortgage in the shape of what was virtually a copy of the mortgage deed which had been produced by Mst. Kesharbai through her agent Ratanlal before the Munsarim of the Court of Wards in Smt. 1989, and indeed there could not be better and more reliable evidence in this connection than that produced by the respondent. My finding, therefore, is that the mortgage deed of Smt. 1926 is thoroughly proved on this record.

It is true that this mortgage deed was unregistered, but there is nothing to show that the mortgage was compulsorily registrable at the time it was made in Samvat year 1926, according to the law which was in force in the former State of Mewar at that time. The plea, taken by the defendant appellant in her written statement to the effect that the document was inadmissible in evidence owing to non-registration has, therefore, no force and must be repelled.

The deed Ex. 3 along with the letter of authority at Mst. Keshar Bai widow of Hiralal dated Kati Vadi 2nd, Smt. 1987, and also the statement of Ratanlal made on the same day before the Munsarim, to my mind, clearly establish that the mortgage was acknowledged by Mst. Keshar Bai and her agent Ratanlal to be a subsisting one as late as Smt 1987, and that indeed cannot be and has not been seriously questioned on the language of these documents.

(His Lordship held that the plaintiff was the direct descendant of the deceased Jawanji and was, therefore, entitled to bring the suit. His Lordship proceeded:)

11-12. I now come to the most important contention of learned counsel for the defendant appellant, and that contention is that even if it is established that the mortgage of Smt. 1926 was proved and the acknowledgments of Smt. 1987 relied on by the plaintiff respondent were also proved, the plaintiff respondent must still prove that Mst. Keshar Bai and Ratanlal were authorised to act for Mst. Chandanbai defendant appellant, and that until this was proved satisfactorily, the plaintiff respondent's suit must still fail because any acknowledgments made by them had not the authority of the defendant Mst. Chandan Bai. Now, I have no hesitation in saying at the very outset that so far as Ratanlal was concerned, he was duly authorised by Mst. Kesharbai, the mother-in-law of Mst. Chandanbai to act for the former.

(His Lordship further held that in the circumstances Mst. Keshar Bai had implied authority to Mst. Chandan Bai and to act for her and proceeded:)

13-14. The next question is whether the acknowledgments in question are binding upon the appellant. My answer to this question is clearly in the affirmative. There is ample authority for the proposition that the authority of the agent making an acknowledgment need not always be express and it may be implied and that where it is implied, it is capable of being presumed from the attendant circumstances of a case. In Ganga Ram v. Lachman Singh AIR 1925 All 176 (C) it was held that it was unquestionable that no valid acknowledgment could be made by a general agent unless he was expressly or impliedly authorised in that behalf, but the authority may be presumed and that the question was one of inference to be drawn from the surrounding circumstances of a given case. This case was followed in Srivilliputtur Munisipal Council v. Arunachala AIR 1933 Mad 332 (D), and the same view was taken in Ebrahim Haji Yakub v. Chunilal Lalchand, ILR 35 Bom 302 (E). This view, in my opinion, receives considerable support from the decision of the Privy Council in Braja Sunder v. Bhola Nath AIR 1919 PC 120 (F) also.

15. Having regard to this state of law and the circumstances of this case, I have no hesitation in holding in agreement with the court below that Mst. Keshar Bai being the mother-in-law had implied authority to act for and to make acknowledgments on behalf of the defendant appellant. It must follow that ExSection 1 and 2 constitute valid acknowledgments of liability within the meaning of Section 14 of the Mewar Limitation Act or Section 19 of the Indian Limitation Act.

16. It was next contended by learned counsel for the defendant appellant that even if Mst. Chandan Bai had implied authority from her widowed daughter-in-law to act for her, this acknowledgment was not within time. The argument was put in this way. The period of limitation was admittedly 60 years as prescribed by Article 1 of the Mewar Limitation Act of 1988. This period expired in Smt. 1986. The acknowledgments on which the plaintiff respondent relies are said to have been made some time in Smt. 1987, and, therefore, they are clearly barred by limitation. It is further contended in this connection that Section 22 of the Mewar Limitation Act which gave a period of 8 years' grace for the filing of suits relating to causes of action for which no period of limitation was prescribed heretofore cannot be of any avail, because this cannot amount to the 'period prescribed' as used in Section 19 of the Indian Limitation Act.

I have been referred to a large number of cases in this connection on either side, and it appears that there is a divergence of judicial opinion on the question whether an acknowledgment of liability under that section, in order to be effective, must be made during the period prescribed by the First Schedule to the Act, or the period prescribed will include any period prescribed by the Act whether in the body of the Act or in the First Schedule thereof.

