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Ganapathy Naicken Vs. Makki Keyi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in1Ind.Cas.204
AppellantGanapathy Naicken
RespondentMakki Keyi and ors.
Cases ReferredSee Bhojilal v. Amritlal
Excerpt:
limitation act (ix of 1871) article 148 - limitation act (xiv of 1859) section 1(15) mortgage, suit for redemption of--acknowledgment by mortgagee of mortgagor's rights to redeem--limitation. - - k 173. we are not satisfied that the acknowledgments relied upon, assuming them to have been made, were made by a party in whom the entirety of the mortgagee's rights were vested. 5. there will be a declaration that, the mortgage of 1841 has not been satisfied......we now have to determine is whether the plaintiffs claim to redeem the mortgage of 1815 is barred by limitation. the district judge has found that the bar of limitation is saved by admission. he relies on certain documents mentioned in his finding. if there had been no acknowledgment by the mortgagee, the claim would have become barred in 1875.2. the question must, therefore, be decided with reference to the law of limitation in force at that time. article 148 of the act of 1871 is in the same terms as section 1, clause 15, of the act of 1859, which requires an acknowledgment in writing of the mortgagor's right of redemption signed by the mortgagee or some person claiming under him.3. the documents, relied on by the district judge as evidence of acknowledgments, are exhibits d.j......
Judgment:

1. The question we now have to determine is whether the plaintiffs claim to redeem the mortgage of 1815 is barred by limitation. The District Judge has found that the bar of limitation is saved by admission. He relies on certain documents mentioned in his finding. If there had been no acknowledgment by the mortgagee, the claim would have become barred in 1875.

2. The question must, therefore, be decided with reference to the law of limitation in force at that time. Article 148 of the Act of 1871 is in the same terms as Section 1, Clause 15, of the Act of 1859, which requires an acknowledgment in writing of the mortgagor's right of redemption signed by the mortgagee or some person claiming under him.

3. The documents, relied on by the District Judge as evidence of acknowledgments, are Exhibits D.J. and II. Assuming that these documents are admissible as evidence, that acknowledgments have been made and signed, we are of opinion that they do not operate so as to prevent the suit from being barred by limitation. The acknowledgment to be effective for the purpose of saving limitation must be an acknowledgment by some person claiming the entirety of the mortgagee's rights. See Bhojilal v. Amritlal 17 B.k 173. We are not satisfied that the acknowledgments relied upon, assuming them to have been made, were made by a party in whom the entirety of the mortgagee's rights were vested.

4. We must, therefore, hold that the plaintiff's claim to redeem the mortgage of 1815 is barred by limitation.

5. There will be a declaration that, the mortgage of 1841 has not been satisfied. The parties will bear their own costs in the Court of First Instance and in the lower Appellate Court.

6. The plaintiff will pay the 26th defendant's costs in this Court.


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