I consider it somewhat unnecessary for the purposes of the present appeal to go into this question, because, in my opinion, the language of Section 14 of the Mewar Limitation Act of 1988, which was in force at the time, is simple, and all it says is that if a party has made an acknowledgment admitting his liability before the expiry of limitation, then limitation shall be computed from the date of such acknowledgment. The relevant portion of Section 14 of the Mewar Limitation Act, which is in Hindi, runs as,

^^vxj e;kn xqtjus ds ifgys nwljsQjhe us dksbZ ubZ fy[kr dj nh gks fd ftlesa mlus viuh nsu&nkjh; dcwy djyh gksrks ,sls u;s fy[kr dh rkjh[k ls e;kn fxuks tkosxka A**

The language of the section is quite plain, and all it requires is that the acknowledgment should have been made before the expiry of limitation.' I am of opinion, therefore, that there is no scope for interpreting the words 'Miyad Gujarne Ke Pahle' in the light of the controversy which has arisen in the Indian Courts on account of the expression 'before the expiration of the period' prescribed for a suit or application' in Section 19 of the Indian Limitation Act.

All that the Mewar Limitation Act precribes is that the new deed or acknowledgment should have been made before the expiry of limitation. I have no hesitation in saying that Section 22 of that Act as much lays down the period of limitation for a suit as the Schedule, and it will be going too far to hold that an acknowledgment made within the period of grace under Section 22 of the Mewar Limitation Act should be held as falling outside the expression 'before the expiry of period of limitation' as used in Section 14 of that Act.

I am, therefore, clearly of opinion that the acknowledgments relied on by the plaintiff in the present case, and which were made in Smt. 1987 were certainly made 'before the expiry of limitation' within the meaning of Section 14. The result is that I hold that the present suit which was filed by the plaintiff respondent on 14-4-1948, was not barred by time within the meaning of Section 14 of the Mewar Limitation Act, 1988.

17. I may add that even if the view is taken that the same controversy which has arisen as to the meaning of the expression 'before the expiration of the period prescribed for a suit or application,' arises under Section 14 of the Mewar Limitation Act, I am disposed to hold the view that that expression includes not only the period prescribed by the First Schedule, but it includes the period prescribed by the Act, that is, in the body of the Act also, and, therefore, an acknowledgment made within the special period of grace properly falls within! the expression 'the period prescribed'.

I have been referred in support of this view to Sheo Partab Singh v. Tajammul Hussain, AIR 1927 All 114 (G). Ram Ditta Mal Ram Dhan v. Kesar Das AIR 1930 Lah 177 (2)t (H), Surya-narayanav. Venkataraju AIR 1935 Mad 64 (FB) (I), Shanker Lal v. Rana Lal Slush, AIR 1938 All 217 (FB) (J), Subbareddi v. Vrnkatramayya AIR 1945 Mad 137 (K) & Udhavji Anandji v. Bapudas Ramdas AIR 1950 Bom 94 (L). I consider it unnecessary to discuss these rulings as in my view the Full Bench decision of this Court to which I was a party in Jethmal v. Ambsingh ILR 1955 Raj 334: (AIR 3955 Raj 97) (M) clearly lend support to the view that the period prescribed in Section 19 of the Indian Limitation Act or Section 14 of the Mewar Act not only means the period prescribed by the Schedule thereof but also the period laid down or fixed by the various sections of the Act.

It follows that the contrary view taken in some other cases, namely, Nandram v. Ranchod-das AIR 1922 Nag 250 (N), Magsnlal v. Ami-chand AIR 1928 Bom 319 (O), Anisuddin Ahmed v. Kalipada AIR 1931 Cal 785 (P) and Shanti Parkash v. Harnam Das AIR 1937 Lah 642 (Q) to which I need not refer in detail, cannot be accepted as laying down the correct law so far as our Court is concerned. In any case, therefore, I am clearly of the opinion that the acknowledgments made in the present case in Samwat year 1987 were made before the expiry of the limitation, and, therefore, they effectively save limitation.

18. It was also contended on behalf of the defendant in this connection that the acknowledgments, if any, had been made in the present case in official confidence, and, therefore, the respondent should not be allowed to take advantage of them. I have carefully considered this contention and am of opinion that there is no force in it. The question of an acknowledgment having been made in official confidence or otherwise is of relevance only when the correspondence containing such acknowledgment is sought to be produced, and an objection is raised to its production under Section 124 of the Indian Evidence Act.

Where, however, the material containing the acknowledgment has already been producecd, and no such privilege is claimed, the question of the acknowledgment having been made in official confidence is, in my opinion, altogether immaterial. I may also add that there is no proof whatsoever on this record to show that such acknowledgments as had been made by Mst. Keshar Bai and Ratanlal before the Munsarim of the Court of Wards in the present case had at all been made in official confidence within the meaning of Section 124 of the Evidence Act, and, therefore, no question of any privilege arising in connection with such acknowledgment could at all. have been claimed. I have therefore no hesitation in holding that this ground is without any merit, and I over-rule it.

19. The result is that this appeal fails and is hereby dismissed with costs.


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